After years of unsafe practices, North Carolina seeks environmental redemption

What does it take to right years of environmental wrongs?

A NORTH CAROLINA COAL PLANT OWNED BY DUKE ENERGY. (CREDIT: GETTY IMAGES / Diana Ofosu)
A NORTH CAROLINA COAL PLANT OWNED BY DUKE ENERGY. (CREDIT: GETTY IMAGES / Diana Ofosu)

This is the final part of ThinkProgress’s State of Conflicted Interest series.

Amy Brown knows exactly when she lost trust in the North Carolina Department of Environmental Quality.

It started three years ago, when Brown received a letter from the state saying her water wasn’t safe to drink. In the more than 1,000 days it took to get her home hooked up to a municipal water line, Brown watched as officials with multiple agencies flip-flopped on whether her water — and the water of hundreds of other North Carolinians — had in fact been contaminated by coal ash from Duke Energy, the state’s largest utility.

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Brown watched as the administration of Gov. Pat McCrory (R) publicly derided employees who questioned the handling of the contamination scare. She watched as the state’s top epidemiologist resigned, writing in her resignation letter that the administration was purposefully misleading the public.

The concept of losing trust is a strange thing — the phrase suggests a kind of accidental incident, like the trust was merely misplaced and is waiting to be found again. It makes no mention of the act that precipitated the fall, the choices that broke the bonds of trust in the first place.

But Brown remembers everything, even now that McCrory is gone and replaced by a new governor who campaigned on scientific integrity and environmental protection. She remembers even though her faucets are hooked up to a city water source supposedly safe from contamination. As much as she’d like to go back to a time when she believed government officials would protect her from harm, she watches her 12-year-old son still use bottled water to brush his teeth and knows that’s impossible.

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We can’t un-know what we’ve learned,” Brown told ThinkProgress. “When you know better, it is your responsibility to do better.”

But moving forward takes time; trust, once lost, can be hard to find again. Since his election in 2016, Gov. Roy Cooper (D) has taken steps to right the wrongs of past administrations, installing a DEQ secretary who publicly champions both transparency and environmental justice for North Carolina’s most vulnerable communities.

For years, North Carolina has exemplified the danger of politicians favoring cozy relationships with industry over regulations meant to protect public health and the environment. But under Cooper, can it also be an example of redemption?

Contamination becomes a scandal

In the spring of 2015, Brown — along with hundreds of other North Carolina residents who get their water from wells near coal ash ponds owned by Duke Energy — received a letter from the North Carolina Department of Health and Human Services (DHHS) and the Department of Environmental Quality (DEQ), warning that their water had shown elevated levels of hexavalent chromium, a known carcinogen linked to coal ash contamination.

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The letter cautioned residents not to use the water for cooking or drinking due to potential contamination from the nearby ponds.

Duke Energy occupies an unmatched echelon of power in North Carolina politics. The company spends tens of millions of dollars each year on lobbying and advertising throughout the state, and gave nearly $1 million to state political campaigns in 2012 and 2014. Duke has donated more than $3.7 million to the Republican Governor’s Association, which heavily supported McCrory’s gubernatorial bid. It’s easy to see why: before he was elected governor in 2012, McCrory worked at Duke Energy for nearly 30 years.

In 2014, a Duke Energy power plant spilled 39,000 tons of coal ash into the Dan River. The river, which provides drinking water for communities in North Carolina and Virginia, tested positive for high levels of contaminants like lead, mercury, and arsenic. The spill garnered national attention, and put the McCrory administration’s lack of environmental enforcement under a new spotlight.

“They want to have a hammer to come down on anybody who hinders developers by enforcing regulations,” an unnamed DEQ supervisor told the New York Times in 2014. “We’re scared to death to say no to anyone anymore.”

Following the spill, the state took some steps to bring Duke Energy to heel, specifically regarding the millions of tons of coal ash the company stored in more than a dozen unlined pits across the state. In 2015, the North Carolina DEQ fined Duke $25.1 million for groundwater pollution near a single power plant. That same year, DEQ and DHHS sent the ominous letter to Brown and others, warning them that their water tested positive for levels of hexavalent chromium in excess of state and federal levels, potentially from leaking coal ash pits near their homes.

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The DEQ fine was later dropped to $7 million for groundwater pollution issues from all power plants. Beyond that, McCrory did little to address potential coal ash contamination, instead choosing to disband the state’s coal ash commission in 2016.

Protesters gather outside of Duke Energy's headquarters during Duke Energy's annual shareholder meeting on May 1, 2014 in Charlotte, North Carolina. (CREDIT: Davis Turner/Getty Images)
Protesters gather outside of Duke Energy's headquarters during Duke Energy's annual shareholder meeting on May 1, 2014 in Charlotte, North Carolina. (CREDIT: Davis Turner/Getty Images)

The administration’s public attempts to understand whether the contamination issue was related to coal ash weren’t enough to satisfy environmental groups, which proceeded to worry about the culture of lax enforcement under the McCrory administration.

The mission of the agency was changed to one of customer service, the customer being the regulated community,” Molly Diggins, state director of the North Carolina chapter of the Sierra Club, said. “There was an extraordinary lack of openness and transparency. There was re-writing of scientific and technical reports. There was a backing away from science, that science was just another form of opinion.”

After the first round of coal ash contamination letters went out to North Carolina residents, Brown received another letter from DEQ and DHHS officials, this one claiming her water was now safe to drink. But no state officials had been out to test her water, and there was no clear indication of what had changed in the 10 months between the two letters.

We already knew that we couldn’t trust Duke,” Brown said. “We assumed that the state would be on our side and protect us and do everything, no matter what and no matter how ugly it would get. It wasn’t until we started educating ourselves and asking more questions that we realized that is not the case.”

At the same time, state epidemiologist Megan Davies told lawyers during a deposition related to coal ash contamination in North Carolina that she and other DHHS experts disagreed with the decision to send a second letter telling residents their water was safe to drink. Another state toxicologist, Kenneth Rudo, also testified that the McCrory administration had tried to downplay the risks associated with drinking the water. (Legal proceedings concerning Duke’s coal ash in North Carolina are still ongoing.)

Davies later resigned, saying she felt the administration had “deliberately [misled] the public” about the safety of their drinking water.

For residents, who saw the close relationship that Duke Energy enjoyed with both the governor and state regulators like then-DEQ Secretary Donald van der Vaart, the testimony from Davies and Rudo stoked fears that the coal ash issue was being treated as a political flashpoint rather than a potentially serious public health issue.

“Safe water and safe air should not be political,” Brown said. “It should be a human right.”

For Brown, the McCrory administration’s back-and-forth on the dangers of coal ash contamination typified the worst of the state’s tendency to favor powerful industry over the concerns of residents. It’s why when it came time to vote in the 2016 election, Brown threw her support behind Roy Cooper, a Democrat who criticized McCrory’s handling of the coal ash issue and promised to pursue an environmental agenda that protected the health and safety of all North Carolina residents.

Coal ash — and especially McCrory’s handling of the contamination issue — became a serious point of contention during the 2016 gubernatorial election. In October of 2016, the Cooper campaign accused McCrory of bending to Duke’s will when DHHS and DEQ rescinded the do-not-drink letters, citing a dinner meeting McCrory had with Duke’s CEO in the summer of 2015. McCrory, for his part, denied that anything untoward happened at the dinner (and the state Ethics Commission dismissed a complaint about the meeting); but for residents like Brown, finding out that McCrory had dined with Duke’s CEO months before she was forced to rely on bottled water was the final straw.

It’s like so much corruption just started unraveling,” Brown said. “We started asking who is protecting us? Who is our voice in this situation?”

Turning the tide

On November 8, 2016 — as Donald Trump claimed a surprise win over Hillary Clinton in the presidential election — North Carolina had its own kind of reckoning, with voters narrowly electing Cooper over McCrory. Two months later, Cooper appointed Michael Regan, a former EPA official and senior southeastern director for the Environmental Defense Fund, to lead the state’s DEQ.

In his first speech as DEQ secretary, Regan promised to bring greater transparency to the agency. But he also acknowledges that rebuilding trust is a long process — both for the public and for career employees within the agency that had been hamstrung by the previous administration’s disregard for environmental regulation.

When the public loses trust in government, it takes time to rebuild that,” Regan told ThinkProgress. “People need to hear more than words. They need to begin to see things happening.”

In North Carolina, even with a dedicated and committed secretary, there’s only so much DEQ can do. For decades, the state legislature has slashed DEQ’s budget, but in 2011, when Republicans took control of the general assembly, those cuts became increasingly steep.

According to Richard Whisnant, a professor of public law and government at the University of North Carolina, the post-2011 North Carolina legislative agenda can be best described as a “clampdown on agency and local environmental discretion.”

In 2013, the Republican-controlled legislature passed a number of bills that slashed environmental regulations, which lawmakers decried as “job killing.” The measures included a bill that removed environmental permitting requirements for any taxpayer funded state projects that cost less than $10 million, and another that replaced science and public health officials on advisory boards with industry representatives.

Governor Cooper and I are doing our part to win the hearts and minds of the people — the wall that we continue to hit is with a legislature that is not swayed by facts but hamstrung by ideology,” Regan said.

Funding cuts have hit DEQ particularly hard, hurting the agency’s ability to keep up with inspections, handle enforcement actions, and usher businesses through the permitting process.

In 2010, the agency had 5,221 employees — by 2017, that number had dropped to 1,582 (though a number of those employees were transferred to the North Carolina Department of Natural Resources when it was created as a standalone agency in 2013). Cooper has asked for money to hire more inspectors for the department, but faces an uphill battle in the legislature.

When you hamper the agency’s ability to protect the public and the environment, but also hamper the agency’s ability to provide permits and technical assistance to the business community, you really have cut your nose off to spite your face,” Regan said.

For now, Regan said, his goal is to empower DEQ’s existing employees to carry out their work free from political interference. He also wants to redirect the agency’s focus to environmental protection for all North Carolinians, including communities of color or low-income communities typically left out of the environmental planning process.

We did not lead with politics,” Regan said. “We are leading with science and we are leading with transparency and we are leading with public engagement.”

One way Regan and Cooper have already tried to affect change is through the creation of an Environmental Justice and Equity Advisory Board, which will advise DEQ on issues related to environmental justice. The board, which was created in early May, is comprised of 16 environmental justice and public health experts from across the state, and is required by charter to represent a range of professions (at least one member to have a doctorate in either economy, public health, sociology, or environmental science) and ethnicities (two members must be Native American tribal representatives).

I think the current secretary of the environment has done an outstanding job of building relationships,” Sierra Club’s Diggins said. “DEQ has been vastly better about reaching out and consulting with groups, and they are making a clear effort to consult with groups that are not often heard.”

A long road to redemption

A few weeks ago, Amy Brown finally received notice that her home had been hooked up to a municipal water source, ostensibly signaling an end to the experience she describes simply as a “nightmare.”

But Brown cautions against assuming the state’s environmental problems are solved.

Our problems go far beyond just contaminated water,” she said. “A water line did not fix all of our problems.”

Beyond coal ash, North Carolina faces a host of pressing environmental concerns. The state is one of the nation’s largest producers of pork, and industrial hog farms — often situated near low-income communities of color — are allowed to store millions of tons of manure in open-air, unlined pits euphemistically referred to as “lagoons.”

In early May, four years after residents filed a complaint with the state DEQ over the permitting of these hog facilities, they finally reached a settlement with the agency. But 160,000 North Carolinians still live within a half-mile of a pig or poultry farm, and budget cuts mean those operations often aren’t inspected as frequently as some residents and environmental groups would like. Manure is also still being stored in open-air, unlined pits, meaning concerns about groundwater pollution persist.

The state is also starting to grapple with GenX contamination, which — along with its precursor, perfluorooctanoic acid — has been discharged into the Cape Fear River in the eastern part of the state for decades by industrial producers like DuPont. GenX, a chemical used in the production of common household products like nonstick cookware, has been linked to an increased cancer risk in animals.

Brown hopes the Cooper administration will make good on its promises to address these issues. But she also wants people around the country to see North Carolina as a warning of what can happen when states prioritize the interests of industry over the concerns of the public.

My hope is that other states will learn from our situation, and take time to read and learn what went on in North Carolina,” Brown said. “If it happened to us, it can most certainly happen to you.”