EPA Issues Information Request Letters to Electric Utilities

            On March 9, 2009, EPA issued Information Request Letters to electric utilities that have surface impoundments or similar units that contain coal combustion residuals.  EPA estimates there may be as many as 300 such units.  These information requests are issued under the authority of Section 104(e) of the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”), 42 U.S.C. 9604(e).  The statute provides that whenever the Agency has reason to believe that there may be a release or a threat of release of a pollutant or contaminant, it may require any person who has or may have information to furnish information or documents relating to the matter, including the identification, nature, and quantity of materials which have been or are generated, treated, stored or disposed at the facility and the nature or extent of a release or a threatened release.  The requests must be fully responded to within ten days of receipt.

 

            The letters request information to assist EPA in evaluating the structural integrity of these management units.  The letters request information such as:

 

• the potential hazard rating for each unit, who established the rating, the basis for the rating, and the federal or state agency responsible for regulating the unit;
• the year each unit was commissioned and expanded;
• what materials are contained in the unit;
• whether a Professional Engineer is or was involved in the design, construction, or safety monitoring of the unit;
• information regarding company initiated safety inspections of the units;
• information regarding state or federal agency initiated safety inspections of the units;
• known safety issues regarding the units;
• the surface area and total storage capacity of the units;
• a brief history of known spills from the units; and
• the identity of the current legal owners and operators of the units. 

            EPA, working closely with other federal agencies and the states, will review the information provided by the facilities to identify impoundments or similar units that need priority attention.  As part of this assessment effort, EPA will also be visiting many of these facilities to see first hand that the management units are structurally sound.  EPA will require appropriate remedial action at any facility that is found to pose a risk for potential failure. 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.

 

            The letters are a response to last year’s massive coal ash spill at a Tennessee Valley Authority facility in Kingston, Tennessee.  The December 2008 release of 1.1 billion gallons of coal ash from TVA's Kingston, Tennessee facility flooded more than 300 acres of land, damaging homes and property.  Coal ash from the release flowed into the Emory and Clinch rivers, filling large areas of the rivers and killing fish.  TVA cost estimates for the clean-up range between $525 million and $825 million, which does not include long-term cleanup costs.

 

This article was co-authored by Kevin McGuire and Mary Beth Naumann, Jackson Kelly PLLC. For more information on the authors see (McGuire) here and (Naumann) here.