Duke Energy has been fined $156,000 for illegal seeps from coal ash basins at its Allen, Marshall and Cliffside/Rogers plants, according to a Special Order of Consent unanimously approved by the Environmental Management Commission today.
The state Department of Environmental Quality assessed the penalty, an increase from the original amount of $84,000. But after public comment and “further consideration,” said EMC Chairman John Solomon, the amount was increased to reflect a higher penalty for illegal “constructed” seeps compared with “non-constructed” seeps, which are not illegal.
Seeps occur when untreated water from coal ash basins leaks through the earthen walls. From there, contaminated water can enter lakes and rivers, as well as groundwater.
There are 21 seeps in total.
Constructed seeps are those in which Duke Energy built a pipe or channel to allow the water to flow. Because of the engineering, greater volumes of water flow from these seeps, thus prompting a higher penalty —$12,000 each for five identified before Jan. 1, 2015.
Non-constructed seeps are naturally occurring and can come and go, depending on the season. They are harder to characterize and monitor as a singular point of discharge, so the order does not allow Duke to apply for an NPDES permit for them. However, these seeps do contribute to pollution in waterways. Duke was penalized $6,000 each for 16 discovered before Jan. 1, 2015.
That date is significant because since 2015, Duke has been regulated under the Coal Ash Management Act in detecting and managing its seeps.
Duke Energy spokeswoman Paige Sheehan said the order “represents a critical step in our ongoing work to safely and permanently close ash basins in ways that protect people and the environment.”
The agreement, Sheehan added, “provides clarity” on the monitoring of natural seeps. It also “paves the way for the state to issue permits the company must have before it can continue to dewater and close ash basins.”
According to the order, the utility must decant the basins at the three plants a year ahead of schedule. Decreasing the amount of water is expected to reduce or eliminate the seeps at the sites, which adds a margin of safety to the impoundment.
Under CAMA, dry ash handling projects must be finished by the end of 2019. Sheehan said Duke and DEQ agreed that the work can be completed faster at Allen, Marshall and Cliffside, meaning decanting the basins can begin sooner.
At the Allen and Cliffside/Rogers Duke must start decanting — reducing the amount of water in the basins — in 2019 and finish the process by 2020; at Marshall, decanting must be completed by early 2021.
Duke also must conduct additional monitoring for 24 contaminants and water quality standards, including total dissolved solids, lead, cadmium, arsenic, bromide and boron. These records must be publicly available on the utility’s website.
Scientists have concluded that the presence of boron is a leading indicator that coal ash is likely responsible for contamination near these basins. Policy Watch analyzed groundwater monitoring results released earlier this year, which showed elevated boron levels at Allen, Marshall and Cliffside/Rogers.
- At Allen, more than a quarter of 434 samples had concentrations above the maximum threshold of 700 parts per billion; the highest level was 2,340 ppb.
- The Marshall plant showed levels of boron as high as 5,810 ppb. Nearly a third of the 307 samples were higher than the threshold.
- And at Cliffside/Rogers, 42 percent of 236 samples exceeded the threshold, with the highest levels reaching 2,730 ppb.
Bromide was not originally on the contaminant list, but DEQ added it after public comment. When bromide enters a drinking water supply, it can combine with other disinfection chemicals used by the treatment plant, and then produce cancer-causing compounds in finished water.
“We came back with a much better document,” Solomon said of the changes. “It benefited from public comment.”
However, many citizens and environmental groups didn’t get everything they advocated for. Over their objections, Duke Energy will be allowed to apply for a federal wastewater discharge permit, known as an NPDES, for its constructed seeps, said Jay Zimmerman of the Division of Water Resources. This means contamination can still enter the waterways, but at regulated maximum levels.
Duke Energy is permitted to discharge treated wastewater from its Allen and Marshall plants into the Catawba River, and from Rogers into the Broad River.
“In this way, DEQ would make legal what has been illegal in North Carolina since the Clean Water Act was enacted,” SELC wrote in its comments. “This is exactly the kind of illegal activity that formed the basis for Duke Energy’s guilty pleas to federal Clean Water Act violations at Asheville, Riverbend, and Lee. DEQ never took effective enforcement action to stop Duke Energy’s illegal actions in the past, even ignoring engineered seeps at Mayo where the governing permit expressly prohibits them.”
Other commenters stated the $84,000 fine was too low, prompting state regulators to increase it. But $156,000 barely registers on the utility’s balance sheet. The company earned $3 billion in profit last year. The penalty is equivalent to two and a half days’ of salary for CEO Lynn Good, who earns $21 million, including stock options, annually.
This story was corrected to distinguish that the non-constructed seeps were not illegal; the constructed ones were.