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Double standard on coal highlights need for EPA reform

The final tally for fines for Duke Energy’s 2014 coal ash spill in the Dan River will come to over $100 million. This is more than ten times than the final bill to the Tennessee Valley Authority for their 2008 spill, which was the largest in history and twenty-eight thousand times larger and far more dangerous than the Dan River spill.

Why the difference? It might be because the Tennessee Valley Authority is owned and operated by the federal government, while Duke Energy is the largest private energy utility in the United States.

{mosads} energy reporter Rob Nikolewski investigated the case and found out that the federal government doesn’t want to talk about the discrepancies. The Environmental Protection Agency, which levied zero fines against the TVA, merely stated in boilerplate that fines assessed are “based on many factors,” without getting into specifics. 

The Department of Justice, which organized the settlement with Duke Energy, refuses to return inquiries.

It’s important to point out that these environmental accidents were serious incidents that required federal intervention, regulation, and fines. The Dan River spill was huge – coal ash was found 70 miles from the site and people were warned to stay away. Duke Energy is tasked with cleanup and is being overseen by the Environmental Protection Agency with those efforts.

Granting the massive scale of the Dan River spill, it’s still important for both regulators and companies to have clear guidelines and expectations for how to handle their waste byproducts and the penalties for any accidents that might occur. The federal government has unfortunately been negligent in sending clear signals in this area.

There’s a lot that the federal government could do to clear up the executive discretion in some of these cases. The Environmental Protection Agency first laid down regulations for coal ash last year, including rules for storage and disposal. The rules frustrated environmentalists, because the EPA did not classify coal ash as hazardous, but it also did not close the door on stricter regulation in the future.

Republicans have characterized the refusal of the EPA to commit on this as unacceptable and are working on legislation to bring “certainty” to coal ash standards. The proposal would also work to limit the exposure of utility companies to lawsuits and thus minimize the either willful or random discrepancy in disaster settlements. It might mean that Duke Energy wouldn’t have to be worried about being unjustly targeted compared to government-owned utility companies. 

“Let’s make one thing clear: this proposed regulation does not provide certainty… the rule results in potentially conflicting federal and state requirements,” Rep. David McKinley (R-W.Va.), one of the sponsors of the new reform legislation, said at an Energy and Commerce Committee hearing on January 22. “On page 18 of the rule, it says ‘This rule defers a final determination until additional information is available.’” McKinley’s proposed regulation reform would, he and other Republicans say, remove unneeded uncertainty from these coal ash regulations.

Sens. Jim Inhofe (R-Okla.) and Shelley Moore Capito (R-W.Va.) protested the EPA’s rulemaking on coal ash since the regulations were announced late last year, citing an economic cost of over $22 billion and more than 60,000 lost jobs. They say that the states themselves have done a good job regulating coal ash and the EPA’s burdensome requirements aren’t necessary.

The other change that Rep. McKinley’s legislation makes is that it allows states to implement their own alternative rules to the national EPA mandates if they’re able to capably regulate themselves. Not weaker rules; the only way that states would be able to implement local regulatory regimes would be if they are as effective as the ones proposed at the federal level. But it would give the states, and the utility companies being regulated, additional flexibility.

The vast discrepancy in the federal government’s environmental enforcement in the TVA spill and the Dan River spill highlights the need for regulatory certainty. For the first time last year, the EPA sought to bring standardized rules to the table – a move hailed by both Republicans and Democrats. Unfortunately, the EPA’s final proposals are seriously lacking in the way they propose to regulate the industry. More certainty is needed, especially in light of how the federal government has mismanaged both regulation and penalties in the past.

Glass is director of Outreach and Policy at the Franklin Center.

Tags David McKinley Shelley Moore Capito

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