Duke Energy's Cliffside Steam Station, located in Rutherford County, is pictured here in an archive photo from 2011. Image courtesy of Duke Energy.

Duke Energy will appeal a state order to remove all coal ash from nine unlined storage sites across North Carolina, the company announced Thursday.

“The process by which the N.C. Department of Environmental Quality arrived at its decision lacked full consideration of the science and engineering, and we will provide those details when we file an appeal before the North Carolina Office of Administrative Hearings in the near future,” said a statement Duke released Thursday morning.

Environmental advocacy organizations that had been quick to applaud the state’s April 1 order were also quick to scoff at Duke’s statement Thursday.

“Duke’s tactic is delay,” said Frank Holleman, senior attorney at the Southern Environmental Law Center, in a phone interview with Carolina Public Press.

“They’ve got to know that the chances of them prevailing are small. They’ve got to see that the world is closing in on them.”

Holleman pointed to recent initiatives in South Carolina and Virginia that forced Duke and other utility companies to excavate stored coal ash without passing those expenses on to consumers.

He said the SELC is considering filing to intervene in Duke’s appeal. Holleman also expressed hope that communities adjacent to Duke storage facilities would have the opportunity to be heard before the Office of Administrative Hearings, which is a quasi-judicial state agency.

Duke has repeatedly said the state is ignoring the best science in pushing the agency to remove coal ash, an assertion it repeated Thursday. Holleman, whose agency represents a coalition in a civil action seeking Duke’s removal of coal ash, strongly disputed Duke’s appeal to science.

“In this process, Duke had no convincing information,” he said, noting also that the strong public push for coal ash storage site closure means removal and not simply capping of coal ash.

In its initial response to the April 1 order and again in its announcement this week, Duke referenced the cost to its consumers if the company is forced to remove the waste. “The order by the NC DEQ to excavate the final nine ash basins would impose a financial burden on our customers and the economy of the Carolinas through the most expensive and disruptive closure option possible,” Thursday’s statement said.

However, who would have to pay is not so clear. If Duke wanted to pass costs on to ratepayers, it would have to get permission from the N.C. Utilities Commission, which could instead decide that costs should be borne by the company.

The idea that Duke Energy is genuinely concerned about its consumers would convince “no person in her or her right mind,” Holleman said, noting the high pay level of top Duke Energy officials.

“There is no institution on earth better able to bear the cost,” Holleman said. He also blamed Duke’s past choices for creating this potentially costly situation for the company.

Under the April 1 order from DEQ, Duke is expected to file its plans for compliance by Aug. 1. It was unclear Thursday how Duke’s legal challenge would affect this deadline. Duke has said that DEQ’s mandate to close the sites through excavation of the ash rather than other means would prevent the company from meeting previously imposed state and federal deadlines to deal with the sites.

Gov. Roy Cooper announced his strong support for DEQ’s position when the order was announced. “We’ve seen the damage this pollution can do, including the families who had to live for years on bottled water until we were able to get them connected to permanent water solutions,” Cooper said.

“Now the cleanup of the remaining coal ash needs to move ahead efficiently and effectively.”

The nine affected sites are scattered across the Piedmont region, from the Cliffside/Rogers site in Rutherford and Cleveland counties in the southwest to a Roxboro site in Person County near the center of the state’s northern border.

DEQ issued a brief state Thursday afternoon in  response to Duke’s announcement.

“DEQ stands by its assessment and conclusions that all coal ash in North Carolina must be excavated,” said Megan Thorpe, DEQ’s director of public affairs.

Editor’s note: This article has been updated to include a statement from the Department of Environmental Quality that was released after the article was first posted.

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Frank Taylor is the managing editor of Carolina Public Press. Contact him at ftaylor@carolinapublicpress.org.

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