In August 2007, EPA published a draft risk assessment that found extremely high risks to human health and the environment from the disposal of coal ash in waste ponds and landfills.4 The chart below compares EPA’s findings on the cancer risk from arsenic in coal ash disposed in waste ponds to several other cancer risks, along with the highest level of cancer risk that EPA finds acceptable under current regulatory goals.
In March 2007, OSM published an Advance Notice of Proposed Rulemaking permitting the disposal of coal combustion waste in mines under the Surface Mining Control and Reclamation Act (SMCRA).5 OSM received almost 2000 comments voicing concern that the proposed rule failed to protect health and the environment. . Despite the public’s concern about the dangers of CCW, OSM is likely to ignore EPA’s 2007 risk assessment in proposing its rule.
OSM Must Consider EPA’s Risk Assessment on Coal Combustion Waste
EPA’s 2007 risk assessment finds that coal ash poses extremely serious threats to human health and the environment when disposed in surface impoundments and landfills. Data from groundwater and surface water monitoring at numerous coal mines where coal ash has been disposed reveals contamination from toxic chemicals such as arsenic, lead and boron.6 Disposal of coal ash in mines is a growing practice that threatens the health and environment of coalfield communities. In Pennsylvania alone there are over 120 mines where coal ash has been dumped and over 9 million tons of waste are disposed in the state’s mines each year.7 Significant pollution from mine disposal has been documented in New Mexico , Pennsylvania , West Virginia , Indiana and North Dakota . 8
In 2004, Congress directed the National Academies of Science to study the disposal of coal ash in mines. Their March 2006 report, Managing Coal Combustion Waste Residues in Mines, acknowledges the threat to water resources from disposal of waste in mines without adequate safeguards. The report recommends that such safeguards be required in federal regulations. OSM, however, in its March 2007 proposed rule failed to address the explicit recommendations of the National Academies. In a comment on the proposed rule, an author of the NAS report commented, “ OSM has failed to explain why it chose not to use the NAS Committee’s recommendations as its starting point for analysis.”9
The Office of Surface Mining does not have the requisite expertise to develop regulations permitting the disposal of dangerous waste in mines. This expertise lies specifically with the Environmental Protection Agency. Congress enacted the Resource Conservation and Recovery Act (RCRA) for this purpose and gave EPA the authority to safeguard human health and the environment from the disposal of solid waste.10 Coal ash is considered a hazardous substance under the Comprehensive Emergency Response, Compensation and Liability Act (CERCLA), which is also administered by the EPA.11
EPA has made no attempt to assess the threat posed by disposal of coal ash in mines, but instead passed the responsibility for regulation to OSM. But EPA cannot under RCRA ignore the disposal of millions of tons of toxic waste in mines. Congress required EPA to prohibit open dumping of solid waste.12 If OSM permits the dumping of coal ash in mines, it will allow the creation of illegal open dumps. 13 For example, heavy metal pollution at mines in Pennsylvania , West Virginia , and Maryland constitutes illegal open dumping. 14
Stop OSM from approving disposal of toxic waste in mines before considering the risks to human health and the environment
If OSM insists on proposing a rule on coal combustion waste, it must fully consider the threat posed by disposing of millions of tons of coal ash in mines. EPA’s recent risk assessment on the disposal of coal ash has great bearing on the threat to human health and the environment from the disposal of ash in mines. OSM must consider EPA’s risk assessment, the NAS report, and assess their full implications before proceeding. It is necessary for EPA and OSM to work together to ensure that the disposal of toxic coal ash in mines does not pollute the air and water of coalfield communities with the hazardous chemicals found in the ash.
This fact sheet was compiled by Earth Justice.
1. US EPA, Notice of Data Availability, 72 Fed. Reg. 57572, August 29, 2007 and US EPA, Human and Ecological Risk Assessment of Coal Combustion Wastes, August 6. 2007 (draft).
3. US EPA, Coal Combustion Waste Damage Case Assessments, July 9, 2007 .
5. Office of Surface Mining, Placement of Coal Combustion Byproducts in Active and Abandoned Coal Mines, Advance Notice of Proposed Rulemaking, 72 Fed. Reg. 12026, March 14, 2007
6. See e.g., Clean Air Task Force, Impacts on Water Quality from Placement of Coal Combustion Waste in Pennsylvania Coal Mines, September 2007; Hansen, Evan and Martin Christ, Downstream Strategies, LLC. Water Quality Impacts of C oal Combustion Waste in Two West Virginia Coal Mines , April 2005; Zimmerman, D.A., P.E. SETA, Inc. A Preliminary Evaluation of the Potential for Surface Water Quality Impacts from Fly Ash Disposal at the Navajo Mine, New Mexico . May 2005.
7. Clean Air Task Force, Impacts on Water Quality from Placement of Coal Combustion Waste in Pennsylvania Coal Mines , September 2007.
8. Id, fn 6. See also Report to Congress on Wastes from the Combustion of Coal by Electric Utility Power Plants. March 1988.
9.Comment from Mark Squillace, Esq. to OSM, letter dated June 13, 2007 .
10.Resource Conservation and Recovery Act, 42 U.S.C. 6901 et seq.
11. See Eagle-Piher Indus., Inc. v. EPA , 759 F.2d 922 (D.C. Cir. 1985).
12. Resource Conservation and Recovery Act, 42 U.S.C. 6901 et seq.
13. See 42 U.S.C. §§ 6944 and 6945.
14. See 40 C.F.R. § 257.3-4. See also Baltimore Sun, “Out of sight an d in the water,” November 11, 2007 , http://www.baltimoresun.com/news/local/bay_environment/bal-te.md.ash11nov11,0,6796517.story?coll=bal_tab01_layout