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Tr-Ash Talk: Legislating Disaster

In the aftermath of a major catastrophe, lawmakers and regulators should be held accountable to create new safety protocols to avert future disasters. Incidents like the Cuyahoga River catching fire and the Exxon Valdez oil spill prompted changes in how we protect our nation’s waters from industrial chemicals. The Buffalo Creek disaster in West Virginia in 1972 likewise prompted changes to the regulation of dams storing toxic materials. Similarly, we must demand changes to how coal ash is handled, following the largest toxic waste spill in our nation’s history—the spill in Kingston, Tennessee in December 2008, which will have its fourth anniversary in a few weeks.

Former Director of the National Mine Health and Safety Academy Jack Spadaro remembers the Buffalo Creek disaster and knows that its grim legacy still casts a shadow today.

Testifying before the Senate over his concerns for S. 3512, or the Coal Ash Recycling Act of 2012, Spadaro recounted his experiences at Buffalo Creek in 1972. Buffalo Creek was the site of a coal waste dam that burst. More than a hundred million gallons of coal ash slurry, filled with dangerous chemicals, were released when the dam failed, flooding the nearby community of Buffalo Creek Valley.

What Mr. Spadaro arrived to find was something out of a nightmare:

I shall never forget the bodies wrapped in black toxic sludge or the faces and voices of the survivors who had lost all that was precious to them, forever.

The spill killed 125 people, destroyed or damaged 1,500 homes, and left homeless more than 4,000 people. The resulting inquiry found that:

The lack of definitive, clear-cut, and enforceable laws with regard to the safety of mine-refuse banks and impounding structures, both at the federal and state levels, was a major shortcoming that contributed to the disaster.

In light of the catastrophic 2008 spill, one would think that solving the problem of how to safely handle coal ash would be an urgent matter. After all, it is a miracle that the Kingston spill did not result in a large loss of life. Yet the response from the Environmental Protection Agency has been far from adequate. Progress on national coal ash regulations has lagged, despite the publication of a proposed rule in June 2010. While the EPA stalls, our Congress has responded in appalling ways.

Last October, the House of Representatives passed a radical measure (H.R. 3409) that stripped the EPA’s rulemaking authority over coal ash, ensuring that a solution would never materialize. In addition to preventing EPA regulations, the bill places no effective safeguards on the design, maintenance and closure of the nation’s life-threatening coal ash impoundments, establishes no deadlines for the permitting of coal ash dumps, prevents the EPA from enforcing state regulatory requirements, fails to address airborne toxic ash, and refrains from imposing a standard of health and environmental protection on state programs—a basic tenet of all of our federal environmental statutes since the 1970s.

An identical bill in the Senate, S. 3512, is sponsored by Senators Hoeven (R-ND), Conrad (D-ND), and Baucus (D-MT). As a response to the Kingston disaster, this reckless bill is an insult to the many communities threatened by aging impoundments. There is no requirement to phase out disposal of ash in dangerous ponds. In fact, S.3512 would encourage the expansion of coal ash ponds as a disposal method.

Providing better regulations to avoid catastrophic dam failures has been Spadaro’s life mission. While working for the Office of Surface Mining, he wrote the regulatory framework the mining community still follows today. He is without a doubt an expert on the subject with firsthand experience of the devastation a neglected dam can cause. Spadaro roundly criticized S.3512 for its complete lack of safety and engineering requirements and for the absence of strong federal oversight. The consequence of ignoring aging coal ash ponds is already apparent. Mr. Spadaro noted that the conditions leading to the spill in Tennessee were far from unique, as inspections by the EPA found that approximately 25 percent of 400 ponds surveyed were in “poor” condition. The next one that bursts may be fatal.

Clearly changes have to be made, or another Buffalo Creek disaster may be right around the corner, yet the House and Senate bills would ensure that this threat grows more dangerous each year. Instead of these dangerous bills, both Houses must encourage the EPA to continue its work to set federally enforceable safeguards for coal ash.

We must prevent the horrible sight that greeted Spadaro four decades ago and heed his words of warning. In no uncertain terms, Spadaro testified:

I am certain that the proposed Senate bill S.3512 in its present form without specific requirements for review of design, stringent geotechnical and hydrological engineering requirements, and vigorous enforcement by a federal regulatory agency will result in a catastrophic failure of a coal ash dam containment structure that will result in extensive loss of life and severe environmental damage that will be irreversible.

Our elected leaders must address these concerns and ensure that American communities are protected from this toxic menace and more tragic disasters.