February 10, 2014

Regulatory Agencies Close Ties To Industry Lead to Failure of Accountability for NC Coal Ash Leak

Pete Harrison: NC regulatory agencies are too closely connected to Duke Energy, the U.S. America's largest electric company responsible for third largest coal ash spill in U.S. history
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Pete Harrison is the staff attorney for the Waterkeeper Alliance. He joined Waterkeeper in October 2011 as a law clerk devoted to the Clean and Safe Energy campaign. A native of the South, Pete grew up fishing the Black Warrior River and swimming in Hurricane Creek in Tuscaloosa, Alabama. He earned his B.S. in Environmental Sciences at the University of North Carolina Asheville, where he developed a passion for grassroots action to address the many negative effects of coal. Pete earned his J.D. from Pace University School of Law in New York.

While at Pace, Pete interned at the Pace Environmental Litigation Clinic, representing Waterkeeper in its ongoing litigation to stop coal companies from illegally dumping toxic chemicals into the rivers and streams in eastern Kentucky and filing false pollution monitoring data.


Regulatory Agencies Close Ties To Industry Lead to Failure of Accountability for NC Coal Ash LeakJESSICA DESVARIEUX, TRNN PRODUCER: It's been recorded as the third-largest coal ash spill in U.S. history. On February 2, a pipe beneath a coal ash storage pit ruptured, causing up to 82,000 tons of coal ash and 27 million gallons of contaminated water to drain into North Carolina's Dan River. A week later, the owner of the retired coal power plant, Duke Energy, says they stopped the leak.

But there are still many unanswered questions, not least of which is: why did state regulators and Duke Energy wait 24 hours before going public with the leak? Also, how does this affect the wildlife and drinking water supply for communities in North Carolina and neighboring Virginia? And just why did this happen in the first place?

With us to discuss these questions is Pete Harrison. Pete is the staff attorney for an environmental organization, Waterkeeper Alliance. They've been deeply involved with the crisis from the start. And it should also be noted that Waterkeeper Alliance initiated enforcement actions for illegal coal ash water pollution at two Duke Energy coal plants in North Carolina last year.

Thanks for joining us, Pete.


DESVARIEUX: So, Pete, can you just bring us up to speed about what's happening right now? Is the drinking water even potable at this point?

HARRISON: All reports from the beginning of the spill from the water utilities downstream are that the product coming out of their treatment plants and into people's faucets is safe. However, I think with a week's worth now of extreme ambiguity, to say the least, from the state government and the local municipal water utilities, a lot is left to question about whether we're getting complete information. And I think what it has bred over the last week is a general mistrust by the public of their regulators, who are charged with protecting their health and safety.

DESVARIEUX: And besides the regulators, how do they feel about Duke Energy, which is actually the largest electric company in the U.S.? Can you just talk about their environmental record?

HARRISON: Sure. I mean, Duke is the largest utility in the United States. They still own an enormous coal power plant fleet, and they have many, many ash lagoons just like the one that failed in Danville this week. And as far as North Carolina goes, Duke has 14 coal-fired power plants.

And Waterkeeper Alliance and our partners in North Carolina have initiated enforcement actions, because these plants are leaking. And in response to our threats to file Clean Water Act suits against Duke in North Carolina, the State of North Carolina [incompr.] filed its own enforcement actions, which ultimately encompass all 14 of Duke Energy's coal-fired power plants in the state, alleging against every single one of them illegal discharges coming out of the walls of these coal ash impoundments. And the Dan River facility, where this disaster has happened, was included in that.

The allegation was that Duke was catching seepage coming out of the coal ash impoundment and channeling it down to a pipe and dumping it into the river, which is a federal crime. And it's astonishing that you have the State of North Carolina, under oath, accusing Duke of endangering the health and welfare of people of the state of North Carolina.

DESVARIEUX: But then why did it take them so long to actually act?

HARRISON: It was only under the threat of a citizen enforcement suit. If the state government, who Duke has a significant amount of influence over, sues the utility, it's a little better than having citizens suing the utility and having to go through court and deal with that. And as we've seen with some of the plants--and I think we can expect the same with the rest of them--is that the state will, after filing a lawsuit, then quickly attempt to settle the matter with the utility on very favorable terms for Duke.

DESVARIEUX: Okay. And Duke Energy has come out announcing that it will change the ash storage systems used at its retired coal plants, such as the Dan River Station. They may bury it elsewhere, though, in landfills, for example. Do you think that goes far enough? And if not, why?

HARRISON: I think as an across-the-board solution that's what needs to happen. This stuff cannot remain in impoundments like the one at Dan River. And there are 1,100 of these things nationwide. And as I understand it, Duke has made no binding commitments to actually go through with a conversion to dry storage in lime landfills. It may be that it ultimately decides to do that with this particular facility. And so I know it has put the idea out there. But as far as I know, they haven't made any binding commitment. And I think we would be very pleased if they would do so.

DESVARIEUX: So, Pete, let's take a step back. And I want to talk about how this was even discovered, this spill, this leak, 'cause there was actually a Duke Energy security guard that saw that there was a low--low levels of water in the pond. But they also noted that it took them 24 hours to announce the spill. They came out saying that--some people are arguing that this really put locals at risk. Why did it take them so long? And others say, you know, they actually have 48 hours to go public if you look at the law. What do you see as--can we really fault them, essentially, for the delay?

HARRISON: I think we absolutely can fault them. And they actually--they notified state regulatory officials within a few hours of allegedly discovering the spill, which was Sunday evening. And then I think that implies the state in the same problem, because the state also waited for nearly 24 hours. It was, I think, twenty-two and a half hours before issuing a press release, basically simultaneously with Duke's press release, as well as Danville Utilities' press release. All three of those entities waited until Monday evening, and then, within an hour, all made the announcement.

DESVARIEUX: Okay. So for you they certainly should have come out a lot sooner, a lot earlier.

HARRISON: I think the obvious danger in that situation that the state and the utility must have been aware of was that coal ash is a highly toxic substance. In fact, it's responsible for--coal-fired power plants are responsible for more toxic water pollution in the United States than the next nine most polluting industries combined. So it's a significant problem. It's one that regulators are very familiar with. And the dangers with a situation like this are very obvious.

DESVARIEUX: And the danger seemed to be coming more and more into the news as well. We have that recent chemical spill that happened in West Virginia, which was also actually coal-related. And it seems like these toxic spills contaminating waterways is becoming this constant. For you, do you see this right now--what are your thoughts on this issue? What needs to actually change to prevent these sort of disasters from happening?

HARRISON: Right now there are regulations that have been proposed at the federal level by the EPA to regulate both water discharges from these coal ash impoundments as well as their solid waste storage form. Both of those have been hung up in a vicious political snag in the Environmental Protection Agency, as well as the White House's regulatory review agencies, the Office of Management and Budget, in OIRA. And those regulations need to become final and they need to be strong enough to ensure that this material is contained responsibly and safely, and that all of those Americans who are at risk right now from those 1,100 coal ash disposal impoundments are safe, because they are all just accidents waiting to happen like Danville, like Kingston, Tennessee.

In the absence of those strong federal regulations, the regulation of the material is left to the states themselves, and I think the Dan River example perfectly illustrates why that's an unacceptable approach, that state governments are especially susceptible to what's known as agency capture phenomenon, where they're subject to the influence of powerful industries like the utility industry, like the coal industry, like big ag. And what you see is exactly what we're getting at Dan River, with the North Carolina government that is beholden to Duke Energy. And, in fact, the governor of this state is a former Duke Energy employee. Duke Energy has been the largest campaign contributor to both political parties in the state. And I think the results are quite predictable from that recipe.

DESVARIEUX: Okay. So we have to essentially--regulation, but more on a federal level. Is that what you're saying? 'Cause regulators right now are basically shielding these companies, oftentimes.

HARRISON: Right, and that is primarily happening at the state level, although the sheer fact that there are no federal regulations is actually illegal. The EPA was required to get these rules on the books 30 years ago, and it never happened. And I think that was probably a result of the same agency capture phenomenon at the federal level.

Now I think the wheels are in motion and we're very close to having effective regulations. The rules have been drafted, and now it's a matter of EPA selecting the best alternative that's been proposed and finalizing it.

Until that happens, the EPA's authority to even issue those regulations is subject to being stripped away by bill after bill after bill that's being introduced in the House of Representatives that are specifically designed to remove EPA's authority to regulate coal ash and to leave it to the states forever.

DESVARIEUX: Alright. Pete Harrison, staff attorney for Waterkeeper Alliance, thank you so much for joining us.

HARRISON: Thank you for having me.

DESVARIEUX: And thank you for joining us on The Real News Network.


DISCLAIMER: Please note that transcripts for The Real News Network are typed from a recording of the program. TRNN cannot guarantee their complete accuracy.


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