In this week's cover story for the Indy, we reported that a pending decision from the U.S. Environmental Protection Agency could be pivotal in determining who is legally responsible should Duke Energy's plans for coal ash dumping in privately-owned mines in Sanford and Moncure go awry. Based on today's ruling from the regulatory agency, it may not be the Fortune 500 utility.
EPA Administrator Gina McCarthy, an appointee of President Obama, said Friday afternoon that the coal ash would be regulated as a non-hazardous solid waste like household garbage, a designation leaving state government as the primary regulator for the coal ash.
That's not good news for environmentalists who've criticized North Carolina and its Department of Environment and Natural Resources for its close ties to Duke Energy.
"It did not do what the nation and the southeast needed," said Frank Holleman, an attorney for the Southern Environmental Law Center, a group that has challenged Duke Energy multiple times since 2008 to clean up its leaky coal ash deposits.
Citizen groups have widely panned state lawmakers for their Coal Ash Management Act, which charges a newly-formed commission of appointees with overseeing ash cleanup over the next 15 years.
Many environmentalists were hoping the EPA would classify coal ash a "hazardous waste," carrying much more stringent federal regulation of a waste's production, treatment and disposal.
A hazardous waste classification would have increased the liability burden, ensuring that the generator of such a waste—in this case, Duke Energy—could not eschew legal liability for its impacts simply by moving it off its land, as Duke plans to do with about 3 million tons in early 2015 in Sanford and Moncure.
Coal ash contains heavy metals that can cause illness in small doses, but can kill with prolonged exposure.
As we reported this week, Duke does not believe it is responsible for the environmental impacts of its Sanford and Moncure dumping because it is turning the ash over to the mines' landowner, Green Meadow LLC, a newly-formed corporation with unknown ownership and unknown assets.
Legal experts told the Indy that if such a group cannot afford the legal consequences of environmental contamination, the liability could fall back on the state.
Holleman said the EPA's decision puts pressure on citizen groups and environmentalists, rather than the federal government, to enforce environmental standards on the utility.
"We really need a strong federal or national role," Holleman said.
McCarthy told reporters that, following a review of more than 500 coal ash impoundments nationwide and relevant science, the agency could not support designating the industrial byproduct a "hazardous waste."
McCarthy said the EPA's new regulations represent the first ever national standard for the safe disposal of coal ash. She added that she expects most states will adopt the federal agency's new regulations, although they would not be required to do so.
"This is a gigantic step forward," said McCarthy. "We are in a much more certain position today than we were yesterday."