Duke Energy Spending Billions of Dollars to Address Coal Ash Pollution in North Carolina

A press release issued by the N.C. Department of Environmental Quality (DEQ) on April 1, 2019 (https://deq.nc.gov/news/press-releases/2019/04/01/deq-orders-duke-energy-excavate-coal-ash-six-remaining-sites), stated that “DEQ ordered Duke Energy Progress, LLC to excavate all remaining coal ash impoundments in North Carolina.  After conducting a rigorous scientific review of Duke Energy’s proposals for Allen, Belews, Cliffside/Rogers, Marshall, Mayo and Roxboro facilities, and conducting public listening sessions in impacted communities, DEQ has determined excavation of all six sites is the only closure option that meets the requirements of Coal Ash Management Act to best protect public health.  The coal ash must be disposed of in a lined landfill.” An article posted by Utility Dive (https://www.utilitydive.com/news/duke-north-carolina-coal-ash-pond-excavation-order-to-cost-4-5b/551788/) stated that “Duke estimates costs to comply with the new order will add $4-5 billion to the current $5.6 billion clean up, covering construction and engineering as well as transporting the actual waste….” According to Utility Dive, “[t]he decision by North Carolina regulators to require excavation rather than “cap-in-place” echoes similar directives from state leaders and utilities in Virginia and Georgia, representing wins for environmentalists who argue the only safe way to protect groundwater from coal ash is to fully excavate the ponds and move the ash to plastic-lined pits or recycle it.  Most utilities prefer the “cap-in-place” method,” which is a significantly less expensive remediation alternative.

Environmental Liability Take-Away: Do not put your guard done just because a waste stream has been excluded from RCRA Subtitle C requirements for hazardous waste.  When it comes to management of wastes, avoid the penny-wise dollar foolish approach.

Remember: the definition of hazardous substances under CERCLA is broad; RCRA hazardous wastes are merely a subset of CERCLA hazardous substances.  Having cut my teeth as a CERCLA enforcement attorney assigned to large mining sites that were the subject of extensive and expensive removal and remedial actions, I have always cautioned clients and students to be mindful of potential response action exposure from the failure to properly manage and dispose of substances that are not hazardous wastes under RCRA but are hazardous substances that may pose an imminent and substantial endangerment to human health or the environment.  Thus, generation of mining wastes that are “Bevill-exempt” from RCRA hazardous waste designation, may still result in CERCLA liability.  Used oil is another example.  Generators of used oil, which is not a listed hazardous waste and is subject to relaxed standards under 40 CFR Part 279, have been identified as potentially responsible parties (PRPs) when their used oil ended up at NPL sites. 

In my mind, management of coal ash is subject to the same paradigm.  In the absence of strong regulatory standards, industry adopted standard operating procedures for coal ash disposal that in hindsight have proven to cause substantial environmental damage and are now deemed to be inadequate.  As a result, much like the hard rock mining industry in the Rocky Mountain region, enormous response costs are now being borne by utilities who have generated and disposed of coal ash in the past. 

Finally, do not allow the reduced specter of environmental enforcement and response action exposure under the current Administration to lull you into a false sense of security.  Powerful state laws like the North Carolina Coal Ash Management Act (CAMA) and active attention from environmental groups and stakeholders remain a viable force.  Moreover, the environmental regulatory pendulum will swing back… probably with a vengeance.  So, keep your eyes open, keep doing your due diligence to comply with environmental requirements and minimize response action exposure.  In other words, don’t lead with your chin!