Coal Ash Floods Congress and the Courts

Since the 2008 Kingston, Tenn., coal ash spill, the toxic waste has been hotly debated in the media, Congress and the courts.

On April 11, the U.S. House of Representatives Subcommittee on Environment and Economy held a hearing in part to promote the Coal Ash Recycling and Oversight Act of 2013, drafted legislation that would prevent the EPA from implementing federal regulation of coal ash, leaving regulation up to the states.

Some witnesses, including the former director of the Mine Safety and Health Academy, Jack Spadaro, and Lisa Evans, an attorney for Earthjustice focused on hazardous waste, testified against the draft, which is modeled on past legislation that failed and was called “unprecedented” in environmental law by the nonpartisan Congressional Research Service.

“Without a doubt, when mismanaged, coal ash harms Americans nationwide by poisoning water and air and by threatening the very existence of communities living near high hazard dams,” Evans said at the hearing. “We must work together to establish regulations that foremost prevent injury to health and ensure the safety of all communities.”

Spadaro, who has been involved in the evaluation and regulation of coal waste dams since 1972 and wrote federal and state regulations governing the structural integrity of dams in the wake of the Buffalo Creek Flood, cautioned subcommittee members against moving ahead with the draft. According to Spadaro, the proposed legislation lacks the adequate engineering requirements and enforcement by a federal agency necessary to prevent another spill similar to the TVA disaster that would lead to irreversible environmental damage and possible loss of life.

“There are thousands of such structures in the United States at this time,” Spadaro said, “and the failure of one or more of these dams is assured unless strict engineering standards are imposed.” The Southeast is home to 40 percent of the nation’s coal ash impoundments, and according to the EPA, contains 21 of the nation’s 45 high hazard dams.

In the face of decades of legal and regulatory experience, subcommittee chair Illinois Rep. John Shimkus didn’t budge. “The states are perfectly capable — and in the best position — to implement robust permit programs for coal ash,” he said.

But if one thing is clear from even the most cursory glance into the conundrum surrounding coal ash, it’s that states are failing to protect water and surrounding communities.

Almost two months after the Western North Carolina Alliance and other environmental groups announced they would bring a lawsuit against Progress Energy, the N.C. Department of Environment and Natural Resources sued the utility for thallium pollution and unpermitted seeps at its Asheville Steam Station that are polluting the French Broad River. WNCA and other groups are intervening in the suit to ensure Progress is forced to properly clean up its mess.

A few hours away, coal ash from Duke Energy’s recently closed Riverbend Plant continues to threaten Mountain Island Lake, Charlotte’s primary drinking water source. In late March, the Southern Environmental Law Center and Catawba Riverkeeper announced they plan to sue Duke Energy under the Clean Water Act for the pollution of Mountain Island Lake.

In fact, according to Catawba Riverkeeper Rick Gaskins, public officials have issued fish advisories for every reservoir along the Catawba on which a Duke Energy coal ash pond is located because of unsafe levels of mercury and other contaminants. The river was recently ranked as America’s fifth most endangered river in a report by American Rivers due to the riverside coal-ash ponds currently leaking pollution and threatening water quality, human health, and local fish populations.”

In the deeper south, under pressure from groups including SELC and the Tennessee Riverkeeper, the Alabama Department of Environmental Management filed a complaint against TVA’s Colbert Fossil Plant last week. ADEM alleges that seeps from coal ash ponds at the plant are leading to elevated levels of arsenic, lead, selenium, cadmium, and other toxic metals in the groundwater below the ponds, which is leaching into the Tennessee River.

While coal ash’s alleged impacts are debated in lawsuits and congressional hearings, the town of Pines, Indiana, stands as a cautionary tale and proof that being proactive to protect water could not be more worth it. After widespread water contamination was linked to coal ash in 2004, Pines became an EPA Superfund Alternative Site. But the cleanup has been slow — nearly 10 years later, some residents still drink and cooking with bottled water.

“The coal industry wants a free hand to dispose of this stuff how they see fit,” Pines Town Council president, George Adey, told WBEZ Chicago in early April. “Our community is a perfect example of why we need a stronger EPA and stronger regulation for coal ash.”

It’s abundantly clear that lacking strong, clear rules governing coal ash, the problem will persist. State-by-state solutions are sure to fall short. And, as Rep. Shimkus is probably aware since the Illinois River of his home state is a major tributary of the Mississippi, water pollution does not abide by borders.

More than four years after the TVA coal ash spill — and two years after issuing its plans to regulate coal ash for the first time — the EPA continues to “toe dance” around releasing the final rule. In the past year alone, dozens of lawsuits in several states have targeted specific coal ash sites, and there will be more prior to and resulting from EPA’s final rule that will be released in 2014. Until then, count on the coal ash debate to continue spilling over.

Help us call for protections from coal ash and stay informed by signing the Pledge to Protect America’s Waterways.

Read about the Effluent Limitation Guidelines that were announced by the EPA last week.

About Brian Sewell

Brian is an environmental news junkie concerned with our lagging energy policy and revealing the true cost of coal on our health, the environment and the climate. He is Appalachian Voices' Director of Strategic Advancement.