This is the third in a series of investigative reports on the fallout from the Tennessee coal ash spill. Research support was provided by the Puffin Foundation Investigative Fund at The Nation Institute.

For years, residents of the tiny lakeside community near Kingston, Tennessee, watched as the local power plant mixed tons of leftover coal ash with water and pumped the heavy mud into a massive pond just up the road. “We never gave it a second thought,” says resident Diane Anderson.

But on December 22 the pond collapsed, triggering a billion-gallon mudslide that knocked houses off foundations and roiled into the Emory River. State officials and the Tennessee Valley Authority, the federally funded utility responsible for the spill, scrambled to allay fears, saying that the ash wasn’t toxic and that the drinking water was safe. But residents also heard about the litany of harmful substances in the ash, like arsenic and lead, and about studies linking it to cancer.

An investigation into the accident reveals layers of failures: the Tennessee state government didn’t control how the TVA handled its ash waste, and the Environmental Protection Agency failed to heed its own scientific warning about coal ash hazards. It shows how the Obama administration has moved to fill in where past administrations have left a void, including, in one case, releasing a study linking coal ash to health problems that was supressed by the Bush administration. Ultimately, the spill reveals the toxic fallacy that states rather than the federal government should tell big power companies how to manage a gargantuan and largely unregulated stream of industrial waste.

The Tennessee Example

The Emory River flows off Frozen Head Mountain, moving westward through eastern Tennessee coal country, then taking a southwestward course before issuing into the Clinch River. The rivers’ keeper, The Tennessee Department of Environment and Conservation (TDEC), is charged with watching over the TVA’s management of the failed pond. “We’re all angry at TVA, but we’re just as mad at the state. They shouldn’t have let this happen,” said Penny Dodson, a registered nurse whose property was covered by ash.

She’s not alone. Chris Irwin, an attorney with the group United Mountain Defense, says the state failed hugely. TDEC officials “did not protect or conserve Tennessee’s environment at all,” he told me in an e-mail. “They had a role in the oversight and regulation of the ash dam and now we are supposed to trust that an agency which failed in preventing the disaster will succeed in fixing it.”

How did the state fail?

For starters, TDEC did not ensure that the TVA had conducted the right kinds of engineering tests to see if the pond was structurally sound (something TVA CEO Tom Kilgore stated before the US Senate). And in December, an official at Tennessee’s wildlife agency told me that TDEC had failed to make the authority closely monitor changes in the hydrological pressure caused by the shifting mountain of ash that put pressure on the failed retaining wall. TDEC spokesperson Meg Lockhart said in a written response to questions that the agency relied on information provided by the TVA, as it does with all entities it regulates. “That is standard practice across the country,” she said, adding that environmental regulatory agencies “simply do not have the resources to independently re-conduct engineering studies.”

There were other complaints.

After the spill, state regulators issued a clean-up order but didn’t apply maximum penalties for river contamination, prompting critics to accuse TDEC of being too cozy with the politically powerful TVA. Even Tennessee Governor Phil Bredesen acknowledged that officials may have relied too heavily on TVA reports about the structure. “TVA is a federal agency, and there may have been an exaggerated deference to them,” Bredesen said on December 31. Lockhart, however, defended the agency, saying that by law it can only assess penalties and damages one time and that its experts are still working to fully understand the spill’s impact on natural resources. As for Governor Bredesen’s comments: “When Governor Bredesen visited the site after the spill, he said that as a federal agency, TVA may have received exaggerated deference and that he wanted a top-to-bottom review of state law and environmental regulations to see what changes need to be made,” Lockhart said. She added that that review is under way and is being guided by an advisory committee made up of experts from TDEC, the EPA, the Army Corps of Engineers, the University of Tennessee and Vanderbilt University.

And what about state lawmakers overseeing TDEC?

The state legislature’s Conservation and Environment Committee has done little to counter critics’ complaints that state officials are generally ill-informed about coal ash. And on February 12 committee chair Joe McCord introduced House Bill 1204, which proposed to exempt from state water-quality controls a toxic compound called selenite, which is found in coal ash. [For more on the selenite scandal, see “The Dredge Report.”]

The failures at Kingston are indicative of a bigger problem: the impacts industry groups have on regulation. James Roewer, executive director of the industry-backed Utility Solid Waste Activities Group, told me that federal government intervention wasn’t necessary. “States have proven themselves competent regulators,” he said. Roewer is not alone in that belief. After the spill, the Association of State and Territorial Solid Waste Management Officials, a trade organization, wrote to the EPA arguing that states are effective regulators and opposing any agency reclassification of coal ash as a hazardous substance. The change, the group claimed, would place a huge burden on states and power companies.

Lots of people, however, think states aren’t up to the task. One 2005 study done for the EPA (released late in the Bush administration) shows, for example, that more than two-thirds of the states don’t require groundwater monitoring or make utility companies collect toxic leachate materials at wet ash storage ponds like the one in Kingston. “The proposition that states are doing a good job is just not true,” said Tom FitzGerald, head of the Kentucky Resources Council. He and other critics say the proof is in state laws cataloged by the 2005 EPA report and in a 2007 EPA risk assessment that counts some 200 toxic ponds that dot the national landscape, near neighborhoods and rivers, atop shallow water tables and wetlands.

Federal Failure

Many say that while the federal government needs to intervene to fill in regulatory voids, Washington officials have fallen down on the job, in large part by failing to designate coal ash as a hazardous waste and by handing the burden of regulating disposal sites over to the underfunded state agencies. And industry groups have done their part to retain the status quo.

Tom Adams, executive director of the American Coal Ash Association, told me that what happened in Kingston has nothing to do with coal ash chemistry. It was an engineering failure, one that’s wrongly become a debate about coal ash toxicity. I asked him if he thought coal ash was toxic. He said the proof lies in the EPA’s decisions in 1993 and 2000, when the agency ruled that coal ash is not a hazardous waste. “The EPA spoke clearly on the matter,” he said. “The decision represents the best science.” He gave me the industry line that heavy metals in coal ash exist naturally in rocks and soil. I asked him about scientists’ claims that burning coal causes those toxins to concentrate. “But you have to ask if those new concentrations are harmful to human health,” he said. “If you have 1 part per billion of something in the soil and 2 parts per billion in the ash, that higher concentration can still be far below human health limits.” Then he said that when a billion gallons of anything ends up in places it shouldn’t go, you’re going to have problems. “A billion gallons of milk will cause problems,” he said, adding that if the EPA rules coal ash to be hazardous, it would be costly for industry and scare people from products made from coal ash, like drywall and fertilizer.

If Adams has a mirror adversary, it’s Lisa Evans. For years, she enforced hazardous waste laws as an EPA attorney before leaving the agency to sue it over coal ash on behalf of the Sierra Club and four other groups. I told her what Adams and others had said about the 2000 EPA decision being incontrovertible evidence and that switching its classification would mean the EPA would be doing a 180. “That’s disingenuous,” she said. “The story is more complicated.”

Evans says that in March 2000, the agency released an unsigned determination letter saying coal ash needed to be listed as a contingent-hazardous waste, a kind of middle-ground designation. But trade organizations including the Utility Solid Waste Activities Group and the Edison Electric Institute wrote letters to officials in Washington arguing that the designation would be a massive burden. Officials backpedaled under the pressure. In the bureaucratically impossible timeframe of a month, she said, EPA officials “kept the science but changed their conclusion.” She said the agency even admitted that the science indicated potential problems, especially with regard to arsenic and that it had been a hard decision. “The science back then didn’t give either side a slam-dunk, so for industry to say that the agency would be making a 180-degree turnaround just isn’t right.”

But in recent years, more studies have brought red flags. And some appear to have been buried. Evans, who handles coal ash issues for the group Earthjustice, has worked to reveal studies suppressed by the Bush administration. In one case, she heard through personal contacts about a 2006 agency study showing that coal ash ponds were poisoning groundwater sources. When she looked in the EPA docket (a collection of scientific papers, public comments and regulatory actions on a particular topic), it wasn’t there. “There are over 4,000 documents concerning coal ash,” she said. “I thought it was very curious that a study about leaching potential of coal ash was nowhere to be found.” When she got her hands on the report through the Freedom of Information Act, it showed that ponds can leach as high as 100 times the maximum arsenic contaminant level and selenium leaches at levels up to 200 times its safe level.

There was another example.

Evans was working with Eric Schaeffer, a former EPA regulator who quit the agency in protest over its failure to enforce clean air laws. EarthJustice had filed claims to see a 2002 EPA risk assessment but was denied by the Bush administration. That 2002 study (which contains some data that was eventually released in 2007) was just released this March by the Obama administration. “Essentially, the Bush administration buried a report identifying very substantial risks to health and the environment,” Evans said. Using that study and others, both groups revealed a jointly written report in May warning that people who drink well water near unlined ponds where the water has been contaminated with arsenic from the ash have a one-in-fifty chance of developing cancer. (When asked in an e-mail exchange why the 2002 study wasn’t released, an EPA spokesperson said only that the document was put into the docket to give the public access to it.)

A New Era?

For eight years, The Bush administration ignored coal ash threats and gave credence to the theory that states are good guard dogs. But signs are changing. One Congressional bill introduced by Representative Nick Rahall in January proposes fedral regulations governing coal ash disposal. Then on May 12, the EPA took control of the Kingston cleanup away from state officials. EPA spokesperson Tisha Petteway told The Nation that since Kingston, the agency has “executed new efforts to prevent future threats to human health and the environment.” She said the EPA will check the structural stability of impoundments “to prevent future catastrophic failures.” And information requested by the EPA on roughly 300 ponds will be bundled into a report to be released by the end of the year. But the real shot across the bow came in a recent coal ash industry conference in Kentucky, where Matt Hale, director of the EPA’s Office of Solid Waste, told attendees that a reconsideration of coal ash’s nonhazardous status was on the table.

“It’s amazing that this is a problem the vast majority of the public and much of the scientific community had no idea existed,” said William Chameides, an environmental toxicologist at Duke University. “Most people didn’t know about it, but those who did assumed that most coal ash was either being recycled or disposed of safely.”

What is clear is that coal helps to provide power to countless light switches, flat-screen televisions and iPods in America. As more and more coal-fired plants come on line, more and more ash piles up. And Kingston has become a symbol, a curtain-raiser for a deeper problem: we simply don’t know where to put it all.

“The Obama Admnistration is absolutely on the right path by proposing federal regulation of coal ash storage and disposal,” said Evans. “States have had decades to get this right, and they have failed miserably.”