Duke settles coal ash lawsuit by environmental groups over Buck plant

Yadkin Riverkeeper and Waterkeeper Alliance, represented by the Southern Environmental Law Center, have reached a settlement with Duke Energy (NYSE: DUK) that requires the removal of all the coal ash from the unlined coal ash pits at the Buck facility on the Yadkin River in Salisbury, North Carolina.

The center said in an Oct. 5 announcement that under the settlement, a copy of which it has issued, Duke Energy must remove all the coal ash and either recycle it into concrete or put it in a modern lined landfill away from the Yadkin River and separated from groundwater and drinking water sources. Duke Energy plans to set up a concrete recycling facility at the Buck site much like the ones serving South Carolina utilities which entered into similar settlements with conservation groups in 2012 and 2013, the center noted.

“After two years of fighting the largest utility in the country, the Dukeville community will finally be assured of the two things we have been fighting for: a long-term supply of clean drinking water and meaningful ash clean up,” said Yadkin Riverkeeper, Will Scott. “After years of litigation and controversy, Duke Energy has finally entered into a binding agreement that requires them to do what the community and Riverkeepers have been asking all along – remove their ash from unlined pits sitting deep in groundwater.”

This settlement was reached in federal litigation brought by the Southern Environmental Law Center in the U.S. District Court for the Middle District of North Carolina. The North Carolina Department of Environmental Quality, which the center often criticizes as being lax on ash enforcement, is not a party to that litigation and is not a party to the settlement.

In response to litigation and advocacy by conservation groups in North and South Carolina, Duke Energy is now required to excavate the coal ash from 10 of its 16 coal ash storage locations in the two states. Litigation continues as to Duke Energy’s unlined coal ash storage at: its Mayo and Roxboro facilities in Person County, North Carolina; its Cliffside facility on the Broad River in North Carolina; its Allen and Marshall facilities on the Catawba River near Charlotte; and its Belews Creek facility in Stokes County, North Carolina.

“This settlement is the latest in a long line of agreements we’ve obtained from utilities to abandon dangerous, unlined storage of coal ash for safe, dry lined storage or recycling for concrete,” said Frank Holleman, senior attorney at the Southern Environmental Law Center who argued the case before the federal court. “Duke Energy’s finally done the right thing for this community by entering into a binding agreement that requires the coal ash to be removed and recycled, just as has been done in South Carolina.”

Duke Energy stores approximately 5 million tons of coal ash at the Buck facility. The conservation groups have been pressing litigation against Duke Energy for its coal ash storage at the Buck site since 2013, and the federal suit was filed in 2014. The conservation groups were able to bring a federal court action because the North Carolina Department of Environmental Quality had not taken action against all of Duke Energy’s coal ash pollution violations at Buck. In 2015, the federal court found that it could not conclude that DEQ was diligently prosecuting Duke Energy in good faith for its Buck pollution.

For years, South Carolina utilities have been pursuing similar solutions to unlined coal ash storage pits in that state. This settlement is very similar to others that have reached with South Carolina utilities. Today, a concrete reprocessing facility is being operated to recycle the ash from Santee Cooper’s unlined coal ash pits in South Carolina, the center noted. Santee Cooper settled with conservation groups in 2013.

Duke Energy on Oct. 5 announced plans to remove coal ash from three basins at the Buck Steam Station and safely recycle the valuable material for concrete. “This important step forward provides certainty for neighbors about our closure plans and allows us to recycle more coal ash to benefit our customers and North Carolina’s economy,” said David Fountain, Duke Energy’s North Carolina president.

It noted that much of the ash stored in basins has too much carbon to be used in concrete products. To make coal ash more suitable for recycling, Duke Energy is making additional, significant investments in technology designed to reprocess coal ash from basins. North Carolina’s coal ash law encourages even more recycling and requires the company to install three recycling units across the state, making 900,000 or more tons of material available each year. In 2015, Duke Energy recycled nearly two-thirds of the ash produced across its states.

This Oct. 5 announcement is well ahead of state deadlines for announcing locations for recycling units. The locations for the second and third units are still being evaluated, and a decision is expected in the coming months. Next, the company will work with the North Carolina DEQ to acquire necessary permits and begin processing material.

Duke Energy’s plan to remove and recycle ash at the Buck facility also addresses the issues in the lawsuit brought by the Southern Environmental Law Center (SELC). Both Duke Energy and SELC will make the necessary court filings to dismiss that case.

A recent evaluation conducted by the Electric Power Research Institute (EPRI) confirmed recycling ash for concrete as one of the most practical and proven uses of the material. The study examined well-established uses for ash, commercial beneficiation technologies and innovative technologies. It also helped identify locations for recycling units that are in close proximity to demand for the material, while also being compatible with the volume and type of ash at the sites.

About Barry Cassell 20414 Articles
Barry Cassell is Chief Analyst for GenerationHub covering coal and emission controls issues, projects and policy. He has covered the coal and power generation industry for more than 24 years, beginning in November 2011 at GenerationHub and prior to that as editor of SNL Energy’s Coal Report. He was formerly with Coal Outlook for 15 years as the publication’s editor and contributing writer, and prior to that he was editor of Coal & Synfuels Technology and associate editor of The Energy Report. He has a bachelor’s degree from Central Michigan University.