Two Agencies Hide Neglect of Coal-Dam Safety with Secrecy

June 17, 2009

The Obama administration is hiding a list of communities that are in danger of having coal-ash ponds inundate them – hazards like pond failure at the Kingston Fossil Plant in Tennessee on December 22, 2008.

Senate Environment Committee Chair Barbara Boxer (D-CA) told reporters June 12, 2009, that she had a list of 44 coal-ash sites that EPA considered "high hazard," but had been warned by EPA not to release the list.
Those coal-ash impoundments are dangerous enough to threaten the lives and property of people nearby or downstream, yet no federal agency has warned those people of the threat they face.
A coal-ash pond is impossible to hide. There are several short lists of "suspects" that almost certainly include the 44 plants. One is the list of 162 plants with coal-ash ponds that got a March 9, 2009, information request letter from EPA.
Reporters in those localities can rather easily determine whether their local ash pond is on the list federal agencies say pose a threat.
The ostensible reason for secrecy on the list of 44 is "national security" – a claim which Boxer and other observers found no grounds for. Coal-ash ponds are not a target that would invite terrorists. The Kingston incident, bad as it was, caused no loss of life, fortunately.
A far more likely threat to those endangered communities than terrorists is a rainstorm or flood. And there are many other threats more likely than terrorists to cause failure of ash-pond containment: engineering errors, faulty maintenance, earthquakes, tree roots, and rodent burrows (which undermine or cause leaks in dams) among them.
The federal secrecy about ash-pond sites helps obscure several more root causes of the dangers posed to communities. Those include electric utility cost-cutting and neglect, and regulatory failures by both federal and state agencies. While it does nothing to protect the public from ash-pond containment failure, the secrecy does protect companies and agencies from accountability for not doing their jobs in protecting the public.
The government's refusal to warn vulnerable populations may actually worsen the mass casualties it claims to foresee – since people will be unprepared to evacuate in the event of an emergency.
While federal agencies are raising the specter of mass casualties to justify secrecy, American citizens have probably already been killed in significant numbers by coal-combustion wastes from ponds and elsewhere, according to a report by the EPA. Not by an inundation from dam failure – but by cancer and other diseases caused by the pollution of drinking water, soil, and air.
A report by the Environmental Integrity Project said its analysis of EPA data showed: "a disturbingly high cancer risk for up to one out of every 50 Americans living near wet ponds used to dispose of ash and scrubber sludge from coal-fired power plants across the United States."
With no possible national security concern at stake, that report, too, was kept secret by the Bush administration from the time it was finished in 2002 until its release by the Obama EPA in May 2009. All that was protected was the economic interests of the electric utility industry, a major financial sponsor of the Bush presidency... as well as the Clinton administration, which also minimized coal-ash risks.
"During the Bush Administration," EIP said, "the EPA made a concerted effort to delay the release of the information about cancer, non-cancer and general environmental risks. Partial disclosure of the coal ash dump site risks was delayed from 2002-2007, with the full picture not coming to light until an underlying 2002 EPA risk screening report was finally made public on March 4, 2009 – seven years after its internal EPA publication."
Responsibility for the new June 2009 secrecy bid is a bit hard to follow. Boxer said she could not release the information because EPA told her not to.
In a June 12 letter, Boxer said:
"I have also been informed that EPA, after consulting with the Army Corps of Engineers and the Department of Homeland Security, has indicated that they cannot make the list of 'high hazard' coal ash impoundment sites public, and that information regarding these sites can be shared only with Members of the Environment and Public Works Committee and the Committee's staff, and with other Members of Congress."
The information in question is not classified, and there is no legal basis for an executive branch agency ordering Congress not to disclose information in a case like this. Boxer indicated that her withholding of the information came solely out of caution and due diligence while she investigated whether there was any grounds for the secrecy.
A June 12 Associated Press story by Dina Cappiello cited a letter from Bush-era holdover Steven L. Stockton as the reason why EPA cautioned Boxer not to identify the endangered sites. Here's what Cappiello's story said:
"'We intended to release the information, but then we received this letter,' said an EPA official, who was not authorized to speak about the matter.
In a letter dated June 4, the Corps told the EPA and the Federal Emergency Management Agency that the federal government should not alert the public to the whereabouts of the sites.
'Uncontrolled or unrestricted release (of the information) may pose a security risk to projects or communities by increasing its attractiveness as a potential target,' Steven L. Stockton, the Army Corps' director of civil works, wrote in a letter obtained by The Associated Press."
Stockton, a professional engineer and a career civil servant, was appointed director of civil works in 2008.
Calls to the Corps of Engineers seeking the legal basis for the agency's effort to withhold the list of 44 sites were not returned in time for this story.
None of the known legal authorities for withholding such unclassified information applies to the list of 44. The "Critical Infrastructure Information" restrictions of the Homeland Security Act of 2002 only apply to information voluntarily supplied by companies; in this case, EPA compelled the companies to give the information. The Freedom of Information Act, which some might think could exempt the list of 44, does not apply to disclosures to or by Congress.
EPA Administrator Lisa P. Jackson, under questioning from Boxer at her confirmation hearing January 14, 2009, had promised to take swift and effective action to prevent future ash spills like the one at Kingston. And on March 9, EPA announced a series of measures intended to lead to regulation of coal-ash ponds by the end of 2009. EPA required utilities to submit information about the integrity and safety of coal-ash impoundment, and began a program of on-the-ground inspections.
Moreover, EPA promised in its March 9 press release: "The assessment and analysis of all such units located at electric utilities in the U.S. will be compiled in a report and made available to the public."
It is really not hard to find out whether there is a coal combustion waste (CCW) impoundment in your circulation area or broadcast market. The harder part will be determining whether it is or might be on EPA's list of 44 high-hazard facilities.
One starting point is a list published by Dina Cappiello of the Associated Press in January, based on an EIA catalogue of coal-burning power plants. The AP list is grouped by state, so you can quickly determine the coal ash impoundments in your state, whether they are dangerous or not. The list includes 721 ash ponds. This list and others are fully referenced under a separate heading below.
A next step might be to check which of the ash ponds in your state is on the list of 162 plants that got a March 9, 2009, information request letter from EPA. Those, presumably, are the ones EPA suspects of being most likely to pose a danger of containment failure. If your local facilities are on that list, you have narrowed the field considerably.
Before you go further, you might pause to understand a few key terms. The journalistic term "coal ash" is often a shorthand substitute for a larger array of coal combustion waste and byproducts – materials which industry may sometimes re-label and even sell for uses they consider beneficial. These materials include fly ash, bottom ash, boiler slag, scrubber sludge, and wastes from combustion of petroleum and other fuels – some or all of which may be commingled in pits and ponds. Government agencies and utilities often refer to this larger range of wastes as "Coal Combustion Wastes" (CCW).
It is also worth pausing to understand that a comparatively small fraction of all CCW is handled in ponds like the one at Tennessee's Kingston Plant. Most CCW goes into landfills, not ponds. And only a fraction of ponds are created by dams like the one at Kingston. A significant number of ponds are in below-grade excavations, or are partially below-grade and surrounded by a dike or berm – so the containment is not a "dam." All of these facilities may still pose some risk to people and the environment, including the risk of containment failure. As many of these CCW facilities are in flood plains, catastrophic flooding may be the problem most likely to cause the waste to move out of the containment. And the key risk in many cases may be pollution of ground and surface water, more than burial of houses in a catastrophic wave of sludge.
  • The National Inventory of Dams (NID) is a key source of data on dam safety – although holdover Bush-era policies are currently blacking out critical info on which dam-owners are threatening the lives of people downstream. Some CCW ponds will be found in the NID, but hardly all. If you have suspect CCW ponds in your area, it will be worth checking to see whether they are in the NID. If they are, you may be able to determine their "hazard" classification in the NID.
The NID "hazard" classification is worth knowing. A "high" hazard rating means the likely loss of at least one human life if the dam fails. A "significant" hazard rating means the possible loss of human life and likely significant property or environmental destruction if the dam fails. The hazard rating is not a reflection of the integrity or stability of the dam itself – but rather reflects the consequences of failure as a result of proximity to human populations. EPA's information request letter of March 9 to utilities specifically asks whether they meet NID hazard criteria. Any who qualify as "high" hazard may well be on the list of 44.
One way to hold dam-owners accountable is to join Investigative Reporters & Editors (IRE) and buy a copy of the old NID from the year 2002, which contains the hazard ratings. These have changed little since 2002, although the data would need to be checked before use.
The current, partly blocked, NID is available online to users willing to register. One way to find some of those it does contain is to search in your state for dams where the "Owner Type" field contains "Utility" or the "Primary Purpose" or "All Purposes" fields contain "debris" – or "tailings" if you are interested in coal-mining waste as well.
  • Whatever the federal secrecy issue, much of the information you want may be available from your state dam safety agency. Most of the dams by far in the U.S. are regulated and inspected by the states. The Association of State Dam Safety Officials is a good source,, 859-257-5140. They keep a list of contacts for the dam safety agencies in each of the states. Ask your state agency whether it inspects the CCW impoundments of concern to you, when the last inspection took place, and what the results were.
The answers may not be comforting. If the Corps' paranoia gives you the impression that government agencies are protecting the public -- think again. Reporter Ken Ward Jr. of the Charleston Gazette asked the Department of Environmental Protection in his state, West Virginia, how often it inspected coal-ash dams. The resulting headline: "W.Va. Coal-Ash Dams Seldom Inspected, DEP Says." Of the 16 coal-ash impoundments in West Virginia, most had gone more than 5 years without being inspected by the state, and some had gone without state inspection for 20 years. The DEP had trusted company engineers to inspect their own dams, even though state law makes the DEP responsible for their safety.
  • Ponds containing CCW usually need to have NPDES discharge permits under the Clean Water Act, which is another way to locate and get a handle on them. EPA maintains the PCS database, which has a wealth of info on the permitted facilities, although it is current only to 2006. This is one way to begin tracking the water pollution story if there is one.
You may do best with the custom query form. A good strategy is to search only in the state or states you are interested in. Remember your state may be affected by upstream sites. You will tend to find coal power plants under SIC codes 4911 (and to a lesser extent 4923, and 4939). Once you find the facility ID number, it may be easier to work with that in your searches. Under the "Output Selection" heading, choose "Permitted Discharges Information."
Once you find a permitted ash-pond facility, you may want to check EPA's ECHO database to see if they
have lived up to their permit conditions or faced enforcement action for violations. It may also tell you if your state environmental agency is doing inspections as it should.
  • There are numerous other lists of problem coal-ash ponds. You will find some of the shorter and more important ones under the heading "Databases and Lists" below. Check to see if any of the coal-ash ponds in your area are on these lists.
If you live in an area where there is mining activity, you may also want to do similar searches for sites with coal-mining wastes. The risk of dam failure and inundation may sometimes be worse with mine-tailings ponds than with combustion wastes.
  • Coal Combustion Products Partnership, "a cooperative effort between EPA and the American Coal Ash Association (ACAA), Utility Solid Waste Activities Group (USWAG), Department of Energy (DOE), Federal Highway Administration (FHWA), the Electric Power Research Institute (EPRI), and the United States Department of Agriculture Agricultural Research Service (USDA-ARS) to promote the beneficial use of coal combustion products." 
  • American Coal Ash Association,, 720-870-7897. Member list.