(This article is a follow-up to “Is the EPA Really A Cemetery?”)

Shortly before 1:00 am on the morning of December 22, 2008, at the Kingston Fossil Plant located 40 miles west of Knoxville, Tennessee, a dam broke.

The Kingston Fossil Plant was being operated by the Tennessee Valley Authority (TVA), a provider of power to nine million people in Tennessee,

"Grab the family album, Betty Sue. The sludge is a-coming." Aerial view of TVA site after spill.

Kentucky, Alabama, Mississippi, Georgia, North Carolina and Virginia. But it wasn’t water alone that breached the dam, it was 1.1 billion gallons of coal fly ash slurry: a mixture of water and coal ash, a byproduct of coal burning. Approximately 5.4 million cubic yards of sludge flowed across the Emory River (a tributary of the Tennessee River) and onto the opposite embankment, then flowed upstream and downstream, engulfing 12 homes and damaging 42, and then entered the Clinch and Emory Rivers, contaminating them. About 300 acres of land were covered with sludge that was six feet deep in places. During its progress, the spill also ruptured a gas line and buried railroad tracks.

A year and a half later, in June of 2009, only three percent of the spill had been cleaned up, and clean-up costs had already run to about $975 million.

The case is still in court. The issue is whether TVA should be liable for more than just clean-up costs, or whether punitive fines should be implemented due to negligence. During the course of the U.S. District Court bench trial (TVA chose a bench trial because it felt that a judge would be more impartial than a jury), TVA has been accused of ignoring reports of the dangers from its employees. The utility’s own inspector general has testified against it, saying that TVA failed to heed advance warnings and afterward refused to include management issues as a possible cause of breach.

So what is this stuff? It’s water mixed with a byproduct of burning coal for energy. Each year in the U.S., a billion tons of coal are used, according to the Energy Information Administration. Most of this coal – about 98 percent of it – is burned in power plants to produce electricity. While seven-eights of the coal goes straight the power plants’ smokestacks as smoke, the remaining one-eighth, or about 140 million tons per year, gets left behind in the form of coal ash or “fly ash.” Some of it is left at the bottom of the smokestack near the furnace, but the lighter material – the true fly ash – is caught by the coal plants’ scrubbers: particle filtration technologies installed in the smokestack to grab particulate out of the smoke via electrostatic precipitation.

So what do we do with all this coal ash? It’s generally disposed of either by being mixed with water (to minimize dust) and put into ponds or as a solid that is then put into landfills. Overall, about 65 percent of coal ash created finds its way into landfills and ash ponds.

The problem is, coal ash contains a charming mix of toxins, including mercury, arsenic, lead, thallium, benzene, cadmium and dioxins, all poisonous, with many known to be carcinogens that cause a grab-bag of cancers in the bladder, kidney, liver, lung, prostate and skin.

Since it’s so nasty, it must be highly regulated, right? Particularly when it’s stored in old facilities and unlined ponds? Wrong. Coal ash has never been subject to any kind of federal regulation. While some (but far from all) states have laws in place governing the disposal of coal ash, these laws are usually weak and seldom enforced.

Some coal ash – about 43 percent of it – is recycled and reused in manufactured products such as concrete, sheet rock, road filler, grout, bricks, road de-icing products and fertilizer. (It even finds its way into cosmetics and toothpaste.) According to the American Coal Ash Association, about 125 million tons of coal-combustion byproducts are produced in the U.S. each year.

Even the EPA has promoted the reuse of coal ash in manufacturing, but an inspector general’s report issued earlier this year found that in allowing the reuse of coal ash, the agency had not sufficiently assessed the environmental risk of a material which, in its second life as a wallboard or a road surface, still contains the original toxic compounds. (Care to re-do the baby’s room with sheet rock that contains dioxins, lead, mercury and cadmium?)

Nationwide, coal ash that isn’t recycled is stored at nearly 600 sites in 35 U.S. states. Spills have occurred at 34 of those sites, as most of the locations lack liners and have little to no monitoring to ensure that the ash slurry and its toxic contaminants don’t seep into ground water. In mid-September, the EPA assessed the structural integrity of 17 coal ash ponds across the country, declaring five of them to be “poor.”

Perhaps as a result of the Tennessee Valley Authority nightmare, the EPA has been taking greater interest in coal ash storage facilities with an idea toward creating federal regulation. Proposals the EPA is considering include designating coal ash as a hazardous waste, which would automatically give the agency more authority over its disposal and re-use. Alternatively, the EPA could designate coal ash as non-toxic solid waste, which would basically mean it could be processed like ordinary household garbage.

Unsurprisingly, the coal industry is pushing for the EPA to do neither. The industry objects to even the milder choice of classification as a solid waste, saying that action would cause the closure of existing coal ash ponds and landfills, which would cost jobs and raise electricity rates.

“The results of EPA’s regulations would have been devastating on the effects of jobs, higher utility rates at home, and cripple a very successful emerging biproducts [sic] industry,” said Representative John Shimkus, (R-IL), chairman of the House of Representatives’ Energy and Commerce Committee’s environment and economy panel.

So while the EPA toys with the idea of further regulating the disposal of coal ash, the House is taking steps to make sure it never happens.

In mid-October, the House passed H.R. 2273 (the Coal Residuals Reuse and Management Act), a bill that would maintain the current status quo of weak state oversight. It would preempt any federal rulemaking by the EPA and would redefine coal ash as “not toxic,” giving individual states the ability to view coal ash as harmless and let companies dispose of it in pretty much any way they wish.

But H.R. 2273 goes beyond that: it would authorize the construction of new coal ash processing and storage sites that could leak up to five times more arsenic into groundwater than current clean water laws allow, according to an analysis by The Environmental Integrity Project (EIP). As a side effect, H.R. 2273 would also loosen the restrictions on trace amounts of four other highly toxic substances in drinking water: lead, cadmium, antimony and thallium.

With the passage of the bill by the House, the outcry from environmental groups and the bill’s opposition in Congress has been loud and long. Opponents of H.R. 2273 say that if states were allowed to continue regulating coal ash on their own, they would engage in a “race to the bottom,” competing to create the weakest regulations in order to offer the energy companies the lowest standard to choose from, attracting jobs and industry but putting local residents’ health at risk.

In a statement about the bill prior to its passage, the EIP wrote, “H.R. 2273 appears to eventually require cleanup if ash dumps cause arsenic and other pollutants to exceed the Safe Drinking Water Act standards…though without any real deadlines to give that requirement teeth. …The bill effectively wipes out these protections by allowing states to waive any standards – including the obligation to clean up badly polluted drinking water – by simply deciding they are ‘not needed’ for coal ash management.”

The EIP particularly objects to H.R. 2273′s remove of the EPA from the entire process, forcing the agency to defer to states’ judgments and giving it no means to overrule bad decisions, even if those decisions jeopardize public health.

Ultimately, H.R. 2273 was approved with a vote of 267 to 144, with 37 Democrats voting in favor of it. The White House has come out against the bill, noting that it is insufficient for managing the risks of coal ash disposal, and that it undermines the EPA’s ability to protect human health and the environment. The President has not, however, said whether he would veto the bill.

Representative Ed Markey (D-MA) has said that H.R. 2273 “takes us back to the Dark Ages.”

“This Republican bill purports to be solution to what happened in Tennessee,” said Markey, “It claims to create standards for coal ash containment ponds that would ensure structural integrity. But in fact it explicitly exempts these same coal ash ponds from key design requirements relating to their long-term stability.”

Markey continued, “The bill claims that states have to set up a rigorous drinking water monitoring regime and dust controls. But in fact, the bill has no legal or enforceable standard for these state programs. And even more, any state at any time can waive any of even these minimal permitting requirements and they don’t have to tell anyone.”

During the comment period when the House opened the bill to public scrutiny prior to voting on it, more than 450,000 Americans registered their objections to it, many of them demanding the EPA implement stronger, more enforceable regulations for coal ash.

“Dumping millions of tons of heavy, wet toxic coal ash in unregulated or poorly regulated impoundments, high above residential areas, is a recipe for disaster, whether that disaster is unleashed in a matter of minutes, or more gradually as the poisons seep through the ground and poison nearby wells,” said Lisa Evans, an attorney for environmental non-profit Earthjustice. “Nearby communities deserve to know whether they are in harm’s way.”

Companies that use recycled coal ash in product manufacturing have come out in favor of H.R. 2273, saying that tougher EPA regulations would put a “stigma” on any products that reuse coal ash. (Arsenic does get a bad rap in the press, doesn’t it?)

H.R. 2273, when it was presented, was positioned to be all about jobs (that fig leaf both parties use regularly when trying to push through unpopular legislation that is a gift to those who fill their campaign coffers). Supporters noted that the bill would stop the destruction of between 183,900 and 316,000 jobs, according to research commissioned by the Utility Solid Waste Action Group (USWAG).

Frank Ackerman of the Stockholm Environment Institute at Tufts University has countered the job loss claim with a paper that describes how stronger regulation of coal ash will actually create jobs instead of killing them: about 28,000 jobs, to be specific.

“If these [USWA study] numbers seem too large to believe, that’s because they are unbelievable,” wrote Ackerman. “They are implausibly large, in proportion to the costs involved; they include at least two apparent arithmetic errors; they depend almost entirely on a wild extrapolation from a single, unpublished academic paper – ignoring the author’s own cautions about the use of his estimates; and they repeat a groundless claim about potential losses due to the stigma of regulation.”

H.R. 2273 now faces the Senate, where it is far less likely to gain traction. It will first need to stop at the desk of the Senate Environment and Public Works Committee, which chaired by Senator Barbara Boxer (D-CA), a vocal supporter of the EPA and author of the quote, “If you can’t work, you can’t breathe.”

So while H.R. 2273 may never see the light of day as the law of the land, continuing the status quo – a state of affairs that allowed 300 acres of Tennessee to become armpit deep in gray toxic goop – doesn’t seem like a particularly good idea, either.

After all, a slice of lemon flavors water with more piquancy than 44 parts per million of arsenic.

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