Duke to appeal state fine for leaky coal ash pond

Posted March 24, 2015 5:58 p.m. EDT

Pete Harrison, a staff attorney with the Waterkeeper Alliance, expamines core samples taken from the Dan River near Milton on Jan. 30, 2015. The samples show a layer of coal ash between layers of clay and sediment.

— Duke Energy said Tuesday that it plans to appeal a $25.1 million fine state regulators levied two weeks ago for contamination from a coal ash pond at its L.V. Sutton Steam Plant near Wilmington.

The fine is the largest ever imposed by the state Department of Environment and Natural Resources, and officials said more penalties are possible regarding leaks from other coal ash ponds Duke maintains in North Carolina.

Federal regulators have charged the company criminally in connection with its handling of coal ash.

Coal ash is the material that's left over when coal is burned for fuel. While much of it is inert, it does contain toxic levels of certain substances, such as thallium, mercury, lead and other materials harmful to humans and wildlife.

For decades, coal ash has been stored in unlined pits and mixed with water, and a pipe under one of those pits ruptured last year, spilling tons of ash into the Dan River and focusing more state attention on the issue.

"This is a difficult step, but we cannot allow this level of regulatory overreach to go unchallenged," Paul Newton, Duke's president for North Carolina operations, said in a statement. "The actions by NC DENR send a chilling message to the North Carolina business community."

The company will file a formal appeal with the state Office of Administrative Hearings by April 9 that demonstrates specific instances where it believes DENR acted contrary to law, exceeded its authority or jurisdiction and didn't follow proper rules and procedures, Newton said.

"We take very seriously our responsibility to care for the communities around our facilities. That's why we monitored groundwater at the Sutton plant, routinely shared data with the state and voluntarily acted to ensure local residents continue to have a high-quality water supply," he said. "Our work has been proactive and focused on the well-being of the community. We took accountability and addressed the issue at Sutton ourselves."

Environmental groups contend that both Duke and DENR have known for years that the ash pond at the Sutton plant and other power plants have been leaking toxins into groundwater and nearby rivers and streams. They also bemoan the fact that regulators haven't required Duke to clean up the contamination.

A state law adopted last year requires Duke to close down all of its ash ponds within 15 years. A commission was set up to establish a priority list for the effort.

"We are as committed as ever to closing ash basins in ways that protect groundwater," Newton said. "We will continue to advance those plans while we sort through this separate legal issue."