NC fines Duke for coal ash leaks near Wilmington

Posted March 10, 2015 3:07 p.m. EDT
Updated March 10, 2015 8:36 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.

— North Carolina regulators have hit Duke Energy with a $25.1 million fine related to contamination from a coal ash pond at its L.V. Sutton Steam Plant near Wilmington.

The fine is record-setting in terms of other penalties issued by the Department of Environment and Natural Resources but is small compared to the scale of the company's profits, which totaled $1.9 billion in 2014.

"Our procedures for assessing penalties are defined in our rules and our statutes, and we followed those where they lead us," DENR Secretary Don van der Vaart said Tuesday. "This $25 million fine is certainly the largest in my experience. It is a fine that was developed based on the large amount of information we have on the Sutton facility."

Van der Vaart said it was possible the state would issue more fines.

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.

It was one of those pits under which a pipe ruptured on Feb. 2, 2014, spilling 39,000 tons of ash into the Dan River. Federal regulators have charged the company criminally in connection with its handling of coal ash.

The state has cited Duke before for specific instances of mishandling ash, but this is the first fine for what environmental advocates describe as ongoing spills throughout the state. Rather than dumping tons of materials all at once, environmental groups have alleged the company is slowly leaking toxins into both groundwater supplies and rivers and streams.

"This doesn't eliminate or clean up one ounce of coal ash pollution at Sutton Lake," said Frank Holleman, a lawyer for the Southern Environmental Law Center who has been pursuing litigation against Duke over coal ash for years on behalf of environmental nonprofits.

The state is a co-plaintiff in that case after initially being at odds with environmental groups. In 2013, DENR fined the company $99,000 but withdrew that action after the Dan River spill focused attention on the coal ash issue.

The lawsuits brought by environmental groups, Holleman said, gave both the state and Duke notice of the contamination in both the lake and groundwater supplies near Sutton Lake in June 2003, he said. While the fine may or may not chasten the company, he said, it does not force Duke to clean up the contamination that's already made drawing drinking water from the groundwater there impossible.

In a statement Tuesday, Duke tried to deflect blame back on state regulators. Spokesman Jeff Brooks wrote:

We are working quickly to close ash basins, including those at the Sutton Plant, which will help address impacts to groundwater. We hope DENR will move soon to provide the necessary approvals so we can begin moving ash at Sutton and other sites.

We have no indication of any off-site groundwater impacts that would pose a health concern for neighbors that have not already been addressed.

We have been monitoring groundwater at the Sutton Plant ash basins since 1990 and routinely report that data to state regulators. We’re currently following a state-directed process to enhance groundwater assessments at our facilities. The information will add clarity to current data, inform closure decisions and help determine any future monitoring requirements.

"They've got their priorities backwards," Holleman said for DENR.

Environmental groups have long complained that DENR impeded, rather than helped, efforts to bring actions against Duke until the Dan River spill.

Van der Vaart insisted that the McCrory administration was acting aggressively to address the coal ash problem.

"We're leading the nation in dealing with coal ash," he said.