Wildlife and the Coal Waste Policy Debate: Proposed Rules for Coal

Waste Disposal Ignore Lessons from 45 Years of Wildlife Poisoning

A. Dennis Lemly*

USDA-Forest Service, Southern Research Station, Piedmont Aquatic Research Laboratory, Department of Biology, Wake Forest

University, Winston-Salem, North Carolina 27109, United States

Joseph P. Skorupa

U.S. Fish and Wildlife Service, Division of Environmental Quality, 4401 N. Fairfax Drive, Room 820, Arlington, Virginia 22203,

United States

*S Supporting Information

ABSTRACT: This analysis examines wildlife poisoning from coal combustion

waste (CCW) in the context of EPA’s proposed policy that would allow continued

use of surface impoundments as a disposal method. Data from 21 confirmed

damage sites were evaluated, ranging from locations where historic poisoning has

led to corrective actions that have greatly improved environmental conditions to

those where contamination has just recently been discovered and the level of

ecological impacts has yet to be determined. The combined direct and indirect cost

of poisoned fish and wildlife exceeds $2.3 billion, which is enough money to

construct 155 landfills with state-of-the-art composite liners and leachate collection

systems. This cost is projected to increase by an additional $3.85 billion over the

next 50 years, an amount that would construct 257 landfills. Evidence revealed

through this study indicates the following: (1) for the past 45 years, environmental

damage has been a recurring theme with surface impoundment of CCW, (2) the

National Pollutant Discharge Elimination System has not been effective in

preventing serious environmental damage from CCW, (3) EPA’s Regulatory Impact

Analysis of the costs and benefits of pollution control options fails to include

benefits of avoided damages to natural resources, specifically, poisoned fish and

wildlife, and (4) surface impoundments pose unacceptably high ecological risks

regardless of location or design. Regulators should no longer ignore rigorous

science and the lessons from multiple case examples. EPA and the United States

need to show leadership on this issue by prohibiting surface impoundments,

particularly since the rise in coal use in developing countries is leading to the same

CCW pollution problems on a global scale.

■ INTRODUCTION

The U.S. Environmental Protection Agency (EPA) is proposing

the first national regulations for disposal of coal combustion

waste (CCW).1 The proposal has sparked debate among the

electric utility industry, EPA, and the U.S. Office of Management and Budget (OMB) over certain provisions of the new

rules, which will likely be finalized within the next year.2 One

key issue is whether to continue using surface impoundments as

a disposal method. We conducted a comprehensive review of

environmental damage cases and found that since 1967,

surface-impounded CCW has caused major fish and wildlife

losses and associated negative economic effects. EPA’s

Regulatory Impact Analysis,3 which is a pivotal component of

the joint EPA−OMB rulemaking process, fails to include

damage to fish and wildlife in its cost-benefit evaluation. This

oversight could have far-reaching consequences for natural

resources in the U.S. and abroad, as both industrialized and

developing countries are facing the same CCW disposal issues.

■ A LONG HISTORY OF DAMAGE AND ECONOMIC

COSTS

The first widely recognized case of wildlife damage from CCW

in the U.S. occurred in 1967 when a containment dam broke,

spilling coal ash slurry into the Clinch River, VA, killing

217,000 fish and poisoning benthic invertebrates for 124 km

downstream.4 In 1976, releases from an ash pond permitted by

the National Pollutant Discharge Elimination System (NPDES)

Received: April 14, 2012

Revised: July 9, 2012

Accepted: July 27, 2012

Policy Analysis

pubs.acs.org/est

This article not subject to U.S. Copyright.

Published XXXX by the American Chemical

Society

A dx.doi.org/10.1021/es301467q | Environ. Sci. Technol. XXXX, XXX, XXX−XXX
caused a long-term, catastrophic toxic event at Belews Lake,

NC, where selenium poisoning extirpated 19 species of fish

from the 1560 ha reservoir (5, Figure 1). Belews Lake quickly

became a landmark example of the ecological hazard of surface

impounded CCW.

Fish and wildlife damage cases continued to emerge

throughout the 1980s and 1990s, affecting biota ranging from

amphibians and fish to birds and reptiles, and causing impacts

ranging from physiological, developmental, and behavioral

toxicity to major population and community-level changes.6

Perhaps the most dramatic example of pollution from wet

disposal is the December 2008 spill at Tennessee Valley

Authority’s (TVA) Kingston Fossil Plant, TN, which released

4.1 million cubic meters of ash into the Emory River,

inundating some 115 ha of aquatic communities and releasing

over 3000 t of heavy metals and other contaminants to surface

waters.7,8 A similar but smaller disposal site collapse, this time

spilling coal ash into Lake Michigan, occurred near Milwaukee

at the We Energies Oak Creek Power Plant in October 2011.9

A total of 21 surface impoundment damage cases have been

documented (Supporting Information (SI), Table 1). Five of

these resulted from structural failure of disposal ponds, two

were caused by unpermitted discharge of ash pond effluent, two

occurred at unregulated impoundments, and twelve, which

includes the most costly cases, happened because of legally

permitted releases allowed by the NPDES. The partially

monetized direct cost of poisoned fish and wildlife coupled

with the indirect human cost mediated by that poisoning was

estimated to exceed $US 2.3 billion (see SI for methods used to

calculate costs, Table 1).

■ WILDLIFE DAMAGE NOT CONSIDERED IN IMPACT

ANALYSIS

OMB has statutory authority to examine a proposed EPA

regulation, review economic information, and make a

controlling decision on the final rule.10 As part of this process

EPA conducted a Regulatory Impact Analysis (RIA) for use in

Figure 1. Toxic effects of coal combustion waste. Metals and trace

elements leached from surface-impounded CCW have caused dramatic

and costly impacts to aquatic life for decades. Effects range from acute

mortality to chronic, debilitating toxicity as shown here in this 1980

photograph of fish from Belews Lake, NC, afflicted by selenium

poisoning (v-shaped spines). Selenium bioaccumulates in food chains

and passes from parents to offspring in eggs, where it causes a variety

of skeletal deformities and other abnormalities in the developing

embryos. This can lead to massive reproductive failure and local

extinction of species (photo by A.D. Lemly).

Table 1. Summary of Fish and Wildlife Damage Cases from

Disposal of Coal Combustion Waste

case location

CCW disposal

method

cause of water

pollution

damage value

($US)

1 Belews Lake, NC impoundment NPDES permitted releases531,153,873

2 Hyco Reservoir,

NC

impoundment NPDES permitted releases864,742,344

3 Mayo Reservoir,

NC

impoundment NPDES permitted releases80,825,500

4 Gavin, OH/

Amos, WV

impoundment NPDES permitted releases1,611,600

5 Martin Lake, TX impoundment unpermitted discharge229,458,757

6 Welsh Reservoir,

TX

impoundment NPDES permitted releases163,424,962

7 Brady Branch,

TX

impoundment NPDES permitted releases108,674,277

8 Beaver Dam

Creek, SC

Impoundment NPDES permitted releases17,979,360

9 Gibson Lake, IN impoundment unregulated discharge166,425,914

10 McCoy Branch,

TN

impoundment unpermitted discharge1,653,682

11 Clinch River, VA impoundment structural failure 11,377,700

12 Melton Hill Reservoir, TNimpoundment NPDES permitted releases40,598,560

13 Lake Erie, MI impoundment NPDES permitted releases1,500,000

14 Connor Run, WV impoundment NPDES permitted releases18,666

15 Euharlee Creek,

GA

impoundment structural failure 6,116,650

16 Bridger Plant,

WY

impoundment unregulated discharge14,291,000

17 Delaware River,

PA

impoundment structural failure 31,445,100

18 Adair Run, VA impoundment NPDES permitted releases160,000

19 Rocky Run

Creek, WI

impoundment NPDES permitted releases240,000

20 Widows Creek,

AL

impoundment structural failure 3,862,300

21 Hatfield’s Ferry,

PA

landfill NPDES limits

exceeded

5,987,100

22 Kingston, TN impoundment structural failure 29,463,128

total 2,311,010,473

Environmental Science & Technology Policy Analysis

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comparing benefits and costs of the three options in its

proposed rule (RCRA Subtitle C, regulation of CCW as

hazardous waste with mandatory landfill disposal, no use of

surface impoundments; Subtitle D, regulation as nonhazardous

waste with use of lined surface impoundments; Subtitle D

“Prime”, continued use of existing unlined surface impoundments, liners required for those constructed in the future).3,11

That analysis shows the annualized benefits of pollution control

to be much greater for Subtitle C regulation than either Subtitle

D option (Summary Exhibits 5−7 in ref 3). However, RIA only

estimated benefits of avoiding human cancer deaths, groundwater pollution, and cleanup costs of impoundment dam

failure.... “RIA did not quantify or monetize several other

additional benefits consisting of future avoided social costs

associated with ecological and socio-economic damages. These

included avoided damages to natural resources”.

3 In order for

RIA to be thorough and complete, EPA needs to add the

substantial economic benefit of avoiding damages to natural

resources, specifically, poisoning of fish and wildlife. Based on

the losses documented by scientific investigation since 1967

(SI, Table 1), protection of fish and wildlife through

elimination of surface impoundments will add at least $76

million per year ($3.85 billion total cost savings spread across

50 year future period-of-analysis; Table 2) to the total

annualized benefit value of regulation under RCRA Subtitle

C. We used the 75th percentile annualized cost to project

benefit values rather than the median because we know that our

calculations are underestimates due to the fact that in most

cases ecological impacts began well before scientific investigation and also extended longer than the actual period of

investigation, sometimes for many years. Moreover, in most

cases the investigations focused exclusively on fish, which

means that the value of damage to other aquatic life and birds

could not be included in cost estimates. Therefore, we believe

that the 75th percentile is a reasonable and conservative

number for use in projecting future cost savings. Placing the

magnitude and importance of these cost savings in perspective,

the total fish and wildlife protection value of $3.85 billion is

greater than EPA’s monetized value for human cancer risks

avoided plus the groundwater protection value gained under

Subtitle C, estimated for both a 3% and 7% discount rate ($970

million for 7% discount rate, $3.32 billion for 3% discount rate;

Exhibit 5A-18, page 130 in ref 3). The benefit value for

combined human and ecological protection under Subtitle C

would therefore range from $4.82−7.17 billion, independent of

the additional benefit value of preventing future impoundment

dam structural failures (avoided cleanup costs) which adds

another $1.76−7.40 billion (Exhibit 5B-6, page 141 in ref 3).

■ REGULATORY IMPLICATIONS

Surface impoundment of CCW is widely practiced, accounting

for about 21% of current disposal facilities, or some 629

impoundments.12 However, less than 5% of these have

undergone detailed biological evaluation to determine impacts

to fish and wildlife, usually following catastrophic failure of

containment dams or because there was outwardly visible

poisoning that triggered public demands for investigation.

Therefore, our analysis (SI, Table 1) likely covers only a small

portion of the total damage and economic costs resulting from

this waste management technique. Yet, the value of that

fraction of losses is conservatively estimated at over $US 2.3

billion, which is enough money to construct 155 landfills with

state-of-the-art composite liners and leachate collection systems

($15 million each13). Our projected 50-year future damage cost

of $3.85 billion would construct 257 such landfills. The Electric

Power Research Institute, the scientific arm of the coal power

industry, has known the inherent environmental hazards from

Table 2. Annualized Costs for 21 Environmental Damage

Cases Resulting from Surface Impoundment of Coal

Combustion Waste

year total number of cases total damage value ($US)

1967 2 5,252,260

1968 2 1,881,260

1969 2 1,806,260

1970 2 176,294

1971 2 176,294

1972 2 176,294

1973 4 802,232

1974 6 1,960,690

1975 6 1,960,690

1976 7 34,040,543

1977 7 34,040,543

1978 11 83,739,205

1979 11 83,739,205

1980 11 83,739,205

1981 11 88,580,947

1982 10 88,540,947

1983 10 88,540,947

1984 10 88,540,947

1985 10 88,540,947

1986 10 88,540,947

1987 11 76,610,198

1988 11 76,897,427

1989 11 76,971,752

1990 11 76,975,052

1991 10 76,861,977

1992 11 78,542,966

1993 11 72,520,501

1994 11 72,517,201

1995 11 72,467,201

1996 11 72,467,201

1997 12 76,011,984

1998 12 50,260,961

1999 12 50,360,961

2000 12 53,373,236

2001 13 49,337,586

2002 14 50,240,233

2003 12 47,131,908

2004 11 49,316,693

2005 13 65,468,599

2006 12 61,096,772

2007 9 53,267,156

2008 8 33,411,392

2009 8 28,394,018

2010 7 25,730,818

totals by decade

1970s 11 240,811,933

1980s 11 845,504,270

1990s 12 698,986,009

2000s 14 491,037,599

median annualized cost 57,235,005

75th percentile annualized cost 76,974,227

90th percentile annualized cost 88,540,948

projected 50 year damage value using

75th percentile cost

3,848,711,350

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surface disposal of CCW for decades and has held workshops

to inform the electric utility industry about those toxic

threats.14 Electric utilities themselves acknowledge the need

to switch from wet to dry storage in order to protect

shareholders from significant financial risks.15 Yet, since 1967,

little has changed from either an operational or regulatory

perspective. Continued use of surface impoundments would be

allowed by EPA under RCRA Subtitles D and D “Prime” of its

proposed regulations for CCW disposal.10 Evidence suggests

this would be a grave mistake for seven reasons. First, the

Subtitle D “Prime” option allows continued operation of

existing unlined impoundments, which leads to substantial

pollution of groundwater, some of which can be expected to

reach the surface and expose fish and wildlife to toxicants.16,17

Second, although provisions of Subtitle D do require the

installation of composite liners, it should be noted that liners

are designed to protect groundwater and would have little effect

on the direct surface water exposure pathway.11 That is, liners

do not reduce above-ground leachate, precipitation runoff, and

slurry discharges that pollute surface water and poison fish and

wildlife. Third, there are serious liner performance issues

(holes/tears created in geosynthetic membranes during

installation, engineering/construction design standards that

consider major leakage to be acceptable, physical/chemical

breakdown of clay components over time) which indicate that

groundwater protection is not assured.18−20 Therefore,

exposure of fish and wildlife to contaminated groundwater

that reaches the surface is a distinct possibility even at lined

sites. Fourth, surface impoundments are a particularly insidious

threat to wildlife because of their ability to serve as attractive

nuisances. Many animals, especially birds and amphibians, are

drawn to these sites to feed and reproduce and as a result suffer

exposure to trace elements and experience adverse health

effects.21 Fifth, the possibility of structural failure has not been

given adequate consideration as a serious drawback of surface

impoundments. For example, in the supporting material for its

proposed rule, EPA states that “The more recently documented

damage cases provide evidence that current management

practices can pose additional risks that EPA had not previously

studied, that is, from catastrophic releases due to the structural

failure of CCR surface impoundments”.

11 Sixth, a major flaw in

the RCRA Subtitle D and D “Prime” options is that

enforcement actions for violations would be possible only

through citizen lawsuits; neither state nor federal government

would be authorized to take direct regulatory action. RCRA

Subtitle C regulation, however, would eliminate surface

impoundments and authorize federal oversight to ensure that

stringent national guidelines for landfill disposal of CCW were

followed uniformly at the state level.1,11 Seventh, and perhaps

most importantly, current state-administered regulatory controls are ineffective in preventing discharge of toxic CCW

effluent to surface waters. For example, NPDES, a federal-state

regulatory mechanism for controlling point-source pollution,

has been in place since the enactment of the federal Clean

Water Act in 1972.22 NPDES is the principal tool that states

use to limit toxic industrial discharges.23 However, it did not

identify or correct any of the twelve surface impoundment

regulated-release CCW damage cases reviewed in this report.

This is because of lack of federal oversight combined with

inadequate monitoring, risk assessment, and enforcement at the

state level. EPA recognized these deficiencies in a recent study

of steam-electric plant discharges24 which concluded that:

“Despite current regulatory controls and wastewater treatment methods, pollutants from power plant wastewater still

make their way into the environment. Many of these

pollutants, such as selenium, arsenic, mercury, total dissolved

solids, and nutrients, have an impact on wildlife. The

primary routes by which coal combustion wastewater

impacts the environment are through discharges to surface

waters, leaching to ground water, and by surface impoundments and constructed wetlands acting as attractive

nuisances that increase wildlife exposure to the pollutants

contained in the systems. EPA found the interaction of coal

combustion wastewaters with the environment has caused a

wide range of environmental effects to aquatic life.”

The flawed NPDES regulatory system would not change if

RCRA Subtitle D or D “Prime” were put in place.1,11 The

ecological need for this change has been expressed over and

over in the form of toxicity to wildlife for the past 45 years, yet

the system remains ineffective. For example, as of October 11,

2010, the new NPDES permit for the Kingston Fossil Plant

(see SI, Case 22) did not contain effluent limits for 16 primary

toxic elements, including arsenic, mercury, and selenium,25

despite prior, persistent toxicity of discharges to fish and

invertebrates in addition to the catastrophic ash spill that

occurred in 2008. The NPDES permit for the period 2004−

200826 stated that

“The discharge from Outfall 002 may contain several

different pollutants, the combined effect of which has a

reasonable potential to be detrimental to fish and aquatic

life”...“As presented with the TVA’s permit application, fish

survival [1999−2003] has been problematic in Outfall 002

and the Emory and/or Clinch River”.

The permit was renewed in 2009, following the ash spill,

without modification or establishment of discharge limits for

the 16 primary toxic elements.

■ CONCLUSIONS

A large body of scientific evidence from confirmed damage

cases indicates that wet disposal of CCW is not environmentally or economically prudent. EPA’s regulatory proposal

for CCW under RCRA Subtitles D and D “Prime”, which

would allow continued use of surface impoundments, is

inappropriate with respect to fish and wildlife health. Moreover,

going all the way back to the Belews Lake era of the 1970s, the

corrective action at problematic surface sites has been to switch

to landfill disposal.27 In the wake of the catastrophic dam failure

at Kingston, TN, the TVA has now decided to phase out all wet

basins and use landfills as well.28 This is an excellent example of

the proactive measures that are needed in the post-Kingston

era. Surface impoundment of CCW unnecessarily jeopardizes

fish and wildlife populations, causes significant long-term

environmental damage, and results in high economic costs

that could be avoided or minimized if other disposal practices

were used. The electric utility industry vigorously opposes

RCRA Subtitle C regulation and it has enjoyed an open voice at

the negotiating table, meeting with OMB some 20 times even

before EPA issued its proposed rule.2 Utility’s opposition is

founded in the contention that it would be unduly burdensome

(costly) to the industry. Our commentary is a voice for fish and

wildlife in the debate. We maintain that ignoring the past 45

years of wildlife poisoning and allowing it to continue is even

more “unduly burdensome” to the environment and also

unethical. The benefit value of avoided ecological damage is a

significant cost savings that has not been included in the

Environmental Science & Technology Policy Analysis

D dx.doi.org/10.1021/es301467q | Environ. Sci. Technol. XXXX, XXX, XXX−XXX
discussion, but should be. Much of industry’s regulatory

“burden” cost claims are more than offset by prevented

ecological damage and associated monetary losses. Regulators

should no longer ignore rigorous science and the lessons from

multiple case examples. EPA, OMB, and the United States need

to show leadership on this issue by prohibiting surface

impoundments, particularly since the rise in coal use in

developing countries is leading to the same CCW pollution

problems on a global scale.29−31

■ ASSOCIATED CONTENT

*S Supporting Information

Our comprehensive cost analysis of all 22 environmental

damage cases, which formed the underlying technical basis for

this report. This material is available free of charge via the

Internet at http://pubs.acs.org.

■ AUTHOR INFORMATION

Corresponding Author

*E-mail: dlemly@fs.fed.us; phone: 336-758-4532.

Notes

The authors declare no competing financial interest.

■ ACKNOWLEDGMENTS

The conclusions and recommendations in this report are those

of the authors and do not constitute or imply an official policy

position by the United States Forest Service or the United

States Fish and Wildlife Service.

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(31) Ailun, Y.; Kang, R.; Xingmin, Z.; H, Xu; Hanhua, Z.; Miaohan,

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■ EDITOR'S NOTE

Hard copies of documents from outdated Weblinks in the

reference list are available from the corresponding author upon

request.

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