Regulatory favoritism in North Carolina

Editorial by New York Times, February 16, 2014.

North Carolina citizens have good reason to wonder just whom their environmental regulators are trying to protect. The state’s Department of Environment and Natural Resources has engaged in a series of maneuvers that seem designed to protect the state’s largest utility, Duke Energy, from paying big fines for water pollution from coal ash ponds and meeting reasonable requirements that it move toxic coal ash to lined landfills away from rivers and lakes used for drinking water and recreation.

Meanwhile, the rest of the country — having heard of the damaging North Carolina coal ash spill this month — must be wondering why the federal government has yet to move against a serious pollution problem it has known about for years.

One answer is the political power of the utilities. In North Carolina, a coalition of environmental groups, led by the Southern Environmental Law Center, tried three times over the past year to sue Duke Energy in federal court for violating the Clean Water Act, only to be pre-empted by the state regulatory agency, which asserted its authority to protect the public through enforcement actions in state courts. Once in control of the litigation, the state regulators quickly proposed a sweetheart settlement of suits against two Duke Energy plants. It would have imposed total fines and costs of about $99,000, a pittance for a company with operating revenues of $19.6 billion in 2012, plus a cleanup plan riddled with loopholes.

Critics blamed the new Republican governor, Pat McCrory, who had worked at Duke Energy for 29 years, and the businessman he appointed to head the environmental department, John Skvarla. Federal prosecutors have opened a criminal investigation into the Dan River spill and issued subpoenas for the records of Duke Energy and the environmental department.

The third suit was still pending when coal ash spilled on Feb. 2 into the Dan River, near the Virginia border, through a ruptured pipe at another Duke Energy plant that is no longer in use. The state’s Department of Health and Human Services has warned people not to have contact with the water or sediment downstream and not to eat fish or shellfish from that area.

On Feb. 9, The Associated Press revealed that lenient state regulators had maneuvered to block the environmental groups. The environment agency, embarrassed by the spill and the revelations, immediately asked the state judge to hold its proposed settlement in abeyance while it conducted a comprehensive review of all coal ash facilities in the state. We can only hope that this is a genuine attempt to solve the problem and not a stalling tactic. Meanwhile, Duke Energy has apologized for the big leak and pledged to make things right, but it has not committed to moving the waste to safer locations.

This tawdry tale illustrates the urgent need for strong national standards for coal ash disposal, dramatized by a huge spill at a Tennessee Valley Authority facility in 2008. The federal Environmental Protection Agencyproposed alternative rules in 2010. One would declare coal ash a special type of hazardous waste and give the agency authority to regulate it. The other would declare it nonhazardous and leave enforcement up to the states. The weaker option does not address “legacy” ponds that are no longer accepting new waste, like the Dan River site.

The recent events in North Carolina provide ample evidence that the E.P.A., which has belatedly agreed to issue a final rule by Dec. 19, should declare coal ash a form of hazardous waste and regulate it stringently.