North Carolina Gov. Pat McCrory (R) gave an interview to WUNC Capitol Bureau Chief Jessica Jones last week in which he discussed coal ash, a topic high on the legislative agenda in the wake of Duke Energy's February spill into the Dan River near Eden, North Carolina.
This week the Republican-controlled state Senate approved a bill similar to one proposed by McCrory that requires Duke to close all of its coal ash pits in the state within 15 years. However, it allows most of the pits to be simply covered and left in place, leaving groundwater at risk. The Senate leadership killed without a vote amendments to the bill that would have blocked the company from charging its customers for the cost of cleanup and required liners for any pits leaking toxins into groundwater. Debate now moves to the Republican-controlled House, where environmental advocates hope to strengthen the measure.
In the course of last week's interview, McCrory made some claims about the coal ash policy debate that are misleading, and Jones did not call him on them. Here's what McCrory said in response to her question about his 28-year history of working for Duke Energy and how it might affect his approach to coal ash policy:
I think a lot of North Carolina did not know much about coal ash. In fact, no one had been talking about coal ash for the last 50 to 60 years, including environmental groups, up until the spill in Tennessee two [sic] years ago. So previous administrations, the current attorney general and previous attorney generals -- there was no discussion of coal ash whatsoever until my first three months in office, when we fined Duke Power for some leaks. It wasn't a coal ash leak, it was liquid leaks coming out of coal ash ponds. So we were the first administration to ever take legal action against Duke Energy Co., which did happen to be my previous employer, but it had absolutely no impact on me hesitating to take action.
To clarify, the Tennessee spill McCrory is referring to at the Tennessee Valley Authority's Kingston plant happened in December 2008, more than five years ago. He continued:
I'm the only governor that ever took action against Duke Power Company. I didn't see the protests against my predecessor, so I think there's some partisanship involved in this, and some pure politics involved in this, with all due respect, because I don't remember the protests before I came into office. And believe me, the problems that we're seeing today did exist in the past. They were just pretended that they weren't there. Out of sight, out of mind. And that was also even true of the environmental groups [who] weren't talking about them.
Let's examine McCrory's questionable claims one by one:
1. Environmental groups didn't talk about coal ash until the Tennessee disaster? FALSE.
In 1980, Congress passed the Bevill Amendment, named for former Rep. Tom Bevill of Alabama, that exempted coal ash from laws governing disposal of hazardous waste. Environmental groups pushed for years to overturn the law, with the effort picking up steam in 2000 when environmental groups pushed to document cases of contamination caused by the leaching of ash from impoundments and landfills. That year the Environmental Protection Agency (EPA) drafted a proposal for regulating coal ash as hazardous waste, but it ran into a roadblock in President Clinton's Office of Management and Budget, which came under intense lobbying from the utility industry. In the end, the EPA backed away from regulating coal ash as hazardous waste, leaving its oversight up to the states.
But environmental groups didn't give up. The following year the Clean Air Task Force (CATF) released a groundbreaking report titled "Cradle to Grave: The Environmental Impacts from Coal," which looked at the entire lifecycle of coal and concluded of coal ash, "It is clear from current disposal practices … that state rules are inadequate to control or mitigate the public health and environmental risks of [coal combustion waste] disposal." The report was written by Martha Keating, a CATF consulting scientist who previously worked in the EPA's Durham, North Carolina office and went on to serve as a research associate at Duke University's Nicholas School of the Environment before returning to the EPA.
Other environmental groups that were involved in advocating for stricter coal ash regulation before the TVA Kingston disaster included Earthjustice and the Environmental Integrity Project.
2. There was no discussion of coal ash in North Carolina until McCrory's first three months in office? FALSE.
In May 2010, amid the push for stricter regulation following the Kingston disaster, Facing South ran a five-part series on coal ash titled "Coal's Dirty Secret." It included a story about the use of coal ash as structural fill and how that's been linked to cases of water contamination around the state. We also reported on an industrial park near Rocky Mount, North Carolina built on coal ash that was turned into a trailer park for displaced families following the 1999 Hurricane Floyd disaster, and how the North Carolina group Black Workers for Justice brought the situation to the attention of graduate students at UNC's School of Public Health, one of whom wrote about it in his master's paper.
But any notion that coal ash was not a pressing concern in North Carolina until McCrory became governor should have been put to rest in September 2010 when the EPA held a public hearing in McCrory's hometown of Charlotte to take comments on proposed federal regulations for the waste. In a packed meeting room at a Holiday Inn, some 250 people delivered testimony in proceedings that began at 10 a.m. and continued until 11 p.m. Industry and environmental groups were well represented, but speakers also included North Carolina residents living near coal ash impoundments who feared for their safety.
And in October 2012, when Democrat Beverly Perdue was still North Carolina's governor, the Southern Environmental Law Center (SELC) filed a complaint with the N.C. Environmental Management Commission calling on it to require Duke Energy and Progress Energy, now a Duke subsidiary, to clean up groundwater contamination from unlined coal ash pits at the companies' 14 coal-fired power plants across the state. SELC filed the complaint on behalf of the Cape Fear River Watch, Sierra Club, Waterkeeper Alliance, and the Western North Carolina Alliance.
Clearly, coal ash was a topic of discussion in North Carolina long before McCrory took office in January 2013.
3. McCrory initiated action against Duke Energy over its coal ash? FALSE.
In claiming that he's "the only governor that ever took action against Duke Power Company," McCrory implies that he took proactive steps to address the company's coal ash pollution. That is not the case.
McCrory took office in January 2013. That March, SELC sent a notice to Duke Energy that it would bring a citizen lawsuit under the Clean Water Act to stop illegal coal ash pollution discharges from unlined pits at the company's Riverbend plant into Mountain Island Lake, a source of drinking water for the Charlotte area. SELC was representing the Catawba Riverkeeper Foundation, which monitors the site.
Responding to the SELC action in May 2013, North Carolina filed lawsuits against Duke Energy over the Mountain Island Lake pollution. The following month, SELC filed a motion on behalf of the riverkeeper group to intervene in the case.
"After watching the illegal pollution for years and taking no action, North Carolina authorities sued Duke Energy only after we notified the state and Duke Energy that we would file suit," Rick Gaskins, the Catawba Riverkeeper Foundation's executive director, said at the time. "The people who depend upon Mountain Island Lake for their drinking water will be protected only if the Catawba Riverkeeper Foundation, an independent citizens group, is present in Court to ensure that the laws are enforced and that the drinking water reservoir is fully protected."
In July 2013, McCrory's Department of Environment and Natural Resources and Duke Energy announced they had reached a proposed settlement in the suit that was widely slammed as a "sweetheart deal" for the company. For example, the agreement did not require Duke to clean up its pollution, and it imposed an initial fine of just over $99,000 on a company that had over $19 billion in operating revenues the previous year. The settlement shielded the company from far stiffer penalties it could have faced in federal court.
"Gov. McCrory is largely turning over his responsibility to protect the public's health to his former employer," the watchdog group Democracy North Carolina said at the time, while noting the company's generous financial support of the governor's campaign.
Shortly after the February spill, federal prosecutors launched a criminal investigation into the actions of Duke Energy and North Carolina regulators. The following month, amid public outcry over lax oversight, the McCrory administration asked the judge to withdraw the proposed settlement.
Meanwhile, the federal grand jury probe continues -- and the subpoenas it's issued suggest it's examining the relationship between Duke Energy and regulators who work for McCrory as well as those in previous administrations. Now would be a good time for the state's leaders to get their stories straight.