'DUMPSITES IN DISGUISE'

Coal ash isn't just dumped; it's increasingly being recycled into building materials and other uses. But in states like North Carolina, the failure to adequately regulate one so-called "beneficial use" of the toxic-filled waste is putting communities at risk.

A special Facing South investigation by Sue Sturgis

After coal is burned at power plants, leaving massive heaps of ash, not all of the waste ends up in landfills and impoundments like the one that failed catastrophically in east Tennessee in December 2008.

A growing share of the nation's coal ash is being reused and recycled, finding its way into building materials, publicly used land and even farmland growing food crops. And despite the presence of toxins like arsenic, chromium and lead found in coal ash, these reuses go largely unregulated by state and federal officials.

The latest report from the American Coal Ash Association, the industry group representing major coal ash producers, found that of the more than 136 million tons of coal ash produced in 2008, about 44 percent -- 60 million tons -- was reused. Some of the reuses for coal ash, such as recycling it into concrete, are not very controversial even among environmental advocates, since they're believed to lock in toxic contaminants.

But there are growing concerns about other reuses of coal ash. For example, the recent revelation that Chinese-manufactured drywall made with coal ash was releasing noxious chemicals inside people's homes spurred a CBS investigation that also found problems with U.S.-made drywall products. The discovery led the Consumer Product Safety Commission to call for a closer look at drywall products made with coal ash.

Another popular destination for coal ash that is raising concern is its use as a substitute for fill dirt in construction projects. Because this reuse can put coal ash directly in contact with groundwater, environmental and public health advocates fear serious contamination problems. Right now, the Environmental Protection Agency is mulling new rules for the use of coal ash, including whether it should strictly regulate ash used in fills or simply put forward guidelines and leave oversight up to the states.

As federal officials consider how to regulate reuse of coal ash, North Carolina's experience in overseeing structural fills provides a case study with valuable lessons for the entire country.

North Carolina: A case study in neglect?

North Carolina has long been a leader in promoting the use of coal ash as structural fill. Heavily dependent on coal, with 60 percent of its electricity generated by coal-fired plants, the state has a glut of ash to contend with -- and has been encouraging utilities to use it as fill for more than 20 years.

"It is encouraging to see the commitment being made to develop reuse applications for the coal ash as opposed to the continued use of county landfills," stated a 1989 letter from North Carolina's solid waste chief to ReUse Technology. The Georgia-based firm is a wholly owned subsidiary of Charlotte-based Cogentrix, which in turn is a wholly owned subsidiary of The Goldman Sachs Group and operates a number of small coal-fired power plants in the eastern U.S. Prior to Goldman Sachs' purchase of Cogentrix in 2003, ReUse transferred its ash removal operations and other assets to a separate firm called Full Circle Solutions.*

The letter continued, "The Solid Waste Management Section has and will continue to support the reuse and recycling of waste materials when performed in a manner consistent with the environment."

But the use of coal ash as fill has not always been done in a manner "consistent with the environment." Even though North Carolina began overseeing coal ash fills in 1994 after groundwater contamination was found at one fill site, state records and independent research show that the rules -- which were cooperatively written by utilities and state regulators -- have failed to prevent coal ash fills from damaging the environment and threatening public health.

Facing South examined records from the state Division of Waste Management, which oversees the use of dry coal ash as fill, and the Division of Water Quality, which is responsible for fills that use wet coal ash from impoundments like the one that failed at the Tennessee Valley Authority's Kingston plant. We also considered the findings of a recent report from the Sierra Club's North Carolina chapter titled "Unlined Landfills? The Story of Coal Ash Waste in Our Backyard."

The public record shows that dry coal ash was used as a substitute for fill dirt at more than 70 locations across North Carolina from the late 1980s through 2009 (click here for a spreadsheet with details about the locations). Sites sitting on top of coal ash fills include airports, roads, industrial parks, shopping centers, office buildings, a municipal gym, a church, a science center at Duke University, a rifle range at a Marine base, and livestock pens at a commercial hog farm.

Unlike new surface impoundments where coal ash is dumped in North Carolina, which now must be lined under state law, liners are not mandated for even the largest fill sites. As a result, coal ash has contaminated groundwater or surface water in at least three structural fill sites across the state:

* At the Alamac Road site in Robeson County, N.C., about 45,000 tons of coal ash from small power plants owned by Cogentrix were used as structural fill on 12.8 acres of land. ReUse began placing ash at the site in 1992 without proper state authorization, and state tests of groundwater near the site found levels of contaminants exceeding state groundwater standards. In 1993, the North Carolina Division of Solid Waste Management issued a notice of violation, stating that tests showed "levels of arsenic, cadmium, chromium, lead, selenium, sulfate and total dissolved solids" exceeding safety standards -- and that some of the contaminated samples came from a monitoring site near a private residence thought to have a drinking water well.

In response, ReUse removed the coal ash from the site in 1995 with plans to use it elsewhere, including at an agricultural demonstration project testing the ability of coal ash to enhance crop yields -- an increasingly common way for coal ash to be reused, especially in the Southeast and Midwest.

The EPA's new proposals for coal ash regulation don't address the agricultural use of coal ash, but the agency and the U.S. Department of Agriculture are currently studying such uses and are scheduled to release a report of their findings in 2012.

* At the Swift Creek site in Nash County, N.C., ReUse placed coal ash from Cogentrix plants as fill on a property along Highway 301 beginning in 1994. Two years later, the company got special permission from the Division of Waste Management to also use ash from a facility burning a mix of coal and shredded tires, which contain arsenic and other toxic substances.

A 2004 letter from the state agency to Full Circle Solutions reported that state tests of groundwater samples taken near the site found arsenic at almost three times the state standard for groundwater and lead at more than four times the standard. The letter stated, "The detection of contamination beyond the boundary of the fill shows that constituents from the [coal ash] are migrating."

* Though our own review of the division's files did not turn up any mention of violations at the location, Sierra Club found records showing that state environmental inspectors discovered high levels of arsenic, iron and selenium in wetlands at the Arthurs Creek coal ash fill site in Northampton County in 2009. Since 2004, the 21-acre site has been the dumping ground for ash from Kentucky-based energy giant E.ON's Roanoke Valley Energy plant near Weldon, N.C. There are plans to eventually build office buildings and a parking lot atop the fill.

The problem of groundwater contamination at structural fill sites across North Carolina may be even more widespread, because state law does not require groundwater monitoring at such sites -- or even require regular inspections. Most of the problems that have been found to date were discovered following complaints from nearby residents.

The areas of North Carolina contaminated by coal ash fills are notable for being poor and having large African-American, Latino and Native American populations.

While the statewide poverty rate is 14.6 percent, the poverty rates for the counties with known damage cases from coal ash fills are much higher -- 15.5 percent in Nash County, 26.6 percent in Northampton, and 30.4 percent in Robeson, according to Census Bureau data. Those counties' non-white populations are also greater than the state's 26.1 percent, at 39.4 percent in Nash, 59.4 percent in Northampton and 64.2 percent in Robeson.

Building a community on coal ash

Water contamination is not the only problem that's occurred at structural fill sites across North Carolina. At some of the sites, work occurred without the required notification of state regulators. At others, the companies improperly excavated the sites before placing the ash, increasing the risk that the coal ash would come in contact with groundwater. And in some instances, coal ash generators may have made ash available for use as fill that shouldn't have been allowed because it contained excessive levels of contaminants.

For example, state Division of Water Quality records show that Progress Energy distributed ash for fill use that exceeded limits for arsenic. "Based on your 2007 annual report, 14,025 tons of ash was distributed in December of 2007 in which the arsenic concentrations of all three samples exceeded the ceiling and monthly average concentration," according to a March 2009 letter from the agency to the company. "Based on the 2008 annual report, five out of the 12 ash samples exceeded the ceiling concentration."

Progress Energy's permit allows coal ash with arsenic concentrations exceeding those limits to be distributed for fill as long as it will be overlain by impervious surfaces like pavement so rainwater can't penetrate and leach out contaminants. But the division was apparently not sure that was the case: It asked the company for a site plan showing where the ash was used, but no plan was included in the files.

Furthermore, some coal ash fill sites in North Carolina had problems with erosion that left the toxic waste exposed -- posing a direct threat to local residents.

Among those was the Fountain Industrial Park site near the city of Rocky Mount in Edgecombe County, N.C. In 1989, ReUse Technology in cooperation with the Edgecombe County Development Corp. began placing at the site ash from various Cogentrix plants as well as from the coal-fired cogeneration facility at the University of North Carolina at Chapel Hill.

Following Hurricane Floyd in 1999, the industrial park was turned into a trailer park for about 370 eastern North Carolina families displaced by the disaster. Many of the residents were from Princeville, a historic African-American community that was devastated by flooding from the storm. By that time the soil covering the fill had eroded, leaving ash exposed.

Employees of a nearby correctional facility, who for years had watched industrial-sized trucks dumping large quantities of unknown materials at the site, began asking if this was a good place to locate a trailer park. They brought their concerns to the attention of Saladin Muhammad with the group Black Workers for Justice, who was working with trailer park residents. He in turn discussed the situation with graduate students at the University of North Carolina's School of Public Health, and one of them -- Aaron Pulver -- investigated the situation for his master's paper.

Pulver's experience in trying to track down the history of the site shows how difficult it can be under the current regulatory environment for the public to get information about the use of coal ash for structural fill.

While the Edgecombe County development officer told Pulver a study of the land had been done prior to construction of the trailer park, she refused to release it to him -- as did the director of the N.C. Office of Temporary Housing.

When Pulver finally managed to get a copy of the report, he discovered there had actually been no thorough testing of the site for possible health impacts before the placement of the trailers. His adviser, UNC epidemiology professor Dr. Steve Wing, raised concerns about inhalation of the coal ash dust and children ingesting it while playing in the dirt.

In response to mounting worries about the site's safety, epidemiologists with the state health department collected samples from the trailer park for testing, comparing the results to EPA's standards for potential health effects. One of the samples exceeded those standards for two contaminants, with arsenic at 25 milligrams per kilogram compared to a recommended level of 22, and chromium at 31 mg/kg compared to the standard of 30.

However, a press release put out by the N.C. Department of Health and Human Services -- under the headline "SOIL TESTS FIND NO PROBLEMS AT FOUNTAIN TRAILER PARK" -- said only that the soil samples "showed no significant risk" for the residents. It did not mention the elevated arsenic and chromium levels.

'We've been unable to bring attention to this'

The problems that have occurred at coal ash structural fill sites across North Carolina highlight the difficulty states face in overseeing ash placement programs in the absence of federal regulations.

Under North Carolina's rules, companies placing dry coal ash as fill are supposed to record its presence on the property deed -- a provision fought by Duke Energy, which along with Progress Energy is one of the state's two big investor-owned utilities and a major producer of coal ash.

However, the Sierra Club found that only 56 percent of the closed structural fill sites that held 1,000 cubic yards or more of coal ash had complied with the deed-recording requirement.

State officials aren't required to do their own tests of coal ash fill to see if it has potentially dangerous levels of arsenic of other contaminants -- that's left up to the companies, and there's no rule to check the accuracy of what the companies report. No advance permits are required for fills, even for the largest sites. And while the state can comment on a company's coal ash fill plans, it does not have the power to deny them.

Following the Kingston disaster in Tennessee in 2008, state Rep. Pricey Harrison (D-Guilford) tried to change the way coal ash is regulated in North Carolina, including its use in structural fills. In 2009, she introduced a bill that would have created a permitting system for coal ash fills -- but the final version of the legislation that passed the General Assembly and was signed into law by Gov. Beverly Perdue (D) had the structural fill provision stripped out.

Instead, the measure simply subjected the state's massive coal ash impoundments to dam safety rules, an approach aimed at preventing catastrophes like Kingston but that does nothing to protect against potentially more insidious environmental contamination from ash fills.

But even that basic safeguard was difficult to win at the state capitol, with the politically powerful utility companies and electric cooperatives working against it. "They fought every aspect of the bill tooth and nail," Harrison said. "They lobbied hard against even a hearing."

This week Harrison introduced another bill to better regulate structural fill sites in North Carolina. And as co-chair of the state Environmental Review Commission and House Environment Committee, she is also planning on holding hearings on coal ash next month.

Meanwhile, spurred by the Kingston coal ash disaster in Tennessee, North Carolina regulators have stepped up their inspections of structural fill sites. In 2009, they visited 48 sites -- and found violations at 28 of them, ranging from water contamination to a lack of cover that could stop coal ash from escaping fill sites.

But the regulators themselves acknowledge that more must be done.

"We've been unable to bring the attention to this that we feel it needs," said Paul Crissman, chief of the Division of Waste Management's Solid Waste Section, which oversees dry coal ash fills.

Since the recession-triggered state budget crisis began in 2008, Crissman's staff has declined from 54 to 49 people, while the workload has increased. He does not expect that situation to change any time soon, with state lawmakers facing a $1 billion budget gap.

"We've got more work to do in a day than workers to put at it," Crissman added.

While North Carolina's regulatory approach to coal ash fill has proven inadequate for ensuring against environmental damages, the administration of Gov. Perdue does not support strict federal regulation of coal ash as hazardous waste. In fact, her departments of Transportation and Commerce are both on record opposing that regulatory approach. The state's  Utility Commission and the commission's Public Staff also oppose strict regulation, citing cost concerns.

What next from Washington?

The lack of strong state rules for using coal ash as structural fill in places like North Carolina has caused community health and environmental advocates to rest their hopes for protective standards on Washington.

The EPA's much-anticipated new proposals for regulating coal ash released earlier this month allow for the continued recycling and reuse of coal ash. However, they draw a distinction between turning the waste into manufactured products, which would not be regulated under the proposals, and the reuse of coal ash in large fills, which as the EPA notes pose "an array of environmental issues" and would be regulated as a type of land disposal.

How the EPA will address the issue won't become clear until after the comment period for the proposed rules end and final regulations are announced. The agency has not announced any time line for that.

In the meantime, patchwork and scatter-shot state regulations like those in North Carolina continue to carry the day -- a situation that environmental advocates say amounts to allowing utilities to push their ash waste problems onto the public in dangerous ways.

"Because this 'reuse' is subject to little or no regulation in many states," contend the watchdog groups Earthjustice and the Environmental Integrity Project, "some structural fills may be little more than dumpsites in disguise."

* CORRECTION: This paragraph has been changed since the story was first published in order to clarify the relationship between Goldman Sachs and Full Circle Solutions. A related change was made in the second section's 12th paragraph.

TOMORROW: What's next for coal ash? Our week-long investigative series wraps with a look at the future of the nation's growing coal ash problem and the movement for change in North Carolina and beyond.

Like our reporting? Please consider making a contribution to the Institute Investigative Fund. Thank you!