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Duke Energy appeals $25 million state fine

Flemington Road community neighbors Sam Malpass and Kenneth Sandlin of Wilmington walk near their homes by the L.V. Sutton Complex operated by Duke Energy.
Flemington Road community neighbors Sam Malpass and Kenneth Sandlin of Wilmington walk near their homes by the L.V. Sutton Complex operated by Duke Energy. AP

Duke Energy filed papers Thursday asking that a state-record $25.1 million fine for groundwater contamination at a Wilmington power plant be dismissed.

Duke argues that actions already taken by the company make the penalty unnecessary and excessive. The appeal is with the state Office of Administrative Hearings.

Duke called the fine “regulatory overreach” that sent a “chilling message” to North Carolina businesses in declaring last month that it would contest the penalty.

The state Department of Environment and Natural Resources penalized Duke for groundwater contamination that had been known for years.

Ash elements found in test wells around the Sutton plant had broken state standards for as many as five years, state documents show. Duke has said it had monitored groundwater at the plant since 1990 and reported the results to the state.

“The Sutton plant generated electricity for millions of customers and operated in compliance with North Carolina law and environmental regulations,” Duke’s state president, Paul Newton, said in a statement. “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 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.

The fine was the largest for environmental damage, quadrupling the $5.7 million levied as part of a 1986 air-quality case. It followed violations at Sutton that DENR cited last August.

DENR had sued Duke ash contamination at all 14 of its coal-fired power plants in North Carolina in 2013, before a February 2014 ash spill into the Dan River. The lawsuits are still before the courts.

Duke’s appeal claims DENR violated state law, its own rules and longstanding interpretations of state regulations. Among its claims are that the department created a new methodology to inflate the size of the penalty and fined the companies for 1,822 days of violations despite having test results for only 27 days.

Duke negotiated a $102 million settlement of criminal charges brought by federal prosecutors statewide in February, a year after the Dan River spill. The settlement will go before a federal judge in Greenville next Thursday.

Henderson: 704-358-5051;

Twitter: @bhender

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