March 1, 2009

Best Management Practices for Coal Ash Ponds

Angela Neville, JD

Looking at the Example of SMCRA Practices

On January 14, U.S. House of Representatives Natural Resources Committee Chairman Nick J. Rahall (D-W.V.) introduced legislation requiring federal standards to regulate the engineering of coal ash impoundments.

If enacted by Congress, the proposed Coal Ash Reclamation and Environmental Safety Act of 2009 (H.R. 493) would impose uniform federal design, engineering, and performance standards on coal ash impoundments to avoid a repeat of the damage done by the Kingston pond breach. The legislation, which requires minimum design and stability standards for all surface impoundments constructed to hold coal ash, draws upon the regulatory model for impoundments that is used for coal slurry management under the Surface Mining Control and Reclamation Act of 1977 (SMCRA).

The majority of coal ash, which is a by-product of the combustion of coal at electric utility power plants, is deposited in impoundments, landfills, or mines. By comparison, coal slurry is one of the main refuse streams from the treatment of raw coal when it is mined.

As mentioned earlier, there are currently no federal standards for coal ash impoundments, as exist under SMCRA for coal slurry. Instead, such impoundments are constructed and maintained under a patchwork of state requirements, or on a voluntary basis. Requirements for coal slurry impoundments under SMCRA that would be made applicable to coal ash impoundments under H.R. 493 would cover aspects of design, construction, operations, and closure, including:

• Regulations detailing the engineering and stability of the embankment.

• Regulations requiring all applications for an impoundment to have a foundation investigation to determine design requirements for stability.

• Each design plan must include a geotechnical investigation of the embankment foundation area.

• Each impoundment plan must include a survey describing the potential effect on the structure from subsidence of the subsurface strata resulting from past mining operations in the area.

• Plans for impoundments must be reviewed by a geologist or an engineer.

• Regulations requiring that a qualified engineer, with experience in construction of impoundments, inspect each impoundment regularly during construction, upon completion of construction, and periodically thereafter.

"For those states that do not already have careful standards for coal ash disposal, my legislation will require immediate attention to the shocking gaps in coal ash management. The American public and our environment simply cannot afford to wait any longer to rein in the hazards posed by the shoddy and irresponsible coal ash disposal practices that currently exist," Rahall said in a press release issued by his office.

Rahall has a long history of working to regulate coal ash waste. In 1980, Rahall and former Representative Tom Bevill of Alabama successfully offered an amendment to what became the Solid Waste Disposal Act of 1980 requiring the EPA to determine how to regulate coal ash. Yet, 29 years later, the agency has chosen not to control how coal ash is stored or used or to classify coal ash waste as hazardous.

A 2006 National Academy of Sciences study initiated at Rahall’s request, along with a 2007 Subcommittee on Energy and Mineral Resources oversight hearing, pointed to the pressing need for a federal regulatory regime governing the disposal of coal ash, whether in impoundments, landfills, or mines.

Down the Road

There is a growing possibility that the EPA will begin regulating coal ash surface impoundments in the near future.

Matthew Hale, who directs the EPA’s solid waste office, said in a statement released in January that, although the agency has yet to issue formal coal ash regulations, "We will be bringing this forward very quickly to reach a decision on the path forward, and that’s the time when we’ll be able to have a timetable. Clearly, the dam failure at TVA puts a sense of urgency on the issue of addressing the stability of the dams."

On Jan. 14, U.S. Sen. Barbara Boxer (D-Calif.), who chairs the Environment and Public Works Committee, asked new EPA Administrator Lisa P. Jackson during her confirmation hearing what she would do to police coal ash ponds and other storage sites that have gone unregulated. During the hearing, Jackson pledged to conduct an immediate inventory of the deposits, if confirmed, and added, "The EPA currently has, and has in the past, assessed its regulatory options, and I think it is time to re-ask those questions."

Whether operating in states with existing coal ash regulations or in states without standards, personnel at U.S. power plants that have coal ash ponds need to ensure that they are properly managing their facilities’ surface impoundments, maintaining the integrity of the retention dikes, and taking strong measures to prevent accidental releases of coal ash waste.

— By Senior Editor Angela Neville, JD.