After the massive TVA Kingston disaster inundated a Tennessee community and two rivers with a billion gallons of coal ash in 2008, it appeared the tide was turning for the largely unregulated toxic waste produced by burning coal for electricity.
But for four years, the energy industry has successfully fought off federal regulations -- thanks in part to the American Legislative Exchange Council, which has close ties to energy companies with a financial interest in blocking strict oversight of coal ash.
An influential conservative advocacy group that operates primarily by producing model legislation for state lawmakers, ALEC has landed in the media spotlight recently because of its role in passing "Stand Your Ground" laws like the Florida one at issue in the deadly shooting of 17-year-old Trayvon Martin by community watch leader George Zimmerman. The controversy over those gun laws has led a number of corporations to end their ALEC memberships, including snack food giant Mars, Wendy's, McDonald's, Kraft Foods, Coca-Cola, Pepsi and Intuit. Watchdog groups have also raised concerns about whether ALEC is violating its nonprofit status since its primary purpose is to affect policy decisions.
Two years ago, while still operating largely outside of public view, ALEC turned its attention to killing federal rules on coal ash -- waste that contains heavy metals and other health-damaging pollutants and has been linked to over 150 cases of environmental damages, most involving water contamination.
In early 2010, at the same time the Environmental Protection Agency was drafting proposed coal ash regulations in response to the Kingston disaster, ALEC passed a resolution stating that "coal combustion residuals do not warrant federal regulation as hazardous waste" and claiming that "states are best positioned to serve as the principal regulatory authority for CCRs as non-hazardous waste."
Following the advocacy efforts of ALEC and heavy lobbying by power companies, the EPA took the unusual step of releasing not one but two proposed rules for regulating coal ash: a stricter option that would empower the federal government to oversee the material like other hazardous waste, and a less stringent rule that would treat coal ash like ordinary household trash and leave its oversight largely up to the states -- what ALEC and the energy lobby wanted.
The agency received over 450,000 public comments on the proposed rules, and speakers packed public hearings to call for the stricter federal option. But rather than promptly issuing a final rule, the EPA has repeatedly delayed the process. Earlier this month, the environmental law firm Earthjustice sued the agency over the delay on behalf of a coalition of public-interest groups.
"The numbers of coal ash ponds and landfills that are contaminating water supplies continues to grow, yet nearby communities still do not have effective federal protection," said Earthjustice attorney Lisa Evans. "It is well past time the EPA acts on promises made years ago to protect the nation from coal ash contamination and life-threatening coal ash ponds."
Congress has also stepped in to block federal coal ash rules. Earlier this month, the U.S. House of Representatives passed a transportation bill with an amendment sponsored by Rep. David McKinley (R-W.Va.) that forbids the EPA from regulating the waste and would keep that authority with the states.
So why would ALEC be involved in efforts to scuttle federal coal ash rules? A Facing South investigation finds that the group has close ties to major coal ash polluters with a financial interest in pre-empting strict oversight, underscoring the way ALEC allows industry leaders to shape the group's advocacy work.
They include Duke Energy and Progress Energy, the North Carolina-based electric utility giants that are currently involved in merger proceedings. Headquartered in Charlotte, Duke Energy serves customers in five states including the Carolinas and Kentucky, while Raleigh-based Progress has major operations in the Carolinas and Florida.
In South Carolina, two representatives of the utilities -- Chuck Claunch, Duke Energy's director of state government affairs for South Carolina, and Jeanelle McCain, Progress Energy's director of public affairs for the state -- are co-chairs of ALEC's state operations, according to the Center for Media and Democracy's ALEC Exposed project.
The two companies are also major coal ash polluters that have long fought stricter regulations. A 2009 analysis of the utilities' own monitoring data found that coal ash ponds at all of the companies' North Carolina power plants are contaminating groundwater. In addition, coal ash pollution from a Duke Energy power plant in North Carolina's Belews Lake wiped out 19 of 20 fish species that lived there -- an episode that the U.S. Forest Service has called "one of the most extensive and prolonged cases of selenium poisoning of freshwater fish in the United States."
ALEC has also forged close relationships with other utilities across the South that have been implicated in environmental damage cases caused by their mishandling of coal ash:
* American Electric Power is an investor-owner electric utility headquartered in Columbus, Ohio with operations in Arkansas, Louisiana, Virginia, West Virginia, Tennessee and Texas. It is a member of ALEC's Energy, Environment and Agriculture Task Force and was a financial sponsor of ALEC's 2011 conference, according to ALEC Exposed. A coal ash landfill at AEP's Flint Creek power plant near Gentry, Ark. was found to be contaminating off-site groundwater with high levels of barium, cadmium, lead, iron, manganese and silver.
* Energy Future Holdings is a privately held Dallas-based energy company that owns Luminant and TXU; EFH lobbyist Lisa A. Sano Blocker sits on ALEC's Private Enterprise Board, according to ALEC Exposed. TXU's Martin Lake power plant near Tatum, Texas contaminated a nearby reservoir with selenium and other metals and caused massive fish kills; the site is listed by the EPA among the confirmed U.S. coal ash damage cases.
* Entergy is an electric power corporation headquartered in New Orleans that served as a major sponsor of ALEC's 2011 annual conference, according to ALEC Exposed. Coal ash ponds at its Independence Steam Station near Newark, Ark. are the source of widespread groundwater contamination involving arsenic, cadmium, lead and other pollutants.
"ALEC members have strong ties to the coal ash regulation, and their work has been paying off," Evans told Facing South. "Between the amendment adopted to the transportation bill and the delay at the EPA in establishing any federal protections, the polluters are winning."
(Photo of 2008 Kingston coal ash disaster by TVA.)