12/24/2014 09:38 am ET Updated Feb 22, 2015

Preventing the Next Coal Ash Disaster

This week is the sixth anniversary of the devastating coal ash spill at Kingston, Tennessee. A dam fell apart at one of TVA's coal ash lagoons, dumping over one billion gallons of coal ash and wreaking havoc that cost over $1 billion to clean up. Soon thereafter, the Environmental Protection Agency promised a national standard that would protect other communities from a comparable catastrophe. Almost six years later, EPA has finally released the long-awaited safeguards. While the new guidelines are an improvement over the status quo, they fall far short of protecting us from the threat of another Kingston disaster.

The facts of coal ash storage are hard to believe. Across big sections of the country - and on almost every major river system in the Southeast - our public utilities store millions of tons of industrial waste in unlined earthen pits directly on the banks of rivers, lakes, and drinking water reservoirs. These lagoons are held back only by earthen dikes that often leak. The coal ash itself contains toxins like arsenic, lead, and chromium. To make matters worse, these primitive pits are decades old, becoming more dangerous every day as they contaminate groundwater and the adjacent waterways with toxic heavy metals.

This past February, North Carolina and Virginia had another Kingston experience, when an old corroded pipe broke at Duke Energy's Dan River coal ash lagoons, spewing 39,000 tons of coal ash and 24 million gallons of coal ash polluted water into the river. Less conspicuously, every day there is the equivalent of a widespread coal ash spill across the Southeast and other areas of the country, as hundreds of these aging unlined lagoons leak polluted coal ash water and heavy metals into drinking water supplies, groundwater, and rivers.

Surely in the United States in the 21st century, we can expect our public utilities and the government agencies that regulate them to do better in protecting our public water resources. Yet the EPA's response - while it puts in place some national minimum standards for coal ash storage -- fails in two important ways.

First, the EPA does not require utilities to clean up their dangerous existing coal ash lagoons by moving the ash to safe, dry, lined storage away from waterways. EPA has created a long and uncertain path for addressing these sites when clearly we need to take action immediately. Until that happens, our communities and waters remain in danger. Across the country, we require household garbage to be stored in lined landfills away from waterways, separated from groundwater. It's inconceivable that we would not require the same precautions for how public utilities handle their toxin-laden industrial waste.

Second, the absence of federal oversight and enforcement means that any meaningful protective action will continue to fall to local communities and, if they choose to do so, our states... However, we have seen in the Southeast that state regulators are often unwilling to enforce the law effectively against well-connected public utilities. These multi-billion dollar corporations are the most powerful lobbying forces in state legislatures - the same state legislatures that control the budgets for the jobs and operations of the state regulators. In North Carolina, the state regulator even worked with Duke Energy to frustrate citizen enforcement of clean water laws. Now a federal criminal grand jury is investigating the coal ash activities of the state agency and Duke Energy across North Carolina.

Local citizens and organizations have stepped in to try to solve the problem of inadequate state and federal action. Across the Southeast, we have been working with local conservation groups and riverkeepers to enforce existing clean water laws. As a result, in South Carolina public utilities have agreed to clean up coal ash lagoons on rivers across the state. In North Carolina, in response to our litigation, the Dan River spill, and the criminal investigation, Duke Energy has agreed to clean up four of its fourteen sites. We are continuing to push for clean up of all fourteen Duke coal ash sites in North Carolina and for the clean up of coal ash lagoons in Tennessee and Virginia, as well.

Since the EPA chose not to adopt a clear rule with strong national enforcement, local communities are going to have to take their fates into their own hands. The public utilities themselves should follow the lead of those in South Carolina and do the right thing by the people and communities they serve. If the utilities do not do the right thing, we'll continue to fight this issue in the courts. But that should be a last resort - not the de facto solution for protecting our nation's waterways from coal ash.