Judge: No more excavation on coal ash sites in Moncure, Lee County

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MONCURE — Coal ash storage company Charah will no longer be allowed to excavate land and place coal ash in the Brickhaven coal ash site in Moncure and proposed Colon coal ash site in Lee County, according to a ruling handed down Monday by the state Office of Administrative Courts.

Judge Melissa Owens-Lassiter’s ruling stipulated the N.C. Department of Environmental Quality operated “outside its jurisdiction” in giving permits to Green Meadow, a Charah subsidiary, to expand excavation for coal ash storage outside of previously-mined land.

The ruling came in response to a lawsuit filed by Blue Ridge Environmental Defense League (BREDL), Chatham Citizens Against Coal Ash Dump (CCACAD), and EnvironmentaLEE (ELEE). The groups initially filed the lawsuit in December 2015 arguing that the permits, which were issued in just seven months and were for “mine reclamation,” were improper as both of the planned coal ash sites would extend beyond what areas had previously been mined.

What this means for the Brickhaven site’s future and Chatham County’s future with coal ash is uncertain, according to Chatham County Commissioner Diana Hales.

“Since the ruling from the Administrative Court Judge is against the DEQ permitting agencies, we don’t know how this impacts the Brickhaven site,” Hales said. “The site is under closure procedures and some of the coal ash is within areas that the judge appears to say should not have been included in the DEQ issued permits.”

Hales asked county staff during a commissioners meeting Monday night to determine what next steps would be.

“We are reviewing the judge’s decision and will be contacting DEQ to understand what this may mean for the Brickhaven site in Moncure,” County Manager Dan LaMontagne said. “That site is no longer receiving coal ash and is in the process of being capped and closed.”

The environmental groups initially filed the lawsuit in December 2015. The case went through the Office of Administrative Courts which was initially denied at that time, was appealed to both Superior Court and the Court of Appeals, which remanded it back to the Office of Administrative Courts.

The hearings over the years included numerous statutes involving both mining law and CAMA, the Coal Ash Management Act, the law the General Assembly in Raleigh passed in response to the 39,000 tons of coal ash that spilled into the Dan River in 2014. That law created new rules that expedited the cleanup and removal of outdated coal ash sites, particularly those at the Dan River Steam Station and the Sutton Plant in Wilmington. Duke Energy, the owner of the coal ash basins, contracted with Charah to place that coal ash in the Brickhaven Site in Moncure. Because of other North Carolina statutes, the county had little recourse in the decision as all permitting was done through NCDEQ, but the commissioners were able to negotiate a financial settlement in exchange for the coal ash disposal.

Judge Owens-Lassiter found that CAMA was “designed to, among other things, ‘prohibit construction of new or expansion of existing coal combustion residual surface impoundments’ to ‘prevent the creation of new coal ash waste dumping grounds.’”

“Therefore, allowing coal as structural fill on areas not previously mined or excavated violated this legislative intent and thus, is an impermissible construction of CAMA,” Judge Owens-Lassiter said in the court’s final decision.

The ruling stated that the actions at both sites were not a “reasonable rehabilitation of the affected land for useful purposes as also required by state statute. Owens-Lassiter also noted that excavation made on the sites for the sole purpose of disposing of coal ash “does not constitute structural fill ‘to reclaim open mines.’”

Ultimately, the judge ruled that the Division of Waste Management acted “outside of its jurisdiction” in issuing the permits and revoked the permits, preventing any further excavation for the purpose of filling with coal ash.

Reporter Casey Mann can be reached at CaseyMann@Chathamnr.com.