Obama’s Path to Progress: Will the White House Compel Rich Utilities to Clean Up Giant Coal Ash Pits?

by Rena Steinzor

December 15, 2014

We’ll soon learn the results of White House deliberations over EPA’s long-delayed coal ash rule, one of the Essential 13 regulatory initiatives we’ve called upon President Barack Obama to complete before he leaves office.  Under the terms of a consent decree, EPA is required to issue its new rule by Friday, December 19. As glad as we are to see this phase of the rule’s tortuous odyssey come to a close, we suspect that court, not a victory party, will be the public interest community’s next stop, despite a late-entry exposé aired by 60 Minutes last week. 

In the universe of self-inflicted environmental wounds over the last two decades, any “10 best” list must include the brilliant decision to make operators of coal-fired power plants scrub smokestacks to keep mercury, arsenic, cadmium, and lead particles out of the air but neglecting to prevent them from picking the bad stuff up off the grate, carting it a short distance, and dumping it into giant pits in the ground.  Utilities generate an astounding 100 million tons of such inky sludge annually.  But because the federal government has never issued minimum requirements for such dumps, and state laws are rarely adequate, these pits have been left to grow wider, deeper, and taller, contaminating drinking water and threatening catastrophic spills. 

Shortly before Christmas six years ago, a poorly reinforced dike near the Tennessee Valley Authority’s (TVA) Kingston Fossil Fuel Plant burst.  The dike was barely containing a pit of sludge that towered 80 feet above the Emory River.  When it failed, 1.1 billion gallons of coal ash sludge—more than the total involved in the BP oil spill in the Gulf of Mexico—spilled across 300 acres of land, covering the ground in a layer four to five feet deep.  The deluge uprooted trees, destroyed three homes, ruptured a gas line, caused millions of dollars in property damage, and ultimately cost TVA more than $1 billion to clean up.  Miraculously, no one was killed.  Then-EPA Administrator Lisa Jackson toured the devastated area and promised to issue a rule that would prevent future disasters.  Jackson was new to her job and expected to be able to actually do it.  Little did she know that even under newly-elected President Barack Obama, objective, scientific decision-making would first need to survive the gauntlet of special-interest political attacks launched not by right-wingers in Congress but from behind her own lines at the White House.  Jackson became, not for the last time, a victim of friendly fire.

The draft rule that went over to the White House would have exempted any coal ash that was recycled for a beneficial use.  But if utilities did not bother to sell the stuff for uses like filling roadbeds during highway construction or incorporation in wall board and similar products, they would be compelled to treat it like a hazardous waste, sending it to landfills with liners (to prevent leaks into the groundwater that provides drinking supplies for half the American people) and covers (to keep out the rain).  When this relatively straightforward proposal hit the desks of economists in White House regulatory czar Cass Sunstein’s office, all hell broke loose.  The straightforward proposal was in big trouble.

The economists dug through their behavioral science literature and discovered the so-called “stigma effect.”  As originally defined, the effect amounts to the obvious assumption that people fear and avoid exposure to contaminated food or contaminated waste sites.  So, in the classic study that first documented it, if you take glasses of juice and dip a cockroach into them, no one wants to drink the stuff.  Rather than take this lesson regarding the impact of contamination to heart, in a bizarre but sadly typical twist, the economists pontificated that if coal ash was labeled a “hazardous waste,” no one would recycle it in a road bed or wall board, regardless of what EPA said.  The loss of all this commerce in the stuff would be devastating to the economy, destroying jobs, ruining lives, etc., etc.

Katy, bar the door.  Before EPA’s White House frenemies were done, the proposal was revised to suggest two primary alternatives: the original, stringent and federally enforceable requirements, significantly including a requirement that utilities clean up and reinforce existing sites, versus a far weaker option that would treat the ash like ordinary household garbage and did not mandate cleanup.  Right-wingers were quick to pile on, and EPA was soon under siege by critics on Capitol Hill and a battalion of lobbyists, including states persuaded by utility, highway, and related lobbyists to join the fray.

The opposition grew despite growing evidence that the spill in Tennessee was but a harbinger of further failure.  EPA conducted an audit of existing coal ash “surface impoundments,” the euphemism for those pits in the ground, only to discover hundreds that were contaminating groundwater and dozens that were at risk of collapsing.  Then, in February 2014, a drain pipe that ran under a coal ash pit operated by Duke Energy collapsed, allowing 39,000 tons of sludge to spill into the Dan River in north central North Carolina, coating the bottom of the waterway 70 miles downstream.  The relationship between the utility, which is the largest in the country and exceptionally profitable, and state regulators was so incestuous that a criminal probe is ongoing to discover whether it was illegal.  Ironically, a major argument against EPA’s tougher original proposal was the states’ purported capacity to deal with coal ash problems on their own, a possibility that requires thinking every bit as magical as the intellectual gyrations required to turn the stigma effect on its head.

60 Minutes veteran Lesley Stahl had a field day interviewing Duke Energy CEO Lynn Good about the spill, and the giant company’s plans to contain its old pits, which are scattered across its southern service area.  Of course, Good said, the utility needs lots of time to study the problem and stage possible solutions.  Of course, said Stahl, people in the path of potential spills or exposed to tainted drinking water are growing frustrated in the face of many months of procrastination.  Here’s hoping that President Obama somehow comes to his senses despite the discouraging back story of EPA’s star-crossed efforts.

Steinzor explores five large-scale corporate disasters in her new book, Why Not Jail? Industrial Catastrophes, Corporate Malfeasance, and Government Inaction. 

 

THANK YOU for this great article. After 10 years in the regulatory world, it is astounding what the utilities get away with. Coal ash is horribly toxic, and the IOUs have ignored it for far too many decades. I am honestly worried about the world my grandkids are inheriting.
— Nancy LaPlaca
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Rena Steinzor is a Professor of Law at the University of Maryland Francis King Carey School of Law, and a past president of the Center for Progressive Reform. She is the author of Why Not Jail? Industrial Catastrophes, Corporate Malfeasance, and Government Inaction.

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