On December 22, 2008, the contents of an enormous, 100-acre impoundment containing coal-ash slurry from the Tennessee Valley Authority’s (TVA) Kingston Fossil Fuel Plant poured into the Emory River. The immediate cause of the spill was the bursting of a poorly reinforced dike holding back a pit of sludge that towered 80 feet above the river and 40 feet above an adjacent road. The volume and force of the spill were so great that 1.1 billion gallons of the inky mess flowed across the river, inundating 300 acres of land in a layer four to five feet deep, uprooting trees, destroying three homes, and damaging dozens of others. The catastrophic breach ruptured a gas line, wrought millions of dollars in property damage, and caused incalculable environmental damage to the Emory River and its receiving water, the Clinch River. Miraculously, no one was killed.[i]
The slurry contained both fly and bottom ash, collectively known as “coal combustion residuals” (CCRs) in the euphemistic lexicon of environmental regulation. Coal-fired power plants have increasingly effective scrubbers that capture toxic fumes produced by burning coal before they are emitted into ambient air. These fumes are lodged in giant filters where they cool into fly and bottom ash. As scrubbers evolved to remove more of the heavy metals (for example, lead, cadmium, selenium, etc.) contained in coal, the composition of the ash has become far more toxic. The toxic components of the ash leach through unlined pits into drinking water and can also pose hazards to public health when left in open pits without top covers.
Coal-fired power plants generate some 129 million tons of coal ash annually, a startlingly large figure when compared to the 250 million tons of every category of household garbage that Americans generated in 2010.[ii] While the Environmental Protection Agency (EPA) has estimated that somewhere around 40 percent of the ash is recycled safely by, for example, placing it in the beds of new highway segments and covering it with road surface materials, too much is still dumped into one of more than 500 such surface impoundments around the nation, many of them unstable, unlined, and uncovered.[iii]
TVA later estimated that the Kingston spill had released around 2.6 million pounds of toxic pollutants into the Emory River. Cleanup costs for the federally subsidized TVA, one of the largest electric utilities in the country, are expected to total $1.2 billion, adding $0.69 per month to the utility bills of 9 million customers until 2024.[iv]
In the wake of the Kingston spill, the EPA undertook an investigation of the safety of existing surface impoundments, finding that 109 of 584 such facilities nationwide had either a “high” or a “significant” hazard potential rating. In addition, 186 of the units were not designed by a professional engineer. Although the impoundments were designed to last for about 40 years, 56 were older than 50 years old and 360 were between 26 and 40 years old. Thirty-five units at 25 facilities had already reported releases, ranging from minor spills to the massive release at the Kingston facility. By the EPA’s accounting, 49 coal ash dumps in 18 states have the potential to damage human health by contaminating ground or surface water, a figure that almost certainly understates the problem.[v]
While the Kingston spill may have been the worst of its kind in recorded history, it was not the first, nor would it be the last. Less than three years later, on Halloween 2011, the collapse of a bluff made of coal ash dumped a plume of ash the length of a football field, along with dirt, rocks, a pickup truck, and dredging equipment, into Lake Michigan. The culprit there was the We Energies Oak Creek Power Plant in Milwaukee County, Wisconsin.[vi] And in February 2014, a spill of 39,000 tons of coal ash slurry from a Duke Energy impoundment fanned into North Carolina’s Dan River. Federal investigators have launched a criminal investigation into the spill.[vii]
Following the Kingston episode, newly appointed EPA Administrator Lisa Jackson promised to reexamine the agency’s long-standing reluctance to regulate coal ash and to consider a new rule that would compel safer disposal of coal ash and the reinforcement of old, poorly designed, and carelessly maintained coal-ash dumps.[viii] As originally proposed, the rule would have had the agency regulate coal ash as a hazardous waste under Subtitle C of the Resource Conservation and Recovery Act (RCRA), the federal environmental law that governs general waste disposal. The stringent Subtitle C option would authorize the agency to require cleanup and reinforcement of existing coal ash pits and to require liners and covers for new disposal facilities. The proposal cited two distinct categories of harm that justified imposing stringent federal controls on disposal: (1) the migration of toxic constituents of the ash into the environment, especially groundwater; and (2) the probable recurrence of spills like the one in Kingston.
What’s the Holdup?
The EPA’s coal ash rulemaking has been plagued by a series of delays from the very beginning. In October 2009, the EPA sent the draft of a proposed rule to Cass Sunstein, the White House “regulatory czar,” known more formally as the administrator of the Office of Management and Budget’s (OMB) Office of Information and Regulatory Affairs (OIRA), which reviews every “significant” rule proposed or finalized by Executive Branch agencies and departments. The agency’s efforts were quickly thwarted when an intensive industry lobbying campaign provoked the White House to rewrite the proposal, which ultimately derailed the momentum of the rulemaking.
The White House team lead by Administrator Sunstein spent seven months rewriting the EPA’s proposal to the point that it was barely recognizable when it was published in the Federal Register for comment in May of 2010. Not only did White House economists add hundreds of millions of dollars in “costs” to the proposal’s cost-benefit analysis based on their unsubstantiated theory that regulating coal ash as a hazardous waste would create a “stigma” effect that in turn would discourage future recycling of the pollutant; they used these imagined costs to justify adding two much weaker alternatives to the original EPA Subtitle C option. One would allow the states to continue to regulate coal ash as a “solid waste” under Subtitle D of RCRA when it is disposed on land, essentially leaving all regulatory decisions and enforcement to state discretion. The second, a so-called “D prime” option, would allow all existing coal ash disposal landfills and surface impoundments to continue to function without change for the remainder of their useful lives.[ix]
The EPA’s coal ash rulemaking has faced fierce opposition from an industry coalition led by electric utilities intent on avoiding the costs of rebuilding huge coal ash dump sites like the ones in Tennessee, Wisconsin, and North Carolina.[x] They were joined by highway construction firms and local governments convinced that, despite the explicit exemption—without limitation—of any coal ash that was recycled for a more productive use, labeling coal ash that was dumped on the ground a hazardous waste would create a public backlash that would compel them to stop using it. Echoing the White House economists, they contended that recycled coal ash would pick up a stigma in the marketplace. People would be afraid to buy it for any purpose because someday they might be sued for using it.
Opponents of a stringent rule also argued that state regulation could take care of the problem, ignoring clear evidence that most had been doing an inadequate job. In addition to failing to prevent the three spills described above, an EPA investigation revealed that of the 36 states where coal ash surface impoundments are located, one-third do not have permitting programs for such facilities.[xi] In addition, two-thirds of those states do not require surface impoundments to have liners to prevent the leaching of toxics into groundwater.[xii]
Meanwhile, Republicans in the House of Representatives have introduced legislation that would take away the EPA’s authority to regulate coal ash pits more stringently, leaving weak state regulation in place.[xiii] The Democratic-controlled Senate has refused to follow suit.
Led by Earthjustice, a coalition of public health experts, a Native American tribe, and national and local environmental groups sued the EPA for dragging its feet on the rule. When district court judge Reggie Walton ruled in the plaintiffs’ favor, the case was settled. The agreement lodged before the judge requires the EPA to issue a final rule no later than December 19, 2014.[xiv]
What Should the Rule Do?
The EPA should adopt its original Subtitle C proposal, exempting recycled coal ash from regulation, but treating coal ash disposed on land as a hazardous waste under federal law. Such a rule would ensure not only that new landfills will be built safely but that old landfills will be contained and closed so as to prevent further damage to the environment or public health.
On December 19, 2014, the EPA issued a final coal ash rule that hewed closely to industry's wishes. In particular, the EPA followed through on its proposal to regulate coal ash waste under Subtitle D of RCRA, which was designed to address the disposal of household garbage and other non-hazardous wastes. As groups such as Earthjustice have pointed out, the final rule continues several other flaws that will leave people and the environment inadequately protect against the harms that improperly disposed coal ash waste can cause. For example, the final rule does not completely address the problem of legacy coal ash ponds that are held in placing using fragile and unstable earthen dams. The failure of such a pond is what resulted in the 2008 TVA coal ash spill in Kingston, Tennessee.
Despite the final rule’s weak provisions, pro-coal polluting members of Congress are pushing for legislation that would replace it with an even weaker system of oversight for coal ash waste disposal. Among other things, the pending coal ash waste bill would delay deadlines for health and safety protections by many years and eliminate key cleanup obligations for the operators of coal ash waste dumps. The final rule is also being challenged in court by industry groups and environmental groups. These suits could result in the rule being sent back to the agency for further changes.
[v] Hazardous and Solid Waste Management System; Identification and Listing of Special Wastes; Disposal of Coal Combustion Residuals from Electric Utilities, 75 Fed. Reg. 35128, 35153 (proposed June 21, 2010) (to be codified at 40 C.F.R. pts. 257, 261, 264, 265, 268, 271, & 302).