This December will mark the four-year anniversary of a massive spill in Tennessee that sparked new calls for the regulation of coal ash, a toxic waste produced when coal is burned. Although the U.S. Environmental Protection Agency (EPA) proposed options for regulating coal ash in 2010, little progress has been made toward issuing comprehensive national standards. Environmental groups have asked the courts to force the agency to act while bills attempting to thwart new standards have been moving through Congress. This impasse may continue until after the upcoming elections. The failure to provide adequate standards for coal ash is increasingly alarming as new studies continue to highlight its dangers.

In December 2008, an embankment holding wet coal ash ruptured at the Tennessee Valley Authority's 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.

In 2010, EPA proposed two options for regulating coal ash under the Resource Conservation and Recovery Act (RCRA):

• The first option would designate coal ash as a hazardous waste, requiring special handling, transportation, and disposal, and would closely monitor any potential reuse. This option would be far more protective of Americans' health and the environment.
• The second option would regulate coal ash in the same way less toxic wastes like household garbage are regulated. This option would limit EPA's responsibility and authority over coal ash management.

Two years later, no final rules have been issued, and the U.S. House of Representatives has passed bills which, if enacted into law, would limit federal oversight over coal ash.

Last week, The Washington Post published an article noting that election-year politics are likely delaying a decision on coal ash protections. The outcome of the November elections could determine the future of coal ash regulation: House-passed legislation to weaken federal authority over coal ash has so far been blocked by the Democratically controlled Senate. In the absence of regulatory action by the executive branch, the future of coal ash protections will depend on whether Congress enacts legislation to prevent certain new rules or the courts mandate that new rules be established by the EPA.

A new peer-reviewed study led by Duke University provides fodder for advocates' demands for action. It found high levels of arsenic and other toxins in coal ash waste flowing into lakes and rivers in North Carolina. According to one researcher, some of the highest levels of contamination were found in coal ash waste streams that flow into a lake that is a primary drinking water source for Charlotte. Samples collected from that lake during the summers of 2010 and 2011 contained arsenic at levels about 25 times higher than the current EPA standards for drinking water. The researcher also noted that "there are no systematic monitoring or regulations to reduce water-quality impacts from coal ash ponds because coal ash is not considered as hazardous waste."

These findings support those of a report by the Environmental Integrity Project and Earthjustice, which uncovered dozens of cases in which ponds of toxic coal combustion waste leaked into nearby wetlands, streams, and groundwater supplies.

The stakes are high for environmentalists and residents living near coal ash production and storage operations. The U.S. generates roughly 140 million tons of coal ash every year, about half of which is kept in storage ponds and landfills. Many of these storage locations have received "high hazard potential" ratings, yet there is still no comprehensive federal policy for controlling the storage and disposal of coal ash waste.

The evidence of the health and safety risks posed by coal ash helps make the case for more stringent standards. Even those who disagree on the specifics of new rules acknowledge that inaction is problematic and that standards are needed. The lack of uniform standards only adds to regulatory uncertainty for businesses that store or recycle coal ash, and nonexistent or weak standards do nothing to protect the public.

Image in teaser by flickr user Rhiannon Fionn, used under a Creative Commons license