In the two years since the Tennessee coal ash disaster, the largest industrial spill in U.S. history, the state has failed to beef up laws to handle toxic waste from its coal-fired power plants, according to by an environmental coalition.
The study, led by (SACE), could provide ammunition for proponents of federal regulation of coal waste, who allege the current patchwork of uneven state policies is too weak to ward off future disasters.
"Given that states like Tennessee have failed to accept regulatory responsibility for coal ash in the past, it is unwise to rely solely on states to ensure that electric generators safely dispose of their coal waste," the report said.
The is currently crafting a decision on a federal coal ash rule and is considering national enforcement for the first time. A hearing was held yesterday in Knoxville, Tenn. on the matter.
"We want EPA ... to aggressively regulate this," Stephen Smith, executive director of the Knoxville-based SACE, told reporters by telephone at a press meeting.
In 2008, a retaining wall ruptured on a wet ash pond at the Tennessee Valley Authority's (TVA) Kingston Fossil power plant, sending a billion-gallon flood of chemical slush into the Emory River. Nearly 300 acres of property and farmland were left covered in a toxic mixture of arsenic, selenium, lead and mercury, among other potential contaminants.
The chemicals in coal waste have been linked to cancer, organ failure, birth defects and nervous and reproductive system disorders, and have been found to be leaching into streams and drinking water at 67 sites in almost half of all U.S. states, according to EPA figures.
Following the TVA disaster, Smith said Tennessee became "ground zero" for overhauling coal ash regulation. "It was an opportunity for the state to step up in a leadership role," he said.
But the report—which was pieced together from reviews of state statutes, regulations and permits, and communications with regulators and experts—said lax rules and sleepy overseers continue to undermine environmental and public health protections.
"Unfortunately, Tennessee has failed to become a leader in setting strong standards for coal ash disposal," the authors wrote.
Ash Piles Largely Unregulated
A big problem is that coal ash is regulated by two different regulatory programs, the report said. "Neither program is designed for the unique nature of coal ash."
The "wet," unlined surface impoundments, like the one that broke in Tennessee, remain largely unregulated, said study author Josh Galperin of SACE, except for federally mandated water discharge permits.
The state does not monitor structural stability of the waste ponds, groundwater health or post-closure care of the sites, he said.
The study also found that the safer "dry" storage method, which pipes ash into silos and sends it for storage in landfalls, is better regulated but has "unnecessary leeway and exceptions."
In the wake of the ash spill, TVA announced plans to switch all of its wet ponds to dry disposal by 2017. Around that time, the state passed a law to require protective liners and caps on landfills.
"That law has a huge exemption, which allows a disposal landfill to have no liner or cap so long as the ash is used for fill or agriculture use or for production of some sort of feedstock," Galperin said.
The commissioner of the state Department of Environment and Conservation can waive all landfill regulations on a permit-by-permit basis, the report said.
EPA at "Stark Fork in the Road"
Last May, in the face of mounting pressure from environmental groups, the EPA proposed the nation's first pair of regulations to govern the 136 million tons of coal ash that are produced from the nation's 900 impoundments and landfills each year.
Smith said the two rules represent a "stark fork in the road" moment for the agency.
The first, under "Subtitle C" of the , would reclassify the coal byproduct as hazardous waste. Pollution controls would be mandatory in every state, and EPA would enforce them for the first time.
The rule would cover the entire lifecycle of coal ash.
Under "Subtitle D,” which is preferred by industry, oversight would continue through patchy state laws. Citizen lawsuits would be the main enforcement mechanism, with no mandatory federal oversight. The regulation would cover ash disposal only.
Smith said Subtitle C "would be a dramatic step in the right direction."
"We think it will provide many of the safeguards that many people have been looking for for several decades," he said.
Lisa Evans, an attorney with the environmental group , who assisted in the development of the report, said if Subtitle D is adopted it will be business as usual.
"EPA has already said that it expects more than half of the states not to pick up [Subtitle D] guidelines."
Many states have not been able to adopt or enforce even basic safety protections, including groundwater monitoring of waters near toxic coal ash sites, Evans said. This is "the most basic safeguard that you need in order to determine whether contaminants like arsenic are flowing out of the ash pond."
Cement makers and others that repurpose 40 percent of the nation's coal waste into construction materials and other "beneficial uses" have long fought tighter controls. They claim that regulating coal ash as hazardous material would slap a stigma on their industry and cost them billions.
Yesterday's EPA hearing in Tennessee was the last of eight held since August in cities from Colorado to North Carolina on the two options.
The public comment period for the rule was extended last month from Sept. 20 to Nov. 19. The agency delayed the process "due to the complexity of the analysis" required.