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The EPA Tightened Rules on Coal Waste, But Not Enough, Say Environmentalists

Coming six years after the biggest coal ash accident in US history, the new regulations treat waste from coal-fired power plants as non-hazardous, despite containing mercury, arsenic, and cadmium.
Image via AP/Wade Payne

Six years ago, the worst coal ash spill in United States history occurred when 1.1 billion gallons of grey sludge burst through a dike at a Tennessee Valley Authority (TVA) facility in Kingston, Tennessee, destroying homes, burying surrounding land with a thick layer of waste, and contaminating nearby rivers. Though the catastrophe helped to bring about regulatory reform, environmentalists fear that neither the TVA nor the federal government is doing enough to prevent another disaster.


Since the spill, TVA has spent over a billion dollars on cleanup and is spending up to $2 billion more to change the way it stores coal ash, which is the byproduct of burning coal to generate electricity. Rather than mixing the coal ash with water and storing it in ponds, it plans to store dry ash in landfills — a method that minimizes the risk of contaminating rivers and streams or groundwater supplies with pollutants including mercury, arsenic, and cadmium, which are common constituents of coal ash.

In Kingston, that means adding 100 acres to a landfill. The problem is thatthe fill lies above some unstable geology. "They are sitingit over top of sinkholes and caves, which lead directly to the Clinch River, right next door," Axel Ringe, conservation chair for the Sierra Club's Tennessee chapter, told VICE News.

"TVA wants to store it there because it's right next to the power plant," said Ringe, whose group recently expressed its concerns during a public comment period on the proposal. "We want them to put it somewhere far away from the river. If that means they have to transport it, well, that's the cost of doing business."

'Some of these impoundments are fifty years old and they're bleeding out heavy metals all over the place.'

Though TVA's name has become synonymous with coal ash, it's far from the only entity grappling with how best to store the dirty substance. In the wake of the 2008 spill, the US Environmental Protection Agency (EPA) vowed to create federal guidelines to prevent further disasters. After years of delay, the agency finally released its new rule on December 19th. The regulations restrict where new coal ash impoundments and landfills can be built, mandates utilities to monitor storage facilities and repair leaks, and forces the closure of impoundments that don't meet standards for structural integrity.


"These strong safeguards will protect drinking water from contamination, air from coal ash dust, and our communities from structural failures, while providing facilities a practical approach for implementation," said EPA administrator Gina McCarthy in a statement.

Though many environmental groups welcomed the long-awaited regulations, they were nonetheless dismayed that the EPA didn't go further. While new ponds will have to be lined with protective barriers, existing ponds only face cleanup if they're found to be actively polluting groundwater — and hundreds of old, unlined impoundments at retired power plants will remain completely unregulated. In early 2014, a pond at a shuttered plant spilled 39,000 tons of ash into North Carolina's Dan River.

"Some of these impoundments are fifty years old and they're bleeding out heavy metals all over the place," Peter Harrison, attorney with the Waterkeeper Alliance, told VICE News. "There's inherent risk to storing it in a wet state. The bottom line is that the rule is inadequate to prevent another catastrophe."

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The rule's limitations stemmed from the EPA's decision to regulate coal ash as an ordinary solid waste, akin to the kind generated in households or at construction sites. Environmentalists had hoped that the agency would regulate ash as a hazardous waste.


"I've looked personally at 30 or 40 coal ash impoundments, and probably 90 percent of them were leaking into an adjacent water body," Harrison told VICE News. "I've seen arsenic more than 1,000 times beyond safe drinking levels. It's absurd that we're even having this debate."

Another point of contention is that the rule does not allow for federal enforcement, instead relying on state regulators and citizen lawsuits to ensure that companies are adequately policing themselves. Despite that apparent shortcoming, however, Scott Sherman, senior counsel at the law firm Bracewell and Giuliani, told VICE News that the agency's decision still has some teeth.

"EPA did something that we don't typically see with non-hazardous waste: they established a fairly comprehensive set of requirements about things like location restrictions, monitoring, and structural integrity," Sherman told VICE News. "In a sense, it's a hybrid situation, where EPA requirements will become part of state rules."

The rule was welcomed by the coal industry, which had feared a heftier financial burden. In 2010, the EPA estimated that the stricter regulations imposed by a potential hazardous waste decision would cost the industry $1.5 billion compared to just $600 million if coal ash was regulated as ordinary waste.

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The coal ash recycling industry, which uses the material in products like drywall, praised the rule. According to a report from the American Coal Ash Association (ACAA), the country produced 114 million tons of coal ash in 2013, less than half of which was reused. Industry representatives predicted that classifying ash as non-hazardous would de-stigmatize the substance, encouraging recycling programs, and keeping coal ash out of ponds and landfills in the first place.

"The regulatory uncertainty that has impeded the beneficial use of coal ash for half a decade has finally come to an end," said Thomas H. Adams, Executive Director of ACAA, in a statement.

In February 2014, the EPA ruled that coal ash was safe and effective for use in materials like concrete and wallboard. Ultimately, expanded coal ash recycling might be that rarest of issues: one upon which Big Coal, the EPA, and green groups can agree.

"Most of the evidence points to that being a good way of dealing with it — you bind it up and prevent it from leaking," said Harrison, who added that a hazardous waste ruling wouldn't necessarily have precluded recycling. "You could carve out exceptions."

Follow Ben Goldfarb on Twitter: @ben_a_goldfarb