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Steven Fox of Chesapeake, Va. says the first he heard of a coal ash dump site near his home was when he read a local newspaper story about how the material was used as structural fill for a newly-built golf course.

“We woke up one day and it was a front page newspaper article. ‘Is it a golf course or is it a toxic dump?’ Then when we started reading it we knew what it was. It was a toxic dump.” Fox said. Developers used 1.5 million tons of coal ash to build a golf course that nearby residents fear is contaminating their drinking water. Coal ash — which contains heavy metals such as lead, mercury, cadmium and arsenic — is the waste byproduct from coal-fired electricity plants.

Fox was among scores of citizens who streamed into a hotel ballroom in suburban Washington, D.C. on Monday to urge the U.S. Environmental Protection Agency to classify coal ash as hazardous waste.

The lack of federal oversight of coal ash disposal was the subject of a 2009 Center for Public Integrity investigation, which found that the material posed environmental and health risks. A devastating coal-ash spill in Tennessee in December 2008 prompted the EPA to consider national regulations for coal ash management.

EPA mulls two regulatory options

The EPA’s 12-hour public hearing was the first in a series around the country to gauge public opinion about the agency’s two proposals for managing coal ash waste. The toughest approach being considered by the EPA — dubbed Option C after a section of dense regulatory language — would declare coal ash hazardous and give the agency enforcement power. The weaker alternative — Option D — would not declare the waste material hazardous and simply offer disposal guidelines for state regulators or citizens to try and enforce through lawsuits.

Fox and his wife, Karen, say the EPA’s decision should be easy to make.

Fox is suffering from stage three cancer. His wife has lupus. Both believe their illnesses are linked to the golf course, which is near the house they purchased in 2002. After addressing the EPA hearing, Fox told the Center that the fly ash used to contour the golf course came from Dominion Resources Inc., and the particles made their way into his home and yard. A mound of coal ash at the golf course was exposed to wind and rain. Their water began smelling foul.

“It went from typical well water that had a little bit of sulfur smell to water that had a smell that you can’t describe,” Fox said.

The couple is now part of a billion-dollar class action lawsuit of about 400 people suing Dominion Resources, the golf course, and a third party. “We’ve already lost everything. So success to us would be them [EPA] changing the guidelines,” Karen Fox told the Center. “This never should have happened.”

EPA’s proposed coal ash regulation has triggered a well-organized battle. Many environmental activists and affected citizens are adamant that classifying coal ash as hazardous waste is the only way to go to protect the public health. On the other side are businesses that recycle coal ash and sell it to companies making products such as drywall and concrete. They believe the “hazardous” label would create a stigma that would cripple their industry. That view is shared by utility companies that use coal as an energy source.

At the Washington hearing, EPA officials gave no indication of whether the agency preferred one option over the other. The agency recently extended by two month, to Nov. 19, the deadline for public comments on its two proposed regulatory options.

Power Plants, Recyclers Prefer Less-Strict Option

Utilities Solid Waste Activity Group, an association of more than 100 electric utilities, told the EPA that it favors Option D instead of the stricter designation of coal ash as hazardous waste. “The question for us is not whether to regulate, but how to regulate,” said Pamela Faggert, a representative of the group and the chief environmental officer at Dominion Resources. The Richmond-based utility is the same company the Fox family blames for the coal ash they say made them sick.

Faggert said that if EPA decides to declare coal ash a hazardous waste, the government action would hurt the coal ash recycling industry, add more costs to power plants, put jobs at risk, and hit consumers with higher electricity bills.

The utility group and other industry executives at the EPA hearing emphasized the economic impact of regulation, steering clear of any health problems tied to coal ash.

The coal ash recycling industry told the EPA it also supports the less-stringent Option D, which would offer guidelines to states but stop short of labeling coal ash “hazardous.”

“Yes, we need to come up with stronger, tougher disposal regulations, but we can’t do that by calling it hazardous waste because we’re going to destroy the recycling opportunities,” said John Ward, chairman of Citizens for Recycling First. The group, created in February, has about 1,500 members from recycling businesses and coal-fired plants which believe the best way to solve the coal ash disposal problem is to recycle it, not throw it away.

”Nobody wants something that’s called hazardous waste to be in their home or be in their school,” Ward said.

Lawmaker, Consumer Groups Urge Tough Approach

A state lawmaker from Massachusetts, Rep. Lori Ehrlic, told the EPA hearing that the federal government — not individual states — must mandate proper disposal of coal ash.

“I am begging EPA steps up and does this because it is so hard on the state level to find the political will,” Ehrlic said. “We have tried on the state level and have not been able to do it yet.” Ehrlic, a Democrat from north of Boston, said she became concerned about coal ash disposal because power plant waste was dumped near a lake that was a source of drinking water in her community.

A consumer group, the Maryland Commission on Environmental Justice and Sustainable Communities, told the EPA hearing that for too long the disposal of coal ash has “been like the wild, wild, west” without any policing. Vernice Miller Travis, vice chair of the commission which makes recommendations on environmental protection issues, said coal ash must be treated as a hazardous waste material and not dumped in areas where it can affect public health.

“Most of the people who produce it, who transport it, who recycle it, they don’t live near it. If it was such a beneficial product how come they don’t live near it?” Miller Travis said. “How come it’s not near the streams and lakes that they fish?”

Rebecca Kolberg, who lives near Maryland’s largest coal-fired power plant and downriver from a proposed coal ash dump site, urged EPA to mandate strict regulations to protect groundwater, surface water, and wetlands. Kolberg says what makes her angriest is the EPA’s failure to hold any of its seven public hearings in Tennessee, the site of the coal ash spill that catalyzed the agency’s action. Nearly 1.1 billion gallons of coal ash waste burst out of a Tennessee Valley Authority containment area into surrounding farmland and rivers in an environmental disaster the TVA has estimated will cost at least $1.1 billion to clean up.

“Your decision is an insult to the people in the communities most devastated by ash disposal failures and flies in the face of environmental justice,” Kohlberg told the EPA panel.

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