Groups who successfully sued for coal-ash cleanups in Asheville and other sites have come out strongly against state regulators’ New Year’s Eve announcement of coal-ash basin priorities.

Barely meeting a legislative mandate to classify Duke Energy’s coal ash basins throughout the state by end of the year, Department of Environmental Quality officials on Thursday released an executive summary, along with a video and map of the new classifications, which helps determine what types of options are open for each site.

Detailed descriptions and data used to make the decision are to be released within 30 days, department officials said.

DEQ’s draft classifications retain the high-priority status for Asheville and three other key sites in the state, while putting basins at the James E. Rogers Energy Complex, formerly known as Cliffside, in Rutherford and Cleveland counties on the list of low and low-intermediate sites, the lowest levels of risk.

Advocate criticism

Frank Holleman, a lead coal-ash attorney for the Southern Environmental Law Center, said the classifications are another indication that the state is unwilling to require Duke Energy to clean up any more sites than the company originally agreed to after the Dan River coal-ash spill in February 2014.

The department, he said, failed to classify any more sites as high risk, giving the utility more opportunities to avoid comprehensive cleanup of dozens of basins throughout the state.

“It’s a total failure of a bureaucracy unable to do its job,” Holleman said.

DEQ officials said the department is working to meet legislative deadlines while making sure that decisions going forward have a sound basis.

“These draft proposed classifications are rooted in environmental science and will only be finalized after considering public comments,” said a statement from Tom Reeder, DEQ assistant secretary.

“DEQ is committed to upholding the integrity of the coal ash law by making decisions based exclusively on science and public comment.”

Environmental groups have criticized DEQ’s moves, calling out Secretary Donald van der Vaart for overruling previous staff recommendations for adding additional sites to the high-priority list.

Last week, van der Vaart defended his decision with the release of the new classifications.

“I am disappointed that special-interest groups attempted to corrupt the process by leaking an early draft that was based on incomplete data,” van der Vaart said in a statement.

“The draft classifications released today reflect the latest environmental science.”

Executive-Summary-FINAL-Dpc (Text)

Cleanup plans

Holleman said the new classifications won’t affect the Asheville plans for cleanup and removal because the plant is one of four sites listed as a high priority by statute.

Coal ash being reused at Asheville's airport comes from Duke Energy's Lake Julian power plant, seen here. (Photo by Frank Taylor)
Coal ash being reused at Asheville’s airport comes from Duke Energy’s Lake Julian power plant. Frank Taylor/Carolina Public Press

“They (DEQ) are out of the game on those,” he said.

Other sites like Cliffside, he said, should be a big concern because of the location of unlined basins near waterways.

“It’s in limbo,” Holleman said of the Cliffside site. That’s frustrating, he said, because there’s a lined landfill already on the property that can be used.

“It would be one of the easier sites to clean up,” Holleman said.

The new classifications are just the first step in the process of developing plans for all 14 sites. DEQ is required to release details of its analysis by the end of January and posts summaries in local newspapers. That will open a public-comment period on the classifications followed by public hearings in the host counties for each site.

Holleman said with the governor and the legislature at odds over how best to handle the state’s role in regulating coal ash, public input over the plans could play a big role as it did during the backlash over the Dan River spill.

“We’ve seen that DEQ wants to water down the ratings,” he said. “If there is a public outcry that can change.”

A statement released last week by Duke Energy said the company would look forward to more information on what the state would ultimately require.

“We appreciate the work that has gone into developing these preliminary recommendations,” the statement read in part.

“We’re particularly interested in understanding how the state is balancing the requirements of the Coal Ash Management Act (CAMA) to ensure the environment is well protected without unnecessary cost and impact to customers and communities.”

Legislative reaction

Rep. Chuck McGrady, R-Henderson, said he expects the legislature to conduct a review of DEQ’s work along with other updates on coal ash issues.

Rep. Chuck McGrady, R-Henderson
Rep. Chuck McGrady, R-Henderson

McGrady told Carolina Public Press on Monday that he had yet to review the DEQ report. He said a meeting of the legislature’s Environmental Review Commission scheduled for next week would likely include an update of “all things coal ash.”

One lingering concern, McGrady said, was resolution of a legal battle between the administration and the legislature over the legality of legislative appointments to the Coal Ash Management Commission.

A ruling last year found that the commission, created by the legislature to monitor and manage coal-ash use, storage and cleanups, violated the separation of powers provisions of the North Carolina Constitution.

The case was appealed to the North Carolina Supreme Court, which has yet to rule.

McGrady said legislators had hoped to see a ruling by now.

12-31-15-FAQ-Classification-Final (Text)

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Kirk Ross was the former capital bureau chief for Carolina Public Press. To contact the Carolina Public Press newsroom, email

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