Tennessee Spill: Regulation Hazards
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.