While the board members of the University of Alabama system were meeting at UAB’s Alumni Hall on Thursday, Feb. 2, a coalition of environmental, civic and student organizations gathered across the street to demonstrate opposition to a proposed coal mine along the Shepherd’s Bend portion of the Black Warrior River.

A close view of the growing coal ash mountain in Perry County, Alabama

A new study finds that state regulations for coal ash disposal are inadequate to protect public health and drinking water supplies for nearby communities.

The information comes as federal regulations — the first of their kind — are under attack by a hostile Republican Congress bent on derailing any effort to ensure strong, federally enforceable safeguards for coal ash, America’s second largest industrial waste stream.

Earthjustice and the Appalachian Center for the Economy and the Environment released State of Failure: How states fail to protect our health and drinking water from toxic coal ash, an exhaustive review of state regulations in 37 states, which together comprise over 98 percent of all coal ash generated nationally.

Twelve Worst States Highlighted

The study highlights the lack of state-based regulations for coal ash disposal and points to the 12 worst states when it comes to coal ash management and disposal: Alabama, Georgia, Illinois, Indiana, Kentucky, Missouri, North Carolina, Ohio, Tennessee, Texas, South Carolina and Virginia.

Alabama, now under total control of the Republican Party in all three branches of government, is the only state where dams are completely unregulated at the federal level. Because the state completely exempted coal ash disposal in landfills, more than 5 million tons of ash from Kingston TVA was shipped in for disposal.

Although the average coal ash pond has reached EPA’s estimated life span of 40 years, there are no announced retirement plans. These ponds disproportionately affect the communities of color and low-income communities that make up over 40 percent and 25 percent of the surrounding area.

“Alabama Power Company disposes coal ash slurry at three large coal-fired power plants along the Black Warrior River and its tributaries in Alabama,” Nelson Brooke, Black Warrior Riverkeeper, said in a press release announcing the release of the report.

“Large volumes of contaminated water are discharged out of these three ponds into the river every day, with scant regulation and oversight,” he said. “We need stronger coal ash regulations in place now as air pollution scrubbers are being installed at power plants, a process that is transferring harmful pollutants such as heavy metals from the air into our water.”

Barbara Evans of Wild Law said it’s a travesty that communities of color and low-income communities continue to bear the brunt of living near these toxic sites.

“Seeing as how our state isn’t protecting its communities we really do require federal regulations to keep us safe from this dangerous waste,” she said.

There are currently over 700 coal ash dams, many of which operate without adequate lining and no water quality monitoring, and have been operating in some instances for decades.

Most states do not require coal ash ponds and dumps to employ the most basic safeguards required at landfills for household garbage.

Of the 37 states examined:

* only 3 states require composite liners for all new coal ash ponds;

* only 4 states require composite liners for all new coal ash landfills;

* only 2 states require groundwater monitoring of all coal ash ponds;

* only 4 states require groundwater monitoring of all coal ash landfills;

* only 6 states prohibit siting of coal ash ponds into the water table;

* only 17 states require regulatory inspections of the structural integrity of coal ash ponds.

Although a 2008 spill of more than 1 billion gallons of coal ash in Kingston, Tennessee, remains the biggest environmental disaster, many other smaller yet equally dangerous spills have occurred. “State of Failure” details nearly a half dozen other coal ash spills that happened across the country.

The study also includes detailed information on groundwater monitoring requirements, composite liners, construction of coal ash ponds in the water tables and financial assurance requirements for existing and new coal ash sites in all 37 states where coal ash is currently generated and stored.

Coal ash is the toxic remains of coal-fired power plants; enough is generated each year to fill train cars stretching from the North Pole to the South Pole. This ash is filled with dangerous levels of mercury, arsenic, chromium, lead, selenium and other toxic metals. Coal ash is commonly dumped into unlined and unmonitored ponds and dumps. Well over a hundred reports of water contamination have surfaced at drinking water supplies and surface waters located near coal ash dump sites.

Earthjustice and the Appalachian Center for the Economy and the Environment reviewed state laws and regulations as well as existing data from the U.S. Environmental Protection Agency.

The EPA is currently considering a federal proposal to regulate coal ash that includes two options: the first option would classify coal ash as hazardous waste, requiring water quality monitoring, liners and the phase out of dangerous “wet” storage of coal ash, such as the site that collapsed in Kingston. The second option would continue to allow states to inadequately regulate coal ash by establishing only guidelines that states are free to ignore.

Unsurprisingly, coal ash generators support the weaker option. The EPA, under pressure from industry, has postponed finalizing the coal ash standard until 2012.

But coal ash allies in the U.S. Senate and the House of Representatives are not content with delay. Two bills currently moving through the House seek to undermine any efforts by the EPA to set federal enforceable safeguards for coal ash disposal. Both bills require EPA to let the states — and the states alone — decide how to regulate ash, with little federal oversight.

“This report proves unequivocally that state programs, without federal mandates or oversight, are a recipe for disaster when it comes to protecting our health and our environment,” said Lisa Evans, senior legislative counsel at Earthjustice and a co-author of the study. “Strong, federally enforceable safeguards are needed to guarantee that our drinking water remains free of arsenic, lead, mercury and other toxic metals found in coal ash. The myth that states are doing a good job protecting Americans from coal ash is absolutely busted.”

The problem with relying on state regulations is that they are not designed for the unique problems of coal ash generally and coal ash impoundments particularly, Mike Becher, the Equal Justice Works Fellow at the Appalachian Center for the Economy and the Environment said.

“While many coal ash impoundments are regulated by state dam safety programs, these programs were developed to deal with dams holding back water, not toxic substances,” he said. “State solid waste programs, on the other hand, are not used to dealing with large impoundments and the threat of a catastrophic dam failure like the one seen in Kingston, Tennessee in 2008.”

The Southern Environmental Law Center, representing Black Warrior Riverkeeper, had challenged the permit, issued by the Alabama Department of Environmental Management (ADEM), as being unprotective
of water quality in the Mulberry Fork of the Black Warrior River.

In upholding the permit, the EMC disregarded evidence from the Riverkeeper and from the Birmingham Water Works Board and ignored instructions from the judge who was assigned to hear this case.

“We are disappointed that the commission charged with protecting Alabama’s water resources has chosen to rubber-stamp a faulty permit in violation of the Clean Water Act,” said SELC senior attorney Gil Rogers.

He added that SELC will be considering potential avenues for appeal.

“Once again, ADEM is putting the interests of big coal mines ahead of the water needs of the citizens of Birmingham and clean water in the Mulberry Fork,” said Nelson Brooke, Black Warrior Riverkeeper’s staff Riverkeeper.

“Not only are we considering avenues for appeal, but we will also continue imploring the University of Alabama not to lease or sell their significant land and mineral rights at Shepherd Bend to the
mining company,” said Charles Scribner, Black Warrior Riverkeeper’s executive director. “Without UA’s land and minerals, mining across the river from our drinking water intake may not be economically
feasible.”

The group are urging the MPO to invest instead in transportation projects that will bring sustainable economic growth to the region “in the most cost-effective manner possible.” At about $4.7 billion — or $90 million per mile — the Northern Beltline “would rank as one of the most expensive highways ever built in the U.S.,” the groups say. State taxpayers would pay nearly $1 billion of the cost, “almost equal to Alabama Department of Transportation’s statewide construction and maintenance budget for an entire year.”

“Birmingham has just been ranked the number two gas guzzling city in the country,” Sarah Stokes, SELC associate attorney, said in the statement. “Local officials should be pushing the federal and state governments to fund public transit or fix ‘Malfunction Junction’ not build a 52-mile highway far from the city center that will just mean more driving for Birmingham.”

According to the MPO’s Transportation Improvement Program, ALDOT will spend $81,691,940 on the Northern Beltline during fiscal years 2012 through 2015 — almost half of its budget for the entire Birmingham area, severely limiting funding for other, higher priority projects in the six-county region.

The state has allocated just 5.3 percent of funding for bridge projects, 1.5 percent to maintenance, .6 percent for air quality and traffic mitigation, and a mere .03 percent to safety projects. Transit projects would receive nothing from the state. The funding plan also leaves most localities to foot the bill for sidewalks, pedestrian overpasses and greenways.

In comments filed with the MPO on Tuesday, Black Warrior Riverkeeper and the Southern Environmental Law Center identify several thriving Southeastern cities that do not have a completed loop, including Greensboro, Winston-Salem, Charleston, Knoxville, Chattanooga, Tampa, and Orlando. The groups point to Greenville, South Carolina and Fort Wayne, Indiana as instructive examples where costly beltlines were built to spur economic growth that never materialized.

Not only is the cost to build the Northern Beltline astronomical, the groups say, the additional costs to localities for new sewer, water, other utilities, school, public safety and road improvements must be considered. Due to the full costs associated with projects like this, many cities – including a number in the Southeast such as Charleston and Nashville – have abandoned or held off on plans for beltways.

By law, the MPO is required to consider projects and strategies that will “protect and enhance the environment” and “promote energy conservation.” Instead, the two environmental groups say, the Northern Beltline will do the exact opposite, promoting urban sprawl and exacerbating air pollution in the region. Further, the Beltline would be built over critical areas of the Black Warrior and Cahaba watersheds, which furnish the region’s drinking water, provide recreation opportunities and supply valuable wildlife habitat for rare and endangered species.

“ALDOT needs to focus its energy on fixing our outdated and crumbling infrastructure, and on more modern methods of transportation that will reduce congestion and pollution as well as promote more efficient commutes,” Black Warrior Riverkeeper Nelson Brooke said. “ALDOT’s inadequate study of this road’s cumulative economic and environmental impacts led to decisions being made in a vacuum without proper planning or public input.”

Earlier this year, Riverkeeper group, represented by SELC, filed a lawsuit against ALDOT and the Federal Highway Administration under the National Environmental Protection Act (NEPA) for failing to undertake a full analysis of the indirect and cumulative impacts of the Northern Beltline. The groups claim that since the full comprehensive study has not been completed, the MPO is prematurely allocating significant money to this project for right-of-way acquisition and construction before all the facts are known.

The stated position of the Alabama Department of Environmental Management, the Alabama Department of Transportation and the Alabama Public Service Commission that the U.S. Environmental Protection Agency should not classify coal ash as hazardous waste has more to do with the cozy relationship between those regulators and Alabama Power Co. than it does with facts, science or economics.

Alabama Power’s coal-fired steam plants in the Black Warrior watershed are recognized as among the dirtiest in the nation. Of the top 50 U.S. power plant mercury emitters by pounds in 2009, Alabama Power’s Miller Steam Plant ranked fourth and Greene County Steam Plant ranked 49th.

In January 2009, the Institute of Southern Studies compiled a list of the 100 most polluting coal plants in the United States in terms of coal ash stored in surface impoundments. Gorgas Steam Plant ranked seventh, with 2,888,290 pounds, Miller ranked 15th, and Greene County ranked 30th. The very size of these three impoundments suggests any breach or spill could dwarf the size of the catastrophic TVA’s Kingston release into the Emory River.

According to the National Inventory of Dams database, the Gorgas ash pond is rated a “significant hazard;” its failure would lead to a low probability of loss of life but to likely significant environmental and economic damage. The Miller ash pond is rated a “low hazard,” which means its failure would most probably result in damage to affected area property owners.

We believe the inadequate regulation of toxic coal ash at these impoundments in Alabama offers a textbook case of why the EPA must treat coal ash as hazardous waste. Without the stronger implementation and enforcement requirements, public health and environmental protection in our state will continue to suffer.

Currently, we are at the mercy of whatever Alabama Power chooses to do with its aging, unlined and largely unregulated impoundments. Given the very real risks associated with coal ash, that is unacceptable.
Regulation of coal ash as hazardous waste is essential to protect groundwater, minimize exposure of the public to cancer-causing agents, and avoid future costs for both environmental and economic damage.