The EPA Should Learn from NC and Fix Coal’s Murky Regulatory Landscape

Authored By 
Viveca Morris

It took an environmental disaster, nationwide media scrutiny, and a federal criminal investigation to get North Carolina Governor Pat McCrory and his lax environmental regulators to reverse course.

Now McCrory and his team are advocating precisely what they previously worked to prevent – the removal of Duke Energy’s toxic coal-ash waste pits away from key sources of drinking water and recreation.

But it’s too little, too late.

The circumstances surrounding Duke Energy’s disastrous 39,000-ton coal-ash spill into the Dan River in North Carolina last month illustrate state regulatory favoritism at its worst. The tawdry tale shows – once again – why we can’t trust some states to protect the environment and water supplies from coal-ash hazardous waste, and why we need the EPA to regulate coal-ash instead.

Coal ash – a toxic brew of hazardous metals and metalloids including mercury, arsenic, lead, cadmium and selenium – is what remains after utilities burn coal to create electricity. Duke Energy, the country’s largest electric utility, created three and a half million tons of it last year alone. The utility “holds” most of the toxic slurry in massive “ponds.” If the ponds leak into rivers or lakes, or if they contaminate groundwater beneath them, the damage to the environment and citizens’ water supplies can be devastating.

Duke has 33 lagoons holding 84 million tons of hazardous coal ash. Most are unlined, and many are located right next to easily polluted waterways.

McCrory, who worked for Duke Energy for 28 years, and who has been the recipient of over $1 million in direct and indirect campaign contributions from Duke related contributors, took bold steps to “defang” the Department of Environment and Natural Resources (DENR) and to make it “business friendly” when he came into office two years ago.

So a coalition of environmental groups led by the Southern Environmental Law Center, asserting that the state was not doing its job to protect the environment and the public from the threat of a coal ash spill and from groundwater pollution from the ponds, sued Duke Energy three times in federal court for violating The Clean Water Act.

Each time, at the very last minute, the DENR terminated the lawsuits by asserting its authority under the act to take “enforcement action.” If the lawsuits had been allowed to proceed, Duke Energy would likely have had to pay large fines for water pollution plus the full cost of moving its coal-ash “ponds” to lined landfills away from rivers, lakes and groundwater supplies.

Instead, the “enforcement action” the state settled on was a proposed deal where Duke Power would pay $99,100 in fines for toxic groundwater leeching from two of its plants, with no requirement that it stop polluting or clean up the existing pollution. Some perspective is in order here: $99,100 is four-ten-thousandths-of-one-percent of their annual operation revenue of $24.6 billion in 2013. It’s the equivalent of fining a person with a $60,000 salary 25 cents.

Duke Energy attorneys worked with DENR attorneys to figure out how they could prevent participation by environmental groups in settlement negotiations, according to subpoenaed emails. And state Attorney Kathy Cooper went before a Wake County judge and argued that citizens groups should be excluded from deal negotiations, according to transcripts.

Then, on February 2, Duke Dan River coal ash pond spilled 35 million gallons of toxic slurry into the Dan River poisoning 70 miles of riverbed, and jeopardizing the water supply of hundreds of thousands of citizens.

After several front-page articles in The New York Times drew national attention to the incident and reporting by The Associated Press prompted the federal government to launch an investigation for criminal wrongdoing, McCrory scuttled the proposed settlement and called for an immediate investigation of Duke’s coal ash sites.

Only a small fraction of the ponds have been inspected, and already two additional leaks have been discovered. One has been plugged, but the other is still leaking.

It is estimated that it will cost $1 billion dollars to clean up Duke coal ash ponds in North Carolina, and more if the ground water under the pits has become contaminated. In two cities, Asheville and Wilmington, the groundwater has already been contaminated and Duke has agreed to provide alternative sources of drinking water.

The company has agreed to cover the cost of cleaning up the Dan River spill itself, but it wants to pass the bulk of the clean up costs to customers as a cost of doing business. This is blatantly unfair. The utility’s shareholders have reaped enormous profits from doing the cheapest thing for decades, and now they should pay the bill they dodged for so long.

Will the state make them pay it? Will they have to complete the cleanup at all? I would not bet on it given the political realities in North Carolina.

The EPA must choose by December 19 between two options for coal ash regulation in the future. The first option would declare coal ash to be a hazardous waste, which gives the EPA the authority to regulate it stringently. The second would declare coal ash to be nonhazardous, which would leave regulation up to the states. 

We can thank McCrory for showing us why option one is the only good choice.

Viveca Morris is an undergraduate at Yale College and an ISPS Director’s Fellow. Her primary interest is how technology, politics and business can be leveraged to make the world a more humane place.

Note: All posts in Lux et Data give the view of the author, and are not necessarily the position of the Institution for Social and Policy Studies.
Area of study 
Energy & Environment