EPA’s Cooperative Approach on Coal Ash Nets ‘Action Plans’ From Industry — But Here’s What EPA Could Really be Doing With Existing Authority

In 2008 alone, coal-fired power plants produced some 136 million tons of coal ash waste – dangerous stuff, because it contains arsenic, cadmium, mercury, and a host of other toxins that are a significant threat to basic human health. Ironically, coal ash has been growing as a problem in recent years in part because better pollution-control devices capture more toxic contaminants before they go up power plant smokestacks. Last year, around 55 percent of the stuff was piled up in rickety “surface impoundments” – that is to say, holes in the ground – and other unstable structures at hundreds of disposal facilities across the country. In December 2008, we got a stern reminder of just how rickety, when a coal ash spill in Kingston, Tennessee demonstrated the catastrophic consequences that occur when these structures fail. Heavy rain that month combined with a leak in an earthen wall in one such “impoundment” sent 1.1 billion gallons of coal ash slurry sliding across 300 acres of land. The spill’s clean-up costs have spiraled to $1.2 billion—equal to about 10 percent of EPA’s entire budget.

In response to the Kingston disaster and the engineering problems that created it, EPA surveyed 219 disposal facilities containing 584 different impoundment structures to learn more about these structures. The agency released the results in September, and followed up earlier this month by announcing a set of action plans developed by the facilities with coal ash ponds themselves, explaining what they'd do to make their sites safer. Many facilities refused to cooperate in the survey, claiming that they could not answer some of the questions without revealing protected confidential business information (CBI). The complete responses EPA did receive, however, revealed some alarming tidbits about U.S. impoundment structures:

• 83 percent of the structures are aboveground and therefore require a network of dams or walls to keep coal ash wastes contained;
• 40 percent of the aboveground impoundment structures are 25 feet high or taller;
• 14 percent of all impoundment structures have a surface area of 100 acres or greater;
• 22 percent have a storage capacity of 326 million gallons or greater; and
• 56 percent of the structures for which ratings are available have a Hazard Potential Rating of “High” or “Significant” (meaning that a structure failure would likely result in loss of life or severe economic damage).

In short, EPA’s survey results reveal that many of the unregulated impoundment structures are huge and potentially very dangerous. For many, a leak or catastrophic failure would likely kill innocent people, harm local businesses, and decimate nearby ecosystems.

As CPRBlog readers know, EPA’s efforts to write a new rule governing coal ash disposal have been bottled up by the White House Office of Information and Regulatory Affairs since October. But laying aside OIRA’s “contributions,” the rule will likely only address future disposal facilities. So what should EPA do right now to address the old, very threatening facilities that are still out there?

So far, EPA hasn’t really taken that problem on, asserting that it lacks authority in the absence of a new rule. It has tried a “cooperative approach” that the Bush Administration favored – essentially trying to encourage these facilities to improve their performance by conducting the above-mentioned surveys and by assessing the facilities with the most potentially dangerous impoundment structures. But don’t hold out hope that encouragement alone will make a difference.

With due respect to EPA, its assertion that it lacks authority to move against the existing facilities is just wrong. Section 7003 of the Resource Conservation and Recovery Act (RCRA) gives the agency all the authority it needs to bring individual enforcement actions against these facilities whenever there is evidence that their waste storage activities may present an “imminent and substantial endangerment to health or the environment.” For example, under 7003, EPA could order facilities to cover their impoundment structures to prevent them from overflowing during large storms or to line the bottoms of the structures to prevent toxic contaminants from seeping into nearby water bodies.

The EPA can use this 7003 enforcement authority immediately, without having to wait for OIRA approval or overcome industry’s typical stiff-arm tactics.

Indeed, EPA ought to abandon the cooperative approach it has been attempting with the surveys, and demand that all disposal facilities turn over any information that they claimed as CBI in their survey responses. Many facilities abused these claims, contending that details like the size of their impoundment structures or whether these structures have been evaluated by government officials were CBI. But such information is life-and-death stuff for communities living in the shadow of these vast storehouses of coal ash, and they are entitled to know more about the potential dangers they face so that they can better protect themselves. EPA should use its authority to obtain and publicize this information immediately.

None of that lessens the need for a strong regulation on coal ash to protect public health in the long term. But in the short term, the EPA has a number of tools at its disposal to reduce the threat from unregulated coal ash disposal facilities. All it needs is the will to use them.