North Carolina’s environment department decided Wednesday that all of Duke Energy’s coal ash ponds must be excavated – but only for now.
The Department of Environmental Quality said it will ask legislators to change the state’s coal ash law to let DEQ reconsider its decisions in 18 months.
That would give Duke time to fix ash pond dams and, possibly, offer permanent alternative water sources to hundreds of homes with contaminated wells. It could also save Duke billions of dollars.
DEQ secretary Donald van der Vaart said deadlines spelled out in the law are too short for Duke to make repairs.
“Making decisions based on incomplete information could lead to the expenditure of billions of dollars when spending millions now would provide equal or better protection,” he said in a statement.
Duke Energy has estimated the costs of closing its N.C. ash ponds at $4 billion but said in a securities filing Wednesday that costs would “significantly increase” if DEQ’s risk classifications are upheld. Duke has said it would seek approval to pass those costs to customers.
A later reversal of the department’s decisions could leave most of Duke’s ash in place. Environmental advocates, and neighbors who live near Duke’s power plants, insist that excavating ash is the only way to protect water supplies.
In December, DEQ proposed labeling ponds at three plants low-risk and those at four more plants of low-to-intermediate risk because of incomplete data. Together, the ponds at those plants hold 64 percent of Duke’s ash.
The Waterkeeper Alliance, one of the advocacy groups that have sued Duke over ash contamination, disparaged DEQ’s announcement Wednesday.
Staff attorney Pete Harrison said Gov. Pat McCrory’s administration “is making a mockery of the law and continuing to cower away from taking one iota of meaningful action to clean up leaking coal ash dumps. To this day, McCrory’s DEQ has not required Duke Energy to clean up one ounce of coal ash anywhere in the state.”
Under the 2014 coal ash law, which followed a large spill of ash into the Dan River, eight of Duke’s ponds were labeled high risk. The ponds are near Charlotte, Eden, Asheville and Wilmington. The law required that they be drained of water and excavated by 2019.
In Wednesday’s decision, DEQ called the remaining 25 ponds intermediate risks, meaning they have to be dug up by 2024. Most are in the Piedmont northeast of Charlotte.
The risk of contaminated groundwater drove the department’s findings for 25 ponds. Contaminants have been detected under each of Duke’s 14 coal-fired power plants and in hundreds of nearby private wells. Duke says ash is not the source, but the state has not reached a conclusion.
Ash contaminants flowing into rivers or lakes for 15 ponds – DEQ cited Duke’s power plants statewide for illegal seeps in March. The risk of failing dams drove the department’s findings for 18 ponds.
DEQ’s decisions become final in 60 days, in the absence of an oversight panel created in 2014. Gov. Pat McCrory disbanded the Coal Ash Management Commission in March after the state Supreme Court ruled that legislative appointments were unconstitutional.
Legislators have moved in recent days to revive the commission and its oversight role. A bill to reinstate the commission was expected to be filed last week but was pulled at the governor’s request so talks could continue.
Duke Energy said it is continuing to research ash issues but that changes to the state law are needed.
Duke says most of its ash ponds pose no risk to neighbors and should be assigned low-risk ratings. That would allowing more options in closing the ponds, including capping ash in place or recycling it, and save customers money by reducing cleanup costs.
“If DEQ’s proposed recommendations are allowed to stand, without review and possible adjustments based on additional new information, the state will have chosen the most extreme closure option that will have a significant impact on customer costs and hinder economic development,” Duke said in a statement. “In addition, it will cause decades of disruption to communities, all without additional, measurable environmental benefits. Given the scope of work, there is significant risk in meeting excavation deadlines by 2024.”