Author: Sue Sturgis

Coal ash isn’t just dumped; it’s increasingly being recycled into building materials and other uses. But in states like North Carolina, the failure to adequately regulate one so-called “beneficial use” of the toxic-filled waste is putting communities at risk.

A special Facing South investigation by Sue Sturgis

After coal is burned at power plants, leaving massive heaps of ash, not all of the waste ends up in landfills and impoundments like the one that failed catastrophically in east Tennessee in December 2008.

A growing share of the nation’s coal ash is being reused and recycled, finding its way into building materials, publicly used land and even farmland growing food crops. And despite the presence of toxins like arsenic, chromium and lead found in coal ash, these reuses go largely unregulated by state and federal officials.

The latest report from the American Coal Ash Association, the industry group representing major coal ash producers, found that of the more than 136 million tons of coal ash produced in 2008, about 44 percent — 60 million tons — was reused. Some of the reuses for coal ash, such as recycling it into concrete, are not very controversial even among environmental advocates, since they’re believed to lock in toxic contaminants.

But there are growing concerns about other reuses of coal ash. For example, the recent revelation that Chinese-manufactured drywall made with coal ash was releasing noxious chemicals inside people’s homes spurred a CBS investigation that also found problems with U.S.-made drywall products. The discovery led the Consumer Product Safety Commission to call for a closer look at drywall products made with coal ash.

Another popular destination for coal ash that is raising concern is its use as a substitute for fill dirt in construction projects. Because this reuse can put coal ash directly in contact with groundwater, environmental and public health advocates fear serious contamination problems. Right now, the Environmental Protection Agency is mulling new rules for the use of coal ash, including whether it should strictly regulate ash used in fills or simply put forward guidelines and leave oversight up to the states.

As federal officials consider how to regulate reuse of coal ash, North Carolina’s experience in overseeing structural fills provides a case study with valuable lessons for the entire country.

North Carolina: A case study in neglect?

North Carolina has long been a leader in promoting the use of coal ash as structural fill. Heavily dependent on coal, with 60 percent of its electricity generated by coal-fired plants, the state has a glut of ash to contend with — and has been encouraging utilities to use it as fill for more than 20 years.

“It is encouraging to see the commitment being made to develop reuse applications for the coal ash as opposed to the continued use of county landfills,” stated a 1989 letter from North Carolina’s solid waste chief to ReUse Technology, now known as Full Circle Solutions. The Georgia-based firm is a wholly owned subsidiary of Charlotte-based Cogentrix, which in turn is a wholly owned subsidiary of The Goldman Sachs Group and operates a number of small coal-fired power plants in the eastern U.S.

The letter continued, “The Solid Waste Management Section has and will continue to support the reuse and recycling of waste materials when performed in a manner consistent with the environment.”

But the use of coal ash as fill has not always been done in a manner “consistent with the environment.” Even though North Carolina began overseeing coal ash fills in 1994 after groundwater contamination was found at one fill site, state records and independent research show that the rules — which were cooperatively written by utilities and state regulators — have failed to prevent coal ash fills from damaging the environment and threatening public health.

Facing South examined records from the state Division of Waste Management, which oversees the use of dry coal ash as fill, and the Division of Water Quality, which is responsible for fills that use wet coal ash from impoundments like the one that failed at the Tennessee Valley Authority’s Kingston plant. We also considered the findings of a recent report from the Sierra Club’s North Carolina chapter titled “Unlined Landfills? The Story of Coal Ash Waste in Our Backyard.”

The public record shows that dry coal ash was used as a substitute for fill dirt at more than 70 locations across North Carolina from the late 1980s through 2009 (click here for a spreadsheet with details about the locations). Sites sitting on top of coal ash fills include airports, roads, industrial parks, shopping centers, office buildings, a municipal gym, a church, a science center at Duke University, a rifle range at a Marine base, and livestock pens at a commercial hog farm.

Unlike new surface impoundments where coal ash is dumped in North Carolina, which now must be lined under state law, liners are not mandated for even the largest fill sites. As a result, coal ash has contaminated groundwater or surface water in at least three structural fill sites across the state:

* At the Alamac Road site in Robeson County, N.C., about 45,000 tons of coal ash from small power plants owned by Cogentrix were used as structural fill on 12.8 acres of land. ReUse began placing ash at the site in 1992 without proper state authorization, and state tests of groundwater near the site found levels of contaminants exceeding state groundwater standards. In 1993, the North Carolina Division of Solid Waste Management issued a notice of violation, stating that tests showed “levels of arsenic, cadmium, chromium, lead, selenium, sulfate and total dissolved solids” exceeding safety standards — and that some of the contaminated samples came from a monitoring site near a private residence thought to have a drinking water well.

In response, ReUse removed the coal ash from the site in 1995 with plans to use it elsewhere, including at an agricultural demonstration project testing the ability of coal ash to enhance crop yields — an increasingly common way for coal ash to be reused, especially in the Southeast and Midwest.

The EPA’s new proposals for coal ash regulation don’t address the agricultural use of coal ash, but the agency and the U.S. Department of Agriculture are currently studying such uses and are scheduled to release a report of their findings in 2012.

* At the Swift Creek site in Nash County, N.C., ReUse placed coal ash from Cogentrix plants as fill on a property along Highway 301 beginning in 1994. Two years later, the company got special permission from the Division of Waste Management to also use ash from a facility burning a mix of coal and shredded tires, which contain arsenic and other toxic substances.

A 2004 letter from the state agency to ReUse, which by then had changed its named to Full Circle Solutions, reported that state tests of groundwater samples taken near the site found arsenic at almost three times the state standard for groundwater and lead at more than four times the standard. The letter stated, “The detection of contamination beyond the boundary of the fill shows that constituents from the [coal ash] are migrating.”

* Though our own review of the division’s files did not turn up any mention of violations at the location, Sierra Club found records showing that state environmental inspectors discovered high levels of arsenic, iron and selenium in wetlands at the Arthurs Creek coal ash fill site in Northampton County in 2009. Since 2004, the 21-acre site has been the dumping ground for ash from Kentucky-based energy giant E.ON’s Roanoke Valley Energy plant near Weldon, N.C. There are plans to eventually build office buildings and a parking lot atop the fill.

The problem of groundwater contamination at structural fill sites across North Carolina may be even more widespread, because state law does not require groundwater monitoring at such sites — or even require regular inspections. Most of the problems that have been found to date were discovered following complaints from nearby residents.

The areas of North Carolina contaminated by coal ash fills are notable for being poor and having large African-American, Latino and Native American populations.

While the statewide poverty rate is 14.6 percent, the poverty rates for the counties with known damage cases from coal ash fills are much higher — 15.5 percent in Nash County, 26.6 percent in Northampton, and 30.4 percent in Robeson, according to Census Bureau data. Those counties’ non-white populations are also greater than the state’s 26.1 percent, at 39.4 percent in Nash, 59.4 percent in Northampton and 64.2 percent in Robeson.

Building a community on coal ash

Water contamination is not the only problem that’s occurred at structural fill sites across North Carolina. At some of the sites, work occurred without the required notification of state regulators. At others, the companies improperly excavated the sites before placing the ash, increasing the risk that the coal ash would come in contact with groundwater. And in some instances, coal ash generators may have made ash available for use as fill that shouldn’t have been allowed because it contained excessive levels of contaminants.

For example, state Division of Water Quality records show that Progress Energy distributed ash for fill use that exceeded limits for arsenic. “Based on your 2007 annual report, 14,025 tons of ash was distributed in December of 2007 in which the arsenic concentrations of all three samples exceeded the ceiling and monthly average concentration,” according to a March 2009 letter from the agency to the company. “Based on the 2008 annual report, five out of the 12 ash samples exceeded the ceiling concentration.”

Progress Energy’s permit allows coal ash with arsenic concentrations exceeding those limits to be distributed for fill as long as it will be overlain by impervious surfaces like pavement so rainwater can’t penetrate and leach out contaminants. But the division was apparently not sure that was the case: It asked the company for a site plan showing where the ash was used, but no plan was included in the files.

Furthermore, some coal ash fill sites in North Carolina had problems with erosion that left the toxic waste exposed — posing a direct threat to local residents.

Among those was the Fountain Industrial Park site near the city of Rocky Mount in Edgecombe County, N.C. In 1989, ReUse Technology in cooperation with the Edgecombe County Development Corp. began placing at the site ash from various Cogentrix plants as well as from the coal-fired cogeneration facility at the University of North Carolina at Chapel Hill.

Following Hurricane Floyd in 1999, the industrial park was turned into a trailer park for about 370 eastern North Carolina families displaced by the disaster. Many of the residents were from Princeville, a historic African-American community that was devastated by flooding from the storm. By that time the soil covering the fill had eroded, leaving ash exposed.

Employees of a nearby correctional facility, who for years had watched industrial-sized trucks dumping large quantities of unknown materials at the site, began asking if this was a good place to locate a trailer park. They brought their concerns to the attention of Saladin Muhammad with the group Black Workers for Justice, who was working with trailer park residents. He in turn discussed the situation with graduate students at the University of North Carolina’s School of Public Health, and one of them — Aaron Pulver — investigated the situation for his master’s paper.

Pulver’s experience in trying to track down the history of the site shows how difficult it can be under the current regulatory environment for the public to get information about the use of coal ash for structural fill.

While the Edgecombe County development officer told Pulver a study of the land had been done prior to construction of the trailer park, she refused to release it to him — as did the director of the N.C. Office of Temporary Housing.

When Pulver finally managed to get a copy of the report, he discovered there had actually been no thorough testing of the site for possible health impacts before the placement of the trailers. His adviser, UNC epidemiology professor Dr. Steve Wing, raised concerns about inhalation of the coal ash dust and children ingesting it while playing in the dirt.

In response to mounting worries about the site’s safety, epidemiologists with the state health department collected samples from the trailer park for testing, comparing the results to EPA’s standards for potential health effects. One of the samples exceeded those standards for two contaminants, with arsenic at 25 millograms per kilogram compared to a recommended level of 22, and chromium at 31 mg/kg compared to the standard of 30.

However, a press release put out by the N.C. Department of Health and Human Services — under the headline “SOIL TESTS FIND NO PROBLEMS AT FOUNTAIN TRAILER PARK” — said only that the soil samples “showed no significant risk” for the residents. It did not mention the elevated arsenic and chromium levels.

‘We’ve been unable to bring attention to this’

The problems that have occurred at coal ash structural fill sites across North Carolina highlight the difficulty states face in overseeing ash placement programs in the absence of federal regulations.

Under North Carolina’s rules, companies placing dry coal ash as fill are supposed to record its presence on the property deed — a provision fought by Duke Energy, which along with Progress Energy is one of the state’s two big investor-owned utilities and a major producer of coal ash.

However, the Sierra Club found that only 56 percent of the closed structural fill sites that held 1,000 cubic yards or more of coal ash had complied with the deed-recording requirement.

State officials aren’t required to do their own tests of coal ash fill to see if it has potentially dangerous levels of arsenic of other contaminants — that’s left up to the companies, and there’s no rule to check the accuracy of what the companies report. No advance permits are required for fills, even for the largest sites. And while the state can comment on a company’s coal ash fill plans, it does not have the power to deny them.

Following the Kingston disaster in Tennessee in 2008, state Rep. Pricey Harrison (D-Guilford) tried to change the way coal ash is regulated in North Carolina, including its use in structural fills. In 2009, she introduced a bill that would have created a permitting system for coal ash fills — but the final version of the legislation that passed the General Assembly and was signed into law by Gov. Beverly Perdue (D) had the structural fill provision stripped out.

Instead, the measure simply subjected the state’s massive coal ash impoundments to dam safety rules, an approach aimed at preventing catastrophes like Kingston but that does nothing to protect against potentially more insidious environmental contamination from ash fills.

But even that basic safeguard was difficult to win at the state capitol, with the politically powerful utility companies and electric cooperatives working against it. “They fought every aspect of the bill tooth and nail,” Harrison said. “They lobbied hard against even a hearing.”

This week Harrison introduced another bill to better regulate structural fill sites in North Carolina. And as co-chair of the state Environmental Review Commission and House Environment Committee, she is also planning on holding hearings on coal ash next month.

Meanwhile, spurred by the Kingston coal ash disaster in Tennessee, North Carolina regulators have stepped up their inspections of structural fill sites. In 2009, they visited 48 sites — and found violations at 28 of them, ranging from water contamination to a lack of cover that could stop coal ash from escaping fill sites.

But the regulators themselves acknowledge that more must be done.

“We’ve been unable to bring the attention to this that we feel it needs,” said Paul Crissman, chief of the Division of Waste Management’s Solid Waste Section, which oversees dry coal ash fills.

Since the recession-triggered state budget crisis began in 2008, Crissman’s staff has declined from 54 to 49 people, while the workload has increased. He does not expect that situation to change any time soon, with state lawmakers facing a $1 billion budget gap.

“We’ve got more work to do in a day than workers to put at it,” Crissman added.

While North Carolina’s regulatory approach to coal ash fill has proven inadequate for ensuring against environmental damages, the administration of Gov. Perdue does not support strict federal regulation of coal ash as hazardous waste. In fact, her departments of Transportation and Commerce are both on record opposing that regulatory approach. The state’s Utility Commission and the commission’s Public Staff also oppose strict regulation, citing cost concerns.

What next from Washington?

The lack of strong state rules for using coal ash as structural fill in places like North Carolina has caused community health and environmental advocates to rest their hopes for protective standards on Washington.

The EPA’s much-anticipated new proposals for regulating coal ash released earlier this month allow for the continued recycling and reuse of coal ash. However, they draw a distinction between turning the waste into manufactured products, which would not be regulated under the proposals, and the reuse of coal ash in large fills, which as the EPA notes pose “an array of environmental issues” and would be regulated as a type of land disposal.

How the EPA will address the issue won’t become clear until after the comment period for the proposed rules end and final regulations are announced. The agency has not announced any time line for that.

In the meantime, patchwork and scatter-shot state regulations like those in North Carolina continue to carry the day — a situation that environmental advocates say amounts to allowing utilities to push their ash waste problems onto the public in dangerous ways.

“Because this ‘reuse’ is subject to little or no regulation in many states,” contend the watchdog groups Earthjustice and the Environmental Integrity Project, “some structural fills may be little more than dumpsites in disguise.”

TOMORROW: What’s next for coal ash? Our week-long investigative series wraps with a look at the future of the nation’s growing coal ash problem and the movement for change in North Carolina and beyond.

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After years of inaction, federal officials are mulling new regulations to confront the growing problem of coal ash. But energy companies have fought off regulation before, and they’re fighting the new rules every step of the way.

A special Facing South investigation by Sue Sturgis

When the catastrophic coal ash spill occurred at the Tennessee Valley Authority’s Kingston plant in 2008, a quiet debate over how to regulate coal ash had already been going on for decades, largely outside the view of the public or press.

That all changed with the Kingston spill, which aside from releasing a billion gallons of toxic waste into a nearby community and river system also pushed the problem of coal ash into the national spotlight and led to calls for change.

The month after the Tennessee disaster, EPA Administrator Lisa Jackson signaled during her Senate confirmation hearing that the agency would revisit the issue of coal ash regulation. “The EPA currently has, and has in the past, assessed its regulatory options, and I think it is time to re-ask those questions,” Jackson said.

Jackson soon began to make good on her promise. The EPA launched an inventory of coal ash impoundments like the one that failed at Kingston, sending information requests to more than 160 electric generation facilities and 60 corporate offices. Armed with this and other data, Jackson and the EPA concluded that the nation’s standards for regulating coal ash needed revision.

But the agency’s efforts soon ran up against massive resistance from an array of powerful interests — industries and groups that had succeeded in enabling coal ash to escape federal oversight for decades, creating a regulatory vacuum that many say made a Kingston-like disaster almost inevitable.

Fending off ‘burdensome regulatory requirements’

The battle over regulating coal ash goes back to 1976, when Congress passed the Resource Conservation and Recovery Act, the main federal law that governs disposal of hazardous and non-hazardous waste.

In the beginning, coal combustion waste was not included in RCRA, and in 1978 EPA proposed that coal ash be covered under the law as a special hazardous waste.

But before that happened, Congress passed the Bevill Amendment in 1980, which effectively exempted the coal waste from RCRA. The amendment was named for Rep. Tom Bevill, a 15-term Democratic congressman from coal-dependent Alabama who chaired the powerful House Energy Development and Water Appropriations Subcommittee. During congressional debate, Bevill declared that “it would be unreasonable for EPA to impose costly and burdensome regulatory requirements without knowing if a problem really exists, and if it does, the true nature of that problem.” Bevill’s amendment called on the agency to delay regulation and study the matter instead.

Congress’ reluctance to regulate was reinforced when the EPA went on to release two reports — one in 1988 and another in 1999 — finding that damages from coal ash did not warrant lifting the regulatory exemption.

But in 2000, the agency began to change course. That year, as required by the Bevill Amendment, the EPA published a proposal titled “Regulatory Determination on Wastes from the Combustion of Fossil Fuels” that concluded federal regulations for the disposal of coal ash — either under RCRA and/or the Surface Mining Control and Reclamation Act — were necessary to protect public health and the environment.

“Public comments and other analyses . . . have convinced EPA that these wastes can, and do, pose significant risks to human health and the environment when not properly managed, and there is sufficient evidence that adequate controls may not be in place for a significant number of facilities,” the proposal found. “This, in our view, justifies the development of tailored regulations under Subtitle C of RCRA.”

In other words, the EPA was saying that it was finally ready to treat coal ash as hazardous waste.

The EPA sent its report to President Bill Clinton’s White House Office of Management and Budget for review. An EPA employee involved in the internal debate told the Center for Public Integrity “it really hit a brick wall at OMB.”

The administration was flooded with letters from electric utilities and visits from their lobbyists warning that regulating coal ash as hazardous waste would lead to economic hardship for them and their customers. New standards would increase the cost of disposing of coal ash waste, an extra cost the EPA estimated at about $1 billion per year. But industry representatives argued the cost would be astronomically higher — perhaps upwards of $13 billion.

After the lobbying onslaught, EPA backed away from regulating coal ash as hazardous waste in 2000. But the agency promised to issue guidelines to help states oversee it more effectively — a critical step, since most states lacked even basic safeguards for coal ash disposal sites.

But the EPA didn’t follow through. And without federal guidelines, states continued with business as usual. Five years later, a report prepared for EPA’s Office of Solid Waste found that most states didn’t require monitoring the impact of coal ash disposal sites on groundwater, more than half didn’t require liners, and more than a quarter didn’t even require something as basic as dust controls at coal ash landfills. The report also found that most of the coal ash produced in the top 25 coal-consuming states could legally be disposed of in a way that directly threatened drinking water supplies in underground aquifers.

A consensus for regulation grows

Meanwhile, even within the EPA, evidence was mounting that coal ash posed a growing threat to environmental and human health.

In 2007, a draft assessment was prepared for the EPA titled “Human and Ecological Risk Assessment of Coal Combustion Wastes” that found some unlined coal ash impoundments pose a cancer risk 2,000 times above what the government considers acceptable. The assessment found that the use of a composite liner — a multi-layered liner like those required in municipal waste landfills — significantly reduced the risk of exposure to health-threatening pollution. However, most states don’t require such liners for coal ash impoundments.

That same year, a report by the EPA Office of Solid Waste tallied up the number of cases nationwide where coal ash was found to have caused environmental damage, documenting 24 cases of proven damages caused by coal ash and another 43 potential damage cases related to coal ash. Most of those cases involve toxic contamination from coal ash impoundments leaching into groundwater, rivers and lakes.

The EPA’s internal studies were complemented by a growing body of research by independent scientists and advocacy groups documenting the environmental and health consequences of coal ash.

Earlier this year, for example, the Environmental Integrity Project and Earthjustice released a report titled “Out of Control: Mounting Damages From Coal Ash Waste Sites” that found serious water contamination problems from coal ash dumps at 31 locations in 14 states. The report noted that the contamination is concentrated in communities with family poverty rates above the national median.

Recently the EPA also acknowledged that toxic elements like arsenic, chromium and selenium can leach out of unlined coal ash dumps and into local water supplies in much higher concentrations than was earlier believed. After 20 years of using a testing method that the EPA’s own Science Advisory Board argued was low-balling the contamination risk, the agency recently began using an updated test that found the level of toxic contaminants leaching into water clearly crossed the threshold for designating coal ash as a hazardous waste.

“These unregulated sites present a clear and present danger to public health and the environment,” said Earthjustice attorney and former EPA official Lisa Evans. “If law and science are to guide our most important environmental decisions, as EPA Administrator Lisa Jackson has promised, we need to regulate these hazards before they get much worse.”

Hitting another brick wall

But Washington’s latest effort to regulate coal ash — spurred by the TVA disaster — has again met massive resistance from a familiar array of powerful political interests.

Last October, the EPA sent a draft regulation to the White House Office of Management and Budget. The proposed rules immediately became the target of a massive lobbying onslaught by electric utilities and energy interests determined to prevent coal ash from being regulated as hazardous waste.

The Charleston (W.Va.) Gazette reported that OMB held 30 meetings about the rules with industry officials compared to only 12 with environmental and public health groups. The intense lobbying campaign was notable because of the electric utility industry’s already considerable clout in Congress: One of the most politically generous, it’s contributed more than $9 million to members’ campaigns during the 2009-2010 election cycle so far, according to the Center for Responsive Politics.

Joining the lobbying effort were state agencies and federal lawmakers who voiced concern about the cost of strict regulation and how it would affect the recycling of coal ash into products and its use as fill in construction projects.

Many of the congressional defenders of coal ash represent states where the toxic waste has been implicated in environmental damages. For example, a Facing South analysis found more than 50 proven and suspected coal ash damage cases in the states represented by the more than 90 senators and representatives who wrote to the Obama administration opposing the regulation of coal ash as hazardous waste.

As the political battle raged behind closed doors, the latest push to regulate coal ash seemed like it might again be derailed. The EPA originally said it would roll out a proposed rule for public comment by the end of 2009, but the release was postponed with the agency blaming the delay on the “complexity of the analysis.”

The new rules were then supposed to be released in April 2010, but were put off again.

Finally, earlier this month the EPA released the rules to the public. But instead of issuing a clear standard that would treat coal ash as a hazardous waste as it originally planned, the agency released two options: one that would empower the federal government to oversee the material like other hazardous waste, and one that would treat coal ash like ordinary trash and leave oversight up to the states.

The agency asked the public to help decide which approach makes the most sense during a three-month comment period that will begin when the regulation is published in the Federal Register, which is expected to happen as soon as this week.

Environmental watchdogs expressed disappointment over the agency’s equivocation. Eric Schaeffer, a former EPA official who now directs the nonprofit Environmental Integrity Project, said the move “sets up a boxing ring.” However, he also said he sees value in moving the fight from behind OMB’s closed doors out into the open.

“It’s in the public arena now, and that’s really important to move things along,” he said.

 
TOMORROW: Dumpsites in Disguise? Coal ash doesn’t just end up in dangerous dumps — the waste is also used increasingly as building material and even as fertilizer for farm crops. It’s called “beneficial use,” but is it safe?

Sue Sturgis is an investigative reporter and editorial director of
Facing South. This piece is the third installment in an in-depth,
week-long series on the growing national problem of coal ash and the
political battle over regulations. To read the entire series, click here.

In December 2008, one of the largest environmental disasters in U.S. history unfolded at the TVA’s Kingston coal plant when a massive coal ash holding pond burst. A year and a half later, communities are still feeling the impact — and there are fears that without federal action a similar disaster could strike elsewhere.

A special Facing South investigation by Sue Sturgis

Shortly before 1 a.m. on Dec. 22, 2008, a dike holding back an 84-acre pond of wet coal ash at the Tennessee Valley Authority’s Kingston plant near Harriman, Tenn. ruptured and collapsed following weeks of heavy rains. A billion gallons of muddy, gray coal ash loaded with arsenic, lead and other contaminants poured across the nearby Emory River to the neighborhood along Swan Pond Road.

The toxic tidal wave hit suddenly, taking sleeping residents by surprise. It damaged a total of 42 homes, pushing one house completely off its foundation and rendering three others uninhabitable. It tore down trees, pushed boats off docks, washed out a road and a railway, ruptured a major gas line, broke a water main, and ripped down power lines. No people died in the disaster, though a dog that had been tied up in the yard of one house was buried by the coal ash and couldn’t be rescued in time.

Some residents didn’t realize what had happened until after dawn, when they awoke to a landscape that one survivor described as looking like “a movie scene on the ugliest planet imaginable.” The sludge covered almost half a square mile of once-beautiful riverfront land, reaching six feet deep in places. A popular local fishing cove was filled with coal ash, the massive chunks sticking up 20 feet in the air like dirty icebergs.

Since the disaster, TVA has been scraping up the spilled ash from the land and dredging it out of the waterways, with the main channel of the Emory set to reopen this week. But the company estimates that 500,000 cubic yards of spilled ash will remain in the river because workers simply can’t get it all out. And while the EPA previously advised people against swimming, tubing and other activities near the disaster site because of the risk of contact with toxic ash, the agency and state officials are now saying that the remaining coal ash presents minimal health risks — though they’re still recommending that people wash off after leaving the water.

The effects of the Kingston disaster will be felt for a long time. How could something like this happen? And could a similar coal ash tragedy strike elsewhere?

‘Appropriate safety modifications were not made’

The catastrophic collapse at Kingston was the culmination of problems that for years had been plaguing the plant’s impoundments — those massive and usually unlined holding ponds where the waste is dumped after burning coal for power. But TVA had repeatedly failed to fix those problems, and an inadequate regulatory system failed to address them.

A July 2009 report by TVA’s Inspector General found that red flags were raised as far back as 1985, when an internal memorandum written by a TVA engineer cited concerns about the stability of the Kingston coal ash storage facilities — concerns echoed in two 2004 reports by external engineering consultants hired by TVA.

The Inspector General’s report also noted that a 1987 internal TVA memorandum stated that the impoundments had become “quite high with increasing risk and consequences of a breech” and recommended more rigorous inspection standards. That led to discussions about managing the ash ponds under the company’s dam safety program, but TVA ultimately decided not to do that. On top of that, local residents had reported leaks in the dam going back as far as 2001, and the utility itself acknowledged that there had been leaks there in 2003 and 2006.

“TVA could have possibility prevented the Kingston Spill if it had taken recommended corrective actions,” according to the report. “For reasons that are still not entirely clear, appropriate safety modifications were not made.”

TVA has also drawn criticism from affected residents and environmental advocates for not being straightforward about the scale and impact of the Kingston spill. At first, the utility dramatically underestimated the amount of ash released and incorrectly claimed that no dead fish were found downstream of the disaster.

TVA described coal ash as consisting primarily of “inert material not harmful to the environment.” In reality, coal ash contains potentially harmful levels of toxic arsenic, lead and mercury. The utility also likened the radioactive threat from the coal ash to radioactivity in table salt, even though researchers with Duke University in North Carolina found significant levels of cancer-causing radioactive elements in the ash.

TVA has even been accused of manipulating science methods to downplay water contamination caused by the spill, with evidence showing that it may have intentionally collected water samples from relatively clean spots in the Emory River. As Pennsylvania hydrogeologist Bob Gadinski told The Nation, it appears  that TVA “isn’t interested in properly mapping the contaminants in that river.”

At the same time, the company created difficulties for independent researchers monitoring contamination from the spill. In December 2008 TVA police issued a warning ticket for criminal trespass to Upper Watauga Riverkeeper Donna Marie Lisenby for trying to access the spill site by kayak to take samples — though she was on a public waterway and there were no signs indicating the river was closed. Then in early 2010, TVA blocked Lisenby and other researchers from accessing an established sampling point along the Emory because they weren’t wearing hardhats and safety vests. When they asked permission to return to shore to get the equipment, TVA refused.

“It’s been a story about hiding the truth from the people, and preventing the truth tellers from being able to tell the truth,” Lisenby said.

And while TVA commissioned a study of the impoundment’s failure by the Los Angeles-based engineering firm AECOM, TVA’s Inspector General found that it designed the study in a way that minimized management’s liability and provided no lessons for the company to draw on.

The IG’s 2009 audit report said TVA’s actions seemed more focused on avoiding lawsuits than learning lessons from the disaster. As the report concluded, “TVA has urged everyone just to ‘move forward’ without further examination of what responsibility TVA management may have had for the disaster that occurred on December 22, 2008. TVA management handled the root cause analysis in a manner that avoided transparency and accountability in favor of preserving a litigation strategy.”

‘Some horrible nightmares’

Any hopes TVA had for avoiding litigation over the disaster were dashed in March 2010, when a federal judge ruled that plaintiffs in seven suits would be allowed to argue that the company was negligent in the use and maintenance of the Kingston coal ash pond. In all, more than 500 plaintiffs have filed more than 50 lawsuits against the company in connection with the spill.

“This is a tremendous victory in the effort to hold TVA accountable for the severe damage it has caused to residents and the environment,” said Elizabeth Alexander, one of the attorneys representing plaintiffs suing the company. “The Court held that TVA must answer for its alleged negligence that directly led to one of the largest environmental catastrophes in our country’s history.”

The court’s decision wasn’t a complete win for the plaintiffs, as the judge ruled that they couldn’t ask for punitive damages or a jury trial. But the ruling rejected claims by TVA — a federally owned but independently financed corporation serving almost 9 million customers in seven Southern states — that it’s immune from legal action as a government agency. The court held that once a policy decision has been made, the government is accountable for its negligence in implementing it.

While the lawsuits wind through the courts, residents near the Tennessee plant continue to grapple with the lingering health risks unleashed by the disaster. TVA has bought out more than 140 property owners, but other affected residents say the utility isn’t offering them fair compensation for their property, or their property isn’t considered close enough to qualify.

The spill dumped 2.66 million pounds of 10 toxic pollutants into the Emory and nearby Clinch rivers — more than all the surface-water discharges from all U.S. power plants in 2007, according to a report from the Environmental Integrity Project. Independent tests sponsored by EIP and United Mountain Defense and conducted more than two months after the disaster found levels of some toxic metals including arsenic, cadmium and lead exceeding Clean Water Act standards designed to protect aquatic life as well as humans who come in contact with the water.

The ash also accumulated on the land, where it can dry out and become an air pollutant — a concern since EPA found dangerously elevated levels of arsenic in coal ash samples taken from a road at the disaster site.

Residents blame the ash spill for a range of ailments they began experiencing after the disaster. Gary Topmiller and his wife, Pam, live across the river from the failed impoundment. In the months following the spill, Pam Topmiller’s eyes regularly swelled shut until the couple installed air filters in their home.

Connie Kelley, a resident of the area directly impacted by the spill, reported other problems: “Since the spill I have been having a lot of headaches, eyes burning and itching, coughing, nose bleeds and some horrible nightmares. I never had a nightmare in my life until this.”

Dumping on the disadvantaged

The toxic nightmares that haunt residents near TVA’s Kingston plant are now disrupting the peace of another community in Perry County, Ala. That’s where the company — with EPA’s approval — chose to dispose of the 3 million cubic yards of coal ash scraped up from the spill site.

For the past year, Tennessee’s toxic sludge has been shipped 320 miles south to the Arrowhead Landfill near Uniontown, Ala., a facility owned by Perry County Associates and managed by Phill-Con Services and Phillips & Jordan. TVA said it chose the site because it was accessible by train, underbid other candidates and had the capacity to handle all the ash. Under Alabama law, coal ash isn’t regulated and doesn’t have to be placed in a lined landfill like Arrowhead; however, ash from the Kingston spill is considered remediation waste and is regulated more strictly.

For Perry County, Ala., the coal ash shipments are being touted as a much-needed financial boost: The fee paid by the landfill operators is expected to increase the county’s annual budget from $4.5 million to $7.5 million.

“The economic development opportunity, along with safe environmental management practice, has put renewed hope back into a once-proud county,” Perry County Commissioner Albert Turner Jr. testified to a U.S. House committee in December 2009.

But not everyone has been so enthusiastic. Community leaders and environmental advocates pointed out that Perry County is almost 70 percent black, with more than 31 percent of its families in poverty — a classic case of environmental injustice.

The disparity is even starker when one looks at the community closest to the dump: Uniontown, Ala. is 88 percent African-American with almost half of its residents living in poverty, according to 2000 Census data. Residents called on EPA Administrator Lisa Jackson to protect them from the toxic waste.

“There’s a sense among the population that we’ve been thrown under the bus,” Robert Bamberg, a white catfish farmer and organizer of Concerned Citizens of Perry County, told the New York Times last year.

The decision to allow TVA to dump its coal ash in Perry County was among a number made by EPA Region 4 that were highlighted in a September 2009 report by Professor Robert D. Bullard, director of the Environmental Justice Resource Center at Georgia’s Clark Atlanta University. Bullard called on the EPA national office to investigate Region 4’s historic treatment of black communities in the Deep South.

“Nearly four decades of Region 4 harmful and discriminatory decisions have turned too many black communities into the dumping grounds, lowering nearby residents’ property values, stealing their wealth, and exposing them to unnecessary environmental health risks,” Bullard wrote.

He noted that EPA Region 4 justified the Perry County decision in its “Frequently Asked Questions” page by declaring the landfill to be in “an isolated area, surrounded by large tracts of property, farms and ranches.” But as Bullard pointed out, there’s an established black community on two sides of the landfill, with a population large enough to support three churches.

And now there’s evidence that the health threats to nearby Perry County residents are becoming a reality: In February 2010, Hurricane Creekkeeper John Wathen of Alabama filed a complaint with the EPA documenting serious problems at the facility. They include runoff tainted with cancer-causing arsenic at levels more than 80 times the U.S. safe drinking water standard; an excessive amount of wet waste being dumped into the landfill, threatening the structural integrity of the protective liner; and toxic coal ash falling from overloaded, uncovered trucks and spilling along the haul road. To date, the EPA has declined to act on his complaint.

“Why is Perry County being treated like this?” asked Wathen, who called for the ash shipments to be halted until the problems are fixed. “Are the people in Perry County any less valuable than the people of Kingston, Tenn.?”

Meanwhile, Florida attorney David Ludder has announced plans to sue the landfill operators for violations of the Solid Waste Disposal Act and the Clean Air Act on behalf of 155 local residents. He had previously planned to sue the facility’s owners, but they filed for bankruptcy in January 2010 — a move that prevents any new lawsuits from being filed against them until the bankruptcy proceedings are settled.

Ludder’s notice of intent to sue argues that the odors from the landfill are “injurious to human health and welfare, interfere with the enjoyment of life and property, are unpleasant to persons, tend to upset appetite, lessen food intake, interfere with sleep, produce irritation of the upper respiratory tract, and cause dizziness, headache, nausea and vomiting.”

Last week, TVA announced that it would stop sending the spilled coal ash to the Alabama landfill this fall and begin storing the ash at an unlined facility near the disaster site in Tennessee. Storing the ash on site will be cheaper than shipping it out of state, giving the company a shot at keeping cleanup costs under $1.2 billion, TVA officials told the Associated Press.

With millions of cubic yards of TVA’s coal ash destined to remain in their community for the foreseeable future, the residents of Perry County will be living with fallout from the Kingston spill for years to come. In the meantime, other communities across the country are facing problems of their own from coal ash — the result of a failing regulatory framework that only now, a year and a half after the Tennessee disaster, some leaders in Washington say they want to fix.

TOMORROW: Power Politics: How energy interests have kept coal ash from being regulated as a hazardous waste — and the looming battle in Washington to change the way coal ash is treated under law.

Sue Sturgis is an
investigative reporter and editorial director of Facing South. This
piece is the second installment in an in-depth, week-long series on the
growing national problem of coal ash and the political battle over
regulations. To read the first installment, titled “Coal’s Dirty Secret,” click here.

Coal ash is one of the country’s biggest waste streams and is full of toxic substances, yet it remains virtually unregulated. Can Washington overcome the fierce opposition of energy interests to protect communities and the environment?

A special Facing South investigation by Sue Sturgis

When a billion gallons of coal ash broke loose from a holding pond at the Tennessee Valley Authority’s Kingston power plant near Harriman, Tenn. in December 2008, registered nurse Penny Dodson was living nearby with her 18-month-old grandson, Evyn.

Like most of her neighbors, Dodson never gave much thought to the impoundment until it collapsed, destroying three homes, damaging 42 others and inundating the nearby Clinch and Emory rivers with the sludgy coal waste.

The Dec. 22 spill blanketed Dodson’s property, but TVA assured residents it wasn’t toxic, so she and Evyn stayed put. But a week after the disaster, Evyn — who suffers from cerebral palsy — became very ill.

He refused to play or eat, his eyes turned red and watery, and he began coughing and wheezing. He eventually landed in the hospital, where tests showed his body had high levels of arsenic and lead, contaminants in the coal ash. The doctors blamed his troubles on airborne ash and advised them to move.

“I carry guilt because we stayed,” Dodson said in testimony to state lawmakers at a hearing held two months after the disaster. “Because I was told that we were going to be safe, and I believed them.”

Since that fateful incident, other energy disasters have grabbed headlines: the blast at a West Virginia coalmine that left 29 miners dead, and an explosion on BP’s offshore oil drilling rig that killed 11 workers and has released millions of gallons of oil into the Gulf of Mexico.

Coal ash isn’t receiving as much attention nowadays. But a six-month investigation by Facing South finds that it poses a growing threat to public health and the environment — even as coal ash remains unregulated by the federal government due in large part to political pressure from energy companies.

But the days of coal ash escaping the scrutiny of federal regulators are numbered. Earlier this month, the U.S. Environmental Protection Agency — after months of delay due to maneuvering among the EPA, White House Office of Management and Budget, and the politically powerful electric utility industry — took the unusual step of releasing two different proposals for how to regulate coal ash.

EPA is now asking the public to weigh in on the two options during a 90-day comment period that will begin once the proposed rules are published in the Federal Register. (For a pre-publication version of the rules, click here.) As EPA Administrator Lisa Jackson said when the regulatory options were rolled out, “We look forward to the participation and the comments of the American people.”

What happens in the coming months will determine whether communities will be protected from the prospect of another coal ash disaster like the one that struck eastern Tennessee, as well as from less visible but no less dangerous coal ash disasters unfolding in communities nationwide.

Hazards in our midst

When coal is burned to produce electricity, it leaves behind a variety of wastes — fly ash, bottom ash, boiler slag and more — known collectively by regulators as coal combustion waste, or more commonly as coal ash.

U.S. coal plants generate more than 150 million tons of coal ash each year, according to a recent Environmental Protection Agency analysis. That makes it the second-largest industrial waste stream in the U.S. after mining waste.

Because coal ash is not regulated by the federal government, the EPA had never set out to count the number of impoundments for disposing of coal ash waste nationwide.

But after the Kingston disaster, the agency launched a search that turned up a total of 584 impoundments and similar disposal sites at more than 200 facilities, mostly power plants.

Of the more than 580 impoundments the EPA discovered, it rated the hazard potential of about a third of them. Of those, 49 units have been rated as high hazard — meaning a failure like the one at Kingston would likely kill people. Another 60 units are rated as significant hazards, meaning their failure could lead to widespread destruction like the Kingston disaster. Many of the communities at greatest risk from hazardous impoundments have higher-than-average poverty rates.

These ratings are significant, because failures of coal ash impoundments are not rare occurrences:

* In July 2002, a sinkhole developed in an impoundment at the Georgia Power/Southern Company’s Plant Bowen in Bartow County, Ga., covering four acres and reaching 30 feet in depth. The sinkhole released 2.25 million gallons of a water and coal-ash mix to a tributary of the Euharlee Creek; that creek feeds the Etowah River, which provides drinking water to local communities and habitat to imperiled species.

* In August 2005, an impoundment failed at PPL’s Martins Creek power plant in Pennsylvania’s Northampton County, sending more than 100 million gallons of contaminated water and coal ash into the Delaware River, which provides drinking water for downstream communities.

* In January 2009 — less than a month after the catastrophic collapse at the Kingston plant — a pipe inside a coal ash impoundment at TVA’s Widows Creek plant in northeastern Alabama leaked, sending as much as 10,000 gallons of coal ash waste into nearby Widows Creek, a tributary of the Tennessee River. The intake for Scottsboro, Ala.’s water supply lies about 20 miles downstream of the spill site.

Despite the clear hazards, many of these coal ash dumps are unregulated not only by the federal government — they’re virtually unregulated at the state level as well. For example, most states don’t require groundwater monitoring and runoff collection at coal ash impoundments, and more than half don’t require liners or financial assurances to guarantee the owners can pay for cleanup of any contamination that might occur.

“It’s a situation that needs to be fixed,” said attorney Lisa Evans, a former EPA official who now works with the environmental law firm Earthjustice. “We’re talking about a potential loss of human life.”

Poisoned waters

Catastrophic collapses like the one at the Kingston plant in Tennessee aren’t the only threat posed by unregulated coal ash impoundments. Most of the more than 100 known and suspected cases of environmental damages caused by coal ash that have been documented by the EPA and environmental groups involve contaminants from the ash seeping into nearby groundwater and surface water supplies from impoundments, which are typically unlined.

In fact, a recent EPA risk assessment found that people who live near coal ash impoundments and drink from wells have as much as a 1 in 50 chance of getting cancer due to contamination with arsenic, one of the most common and dangerous pollutants in coal ash. The same risk assessment found that living near coal ash impoundments also increases the risk of damage to the liver, kidneys, lungs and other organs.

And as a consequence of efforts to make burning coal cleaner, new technology to collect airborne coal ash from the smokestacks of power plants has increased the concentration of toxic contaminants in coal ash, heightening its public health and environmental risks.

The dangers of coal ash aren’t just hypothetical — it’s been linked to at least 100 cases of toxic contamination across the country. The following examples were detailed in a recent
report by Earthjustice and the Environmental Integrity Project:

* At Tampa Electric’s Big Bend Station near Apollo Beach in Florida’s Hillsborough County, thallium and manganese leaching from a coal ash dump have contaminated off-site groundwater at levels exceeding federal drinking water standards, while arsenic has contaminated on-site groundwater at levels 11 times above standards.

* At SCE&G’s Wateree Station in Eastover, S.C., arsenic contaminated groundwater at the site at 18 times the federal drinking water standard, according to the same report. The contamination has migrated to adjacent property and is accumulating in catfish in the nearby Wateree River.

* Selenium discharges from ash impoundments at AEP’s John Amos Plant along the Kanawha River in Winfield, W.Va. have exceeded the facility’s permit limits, according to publicly available monitoring data, while fish taken from nearby Little Scary Creek have registered selenium levels above what the state considers safe for human consumption. Exposure to excessive levels of selenium over the short term can cause nausea, vomiting and diarrhea, and over time can result in neurological effects.

* Arsenic in groundwater beneath Progress Energy’s Sutton Steam Plant on the Cape Fear River near Wilmington, N.C. has been detected at levels as high as 29 times the federal drinking water standard and is migrating off-site, according to state monitoring data. And Sutton is no exception: An
independent analysis of state data found that every one of 13 coal ash impoundments located next to North Carolina power plants owned by Progress Energy and Duke Energy that were tested are leaking contamination to groundwater.

Communities can be exposed to the hazardous ingredients of coal ash through means other than the water supply. At Progress Energy’s Skyland plant near Asheville, N.C., dried-out ash from a poorly managed impoundment blew through the air onto a neighboring condominium community, accumulating on residents’ homes, lawns and cars. A lab analysis done as part of the state’s investigation into the incident found that the material contained highly toxic, cancer-causing elements including arsenic, chromium and radioactive strontium.

Dry coal ash in landfills, as well as the use of coal ash as a substitute for fill dirt in construction projects, have also been proven to cause environmental damage.

The health consequences of the public’s exposure to coal ash can take years to develop, but in some cases the impact has been more acute. For example, leaking coal ash impoundments at PPL Montana’s Colstrip power plant in Rosebud County, Mont. contaminated a well at a nearby Moose Lodge, where members suffered stomach ailments from drinking the water. Fifty-seven Colstrip residents, including members of the Moose Lodge, filed a lawsuit against the company that was eventually settled for $25 million.

“These companies fought every step of the way,” plaintiffs attorney Jory Ruggiero said at the time. “You can’t hide the facts when you’re testing wells and they’re coming up contaminated.”

What’s at stake

These growing public health and environmental concerns — along with the Kingston disaster in Tennessee — have brought the country to a watershed moment in confronting the dangers of coal ash.

The two regulatory alternatives put forward by the EPA this month include stark differences. Both proposals would regulate coal ash under the Resource Conservation and Recovery Act, the primary federal law governing solid waste. But one option would regulate it more strictly as a “special waste” under RCRA Subtitle C, which governs hazardous waste, while the other would regulate it less strictly under RCRA Subtitle D, which applies to ordinary waste. Regulating coal ash under RCRA Subtitle C would give EPA clear enforcement authority, while placing it under Subtitle D would give EPA the power only to set guidelines for managing coal ash, leaving oversight programs to the states and enforcement to citizen lawsuits.

Energy companies have lobbied fiercely against treating coal ash as hazardous waste, arguing that such an approach would be too costly and would discourage efforts to recycle coal ash into other products. Meanwhile, environmental groups make the case that coal ash is clearly hazardous and should be treated that way under law.

With the EPA now putting the future of coal ash regulation up for public debate, environmental advocates like Scott Slesinger, legislative director for the Natural Resources Defense Council, say citizens must speak up if they want to avoid another tragedy like the one that devastated the lives of Penny and Evyn Dodson and their neighbors.

“The catastrophic failure of the dam in Kingston, Tenn. finally got the nation’s attention to regulate toxic coal ash,” said Slesinger. “We learned in Kingston, as we recently learned in the Gulf, that catastrophic failures associated with dirty carbon happen with tragic results.”

TOMORROW: Disaster in East Tennessee: It’s been nearly a year and a half since the massive TVA coal ash spill. But for communities touched by the spill, it’s an ongoing catastrophe.

Sue Sturgis is an investigative reporter and editorial director of Facing South. This piece is the first installment in an in-depth, week-long series on the growing national problem of coal ash and the political battle over regulations.

Hurricane Creekkeeper John Wathen of Alabama flew over the Gulf of Mexico this week with pilot Tom Hutchings of SouthWings to continue documenting the unfolding ecological catastrophe from the BP oil spill.

Leaving the coast of Alabama and looking toward Florida, they saw clear seas. But they soon ran across the first tideline of red oil. About 14 miles out they saw a thin, glossy sheen, and at 38 miles deep streaks of red.

“The color seems to have changed somewhat,” Wathen reports. “It’s not the bright red it was before; it’s more brown. It’s as if the dispersant they’re putting on it is merely hiding it from sight.”

Yesterday the Environmental Protection Agency — which initially approved the use of the dispersant Corexit — directed BP to use a less toxic chemical. The move came after EPA released BP testing data that showed areas of significant toxicity in the water where the dispersant had been used.

The closer they got to source, the more oil there was on water — and the more cloud cover there was above. Wathen says it was as if the spill were creating its own weather pattern.

“Nothing could have prepared me though for what I saw next,” Wathen continues. “Looking out across the tops of the clouds, there was one that stood out all by itself — a long, black, ugly-looking thing. It seemed to come straight up out of nowhere. This is the burn at the source of the BP slick.”

The massive black cloud (pictured above in a photo by Wathen) stretching across the horizon is coming from relatively small fires, he points out. It would take thousands of fires like that to burn all the oil on the surface.

“Is the tradeoff for what we’re putting in the atmosphere worth what we’re burning off the surface of the Gulf of Mexico?” he asks. “Can we really afford to do that?”

Air tests from the Louisiana coast have already shown a serious threat to human health from the airborne chemicals released by the underwater oil gusher. While BP is now collecting some of that oil, most of it continues to be released to the environment.

As Wathen and Hutchings headed back to land, they witnessed the massive slick — now estimated to cover about 16,000 square miles — making landfall along the Louisiana coast. They also saw the booms that had been placed in hopes of stopping the oil being tied up in knots and destroyed by the seas.

“It’s plain to see this is a futile gesture to protect the shorelines of Louisiana, Mississippi, Alabama, Florida, but what can we do? We have to do something,” Wathen says.

“We need every scientific mind in the country working on this — and not just those at BP who are trying to protect the resource,” Wathen concludes.

Watch the video here:

With the nation’s attention focused on the unfolding oil disaster in the Gulf of Mexico, activists are taking steps to ensure another recent fossil fuel tragedy is not forgotten.

As many as 5,000 members of the United Mine Workers of America are expected to take part in a march and rally today outside Massey Energy’s annual shareholders meeting at its headquarters in Richmond, Va.

They want to draw attention to the company’s troubled safety record — including the deaths of 29 miners last month at the company’s non-unionized Upper Big Branch mine in Raleigh County, W.Va. In all, 52 workers have been killed at Massey facilities over the past decade.

The union members are also demanding that Massey CEO Don Blankenship be held accountable and that the three board members up for re-election be ousted. UMWA President Cecil Roberts and Secretary-Treasurer Daniel Kane will present their case to the board as holders of shareholder proxies.

The AFL-CIO will cover the protest at its AFL-CIO Now blog and via Twitter using the hashtag #firemassey.

Last week, the UMWA along with relatives of the Massey mine disaster’s victims filed a legal challenge against the federal Mine Safety and Health Administration’s refusal to publicly release interviews with witnesses to the disaster.

In addition, the pro-labor group American Rights at Work is collecting signatures on a petition calling on the Massey board to fire Blankenship for ignoring safety regulations and intimidating workers, among other things.

“There are consequences for playing fast and loose with workers’ lives,” the petition states.

Among the consequences Massey is already facing is a 38% decline in the price of its stock since the deadly April blast. Analysts blame the drop on the Department of Justice’s investigation of Performance Coal Co. — the Massey subsidiary that owns Upper Big Branch — for willful criminal activity. The Federal Bureau of Investigation is also investigating the company for possible bribery of state and federal inspectors.

Two years ago, Massey paid the largest civil penalty ever for water pollution violations at its coal mines in West Virginia and Kentucky following an investigation by the DOJ and Environmental Protection Agency.

Meanwhile, two environmental activists associated with the group Climate Ground Zero were arrested yesterday while blockading the driveway to Massey’s regional headquarters in Boone County, W.Va. The protest took place under a banner that said, “Massey, Profits Before People & Mountains, Fight Back!”

In an open letter to Massey shareholders, protesters EmmaKate Martin and Benjamin Bryant cited the company’s workplace safety record, as well as its involvement in mountaintop removal mining and risky coal sludge storage practices, for their action.

“Massey must be stopped — that is why we are putting our bodies on the line today,” they wrote.

Charged with misdemeanor counts of trespassing, conspiracy to commit a misdemeanor, obstructing an officer and littering, Martin and Bryant have had their bail set at a staggering $100,000 each by a Boone County magistrate.

Climate Ground Zero’s legal team is reportedly looking into the legality of the unusually high bail, with some activists charging that it’s being used as a punitive tactic and to intimidate others from engaging in nonviolent civil disobedience.

Date of the explosion and fire onboard Transocean’s Deepwater Horizon drilling rig in the U.S. Gulf of Mexico: 4/20/2010

Distance of the rig, which was being used by BP, from the Louisiana coast when the disaster occurred: 41 miles

Size of the crew at the time of the blast: 126

Number of crew members who remain missing: 11

Date on which a lawsuit was filed by a missing worker’s wife claiming negligence on the part of Transocean, BP and Halliburton, which was cementing the well when the explosion occurred: 4/27/2010

Number of deaths associated with offshore drilling operations in the Gulf of Mexico since 2001: 69

Number of injuries: 1,349

Number of reports issued by the U.S. Minerals Management Service documenting non-compliant offshore drilling operations: 150

Time period during which MMS said it saw “no discernible improvement by industry” in terms of safety: 7 years

Frequency with which MMS wants operators to have their safety programs audited: every 3 years

Number of letters oil companies have sent protesting the proposed regulations, citing the expense: over 100

Profits earned by BP in 2009: $14 billion

Number of oil spills of over 2,100 gallons that have occurred in the Gulf over the past decade: 172

The National Oceanic and Atmospheric Administration’s current estimate of the amount of oil being leaked from the Gulf disaster site: 5,000 barrels a day

Factor by which that surpasses the previous estimate: 5 times

Square miles the slick is now covering: more than 2,200

Date on which cleanup crews conducted a “controlled burn” to help reduce risks from the oil slick: 4/28

Date on which official forecasts say the oil slick may begin impacting the Louisiana shoreline: 4/30

Number of Louisiana fishermen who packed a meeting this morning to help pinpoint locations for oil containment rings: nearly 200

Rank of the threatened area among those with the largest total seafood landings in the lower 48 states: 1

Percent of the nation’s wild shrimp crop the area produces: 50

Number of species put in harm’s way by the spill: more than 400

Current estimated cost of the disaster: at least $1 billion

(Click on figure to go to the original source.)

(Satellite radar image of the Gulf oil slick, the black blob in the lower right corner, is from the SkyTruth blog; it was taken April 26 by the European Space Agency.)

The Nuclear Regulatory Commission recently asked the National Academy of Sciences to study cancer risk for people living near nuclear power plants and other nuclear facilities, and details of that research were discussed at yesterday’s meeting of the Academy’s Nuclear and Radiation Studies Board.

The research request came in response to “recurrent stakeholder concerns,” said Brian Sheron, director of NRC’s Office of Nuclear Regulatory Research.

The study will look at nuclear power plants as well as nuclear fuel facilities. It comes as the Obama administration is encouraging the expansion of commercial nuclear power.

The NRC currently relies on a 1991 study by the National Cancer Institute that found no link between nuclear plants and cancer. However, that study has been criticized for focusing on cancer deaths rather than cancer incidence. At the time the research was conducted, few states collected data on cancer incidence, which is why the NCI focused on mortality.

In addition, the earlier study looked at data on the county level — an approach that could obscure health problems occurring closer to nuclear facilities. Sheron noted that advances in geographic information systems will allow researchers to pinpoint more relevant populations for study.

Sheron said the research would occur in two phases. The first, set to be completed next summer, would review off-site radiation doses, evaluate cancer mortality and incidence data, pinpoint areas of study and determine how best to conduct the epidemiological research.

The second phase, which would begin immediately after the first and last two to three years, would analyze incidence of and deaths from radiation-related cancers near nuclear facilities. Both phases would conclude with a written report to the public.

At yesterday’s session to discuss the study, the NRSB heard from a number of stakeholders who urged that the research be carefully designed for maximum reliability.

They included a representative from the office of Congressman Ed Markey (D-Mass.), who has raised concerns about recent studies documenting health problems near operating nuclear reactors.  Others who spoke included a representative from the office of U.S. Sen. James Inhofe (R-Okla.) — an advocate of the energy industry — and the industry’s own Nuclear Energy Institute.

Arjun Makhijani, president of the Institute for Energy and Environmental Research and a nuclear power critic, urged the NRSB to look at what besides nuclear facilities might be located in study areas, since industrial installations tend to be clustered in certain communities. He pointed out that this raises environmental justice concerns, since the communities where polluting facilities are located tend to be rural, poorer and have higher concentrations of minorities.

He specifically encouraged the NRSB to take a look at the Southern Company’s Plant Vogtle in Burke County, Ga. The plant is located near the Savannah River Site nuclear weapons facility, and concerns have already been raised about cancer in the surrounding area, where there is widespread radioactive pollution. The Southern Company has already secured $8.3 billion in taxpayer-backed federal loan guarantees to build two new reactors at the site, doubling its power output and thus increasing radioactive emissions.

Also addressing the NRSB was Dr. Steve Wing, an epidemiologist at the University of North Carolina at Chapel Hill whose own research documented a rise in cancers near the Three Mile Island nuclear plant in Pennsylvania following the 1979 partial meltdown.

“Knowledge about this topic can be most effectively advanced by studying childhood cancer incidence and in utero exposures,” he said. Developing fetuses are known to be especially sensitive to radiation, and focusing on children rather than adults will largely eliminate interference from occupational exposures.

Wing also pointed out that a number of epidemiological studies carried out near nuclear facilities in the U.S. and abroad found elevated cancer rates, but the authors dismissed the possibility that they were related to the nuclear plants because the radiation doses were assumed to be too low.

“The evidence produced was not believed,” Wing said. “Why conduct a study if the results cannot be interpreted as providing support for the hypothesis?”

The meeting closed with an opportunity for public comments, and the first person to speak was Sarah Sauer, who was diagnosed with a malignant brain tumor nine years earlier to the day at the age of 7. At the time her family was living in Minooka, Ill. near Exelon’s Dresden nuclear power plant. They had never considered the possibility that the plant could be connected to Sarah’s illness until learning about numerous other cancer-stricken children in the area.

They eventually discovered through records from the Illinois Department of Public Health that the infant mortality rate in surrounding Grundy County doubled from 1995 to 1999, while the rate of childhood cancers increased almost 400% during the same period. They also learned that the plant had leaked radioactive tritium into the environment — some of which had seeped into water supplies used by the Sauers and other area residents.

“I hope in this study you will remember who you are doing this for,” Sarah said.

Officials are saying it could be months before they’re able to halt the flow of the approximately 42,000 gallons of oil a day that are now pouring into the Gulf of Mexico from BP’s sunken offshore drilling rig that exploded last week.

While an effort is underway to try to activate the well’s blowout preventer and shut off the oil flow, the operation is complex and company officials warn it might not succeed. The alternative plan — drilling nearby relief wells — could take two to three months to stanch the flow.

On Friday, the U.S. Coast Guard suspended its search for the missing workers, who are now presumed dead.

“Our deepest sympathies and prayers go out to the families of these 11 crewmembers,” said Rear Adm. Mary Landry, commander of the Eighth Coast Guard District. “Suspending a search is one of the most difficult decisions a commander has to make.”

The oil slick from the Transocean Deepwater Horizon drilling rig now covers 600 square miles and remains about 30 miles offshore. But states along the Gulf Coast have been warned to brace for impact, and Louisiana is already placing containment booms around sensitive coastal areas. There are particular concerns about the oil reaching the Chandeleur Islands off the Louisiana coast, key hatcheries for pelicans and other birds.

It’s still not known what caused the explosion.

The spill comes just weeks after President Obama announced plans to expand offshore drilling to untouched areas along the Southeast’s Atlantic Coast and off Alaska.

While the White House has said the spill is no reason to give up drilling, some are warning that the disaster could spell trouble for those plans. Among them are New Orleans attorney Keith Hall of Stone Pigman, a law firm that represents some of the country’s largest oil companies, the Oil & Gas Financial Journal reports:

“This week’s disaster could throw a monkey wrench into Obama administration’s recently announced plan to have the Minerals Management Service open up new areas for off-shore drilling on the Outer Continental Shelf,” he said. “An accident of this magnitude, involving some of the biggest players in the business, will unfortunately provide ammunition for those opposing any form of expanded energy exploration in the Gulf and other areas.”

In addition to spawning litigation, the explosion is sure to incite a major government probe of what went wrong and what equipment components may have been behind the fiery blast. Hall notes that while oil spills are generally exempt from Superfund regulations, the Clean Water Act as well as the Oil Pollution Act, a federal law passed after the enormous Exxon Valdez spill in Alaska impose express liability for offshore oil spills, regardless of whether the oil reaches shore. “Under these laws, the federal government could impose fines, in addition to significant clean-up and emergency response costs,” Hall noted.

But will the Gulf disaster spark a grassroots movement like the one that rose up following the catastrophic January 1969 blowout from a drilling platform off the coast of southern California near Santa Barbara? That watershed disaster — which came to be known as the “spill that was heard around the world” — resulted in crude oil covering 35 miles of the state’s coastline and the death of thousands of birds.

The outrage and organizing that disaster inspired eventually led to the passage of the National Environmental Policy Act and helped inspire other key environmental laws.

To learn more about the grassroots response to the 1969 disaster, check out this preview for “Birth of a Movement,” an upcoming documentary film about the Santa Barbara disaster that’s currently in production by Cage Free Productions and Spreading Solutions Productions.

(Image above is a still from “Birth of a Movement.”)

Date of first Earth Day celebration: 4/22/1970

Rank of the United Auto Workers union among the largest financial contributors to the first Earth Day: 1

Estimated number of demonstrators who took part in the first Earth Day: 20 million

Estimated number of people who will take part in today’s Earth Day events: 1 billion

Number of countries that observe Earth Day: 175

Rank of Earth Day among the largest secular events in the world: 1

Barrels of crude oil spilled on the California coast in a 1969 offshore oil platform blowout that helped inspire U.S. Sen. Gaylord Nelson to organize Earth Day: at least 80,000

Estimated barrels of crude oil currently pouring out each hour from an offshore oil drilling rig that exploded earlier this week in the Gulf of Mexico: more than 300

Number of workers still missing following that blast: 11

Date on which the Obama administration announced plans to expand offshore drilling to new areas along the South’s Atlantic coast and the Gulf of Mexico: 3/31/2010

Year in which demonstrators blocked a shipment of PCB-contaminated soil to a landfill in a predominantly African-American community in North Carolina, sparking the Environmental Justice Movement: 1984

Percentage of residents living within two miles of commercial hazardous waste facilities today who are African-American: 56

Date on which environmental justice leaders called on the Environmental Protection Agency to take action to better protect low-income communities and people of color: 10/27/2009

Rank of Atlanta, Georgia among America’s most toxic cities: 1

Increase in the average annual temperature in the Southeast since 1970: 2 degrees F.

Amount by which average temperatures in the region are expected to rise by the 2080s, even if steps are taken to curb carbon emissions: 4.5 degrees F.

Amount by which average temperatures in the region are expected to rise in that period if carbon emissions are not curbed: 9 degrees F.

Rank of the South among least energy-efficient regions of the U.S.: 1

Rank of the 2008 coal ash spill from TVA’s Kingston plant in eastern Tennessee among the largest industrial waste spills in U.S. history: 1

Minimum number of states where water supplies have been contaminated by coal ash: 23

Date by which the EPA promised to release a proposed regulation for coal ash, which is currently not overseen by the federal government: 12/31/2009

Date on which EPA announced it was delaying the rule’s release amid heavy lobbying by utilities: 12/17/2009

Number of months after the first Earth Day that EPA began operations: 7

(Click on number to go to the original source.)

Serious safety concerns continue to mount for the AP1000, a new type of nuclear reactor proposed for power plant sites across the Southeast.

A report released yesterday warns that the design of the Westinghouse reactor makes it particularly vulnerable to through-wall corrosion — already a widespread problem with existing commercial reactors — and thus the possibility of leaking radiation in the event of an accident. The report was commissioned by the AP1000 Oversight Group, which involves more than a dozen nuclear watchdog organizations.

“The potential consequences of a radiation release to the environment from a small hole or crack in the AP1000 containment are significant,” according to the report by Arnold Gundersen, a nuclear engineer with Fairewinds Associates of Burlington, Vt. and a former senior executive in the nuclear power industry.

His concerns about the reactor’s design are supported by Rudolf Hausler, a corrosion engineer with NACE International, a Houston-based organization devoted to the study of corrosion. Hausler states in an affidavit attached to the report that he agrees with Gundersen’s assessment “in its entirety.”

The groups behind the report — which include the Blue Ridge Environmental Defense League, Friends of the Earth and the Southern Alliance for Clean Energy — are calling on the Obama administration to suspend the licensing process for the AP1000 reactors as well as consideration for taxpayer-backed construction loans. They also urged the Nuclear Regulatory Commission and the NRC’s Advisory Committee on Reactor Safeguards to launch an investigation into the design flaw.

“We believe the Obama administration must put the brakes on,” says BREDL Science Director Lou Zeller.

Part of what’s known as the Generation III+ reactors, the AP1000 uses an untested hybrid containment system that involves a freestanding steel containment with no secondary containment, which currently licensed reactors have. In the AP1000, the containment is surrounded by a shield building — but one that’s not designed to filter radioactive gases that may leak from the containment in the event of an accident. In fact, the AP1000 is designed to act like a chimney and draw any leaked radioactive vapors directly into the environment.

Gundersen says Westinghouse needs to revamp the design to include radiation filters in the openings of the shield building. “This step must be taken to protect public health and safety,” he says.

Westinghouse dismisses the concerns, with company spokesperson Vaughn Gilbert telling the Raleigh (N.C.) News & Observer that “environmental groups holding press conferences against nuclear plants are not surprising to us.”

Mistaken assumptions?

Gundersen explains that the design of the AP1000 invites corrosion by allowing the establishment of a moist, oxygenated environment in the open gap between the steel containment and the shield building. Potential sources of moisture include damp air at plants located near the ocean or in humid climates, drift from the plant’s own cooling towers, or leaks and test sprays from the 8 million gallon cooling-water tank slated for the reactor’s roof.

Holes caused by corrosion have already penetrated the walls of containment buildings and liners at currently operating nuclear power plants in the U.S. and elsewhere. U.S. plants where through-wall holes and cracks have been documented include AEP’s Cook plant in Bridgman, Mich.; Dominion’s North Anna in Louisa County, Va.; FirstEnergy’s Beaver Valley near Pittsburgh, Pa.; Progress Energy’s Brunswick plant near Wilmington, N.C.; and Southern Company’s Hatch plant near Baxley, Ga.

In all, Gundersen’s report documents at least 77 instances of containment system degradation at U.S. reactors since 1970. Besides through-wall holes and cracks, these include at least 60 instances of reactor liners pitted by corrosion to the point that they no longer meet the minimum required wall thickness to protect the public from radiation.

Yet Westinghouse’s safety analysis for the AP1000 does not account for the corrosion problems in operating reactors, while assuming — incorrectly, according to Gundersen — that the probability of radiation leaking from the AP1000 containment is extremely low.

“Westinghouse has not examined the likelihood of through-wall rusting,” Gundersen says.

The concerns about the AP1000 corrosion problem come on top of other serious safety issues with the reactor’s design. Last year the NRC said Westinghouse failed to demonstrate the adequacy of the AP1000 shield building to protect the reactor from outside threats such as tornadoes, hurricanes and earthquakes. The NRC also raised concerns about whether the shield building will be able to support the massive emergency cooling water tank on top of it.

“It’s probably time to pull the design until they resolve these serious questions,” says John Runkle, a North Carolina-based environmental attorney who represents the AP1000 Oversight Group.

Construction license applications have been filed with the NRC for 14 AP1000 reactors in the United States — two each at the Tennessee Valley Authority’s Bellefonte plant in Alabama, Progress Energy’s Levy County plant and Florida Power & Light’s Turkey Point plant in Florida, Southern Company’s Plant Vogtle in Georgia, Progess Energy’s Shearon Harris plant in North Carolina, and Duke Energy’s Lee plant and SCE&G’s Summer plant in South Carolina. Earlier this year, the Obama administration approved $8.33 billion in federal loan guarantees for the Vogtle reactors.

Construction is already underway on four AP1000 reactors in China’s Shandong and Zhejiang provinces, with more being planned for that country. The plants are being built by a consortium involving Westinghouse, a Pennsylvania-based firm owned by the Toshiba Group of Japan, and The Shaw Group of Louisiana.

(Illustration of AP1000 and photo of Beaver Valley nuclear plant hole from Gundersen’s report.)

After serving as chairman of the Tennessee Valley Authority for a year, Mike Duncan stepped down from the post on Friday, citing his new duties leading a new conservative political fundraising organization.

The former treasurer, general counsel and chair of the Republican National Committee, Duncan is now directing American Crossroads, a new political action committee that’s competing with the RNC to raise money from corporate donors.

“I recently have taken on some additional responsibilities that I also believe are extremely important,” Duncan said, adding that he thinks American Crossroads “will become an important player in American politics.”

Duncan also serves as chair and CEO of Inez Deposit Bank in Inez, Ky.

American Crossroads has gotten commitments of almost $30 million so far, and is seeking to raise more than $50 million to help dozens of Senate and House candidates this fall, the National Journal reports.

The new PAC — which has been referred to as the “shadow RNC” — comes as official GOP fundraising efforts have taken a blow from revelations that RNC officials spent almost $2,000 at a risque club in West Hollywood.

Duncan will remain on the TVA board, to which he was appointed by President George W. Bush. His selection as chair of TVA last February was controversial, passing by a vote of 4-3 — a rare show of dissension by TVA board members, who usually act unanimously. Southern Alliance for Clean Energy Executive Director Stephen Smith described the choice of Duncan as “overly partisan and tone deaf.”

Unanimously picked to replace Duncan as TVA chair was Dennis Bottorff, chair of the Nashville venture capital firm Council Ventures. Though he’s a major contributor to GOP candidates, Bottorff was one of the board members who voted against Duncan’s chairmanship.

Bottorff notes that the energy industry is changing in profound ways that will require major capital investments and new ways of doing business:

“The new environmental regulations that are being contemplated in Washington will present enormous challenges to TVA’s engineering and financial teams, along with challenges — as well as opportunities — to its leadership and employees. I hope I am able to help TVA’s senior management team, and my fellow Board members, provide the leadership that we will need to navigate these critical times.”

But like Duncan, Bottorff has no prior management experience in the electric power industry.

Bottorff takes TVA’s helm as the utility giant — a federally owned corporation that generates most of its electricity by burning coal — faces a class-action lawsuit from people impacted by the massive December 2008 spill of more than a billion gallons of toxic coal ash from TVA’s Kingston plant in eastern Tennessee. TVA unsuccessfully sought immunity from the suit by arguing that it was an arm of the federal government, even though it is self-financed. It’s estimated that the cleanup is costing the utility more than $1 billion, not including litigation.

As a result of the Kingston disaster, the Obama administration is currently considering new regulations for coal ash that could also have a big impact on TVA’s business and bottom line.

Following the disastrous spill of a billion gallons of coal ash waste from the Tennessee Valley Authority’s Kingston plant in December 2008, poorly regulated coal ash impoundments like the one that failed have landed in the public spotlight.

But other methods of disposing of coal ash waste have gotten less attention — even though they still present serious environmental hazards.

A new report from the N.C. Sierra Club illuminates one practice of coal ash waste disposal that until now has stayed largely in the regulatory shadows: the use of the material in structural fills for development projects such as roads and buildings.

“Unlined Landfills? The Story of Coal Ash Waste in our Backyard” [pdf] documents how a lack of federal controls combined with weak state regulations have created what it calls a “gaping loophole” allowing an unknown volume of coal ash to be disposed of in this way. Under current North Carolina law, such so-called “beneficial use” of coal ash requires no permits, no liners, no regular inspections and no groundwater monitoring.

“North Carolina’s current practice of allowing coal ash to be placed on the ground as fill material for land development with minimal oversight has led to numerous problems,” the report finds. “These problems include groundwater contamination, surface water contamination, sham landfills, environmental violations and failure to track locations of coal ash fills.”

One of the sites documented in the Sierra Club report — the Swift Creek structural fill site in Nash County, N.C. — was also included in “Out of Control: Mounting Damages From Coal Ash Waste Sites,” a report that was released earlier this year by the Environmental Integrity Project and Earthjustice. That report noted that arsenic oozing from the site contaminated groundwater in an off-site aquifer.

The Sierra Club investigation also documents groundwater contamination at another North Carolina structural fill site on Alamac Road in Robeson County, where elevated sulfate and arsenic levels were found in the groundwater below the site:

ReUse Technology, a Georgia-based company that handles coal ash produced by utilities, was operating the Robeson County site without authorization. … After the state began enforcement actions in the 1990s, ReUse Technology removed the ash from the Robeson County site.

In addition, the Sierra Club reports that high levels of toxic arsenic, iron and selenium were discovered last year in wetlands near Arthurs Creek in Northampton County, N.C. at a 21-acre coal ash structural fill site near the community of Garysburg.

The report also revisits a controversy that arose in 2000, when displaced survivors of Hurricane Floyd were temporarily housed in trailers at an industrial park in Edgecombe County, N.C. that turned out to be built on coal ash fill. In response to concerns raised by residents about uncovered ash at the site, the state conducted tests but claimed the soil presented no significant risks to residents.

Also addressed in the Sierra Club report are instances where mass soil excavation occurred at structural fill sites prior to the placement of the coal ash, essentially creating deep unlined landfills that put groundwater at risk.

The report faults North Carolina law for being lax about the use of coal ash at such sites:

According to state and federal (Clean Water Act) regulations — as with all development — coal ash cannot be placed within 50 feet of wetlands unless the U.S. Army Corps of Engineers approves. Structural fill sites must be set back from streams at least 50 feet. They must be 100 feet from water wells.

But beyond that, the state’s rules for beneficial use of coal ash — and especially for structural fill — are overly permissive, provide inadequate state oversight, and fail to require minimum, commonsense safeguards.

The Sierra Club calls on the administration of North Carolina Gov. Beverly Perdue (D) to stop allowing coal ash to be used for land development and instead require that it be disposed of in lined landfills. It also calls for requiring groundwater monitoring at active structural fill sites and at sites created in the last 30 years, mandating cleanup by developers if monitoring data reveals groundwater or surface water contamination, identifying a funding source to enable adequate oversight and enforcement, and requiring that coal ash structural fills be permanently recorded on the deed for the affected property.

North Carolina imposed some regulations on coal ash structural fills in 1994, including a deed recording requirement. However, a 2002 state analysis found that only 56% of closed structural fill sites that held 1,000 cubic yards or more of coal ash had complied with that requirement, according to the report.

The Sierra Club investigation comes as long-promised federal regulations for coal ash —
originally supposed to be released in December — remain in limbo at the
White House Office of Management and Budget. The Obama administration is being lobbied heavily against declaring coal ash hazardous waste, in part because of how such a designation would affect so-called “beneficial uses” of the waste, including structural fills.

Among the many forces that have been lobbying against strict federal regulation of coal ash? The administration of North Carolina Gov. Perdue.

(Aerial photo of contaminated Swift Creek structural fill site in Nash County, N.C. from “Out
of Control: Mounting Damages From Coal Ash Waste Sites.”)

In the worst disaster to strike the U.S. coal mining industry in a quarter-century, 25 miners have been confirmed dead so far from an explosion that occurred yesterday afternoon at the Upper Big Branch Mine in Raleigh County, W.Va., about 30 miles south of the state capital of Charleston.

Four miners remain missing, but rescue efforts were called off earlier today due to poor conditions inside the underground mine, where it’s believed a spark from a rail car used to transport workers may have ignited a build-up of methane gas. Rescue teams are now drilling holes in an effort to try to get more oxygen inside.

The mine — operated by Performance Coal Co., a subsidiary of Richmond, Va.-based Massey Energy, the largest coal producer in Central Appalachia — has a history of problems since it began operations in 1994.

They include the previous deaths of three workers. In 1998, a contractor was killed at the mine when a support beam collapsed. In 2001, a miner died after a portion of the roof fell on him, and an electrician was electrocuted while repairing a shuttle car in 2003.

In addition, 177 miners and 52 contractors have suffered injuries at Upper Big Branch, according to data from the U.S. Mine Safety and Health Administration.

The facility, which employs about 200 non-union miners, has also faced numerous regulatory citations and orders over the years — 3,011 through 2009, with a peak of 515 last year alone. So far this year, the mine has already racked up 124 citations and orders, as shown in these tables from the MSHA website (click on image to see a larger version):

Massey has a history of serious problems at other mines as well. In 2008 the company’s Aracoma Coal subsidiary pleaded guilty to 10 criminal charges including a felony count in connection with a 2006 fire at a mine in Logan County, W.Va. that killed two miners. The company admitted to failing to provide a proper escape tunnel, not conducting required evacuation drills and falsifying a record book so it appeared the drills had been done.

The possibility that a methane build-up was behind the Upper Big Branch explosion raises the specters of the 2006 disasters at the Sago and Darby mines in West Virginia and Kentucky, which killed 17 people. In response to those tragedies, regulators vowed to examine safety concerns in sealed areas of mines where the explosive gas can build up. Among the previous violations at Upper Big Branch was the failure to properly vent methane gas.  

The area where the mine is located is represented in Congress by Rep. Nick Rahall, a Democrat. He has promised a thorough investigation into what caused the disaster.

“We will look for inadequacies in the law and enforcement practices, and I will work to fix any we find,” he said. “We will scrutinize the health and safety violations at this mine to see whether the law was circumvented and miners precious lives were willfully put at risk, and there will be accountability.”

U.S. Labor Secretary Hilda Solis also pledged to take action. “Twenty-five hardworking men died needlessly in a mine yesterday. I pledge that their deaths will not be in vain,” she said. “The federal Mine Safety and Health Administration will investigate this tragedy, and take action. Miners should never have to sacrifice their lives for their livelihood.”

The Upper Big Branch disaster is the deadliest accident in a U.S. mine since December 1984, when 27 workers were killed in a fire at the Wilberg Mine in Orangeville, Utah.

The type of coal mining being done at Upper Big Branch is what’s known as longwall mining, a highly productive method that uses enormous machines to extract coal quickly and cheaply. However, as documented in a Center for Public Integrity investigation, the method has significant social and environmental costs.

One of the four men still missing was thought to have been operating longwall mining equipment deep inside the mine, the Charleston Gazette reports.

The Environmental Protection Agency unveiled its promised guidelines for mountaintop removal coal mining last week, and they’re getting praise from environmental advocates.

The new guidance would “severely limit the impacts on water caused by mountaintop removal in central Appalachia, an important step forward for protecting communities from the environmental and health impacts of mountaintop removal,” according to a statement from the Alliance for Appalachia.

On Thursday, EPA announced a set of actions to strengthen permitting requirements for Appalachian mountaintop removal and other surface coal mining projects. The guidance sets out benchmarks for preventing damage to watersheds from what are known as “valley fills,” which involve the dumping of mining waste into streams below.

“The people of Appalachia shouldn’t have to choose between a clean, healthy environment in which to raise their families and the jobs they need to support them,” said EPA Administrator Lisa Jackson. “We will continue to work with all stakeholders to find a way forward that follows the science and the law.”

Noting that a growing body of scientific literature shows significant damages to streams from mountaintop removal mining, EPA has identified an acceptable range of electrical conductivity — a measure of salt in the water — to protect freshwater streams and their aquatic life.

The EPA intends to limit conductivity to between 300 and 500 microSiemens per centimeter — about five times normal levels. Appalachian streams impacted by valley fills typically have conductivity upwards of 900 microSiemens per centimeter.

The guidance will take effect immediately on an interim basis while EPA solicits public comments. The agency is also awaiting the results of a technical review of its scientific reports.

While Jackson said no existing operations would be canceled, 79 major surface mining permits now under review would have to comply with the new standard.

“Either no or very few valley fills are going to meet standards like this,” Jackson said at a press conference on the new guidance.

The National Mining Association, a group that represents mountaintop removal operators, said it was “deeply concerned” by the impact the policy would have on Appalachia’s economy as well as the price of electricity.

U.S. Sen. Robert Byrd (D-W.Va.) met with Jackson several times to request a clear set of parameter for issuing mining permits in order to end uncertainty in the coal fields.

“I am pleased that EPA Administrator Jackson took our concerns about the need to provide clarity seriously and has responded with these guidelines,” he said.

The guidance won praise from Sen. Lamar Alexander (R-Tenn.), whose coal-mining state already bans valley fills.

“Coal is an essential part of our energy future, but it is not necessary to destroy our mountaintops in order to have enough coal to meet our needs,” he said.

Vivian Stockman with the Ohio Valley Environmental Coalition in Huntington, W.Va. said EPA’s action shows it’s finally listening to the voices of people impacted by mountaintop removal mining. However, she also observed that the effectiveness of the guidelines will depend on how well they’re enforced.

Meanwhile, Appalachian Voices — an environmental advocacy group based in North Carolina, the state that’s the biggest consumer of mountaintop removal coal — urged Congress to follow the administration’s lead by passing the Clean Water Protection Act (H.R. 1310) and the Appalachia Restoration Act (S. 696), which is co-sponsored by Sen. Alexander.

“Change in Appalachia is now inevitable, and the time for Congress to pass this legislation is now,” the group said in a statement.

(Photo of a mountaintop removal mining site in Logan County, W.Va. by Kent Kessinger, taken during an Appalachian Voices flight courtesy of SouthWings. Part of the National Memorial for the Mountains photo stream.)

For the first time in history, an international human rights body has agreed to review a case involving allegations of environmental racism in the United States.

The Inter-American Commission on Human Rights (IACHR) will hear a complaint filed by the New Orleans-based Advocates for Environmental Human Rights (AEHR) on behalf of the people of Mossville, La. An autonomous body of the Organization of American States, the IACHR along with the Inter-American Court of Human Rights comprise the inter-American system for promoting and protecting human rights.

Scheduled to take place some time in the next three months, the review will consider whether the U.S. government has violated the predominantly African-American community’s residents’ human rights to life, health, equality, freedom from racial discrimination, and “privacy as it relates to the inviolability of the home” by allowing numerous industrial facilities to locate there and emit millions of pounds of highly toxic chemicals every year.

“I am grateful that the Commission decided to take our human rights case,” said petitioner Dorothy Felix, who serves as the volunteer vice president of Mossville Environmental Action Now.  “We believe that environmental protection should not be based on the color of our skin.”

Located near Lake Charles in southwestern Louisiana’s Calcasieu Parish, the unincorporated rural community of Mossville is surrounded by 14 industrial facilities that each year spew more than 4 million pounds of highly toxic chemicals to the environment. The pollution includes known carcinogens including dioxin, polycyclic aromatic hydrocarbons, solvents like xylene and toluene, and heavy metals such as lead and mercury.

Mossville was featured in the 2002 documentary film “Blue Vinyl,” which explores the negative health impacts of polyvinyl chloride production. The area has the largest concentration of vinyl plastic manufacturers in the U.S., as well as a coal-fired power plant, oil refineries and chemical production facilities.

Serious health impacts from the pollution have been documented among Mossville residents by the University of Texas at Galveston Medical Branch and the U.S. Agency for Toxic Substances and Disease Registry. A 2007 study showed that the types of dioxin compounds found in the blood of Mossville residents are the same types emitted by the industrial facilities. Dioxins are among the most toxic chemicals known to science.

In the late 1990s, Mossville area residents began collecting air samples that revealed violations of state standards for pollutants including vinyl chloride and benzene. The Environmental Protection Agency later confirmed violations, fining some facilities. The effort spread to communities throughout Louisiana’s so-called “Cancer Alley” and led to the formation of the Louisiana Bucket Brigade, a grassroots pollution monitoring project.

The petition [pdf] to IACHR from Mossville residents alleges that the U.S. government and local political subdivisions ignored their obligation to protect human rights by allowing all of these polluting industries to build and operate near Mossville.

In its response [pdf], the U.S. government asserts that the IACHR “does not have authority to request that the United States adopt precautionary measures” to prevent communities from being treated like Mossville because such an action is based on commission rules that were not formally approved by the individual countries that belong to the OAS. It also accuses the petitioners of an “extraordinarily and erroneously expansive interpretation” of U.S. treaty obligations — claims the petitioners reject.

“Our government is a member of the OAS and has also ratified the International Convention on the Elimination of All Forms of Racial Discrimination and the International Covenant on Civil and Political Rights, which create clear obligations to protect our human right to freedom from racial discrimination whether it is intentional or the result of a policy or action,” said attorney Nathalie Walker, AEHR’s co-director. “However, these obligations are rarely acknowledged by our government, much less upheld.”

Monique Harden, AEHR’s other co-director, noted that Mossville is one of a number of communities of color across the U.S. that are disproportionately burdened with toxic pollution as a result of government decisions.

“The good news is that a judicial review by the Inter-American Commission on Human Rights can open the door to ending the pattern of environmental racism by introducing a human rights framework for environmental protection,” she said.

The issue of environmental injustice in the U.S. South has been in the spotlight in recent months. Last October, environmental justice leaders representing more than a dozen polluted communities from six Southern states met with Environmental Protection Agency leaders and asked them to take action to better protect the health of the region’s low-income communities and communities of color.

That meeting came after environmental justice leaders urged the EPA to address historic problems in its Region 4 office covering eight states in the Deep South, with its legacy of racism and unequal environmental protection.

(Photo of toxic pollution in Mossville, La. from Mossville Environmental Action Now’s Facebook fan page.)

President Obama wants to open vast expanses of ocean along the Atlantic coastline, eastern Gulf of Mexico and north coast of Alaska to offshore oil and gas drilling — but concerns are being raised about how the plan would impact coastal ecosystems as well as local economies.

The proposal would end a long-standing moratorium on oil exploration along the East Coast from Delaware to the central coast of Florida, though it would reportedly protect the entire Pacific Coast as well as the Atlantic coast from New Jersey northward.

It’s apparently an effort to win support for a climate bill from reluctant Republicans — but there’s no word on how the President will reconcile efforts to curb climate pollution with a plan to expand production of the very fuels that worsen it.

“We are deeply disappointed that the Obama administration has chosen to open up new areas that have long stood protected from the dirty, risky business of offshore drilling,” said Glen Besa, Virginia chapter director with the Sierra Club. “Our beloved clean Virginia beaches are the backbone of our coastal economy, generating billions of dollars in revenues from tourism, recreation and commercial fishing.”

Environmental advocates point out that policymakers lack critical information about how drilling would affect protected and endangered species in Virginia’s offshore ocean canyons and coral reefs. Among the missing data is current and wind information for an oil spill risk analysis.

“Not only are there huge gaps in the scientific information needed to evaluate the impact of drilling off Virginia’s coast, but its offshore zone is a vital piece of a much larger and interconnected coastal and oceanic ecosystem,” said Eileen Levandoski, Hampton Roads (Va.) coordinator with the Sierra Club. “Rather than singling out a small area off a single state for environmental study — as Virginia is right now — the Atlantic coast as a whole needs to be thoroughly studied. That study is painfully absent from the drilling plan currently being proposed.”

The Sierra Club points out that a federal appeals court tossed out Virginia’s 2007-2012 drilling program for shortcomings in its scientific analysis. “The legal ramifications of proceeding with drilling Virginia’s offshore zone, which was proposed in this flawed program, should instead be giving our policymakers great pause,” Besa said.

The Navy and NASA have also raised objections to expanded drilling plans because of the potential for offshore oil and gas operations to interfere with coastal training sites. If the Navy were to move its forces away from the Virginia coast, it could result in a loss of 11,000 jobs, $773 million in annual payroll and $452 million in annual local contracting, according to the Sierra Club.

“The loss of jobs dwarfs even the most speculative of job creation estimates from Virginia drilling,” said Levandoski.

Obama and Interior Secretary Ken Salazar are expected to make a formal announcement of the drilling plan today — the same day as a scheduled speech in St. Petersburg, Fla. by former U.S. House Speaker Newt Gingrich (R-Ga.), who’s now with a pro-drilling advocacy group called American Solutions. People attending Gingrich’s speech will get a bumper sticker that says “Drill Here Drill Now Pay Less,” though analysts say expanded offshore drilling would have little impact on gas and oil prices over the next decade.

The Suncoast chapter of the Florida Sierra Club is holding a protest at the Gingrich event and asking participants to wear black to signify an oil slick.

UPDATE: The Southern Environmental Law Center has also weighed in against Obama’s plan, which the White House formally announced today as part of a “comprehensive strategy for energy security.”

The nonprofit legal group — which has offices in Alabama, Georgia, the Carolinas, Tennessee and Virginia — said the plan “risks too much for the South.”

“Opening the South Atlantic Coast to oil and gas drilling will do
nothing to address climate change, provide only about six months worth
of oil, and put at risk multi-billion dollar tourism and fisheries
industries,” stated Derb Carter,
director of SELC’s Carolinas office.”One oil spill could devastate a coast.”

He called instead for reducing U.S. dependence on polluting energy sources by “bringing America’s innovative talent to bear on fully exploiting energy
efficiency and clean renewable energy sources.”

(Photo of offshore oil drilling platform from the National Energy Technology Laboratory.)

Emergencies were declared at two Progress Energy nuclear power plants in the Carolinas over the weekend due to fires. There was also a fire at a nuclear power plant in Ohio on Sunday that sent two firefighters to the hospital.

The blazes were put out and disaster averted, but the incidents underscore concerns about U.S. nuclear plants’ failure to comply with fire safety regulations.

The first incident happened on Friday night at the Brunswick plant near Wilmington, N.C.  At about 10:45 p.m., a fire broke out in the turbine building on the plant’s non-nuclear side, burning for more than 15 minutes. Plant personnel determined that the fire was caused by electric blankets used for post-weld heat treatments, fueled by tape used to hold the blankets together.

There were no injuries or damage to plant equipment, according to an official report filed by the company with the Nuclear Regulatory Commission.

Another pair of fires was reported at Progress Energy’s Robinson nuclear power plant near Hartsville, S.C. on Sunday evening on the plant’s non-nuclear side.

The first blaze there reportedly broke out shortly before 7 p.m. in an electrical breaker, causing the reactor and turbine to shut down. That fire was extinguished, but a subsequent blaze in another electrical breaker near the first one resulted in the declaration of an alert due to safety systems being affected. That fire was extinguished shortly after 11 p.m., according to the company’s report to the NRC.

“There was no explosion or steam line break,” the company stated. The plant remains closed today.

Also on Sunday, fire broke out at Ohio-based FirstEnergy’s Perry plant near Cleveland around 6 p.m. and burned for four hours, fed by oil in a water pump’s lubrication system. Two members of the
plant’s fire brigade were hospitalized for heat stress, the Associated
Press reports.

The emergencies “are a reminder that virtually all U.S. nuclear power
plants remain in noncompliance with fire protection regulations,” says
Jim Warren, executive director of the N.C. Waste Awareness and Reduction
Network, an energy watchdog group.

Fire represents the leading risk factor for a U.S. nuclear plant
meltdown.

In 1975, a fire broke out at the Tennessee Valley Authority’s Browns
Ferry nuclear plant in Alabama in an area that housed electrical cables
used to power critical safety equipment. The fire was sparked by
personnel using candles to search for air leaks and caused significant
damage to the plant — but fortunately no release of radiation.

In response to the near-disaster at Browns Ferry, the NRC adopted
fire-safety regulations designed to prevent similar incidents. However,
most of the nation’s commercial nuclear power plants still not have come
into compliance with those regulations, according to reports by the NRC
Inspector General and the U.S. Government Accountability Office.

(Photo of Progress Energy’s Brunswick
nuclear plant from Wikimedia
Commons.)

The Environmental Protection Agency has taken a step toward blocking a water pollution permit for a massive mountaintop removal mining operation in West Virginia.

Last week, EPA issued what’s known as a “proposed determination” [pdf] for the Spruce No. 1 Mine. Located in Logan County, W.Va., it’s one of the largest surface mining operations ever authorized in Appalachia.

The determination seeks public comment on the agency’s intention to restrict the use of several streams to received the waste material from the mining operation under the Clean Water Act.

“Coal, and coal mining, is part of our nation’s energy future, and for that reason EPA has made repeated efforts to foster dialogue and find a responsible path forward,” said Shawn Garvin, administrator for EPA’s Mid-Atlantic region. “But we must prevent the significant and irreversible damage that comes from mining pollution — and the damage from this project would be irreversible.”

The U.S. Army Corps of Engineers has authorized the Mingo Coal Co. — a subsidiary of Arch Coal of St. Louis, the nation’s second-largest coal producer — to dump waste from the mining operation into Seng Camp Branch, Pigeonroost Branch, Oldhouse Branch and tributaries. As authorized, the project would directly impact more than 2,200 acres and seven miles of streams.

While acknowledging the project has already undergone extensive regulatory review, EPA does not want it to move forward:

EPA Region III is taking this action because it believes, despite all the regulatory processes intended to protect the environment, that construction of Spruce No. 1 Mine as authorized would destroy streams and habitat, cause significant degradation of on-site and downstream water quality, and could therefore result in unacceptable adverse impacts to wildlife and fishery resources.

The determination goes on to note that the project may have cumulative adverse impacts along with other mining operations underway or proposed in the Coal River sub-basin, which is already heavily mined.

The EPA has exercised its veto power under the Clean Water Act in only 12 cases since 1972 — and never for a previously permitted project.

The agency will be accepting public comment on the determination for 60 days and will also hold a hearing on the matter in West Virginia. But as Charleston Gazette reporter Ken Ward Jr. observes on his Coal Tattoo blog, this is only the beginning of what’s expected to be a long process toward deciding whether the mining operation will ultimately be blocked.

Indeed, Arch Coal has said it plans to fight the decision. “We are evaluating all possible options for relief from
the government’s actions and intend to vigorously defend the Spruce
permit by all legal means,” it said in a statement.

For more EPA documents on the case, click here.

(Map showing location of Spruce No. 1 Mine from EPA’s website.)

The Obama administration reached a historic $1.25 billion settlement last month in a long-standing lawsuit over decades of racial discrimination against African-American farmers by the U.S. Department of Agriculture.

The agreement depended on Congress approving funding by March 31, and an amendment to do so was introduced by Sen. Mary Landrieu (D-La.). But  on Friday, Congress adjourned for a two-week Easter recess without appropriating the money, leaving the deal in doubt.

The agreement stipulated that if lawmakers failed to act by the end of this month, farmers could reject the agreement and pursue a new one.

John Boyd Jr., a Virginia farmer who heads the National Black Farmers Association, placed the blame for the missed deadline squarely on the president, telling Reuters that Obama failed to show the necessary leadership to get Congress to act.

“The president didn’t help us finish the job,” Boyd said.

The 2008 Farm Bill provided for $100 million in payments, and since then black farmers have been waiting — and fighting — for the rest of the money. Earlier this year, the NBFA held demonstrations in Washington as well as historically black farming areas of the South including Alabama, Arkansas, Georgia, Mississippi, South Carolina, Tennessee and
Virginia to press for action.

The settlement was announced on Feb. 18 by U.S. Attorney General Eric Holder and Agriculture Secretary Tom Vilsack.

“With the settlement announced today, USDA and the African American farmers who brought this litigation can move on to focus on their future,” Holder said at the time. “The plaintiffs can move forward and have their claims heard — with the federal government standing not as an adversary, but as a partner.”

The settlement came in a class-action lawsuit originally filed against the USDA in 1997 by Timothy Pigford, a North Carolina farmer who sought to buy his own land after farming on rented acreage for years. He was turned down for a loan by the Farmers Home Administration, an agency with roots in the Great Depression that serves as a lender of last resort.

The local committees created by the agency to decide who got loans were often made up only of whites unsympathetic to the needs of black farmers. After having his loan request rejected, Pigford lost his home.

Investigations found that black farmers were denied loans or given smaller loans than requested more often than whites. They also found that black farmers were foreclosed on more aggressively than white farmers.

A $1 billion settlement in the original Pigford case was reached in 1999, with more than 13,000 farmers receiving payments of $50,000. That was then expanded into Pigford II to include thousands of other black farmers who were excluded from the first suit. It’s thought that as many as 70,000 farmers could qualify for payments under the latest settlement.

Last week, Boyd noted that the appropriation deadline was approaching and that thousands of black farmers were anxiously watching the calendar — and President Obama.

“He looked real good and sounded very good and strong on health care this past week and we really need that same type of fire,” Boyd said in a statement issued last Tuesday. “So I’m calling on the President to take immediate action and to finish the job that he started and bring justice to the black farmers.”

Rep. Artur Davis (D-Ala.) and Sen. Thad Cochran (R-Miss.) are among the lawmakers taking steps to ensure action is taken on the settlement when Congress returns on April 12, the Montgomery Advertiser reports.

The farmers’ lawsuit originally sought $2.5 billion. However, the plaintiffs accepted the smaller settlement amount because the administration agreed to move quickly to get the money to the farmers, many of whom are elderly.

(Photo from USDA website.)