Coal ash ponds and basins at Duke Energy's Asheville plant. Duke Energy graphic. Click to view full-size image.

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U.S. attorneys charged Duke Energy with nine violations of the federal Clean Water Act at five of its coal ash impoundments around the state — including its Asheville plant.

The criminal charges, filed against three subsidiaries of the company by attorneys for the Eastern, Middle and Western Districts of North Carolina, were announced late Friday. A Duke Energy statement released around the same time said the company had worked out a settlement for the nine criminal offenses and would pay $68.3 million in fines and restitution and $34 million for “community service and mitigation.”

Early last week, as part of its quarterly earning filing and later in a conference call with industry analysts, company officials announced that an agreement was close.

“We are accountable for what happened at Dan River and have learned from this event,” Lynn Good, president and CEO of the company said in a statement released Friday. “We are setting a new standard for coal ash management and implementing smart, sustainable solutions for all of our ash basins. Our highest priorities are safe operations and the well-being of the people and communities we serve.”

The indictments do not spell out the exact violations. [Read the release, below.]

However, according to D.J. Gerken, lead attorney in the Asheville office of the Southern Environmental Law Center, which has sued the company over problems at the Asheville plant, the charges most likely result in part from the company’s management of leaks at the two coal ash ponds on the Asheville site.

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MORE: Read more from Carolina Public Press’s special report on Asheville coal ash

According to the announcement by the federal attorneys, the violations were due to “unlawfully discharging coal ash and/or coal ash wastewater from impoundments” at the Asheville plant.

Gerken said he believes that the company’s handling of large seeps coming from the coal ash ponds’ earthen dams were a focus.

According to the court documents, he said, the violations took place after May 31, 2011, which is around the time the company sought to move the location of its permitted wastewater discharge pipe at the plant further upstream on the French Broad River. After moving the pipe, he said, the plant continued to funnel water from the seeps and discharge the runoff at its old location.

“The wastewater is only supposed to come out of one permitted spot” he said. “It may all sound trivial but these are streams that are unpermitted, sending wastewater into tributaries of the French Broad.”

Prior to last year’s Dan River spill, which triggered the probe by a federal grand jury, SELC gave notice to the state that it would sue Duke Energy over its handling of wastewater from the ponds at the Asheville plant.

“The information in the criminal charges tracks our Notice of Intent pretty closely,” Gerken said.

Together, he said, the charges confirm a troubling pattern of state regulators allowing the company to avoid fixing problems at the plant.

In 2013, after SELC’s Notice of Intent was filed, the state Department of Environment and Natural Resources filed suit, essentially blocking SELC’s move in federal court.

The state then offered Duke Energy a deal that fined the company $99,000 for the violations and required no cleanup. The deal was withdrawn after the Dan River spill and a flurry of subpoenas were filed seeking information from the company and its regulators. The state case remains active.

The company has since worked out a plan with state regulators to decommission both ponds at the Asheville plant.

Gerken said he does not know if there will be further action as a result of the federal investigation.

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A federal judge is expected to review the case as early as next month and must sign off on the fines and plea agreement.

Indictment against Duke Energy for alleged Clean Water Act violations (PDF)
Indictment against Duke Energy for alleged Clean Water Act violations (Text)

Kirk Ross

Based in the Triangle, Kirk Ross is the capital bureau chief for Carolina Public Press. Contact him at kross@carolinapublicpress.org.

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