Enviro groups threaten to sue EPA over delayed coal ash rule

Environmental and public health groups have announced their intent to sue the U.S. Environmental Protection Agency in federal court to force the release of long awaited public health safeguards against toxic coal ash, said Earthjustice in a Jan. 18 statement.

The EPA has delayed the first-ever federal protections for coal ash for nearly two years despite more evidence of leaking ponds, poisoned groundwater supplies and threats to public health, Eartjustice noted.

Earthjustice, on behalf of environmental groups that include Appalachian Voices, Chesapeake Climate Action Network and the Environmental Integrity Project, sent the EPA a notice of intent to sue the agency under the Resource Conservation and Recovery Act (RCRA). The law requires the EPA to ensure that safeguards are regularly updated to address threats from waste. However, the EPA has never undertaken any action to address the known threats posed by coal ash, which has attached to and within it a toxic mix of arsenic, lead, hexavalent chromium, mercury, selenium, cadmium and other dangerous pollutants.

Following a December 2008 spill of more than a billion gallons of coal ash mixed with water at a Tennessee Valley Authority disposal pond at the Kingston power plant in Tennessee, EPA Administrator Lisa Jackson announced in 2009 plans to set federal coal ash regulations by end of that year. In May 2010, the EPA proposed to classify coal ash either as hazardous or non-hazardous waste. A hazardous waste classification would cause ash disposal costs to skyrocket, endangering the very existence of some coal-fired plants.  After eight public hearings across the country and more than 450,000 public comments, the agency decided to delay finalizing the rule amid intense pressure from the coal and power industries, Earthjustice said.

The threatened lawsuit would force the EPA to set deadlines for review and revision of relevant solid and hazardous waste regulations to address coal ash, as well as the much needed and overdue changes to the test that determines whether a waste is hazardous under RCRA, Earthjustice said.

“Politics and pressure from corporate lobbyists are delaying much needed health protections from coal ash,” said Earthjustice attorney Lisa Evans. “The law states that the EPA should protect citizens who are exposed to cancer-causing chemicals in their drinking water from coal ash. As we clean up the smokestacks of power plants, we can’t just shift the pollution from air to water and think the problem is solved. The EPA must set strong, federally enforceable safeguards against this toxic menace.”

“For far too long the Tennessee Valley Authority has been allowed to ignore the dangers of coal ash, resulting in the 2008 Kingston disaster, one of the worst environmental catastrophes of our time,” said Josh Galperin, policy analyst and research attorney for the Southern Alliance for Clean Energy, in the Jan. 18 statement. “Despite the lessons of Kingston and an explicit congressional mandate, coal ash continues to be unregulated by the EPA. We are taking action today to drive EPA to follow-through on its legal duty to protect Americans from this toxic waste.”

“Right now our organization is involved in several lawsuits against old, leaking coal ash landfills in Maryland,” said Diana Dascalu-Joffe, staff attorney with Chesapeake Climate Action Network. “Dangerous coal ash is leaching into waterways that hurt the Chesapeake Bay and could be threatening the health of Maryland citizens. The EPA has a responsibility to issue a uniform, strong rule to address coal ash so groups like ours don’t have to fight to clean them up, facility by facility, at the state level.”

“The EPA must act and they must act soon,” said Bruce Nilles, Senior Campaign Director for the Sierra Club’s Beyond Coal Campaign. “Millions of tons of toxic waste from coal plants – coal ash containing arsenic, lead, mercury and other dangerous pollution – are dumped across the country each year, often without basic safety protections. Even though the EPA has identified more than four dozen highly dangerous coal ash sites around the country they have still failed to safeguard the health and well being of those living near the dumping grounds. We urge the EPA to take definitive action to protect American families and communities.”

EPA took comment last fall on new ash data

Said a section of the EPA website dedicated to the stalled ash proposal: “Coal Combustion Residuals, often referred to as coal ash, are currently considered exempt wastes under an amendment to RCRA, the Resource Conservation and Recovery Act. They are residues from the combustion of coal in power plants and captured by pollution control technologies, like scrubbers. Potential environmental concerns from coal ash pertain to pollution from impoundment and landfills leaching into ground water and structural failures of impoundments, like that which occurred at the Tennessee Valley Authority’s plant in Kingston, Tennessee. The need for national management criteria was emphasized by the December 2008 spill of CCRs from a surface impoundment near Kingston, TN. The tragic spill flooded more than 300 acres of land with CCRs and flowed into the Emory and Clinch rivers.”

The most recent action on the EPA website related to the CCR proposal is an October 2011 Federal Register notice seeking public comment on additional information obtained by the EPA in conjunction with the proposed rule. This new information is generally categorized as: chemical constituent data from CCRs; facility and waste management unit data; information on additional alleged damage cases; adequacy of state programs; and beneficial use of CCRs. In addition, EPA said in the notice that it is considering a variety of possible approaches to update and enhance the risk assessment and the regulatory impact analysis (RIA) supporting the development of the final rule. EPA was specifically soliciting comments by Nov. 14, 2011, on the validity and propriety of the use of all new information, data, and potential analyses put up for notice.

Power generators do fear the prospects of more expensive ash regulation. They often cite looming ash regulations, along with restrictive new air regulations from EPA like the Cross-State Air Pollution Rule, as major factors in possible retirements of a number of older coal-fired plants.

TVA undertakes expensive ash upgrade program

TVA said in its Nov. 18, 2011, annual Form 10-K report that after the Kingston ash spill, it retained an independent third-party engineering firm to perform a multi-phased evaluation of the overall stability and safety of all existing embankments associated with TVA’s wet CCR facilities. The first phase of the evaluation, which is finished, involved a detailed inspection of all wet CCR facilities, detailed documentation reviews, and a determination of any immediate actions necessary to reduce risks. The second phase of the program, which is also complete, included geotechnical explorations, material testing, stability analyses, and studies.

The CCR study showed that none of TVA’s other coal-fired plants showed the same set of conditions that existed at Kingston at the time of the ash spill, and that the ongoing remediation work being done at the plants should bring all of them within industry standards in terms of stability. The third phase of the program, which is implementation of recommended actions, is ongoing. This phase includes risk mitigation steps such as performance monitoring, designing and completing repairs, developing planning documents, obtaining permits, and generally implementing the lessons learned from the Kingston ash spill at TVA’s other wet CCR facilities. As a part of this effort, an ongoing dam oversight program has been undertaken, and TVA employees have received additional training in dam safety and monitoring, TVA said in the Form 10-K.

TVA added that it is planning to convert all of its wet CCR facilities to dry collection facilities. The expected cost of the CCR work is between $1.5bn and $2bn, with the work expected to be completed by 2022.  As of Sept. 30, 2011, $275m of costs had been incurred since the start of the work.

About Barry Cassell 20414 Articles
Barry Cassell is Chief Analyst for GenerationHub covering coal and emission controls issues, projects and policy. He has covered the coal and power generation industry for more than 24 years, beginning in November 2011 at GenerationHub and prior to that as editor of SNL Energy’s Coal Report. He was formerly with Coal Outlook for 15 years as the publication’s editor and contributing writer, and prior to that he was editor of Coal & Synfuels Technology and associate editor of The Energy Report. He has a bachelor’s degree from Central Michigan University.