N.C. fines Duke Energy $6.6 million for Dan River spill

North Carolina’s environmental agency has finally fined Duke Energy $6.6 million for its February 2014 spill of coal ash into the Dan River.

The fine accounts only for violations Duke pleaded guilty to in federal court last May, the Department of Environmental Quality said. The agency said it could add fines for other spill-related violations.

“The state is holding Duke Energy accountable so that it and others understand there are consequences to breaking the law,” environment secretary Donald van der Vaart said in a statement Tuesday.

Duke said the company “will review the action taken by DEQ today as we continue to work as quickly as the state process will allow to safely close coal ash basins.”

The fine, which Duke may appeal within 30 days, follows a $102 million settlement in May of federal criminal charges over Duke’s ash handling.

Half the fines in the federal case stemmed from the Dan River spill, in which Duke ignored earlier warnings about the 48-inch stormwater pipe that failed under a 27-acre coal ash pond.

Federal prosecutors said Duke executives twice refused to spend $20,000 on internal pipe inspections three years before the spill.

The state fine announced Tuesday, which is based on violations the state cited less than a month after the spill, echoed those findings.

Duke’s own consultants noted as far back as 1986 that the pipe that later failed was partly made of corrugated metal, a material that deteriorates with age. After the spill, Duke said it was surprised to learn the pipe wasn’t made entirely of concrete, a stronger material.

A 2007 consultant’s report advised video inspection of the pipe, DEQ noted in assessing the fine. That wasn’t done.

Up to 39,000 tons of ash and 27 million gallons of water from the ruptured pond flowed into the Dan during the spill, which wasn’t stopped for six days.

As it did at the time, Duke notes that it quickly took responsibility for the incident, which sent ash 70 miles downriver but did little short-term harm to water quality. Duke overhauled its ash management and is now closing ash basins across North Carolina under legislation that the spill prompted.

Duke is excavating ash from six power plants in the Carolinas, including the one on the Dan River, and will build lined landfills at four plants.

The Southern Environmental Law Center, which represents 12 advocacy groups fighting Duke in court, said DEQ’s fine was too little for a Fortune 250 company and too late.

Advocates filed notices of intent to sue Duke over ash contamination in 2013, well before the Dan River spill. State regulators preempted that litigation by filing their own lawsuits, which were before judges at the time of the spill.

“The assessment of a fine is an admission of failure by DEQ that it did not prevent an entirely preventable disaster,” said law center attorney Frank Holleman.

DEQ says it agreed with the federal government to jointly enforce violations by Duke after the spill, but said Tuesday the department decided not to proceed with the agreement to “avoid further delays in the process.”

The Environmental Protection Agency wanted to delay the state enforcement case until after the federal settlement, DEQ spokeswoman Crystal Feldman said. DEQ found it more efficient to work on its own, she said.

Duke fought a $25 million state fine for groundwater contaminated by ash at its Sutton power plant in Wilmington. In September DEQ and Duke reached a $7 million settlement of groundwater issues at 14 power plants in the state.

Not covered by that settlement is seepage from Duke’s ash pond dams into lakes and rivers. Feldman said “there is the potential” that DEQ will cite violations and seek fines for contamination of surface water.

This story was originally published February 9, 2016 at 9:19 AM with the headline "N.C. fines Duke Energy $6.6 million for Dan River spill."