Vermont Law Top 10 Environmental Watch List 2017

Confronting Coal Ash

Summary:
Cleanup and safe disposal of coal ash will require aggressive citizen enforcement—a great burden for low-income and minority communities.

2016 saw yet another toxic coal ash spill in the Southeast, as flooding from Hurricane Matthew caused a Duke Energy coal ash storage pond to overflow into North Carolina’s Neuse River. Both Duke and the North Carolina Department of Environmental Quality reported that only a minor amount spilled, but conservation groups provided videos and photos of a 1-inch sludgy layer of waste floating on the river. Whatever the extent of the damage, this spill highlights the continuing need to address coal ash disposal across the United States.

Coal ash is the waste from burning coal in power plants. These plants produce 140 million tons of coal ash every year, containing toxins such as mercury, lead, cadmium, and arsenic. This toxic waste usually is put into open-air pits or surface-waste ponds; there are 1,425 of these “storage” sites in 47 states. Exposure to these toxins increases the risks of cancer, neurological disorders, learning disabilities, asthma, fertility issues, and birth defects, among other illnesses.

Unfortunately, coal ash spills and exposures have become a regular event in the Southeast, especially among low-income and minority communities. In 2008, a Tennessee Valley Authority (TVA) dike collapsed in Kingston, Tenn., releasing 1 billion gallons of coal ash into adjacent sloughs and the Emory River (this volume exceeded the volume of oil spilled in the Deepwater Horizon disaster). This unprecedented release extended nearly 300 acres into Harriman, Tenn., a predominately white community with nearly 35 percent of residents living under the federal poverty line. In attempting to clean up this mess, TVA shipped 4 million cubic yards of this toxic waste to a dump near Uniontown, Ala., a 90 percent black community with 45.2 percent of residents living below the poverty line.

coal-ash

Coal ash swirls on surface of Dan River. February 2014. Photo: CNN Gerry Broome/Associated Press

Similarly, in 2014 another 39,000 tons of coal ash catastrophically spilled from a Duke Energy waste lagoon into the Dan River in Eden, N.C. The coal ash contaminants eventually reached the Kerr Reservoir, exposing tens of thousands of North Carolina and Virginia consumers of this drinking water and multiple forms of wildlife to coal ash toxins. Despite this accident, Duke Energy is looking to construct yet another coal ash landfill at the edge of a low-income, predominantly minority community in Eden.

Prompted by these debacles, the Environmental Protection Agency (EPA) promulgated two regulations dealing with coal ash disposal. These rules establish technical requirements for coal ash landfills and surface impoundment under Subtitle D of the Resource Conservation and Recovery Act (RCRA), thereby classifying coal ash a “nonhazardous” waste. These rules also require recordkeeping and reporting, including the posting of some information on a publicly accessible website.

Although these regulations perhaps were a step in the right direction, they fell far short of fixing the problem. Because coal ash is so loaded with toxins, it should be treated as a hazardous waste under Subtitle C of the RCRA, rather than as a solid waste under Subtitle D, especially because large coal ash spills are designated as hazardous and cleaned up under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). Another gaping loophole in the EPA rules is that while utilities supposedly must comply, the federal government cannot enforce the regulations, leaving enforcement almost entirely to citizen suits.

The 2016 Report of the U.S. Commission on Civil Rights found that the EPA’s rules disproportionately will impact low-income and communities of color, like Uniontown, Ala. The commission explained that because these rules place enforcement on the shoulders of low-income and minority communities, those with the least resources are required to collect complex data, fund litigation, and navigate the federal court system. These communities already disproportionately bear the burden of living near coal ash disposal sites, and now they also bear the burden of enforcement.

States potentially could contribute to enforcing the federal standards by implementing solid waste management plans that may exceed the EPA’s minimum standards. Unfortunately, in practice key states have proven ineffective at remedying coal ash disposal sites because of immense pressure from the utility industry. A good example is North Carolina, where Duke Energy and its former-executive-turned-governor have thwarted and delayed cleanup of Duke’s multiple coal ash dumps, although the still-contested gubernatorial election may lead to a less cozy relationship between the company and the state.

In light of the EPA regulations, the ominous prospect of a Trump Administration, and the ongoing influence of utility behemoths in state governments, the reality is that progress will require aggressive citizen enforcement, including the developing approach of litigation under the Clean Water Act. In Yadkin Riverkeeper, Inc. v. Duke Energy Carolinas, LLC., 45 ELR 20199 (M.D.N.C. 2015), the court held that coal ash lagoons are point sources under the Clean Water Act, meaning that power plants must acquire a National Pollutant Discharge Elimination System (NPDES) permit to discharge coal ash into a water of the United States. This holding means that any coal ash leaks or spills likely violate the Clean Water Act, under which the EPA retains enforcement authority, along with citizens. Now more than ever, we must rely on the courts to make progress in cleaning up coal ash.