“They didn’t give up”

 

We will be blogging individual articles from The League Line, our quarterly newsletter

Link to Winter 2021 League Line: https://www.bredl.org/theleagueline/Winter2021.pdf

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By Cathy Cralle-Jones, Law Office of F Bryan Brice Jr.

 

December 16, 2020 marked the end of a six-year struggle by BREDL, Chatham Citizens Against Coal Ash, and EnvironmentaLee to protect their communities from the legacy of generations of improper coal ash waste management.  Like a reserve quarterback called in to finish the game, I was privileged to be called on to help finish the legal challenge initiated by BREDL after John Runkle’s retirement. 

Undeterred by the proverbial “it’s a done deal, why bother” commentary, BREDL and its chapters fielded a team to try to stop the mounds of ash heading for their communities, and organized quickly.  They presented substantial comment and evidence at the public hearings challenging the safety of the planned ash disposal and its likely impacts on the communities, and filed their Contested Case Petitioners only two days after the permits issued.  After a December, 2015 hearing, BREDL lost the initial fight before North Carolina Office of Administrative Hearings Judge Lassiter who ruled, even before hearing evidence from DEQ or Charah, that the permits were valid.  Again undeterred, in June of 2016, BREDL appealed Judge Lassiter’s final decision to Chatham County Superior Court.  In November of 2016, Judge Fox reversed, in part, Judge Lassiter’s decision.  Fox held that, to the extent that they allowed the placement of ash in “areas not already mined or otherwise excavated”, the permits were void.¹ 

Many voices continued to say it was a “done deal” and a waste of time to try to challenge Duke Energy and its contractors, and encouraged BREDL to stand down.  Committed to protect their community and the environment, they didn’t give up. 

At the August 2019 continued hearing, I was not allowed to offer new evidence, and was allowed only limited cross examination of DEQ witnesses.  Observers said it was like watching David fight Goliath with one stone and arms tied.  However, on December 13, 2019, to everyone’s surprise, Judge Lassiter issued her ruling.  This time she aligned with Judge Fox and held that, to the extent that the permits allowed placing ash in areas that had not been previously excavated prior to June 2015, the permits were void.²  As a result of their courage, persistence, and cooperation in larger struggles regarding coal ash management, BREDL and its chapters were able to check the “win” column on this one.  

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¹  This decision was appealed to the North Carolina Court of Appeals, which remanded the case back to the original Administrative Law Judge.

 ² This led to the cases being settled in December, 2020.