ALJ Favors NCDEQ on Two Claims in Duke Energy Coal Ash Appeal

On Monday, October 28, 2019, an Administrative Law Judge (ALJ) ruled in favor of North Carolina Department of Environmental Quality (DEQ) granting a motion for partial summary judgement on two specific claims in Duke Energy's appeal of DEQ's April 1, 2019 decision to require excavation closure plans for six (6) Duke Energy Facilities. Duke appealed the DEQ decision to the North Carolina Office of Administrative Hearings (OAH) on April 26, 2019. The two claims from the appeal decided in favor of DEQ were:

• DEQ erred by failing to provide adequate notice and depriving Duke Energy of a meaningful opportunity to be heard prior to DEQ's closure election decision.
• DEQ erred in directing Duke Energy to submit only one closure plan per impoundment.

On August 2, 2019, the same ALJ, Selina Malherbe, dismissed claims in Duke Energy's appeal that DEQ had erred by selecting the method of closure, erred in deciding the method of closure before Duke Energy submitted closure plans, erred in application of a comparative standard rather than the yes-or-no standard for review of closure plans, and erred in determining that closure must be fully implemented by December 31, 2029.

Duke Energy appealed the August 2 ruling to State Superior Court and could do the same for the October 28 ruling.