The residents of Kingston, Tennessee had no inkling that the Christmas of 2008 would be any different than another year. In the wee morning hours three days before the holiday, an earthen dam holding back a 40-acre surface impoundment at a Tennessee Valley Authority (TVA) power plant burst, releasing 1 billion gallons of inky coal ash sludge across Kingston, Tennessee. The sludge flood crossed a river, destroying 26 houses. One had a man inside, and was lifted off its foundation and moved 40 feet downhill. In the end, the spill covered 300 acres in four to five feet of sludge and mud. Estimated cleanup costs are more than $1.2 billion.
On Friday, inspired by relentless electric utility industry lobbying, House Republicans and some three dozen Democrat colleagues voted to gut a proposed Environmental Protection Agency (EPA) rule that had the potential to get a grip on the dangerous state of affairs at similar dumps across the country. With luck, the Senate will not take up the bill because although President Obama issued a statement opposing it, he stopped short of the veto threat that is the only way to build a firewall against such initiatives. The President’s weak knees on this are no surprise. As we have observed previously in this space, his Office of Information and Regulatory Affairs, which serves as a perpetual barrier to protective EPA rules that inconvenience industry more than it cares to be inconvenienced, had already compromised the EPA proposal by forcing the agency to propose a strong rule alongside a weak rule, signaling the Administration’s lack of commitment to the initiative.
Just how dangerous and how ubiquitous are Kingston’s brother facilities? In one bizarre twist, in June 2009, the Obama Administration refused to disclose the location of 44 such sites for fear that terrorists would target them for sabotage, causing grave damage and even death in surrounding communities. It’s easy to see why the sites prompt such concerns.
In 2008, some 495 electric plants generated 136 million tons of ash. Utilities disposed of about 34 percent (46 million tons) in so-called “dry” landfills that, at least in theory, cover deposits so that rainfall cannot infiltrate them. But another 22 percent (29.4 million tons) went into “surface impoundments” like the one at Kingston—the term, of course, is a euphemism for a big, waterlogged pit in the ground, shored up by planks, walls, fences, or any other “structure” the companies thought was appropriate as long as five decades ago. The threat of collapse is particularly acute for surface impoundments: some 186 of the 584 estimated to be operating in the United States were not designed by a professional engineer. Fifty-six of these units are older than 50 years, 96 are older than 40 years, and 340 are between 26-40 years old.
The dumps also cause long-term environmental damage. Thirty-one percent of landfills and 62 percent of surface impoundments lack liners to contain leaching of hazardous constituents like mercury, cadmium, lead, and arsenic into underground aquifers. Half of the American people rely on groundwater for their drinking water supplies.
Up until EPA finally tried to intervene, the states presided over this fragile system, and they did it with great deference to industry. In fact, state laws are so weak that 80 percent of the owners and operators of such facilities have been excused from dealing with groundwater protection, and some 88 percent excluded from having to prove they have the financial wherewithal to deal with problems discovered later. Compounding these blatant exemptions, state regulations do not cover 30 percent of coal ash generated annually.
Under the House bill, H.R. 2273, the states are placed firmly in charge of any future efforts to regulate coal ash dumps. EPA would be compelled to jump through several hoops to intervene if the states sit on their hands. And the overall requirement of federal law that disposal sites be constructed well enough to “protect human health and the environment” would not be applied to past, present, or future coal ash facilities.
The House’s determination to gut the EPA rule, when placed alongside the Kingston disaster, illustrates why it is a crying shame that Members of Congress who support such initiatives are not held accountable when the next comparable disaster comes to pass. Imagine the effect if all the Members who vote for such legislation were compelled to write a letter of apology to every person injured by such disasters and then post the epistles on his or her website, alongside pictures of them cutting ribbons and kissing babies. It’s only in the aftermath of a disaster when the price of votes that seemed cost-free when cast becomes clear.
Rena Steinzor, Professor of Law, University of Maryland Carey School of Law. Bio.
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