North Carolina’s Coal Ash Spills: A Glimpse of the Future under OIRA’s Weak Option

by Rena Steinzor
Michael Patoka

February 20, 2014

Yesterday, we wrote about OIRA’s role in delaying and diluting the EPA’s long-awaited coal ash rule, in part by introducing and promoting a weak option that would rely on voluntary state implementation and citizen suits, instead of nationwide requirements and federal oversight, to protect the public from dangerous leaks and spills.

Anyone who thinks the states can be entrusted with regulating toxic coal ash need only take a passing glance at North Carolina’s track record—a virtual “how to” guide for regulatory dysfunction. Governor Pat McCrory himself worked at Duke Energy for 28 years, and Duke-connected sources donated over a million dollars to get him elected in 2012. Once in office, he appointed several former Duke employees to high-level posts, and the newly appointed head of the state’s environmental department saw himself as a “partner” to regulated industries rather than a cop on the beat. The department took no action even after Duke’s own test results showed that the ponds were polluting nearby groundwater.

Citizen suits fared no better. Even in the best circumstances, these lawsuits are expensive and time-consuming for organizations to bring, and unlike comprehensive regulations, they are sporadic in their coverage. But the situation in North Carolina was even worse: environmentalists filed three separate notices of intent to sue Duke in federal court over groundwater pollution, and each time the lawsuits were stymied by the state’s environmental department.

Federal law gives state regulators 60 days after such notices are filed to assert their own jurisdiction over the issue by bringing an enforcement action, which prevents the citizen suits from proceeding. North Carolina’s environmental department brought actions against all of Duke’s remaining waste sites, effectively blocking any additional coal ash suits against the company. The state negotiated a settlement with respect to two sites, under which Duke would pay just $99,111 (the company is worth $50 billion) and wouldn’t even be required to move or close the dumps.

The state has recently backed away from the embarrassing settlement in light of Duke’s high-profile spill. But with all this attention now focused on their improper relationship, both Duke and the North Carolina government have become the subjects of a federal criminal investigation that will examine years’ worth of their emails and memos.

This is the kind of regulatory protection we can expect to see more of if the EPA decides to issue a weak rule under Subtitle D.

The Industry’s Misplaced Stigma Concerns

The industry has long argued that regulation of disposed coal ash as hazardous waste (under Subtitle C) would impose a “stigma” on recycled coal ash—used to make construction and landscaping materials—and contractors would no longer choose to use such products. This argument only makes sense if we conveniently ignore the facts. After all, the rule would explicitly exempt recycled ash from its scope, and the EPA, based on its extensive experience, had never observed such a stigma effect. The agency even indulged industry’s fears by labeling it “special waste” instead of “hazardous waste.” Indeed, the EPA has remained consistently supportive of ash recycling, when the ash is fully encapsulated (e.g., in cement or wallboard); just this month, the agency reiterated that it deems these uses to be safe and beneficial.

Instead of backing up the EPA’s position that the stigma was a non-issue, OIRA gave credenceto the industry’s talking points. It re-engineered the rule’s cost-benefit analysis to suggest that a stigma effect could cost society $233.5 billion in lost benefits—an outlandish figure, based on arbitrary guesses about the extent to which contractors would stop using recycled-coal-ash products. By predicting a cost that would easily dwarf the rule’s estimated benefits, OIRA’s analysis helped industry to make its case against a strong rule.

But instead of crying “stigma” whenever the EPA tries to issue protective rules, the industry should instead consider the impact of its own toxic leaks and spills. What could be more stigmatizing than photos of thick, inky sludge choking up rivers, and official warnings to avoid contact with the water due to elevated levels of arsenic? Whatever the EPA decides to call coal ash in the rule (special, hazardous, or non-hazardous waste) is beside the point when the industry itself is making it crystal clear to everyone just how dangerous this stuff is.

Need for a Strong Final Rule

Communities around the country remain vulnerable to more than 2,000 aging disposal sites, including the 45 ponds that the EPA has deemed “high hazard” (likely to kill people if their dams burst; see some satellite photos here). And waste sites have already been responsible for at least 208 documented cases of contamination.

Even with all the damage coal ash has already done, the public has been remarkably lucky in the catastrophic spills so far. The Kingston spill, despite covering 300 acres of land with four-to-five feet of sludge and destroying several homes, miraculously killed no one. And this spill in North Carolina came from one of Duke’s smaller ash ponds; others in the state are much larger. It would be incredibly naïve to assume our “luck” will continue. Hopefully, this spill will convince the Administration that the only way forward is to issue a strong final rule—as quickly as possible—that regulates coal ash as a hazardous waste.

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Rena Steinzor is a Professor of Law at the University of Maryland Francis King Carey School of Law, and a past president of the Center for Progressive Reform. She is the author of Why Not Jail? Industrial Catastrophes, Corporate Malfeasance, and Government Inaction.

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