Report Recommends Remediation of AEP Coal Ash Ponds

Yesterday, the Environmental Protection Agency (EPA) released a report it commissioned on the fly ash and bottom ash ponds at American Electric Power's (AEP's) Philip Sporn Generating Plant in New Haven, West Virginia. The full report can be read here.

The report is part of EPA's investigation into the state of coal ash impoundment facilities around the country, in the wake of the massive coal ash spill at a TVA facility in Kingston, Tennessee last Christmas. Coal ash is currently classified by the EPA under RCRA (the Resource Conservation and Recovery Act, 42 U.S.C. 9601 et seq) as non-hazardous, despite massive heavy metal content, and is governed only by (generally lenient) state regulations as a result. (You can read an earlier post on coal ash, how the current regulatory regime came to be, and the Kingston spill here.),


The report concluded that the ash ponds at the AEP facility had a poor prognosis "for continued safe and reliable operation," and that "[r]emedial action is necessary." It is curious in light of this report that, once it received the report, EPA only asked AEP to conduct safety inspections of the facility. (And perhaps explains why EPA announced that it was asking for inspections on October 29th, but embargoed the report until yesterday.)

EPA is (possibly) limited in its ability to act to prevent imminent release of the coal ash under RCRA (because of its decision to classify coal ash as non-hazardous), but should have plenty of authority under CERCLA and leverage under the Clean Water Act (given the proximity of the Ohio River to the site). Obviously, EPA is proceeding gingerly, since AEP isn't used to being regulated for this sort of thing at all. (A more in-depth discussion of the disconnect between the report's conclusions, and EPA's actions, can be read here on the Charleston Gazette's Coal Tattoo blog.)

[Ed's note: "I've been coal miner all of my life. Layin' down track in the hole. . . . I've got no house and I got no job, just got a worried soul. And a blue tattoo on the side of my head left by the number nine coal. Left by the number nine coal." Coal Tattoo, Billy Ed Wheeler.]