Still unresolved, Tennessee coal-ash spill only one EPA hurdle

By David A. Fahrenthold
Washington Post Staff Writer
Tuesday, December 22, 2009; A03

When the dam broke -- a year ago Tuesday, a little after midnight -- Sandy Gupton thought she was hearing two trains colliding. It wasn't until morning that she saw what had really happened near Kingston, Tenn.

It looked, Gupton said, "like a volcano had erupted."

An earth-and-ash dam holding back 1 billion gallons of waterlogged ash from a nearby power plant had failed, and the slurry flowed out to choke the Emery River and cover 85 acres of land.

One year later, most of the ash on the land is still there. And the problem of similar coal-ash ponds still sits on the long and fast-expanding to-do list of President Obama's Environmental Protection Agency.

Now -- after a year in which a climate-change summit in Copenhagen fell short of most expectations, and with a climate bill stalled in the U.S. Senate -- the EPA might shoulder more of the burden for an administration with historic environmental ambitions.

It has already laid plans to tackle greenhouse gases, smog, "mountaintop" coal mining, and the long-running fight to save the Chesapeake Bay. But the difficulties of dealing with coal ash illustrate why such problems can linger unsolved.

In the case of the Kingston spill, the agency first announced that it would rewrite the rules for handling coal ash. Industry groups protested, saying that if the EPA began defining coal ash as hazardous waste, that decision could backfire -- choking off a trade that recycles the material into concrete, and creating even more unwanted ash.

On Thursday, the agency announced that it would not meet its own year-end deadline for issuing a new rule to govern the handling of coal-ash storage. The decision would be delayed, the EPA said, "for a short period due to the complexity of the analysis the agency is currently finishing."

The agency said it remains committed to staying the course on its broader agenda.

"EPA under the Obama Administration has promised change and is working to deliver it through a rededication to science, transparency and the rule of law," EPA spokeswoman Adora Andy said in a statement Monday.

Many environmental groups have applauded the scope of the EPA's efforts in the past year, saying they were necessary to overcome what they characterized as years of inaction under President George W. Bush.

Some industry groups, however, have said the agency is overreaching, and that its new efforts will cost businesses and consumers.

"I don't think I've ever seen this many major proposals coming out this quickly," said Jeffrey R. Holmstead, who headed the EPA's air-pollution efforts under Bush, and works for the law firm Bracewell & Giuliani.

Under Administrator Lisa P. Jackson, the EPA has inserted itself more deeply into the debate over mountaintop mines in Appalachia, even threatening a rare veto for a mine permit. It has also made an unprecedented threat to states in the Chesapeake Bay watershed, warning that they could be punished if they lag behind pollution-cutting targets.

And, most prominently, the agency has threatened to crack down on greenhouse-gas emissions if Congress doesn't do it first. The EPA issued a finding this month that the emissions pose a danger to public health, which would trigger a responsibility to regulate the gases in the same way as the ones that create smog.

That would be a key test for an agency that has sometimes struggled with a reputation as an environmental "nanny." Delegates gathered in Copenhagen and bickering senators have struggled to find a politically palatable way of imposing emissions cuts. Doing it by bureaucratic fiat won't be popular.

"They're going to need lots of staff. They're going to need an enormous effort, the likes of which I think they've never seen, in such a short period," said Eileen Claussen of the Pew Center on Global Climate Change and a former EPA staffer.

Even Jackson has said she would prefer that Congress approved another method for regulating emissions.

The story of the Kingston coal-ash spill underscores the difficulties facing the agency.

The spill was caused by a failure at a dam holding coal ash from a Tennessee Valley Authority power plant. No one died, but 26 homes were damaged, and residents complained of health problems afterward.

In response, the EPA conducted a survey of similar coal-ash storage facilities, finding 431 of them nationwide and 49 classified as "high hazard," where a failure could endanger human life.

The EPA's delay in issuing a new rule governing the handling of coal ash has environmentalists and business leaders worried.

Among industry groups, the concern is that the EPA will decide to treat coal ash as hazardous waste. That, they say, would curtail reusing it in cement and concrete. And, wouldn't they be sued for knowingly using hazardous waste?

"Defending something like that just scares the industry to death," said Thomas Adams of the American Coal Ash Association.

But Jeff Stant of the Environmental Integrity Project said it was crucial for the EPA to treat the waste as hazardous, which would require new protections to keep it from spreading into rivers and groundwater. He said he was concerned that the delay meant the administration was bending under industry pressure.

While the fight goes on, the EPA, the Tennessee Valley Authority and state officials have not figured out how to remove the ash that covers parts of Gupton's farm. Although the ash is topped with a protective barrier and kept moist to hold down dust, she and her husband each recently received a diagnosis of asthma.

"I don't think they will ever get it cleaned up," she said Monday.

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