EPA Orders AEP to Test Stability of Ash Piles

The EPA announced yesterday that it is requiring American Electric Power (AEP) to come up with a plan for safety testing of dams holding back coal ash slurry ponds at a disposal site on the Ohio River in West Virginia. The order is part of a nationwide review of the integrity of such dams, which hold back piles of coal ash collected from coal being burned for power at sites throughout the country. According to EPA's press release, EPA officials will oversee the entire safety testing process.

The AEP dam is similar to the one that collapsed at a TVA site in Kingston TN last Christmas, causing massive devastation to the adjacent river and surrounding farmland, and prompting hearings on the issue before Senator Boxer's Senate Environment and Public Works Committee.

As the New York Times reported earlier this month (and activists and those unfortunate enough to live in the shadows of coal plants have known for years), all the pollutants that are prevented from going out the top of smoke stacks get collected in the coal ash. As time goes on, and the technology-forcing provisions of the Clean Air Act (CAA) operate to require stricter controls on new coal-fired power plants, the coal ash gets more and more toxic. (This is why there's no such thing as "clean coal.") Yet, due to lacunae in the CAA and the Toxic Substances Control Act (TSCA), 15 U.S.C. § 2601 et seq, along with EPA's 2000 decision not to treat coal and other fly ash as hazardous waste--all of which can be traced to industry pressure--we treat it the same way as we do ordinary municipal waste. As a result, it is regulated at the federal level only under the Resource Conservation and Recovery Act (RCRA), 42 U.S.C. § 321 et seq. EPA never issued regulations it promised in 2000 governing the disposal of coal ash under RCRA, so, functionally, we rely on state regulations (and regulators) to control how the ash is disposed. In most states--especially those where coal and power-company interests predominate state politics--there are few controls if any, allowing power companies to dispose of the ash in clay-lined slurry ponds without as much as a plastic liner. (You can read about an attempt to tighten regulations in one such state, North Carolina, here.) As the folks in Kingston experienced last year, that clay can give way all too easily, causing devastation as the toxic sludge spills into the landscape.

After Senator Boxer pushed, the EPA released a list of 44 highly hazardous coal ash disposal sites last June. (The press release from Senator Boxer's office can be seen here, and a McClatchy news article including a map of the sites here.) The order to AEP is the next step in EPA's plan, announced at that time, to review the coal-ash sites and order cleanup and repairs as needed. EPA has also promised to finally issue those regulations governing coal-ash disposal under RCRA by the end of the year.

While this is a welcome development, much more remains to be done from a legal standpoint. In an ideal world, TSCA would be amended so that there will be no question that we must treat coal ash as the toxic waste that it is. But industry lobbyists continue to push hard to prevent that, terrified of the costs of proper disposal. (You can read a recent release, in which they call for "federal non-hazardous waste regulation of coal-combustion byproducts implemented by the states," here.) Meanwhile, water leaking from the ponds is getting into ground- and drinking water, and power companies are getting away with creative (and terrifying) disposal methods like using coal ash to create golf courses and fill wallboard used in construction. As one expert quoted in this excellent overview of the issue by the New York Time's Shaila Dawan, “[y]our household garbage is managed much more consistently” than coal ash, because we have this major "loophole in the country’s waste management strategy.”