Recent Spill of Coal Ash Prompts Legislation for Better Controls

By Juliet Eilperin
Washington Post Staff Writer
Friday, January 16, 2009

In less than a month, the question of how to dispose of coal combustion waste has gone from a largely ignored issue to a pressing national environmental concern that has already sparked legislative proposals and the prospect of new regulation.

Since the Dec. 22 coal ash spill at the Tennessee Valley Authority's Kingston Fossil Plant, which poured a billion gallons of toxic material over 300 acres, lawmakers and regulators have said that the federal government should revisit an issue it has deliberated on for three decades. Although President-elect Barack Obama has identified climate change as one of his top policy priorities, addressing coal ash may come first.

Burning coal produces more than 129 million tons annually of combustion waste -- a concentrated ash that includes toxic elements such as arsenic, lead, cadmium, selenium and mercury -- but federal authorities have yet to establish uniform standards for handling it.

"The threats are out there, and we know it now. And we also know how we need to address them," said House Natural Resources Committee Chairman Nick J. Rahall II (D-W.Va.), who introduced legislation this week calling for tighter controls on coal ash ponds, which are piles of combustion waste suspended in water. "As we often see in the coalfields across the country, it takes a disaster before we see decisive action."

Congress initially raised the prospect of regulating coal ash as a hazardous waste in 1980, but regulators moved slowly until March 2000, when the Environmental Protection Agency said it planned to designate it a "contingent hazardous waste." After electric utilities protested that such a move would cost billions, however, then-EPA administrator Carol M. Browner reversed herself and determined that coal ash amounted to a solid waste. The agency pledged to issue regulations on the matter nonetheless, but it failed to do so in the eight years since President Bush took office.

The amount of coal combustion waste produced each year has increased by nearly a third since 1990, and there are now as many as 1,300 coal ash ponds across the nation. According to a report issued yesterday by the environmental law firm Earthjustice, each year about 25 million tons of coal ash are dumped into active and abandoned mines, where it often goes directly into groundwater. The EPA determined last year that coal ash has contaminated water in 24 states.

Lisa Evans, an Earthjustice attorney, said mining communities that already confront other environmental threats are faced with another source of contamination that may pollute their water for years.

"The last thing these communities need is a toxic waste dump where their mine was," said Evans, adding that in filling old mines with coal ash, "there's a very simplistic notion that you're returning coal to where it came from, so it's not going to cause any problems."

Matthew Hale, who directs the EPA's solid waste office, said that although the agency has yet to issue formal coal ash regulations, "We will be bringing this forward very quickly to reach a decision on the path forward, and that's the time when we'll be able to have a timetable. . . . Clearly, the dam failure at TVA puts a sense of urgency on the issue of addressing the stability of the dams."

Sen. Barbara Boxer (D-Calif.), who chairs the Environment and Public Works Committee and held a hearing last week on the issue, asked EPA administrator-nominee Lisa P. Jackson on Wednesday during her confirmation hearing what she would do to police coal ash ponds and other storage sites that have gone unregulated.

Jackson pledged to conduct an immediate inventory of the deposits if confirmed and added, "The EPA currently has, and has in the past, assessed its regulatory options, and I think it is time to re-ask those questions."

The EPA already has options at its disposal, said Earthjustice's Evans, who formerly was a lawyer in the agency's enforcement division, because the agency has the power to investigate any potential hazard to public health and the environment. Furthermore, she said, it can take action if it determines there is a threat of "imminent and substantial endangerment" from solid waste.

Even as lawmakers and regulators begin to contemplate how they can crack down on the storage sites -- Rahall's bill would impose a uniform federal design along with engineering and performance standards on new coal ash ponds, while groups such as Earthjustice and the Environmental Integrity Project are calling for the elimination of the impoundments altogether -- industry officials say federal authorities should pause before classifying coal ash as hazardous.

David Goss, executive director of the American Coal Ash Association, said 43 percent of the material is currently recycled for purposes such as agricultural landfill and road projects, and designating coal combustion waste as hazardous could make that impossible.

"When it's managed properly, it doesn't pose a risk to the environment or public health," he said.

Still, officials of the utility industry recognize they may have to spend more to manage a byproduct they have stored cheaply for years.

Edison Electric Institute spokesman Dan Riedinger, whose association represents several major U.S. utilities, said his group opposes a hazardous waste designation for coal ash but added, "It's too early to rule out other options that can help utilities improve their management practices and provide the public with the reassurance it needs in the wake of TVA."

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