The End Game of Deregulation: Myopic Risk Management and the Next Catastrophe

Article excerpt

I. INTRODUCTION

On December 22, 2008, the contents of an enormous impoundment containing coal-ash slurry from the Tennessee Valley Authority's (TVA) Kingston Fossil Fuel Plant poured into the Emory River. The proximate cause of the spill was the bursting of a poorly reinforced dike holding back a pit of sludge that towered 80 feet above the river and 40 feet above an adjacent road) The volume and force of the spill were so large that 1.1 billion gallons of the inky mess flowed across the river, inundating 300 acres of land in a layer four to five feet deep, uprooting trees, destroying three homes, and damaging dozens of others. (2) The catastrophic breach ruptured a gas line, caused millions of dollars in property damage, and caused incalculable environmental damage to the Emory River and its receiving water, the Clinch River. (3) A week after the spill, heaps of gray material remained in the river like small volcanic islands. (4) Miraculously, no one was killed. (5)

The slurry contained both fly and bottom ash, collectively known as "coal combustion residuals" (CCRs) in the euphemistic lexicon of environmental regulation. (6) Because coal-fired power plants have scrubbers that trap fumes before they are emitted into ambient air, the fly-ash portion of the spill contained significantly more than the quota of toxic heavy metals that typically result from burning coal. (7) Or, in other words, in an inevitable but ironic twist, the benefits to breathers were obtained at the expense of walkers and drinkers. TVA later estimated that the Kingston Spill had released around 2.6 million pounds of toxic pollutants into the Emory River. (8) By way of comparison, all of the other power plants in the United States released just over 2 million pounds of toxic pollutants during all of 2007. (9) Cleanup costs for the federally subsidized TVA, one of the largest electric utilities in the country, are expected to total $1.2 billion, adding $0.69 per month to the utility bills of nine million customers until 2024. (10)

The Kingston spill was the worst of its kind in U.S. history, but it was not the first, nor would it be the last. For a brief period of time, the catastrophe focused the nation's attention on the health and environmental risks posed by dumping coal ash in unlined pits in the ground referred to as "surface impoundments." (11) Prominent national environmental groups demanded greater protection from Congress and the Environmental Protection Agency (EPA), both of which had long skittered away from confronting the problem in the face of unyielding resistance by electric utilities to any hint of regulatory intervention that would compel the safer disposal of coal ash and the reinforcement of old, poorly designed, and carelessly maintained coal-ash dumps. (12)

In the immediate aftermath of the catastrophe, Congressman Nick Rahall (D-WV) introduced a bill that would have authorized the Department of Interior to promulgate uniform federal design, engineering, and performance standards for new coal-ash impoundments. (13) Three congressional committees devoted six hearings to the need for proper regulation of coal-ash wastes. (14) Notably, EPA Administrator Lisa Jackson promised to reevaluate by the end of 2009 the agency's decades-old reluctance to regulate the disposal of some 129 million tons of coal ash generated annually, (15) a startling figure when compared to the 250 million tons of every category of household garbage that Americans generated in 2010. (16)

Jackson met this deadline. (17) But her efforts were thwarted when an intensive industry lobbying campaign provoked the White House to rewrite the EPA proposal, adding two significantly weaker options and derailing the momentum of Jackson's proposal. (18) The 111th Congress failed to enact protective legislation and, in the aftermath of the 2010 mid-term election that transferred control of the House of Representatives back to the Republican Party, the 112th Congress nearly enacted legislation that would have divested the EPA of its authority to adopt strong coal-ash rules. …