Duke Energy asked Thursday that $25.1 million in state fines for groundwater contamination at a Wilmington power plant be dismissed, arguing the penalty doesn’t fit the offense.
Duke had called the state-record fines by the state Department of Environment and Natural Resources last month “regulatory overreach.”
The 47-page appeal filed Thursday claimed the fines “represent a complete deviation from DENR’s history of responsible regulation and ... are entirely divorced from any consideration of cooperation by Duke Energy or concern for public health.”
The state fines followed a year of regulatory and legal intrigue after Duke’s spill of potentially toxic coal ash into the Dan River.
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DENR fined Duke for ash elements found in test wells around the Sutton plant in Wilmington. Pollutant concentrations had broken state standards for as many as five years, state documents showed.
Department spokesman Drew Elliot said Thursday the fines were intended “to hold Duke Energy accountable” for the contamination.
“The state agency calculated the penalty in accordance with state law,” he said by email.
The fines were the state’s largest for environmental damage, quadrupling the $5.7 million levied as part of a 1986 air-quality case against phosphate mining company Texas Gulf. Duke said North Carolina’s largest fine in a water case was $729,000 against International Paper in 1984.
Duke filed its appeal with the state Office of Administrative Hearings, where it will be heard by an administrative law judge. That judge’s decision may be appealed to Superior Court.
Among a litany of objections, Duke charged that the state knew for years about groundwater contamination at Sutton but took no enforcement action.
Duke said it had monitored groundwater at the plant for more than 20 years and, in 2006, reported elevated levels of boron and manganese to the state. A discharge permit for Sutton renewed by DENR in 2011 included groundwater monitoring.
Duke acknowledged contamination at the plant in late 2013, when it agreed to pay up to $1.8 million for a water line to a low-income community near the plant.
“We closely monitored groundwater, shared the data with the state for decades, and voluntarily acted to ensure residents near the Sutton plant continue to have a high-quality water supply,” Duke’s state president, Paul Newton, said in a statement.
Duke charged that DENR, in assessing the fines, ignored the presence of other potential pollution sources near Sutton, including a municipal landfill that it said had also contaminated groundwater.
Duke argued the state didn’t detail factual support for the fines and cited continuous violations although groundwater was tested only periodically. The state hasn’t approved Duke’s requests to excavate ash from Sutton’s two ponds.
DENR had sued over Duke ash contamination at all 14 of its coal-fired power plants in North Carolina in 2013, before the Dan River spill. The lawsuits are still before the courts.
Duke negotiated a $102 million settlement of criminal charges linked to coal ash that were brought by federal prosecutors statewide in February. That settlement was scheduled to go before a federal judge in Greenville next Thursday, but Duke this week asked for a delay.