Sunday, December 22 will mark the fifth anniversary of a massive spill of coal ash in Tennessee that destroyed homes and spilled 1.1 billion gallons of toxic sludge across 300 acres. This event sparked intensified calls for the regulation of coal ash, a waste by-product produced when coal is burned. Federal efforts to deal with the problem of coal ash have progressed slowly, but a recent court decision ordered the U.S. Environmental Protection Agency (EPA) to set a deadline for regulating coal ash.  As industry and their allies in Congress continue legislative efforts to thwart the regulation of coal waste, it is imperative that EPA swiftly issue strong federal standards that require common sense safeguards against coal ash contamination.

New calls for the regulation of coal ash began in 2008 after an embankment holding wet coal ash ruptured at the Tennessee Valley Authority's (TVA) Kingston plant, releasing 5.4 million cubic yards of coal ash sludge that buried a community and severely contaminated a nearby river. Coal ash can contain arsenic, lead, chromium, and other heavy metals, all of which poison humans. Roughly five times more coal ash sludge engulfed the area around Kingston, TN than oil spilled into the Gulf of Mexico during the BP oil spill disaster.

In 2010, EPA proposed two options for regulating coal ash:

• The first option would designate coal ash as a hazardous waste under Subtitle C of the Resource Conservation and Recovery Act (RCRA), requiring special handling, transportation, and disposal, and would closely monitor any potential reuse. This option would be the most protective of Americans' health and the environment.
• The second would regulate coal ash under RCRA Subtitle D – an option that would limit EPA's responsibility and authority over coal ash management.

Both options would require that surface impoundments of coal ash have protective liners, mandate groundwater monitoring for landfills, and provide for corrective action when contamination is found (though the corrective action requirements are more extensive under the first option). More than three years later, EPA has yet to finalize national requirements for coal ash disposal. Seeing that little progress had been made, environmental groups filed a lawsuit in 2012 to compel EPA to complete a review of the regulations applying to coal ash and issue necessary revisions.

On Oct. 29, the U.S. District Court for the District of Columbia issued a memorandum opinion ordering EPA to submit a plan for finalizing the coal ash rulemaking process it began in 2010. The order does not specify a deadline for completing the review, but requires EPA to propose its own schedule for complying with the review requirements. By Dec. 29, EPA must "file a written submission with this Court setting forth a proposed deadline for its compliance with [EPA's] obligation to review and revise if necessary its Subtitle D regulations concerning coal ash, along with its legal justification for its proposed deadline."

Unfortunately, as communities have waited for government action, inadequate controls have allowed for preventable contamination across the country. Coal ash has already contaminated more than 200 rivers, lakes, streams and aquifers with toxic pollutants like arsenic, lead, selenium and mercury.  Earthjustice, who filed the lawsuit on behalf of the environmental groups, has collected troubling stories of contamination and spills from 37 states including Missouri, Pennsylvania, Michigan, Alaska, Kentucky and many more who are dealing with their own environmental disasters. A report by the Environmental Integrity Project (EIP) released last month is just the latest in a slew of studies documenting the dangers of coal ash. The report, which found that TVA ponds and landfills have contaminated groundwater around all eleven of its coal-fired power plants, serves as a timely reminder of the importance of finalizing comprehensive federal coal ash pollution and disposal standards.

Regulation is absolutely essential in this case, as coal ash producers have largely failed to address hazardous conditions voluntarily. Earthjustice today issued a press release documenting TVA’s recent retreat from its promise to convert its wet coal ash disposal ponds into safer dry landfills. TVA’s CEO emphasized that converting wet coal ash ponds is not currently required by regulation.  “It appears few lessons were learned from the disaster,” said Lisa Evans, senior administrative counsel for Earthjustice.

Five years after the Kingston disaster, we continue to ask the question: How many spills, buried towns, and poisoned drinking water supplies will it take before EPA finalizes national protections against coal ash? EPA should fulfill its obligation and set an aggressive timeline for finally protecting communities from the dangers of coal ash.