Virginia looks to toughen laws for use of fly ash

CHESAPEAKE

Regulations that allowed the sculpting of a Chesapeake golf course with more than a million tons of fly ash are about to be reopened and possibly tightened to better protect the environment.

Early this month, Virginia regulators took the first step toward amending a set of rules governing fly ash and other "coal-combustion byproducts" generated by the burning of coal for electricity.

Fly ash contains arsenic, lead and other contaminants that can pose threats to the environment through air and water.

Proposed changes include tougher enforcement of provisions intended to keep contaminants from leaching into ground water.

Nearly nine months ago, The Virginian-Pilot reported that 1.5 million tons of fly ash from Dominion Virginia Power's Chesapeake Energy Center had been used to build Battlefield Golf Club at Centerville, an 18-hole course close to about 200 potable wells. What regulatory modifications may come, however, and when they would actually take effect, are unclear.

"It's usually 18 months, that's about the average," said Leslie Beckwith, in the Department of Environmental Quality's Richmond office, concerning how long it takes for state environmental regulations to be worked on and amended.

A notice has been posted on a state Web site seeking volunteers to serve on a new advisory panel that would work with DEQ officials on any changes. Visit tinyurl.com/9er2jp to access the page.

While changes could come faster if new laws were enacted by the General Assembly, two Chesapeake legislators said they lean in the direction of letting the DEQ's process play out.

"One of the worst things we can do is to jump in and put in a piece of legislation that would do more harm than good," said Del. John Cosgrove.

He added, however, that if the right bill were to come before legislators, he'd back it.

Like Cosgrove, Sen. Harry Blevins said he would prefer to wait for more analysis from experts before drafting legislation.

"We can't undo what's done," he said.

What's necessary now is to get people who have the required expertise to ensure the regulations are clear and that situations such as the one involving the golf course don't happen again, Blevins said.

"I agree that ought to take place before we craft any law," he said.

Cosgrove said he doubted that the DEQ would sign off on any new fly-ash developments in the short term.

"I think they'll get a lot of pressure from members of the General Assembly if they were to approve a fly-ash project that were not a road-bed project," he said.

The regulations about to be re-examined have provided the legal basis for 14 fly-ash projects since taking effect in early 1995, including Battlefield Golf Club at Centerville.

The vast majority of the "beneficial-use" fly-ash projects around the state, typically involving road work or building-construction sites, are not tracked by the DEQ but are permitted through another set of state regulations.

Following two meetings in the summer by a panel convened to weigh whether changes to the state's "coal-combustion byproducts" regulations are needed, the DEQ decided to keep the two sets of fly-ash rules separate.

In the mid-1990s, W. Lee Daniels, a professor at Virginia Tech and a fly-ash authority, served on the state committee that crafted the stand alone fly-ash regulations.

Daniels, who has volunteered to serve on the panel now being organized, said he believes that overlapping provisions in the two sets of state rules governing the beneficial use of fly ash are certain to be addressed.

"I think DEQ clearly understands how concerned the public is," he said. "They want to make sure, internally, that there's some margin of safety."

Panels such as the one being formed are purely consultative, and any of their findings would not be binding on the DEQ.

Because the DEQ seeks people knowledgeable about the matters to be discussed, the panels are usually well-represented by the industries that would be affected by the final decisions.

In June, at the first of two meetings of a "technical review committee" considering possible fly-ash rule changes, there was only one environmental advocate among the 11 panel members present. Another had been invited but was not able to attend.

The DEQ does not cover participants' expenses.

"Costs incurred for travel, meals and any lodging by participants on advisory panels are generally covered by the organizations that they represent, not DEQ," Beckwith said.

The U.S. Environmental Protection Agency, which has twice determined that fly ash does not warrant classification as a hazardous waste, has been studying the potential effects of the substance on human health and the environment for years.

In a hearing before the U.S. House Subcommittee on Energy and Mineral Resources in June, several experts called for the EPA to create a federal baseline for fly-ash disposal that would guide state environmental regulators.

Nothing has changed since then.

"On the federal level, there has been no movement," said Lisa Evans, a former EPA attorney who works with Earthjustice, an environmental law firm.

"Since the June hearing, not a word has come out of EPA. It is our hope that the new administration will look at the facts, the damage, and the grave risk to human health and the environment and promulgate federal standards. We hope this fix is high on their agenda."

Dominion and the developers said the fly ash used on the golf course was mixed with a binding agent to inhibit leaching.

During the summer, city officials announced that high levels of arsenic, lead and other contaminants had been found in groundwater under the golf course, which opened a little more than a year ago.

At the city's request, EPA intervened and conducted tests of the golf course and nearby wells.

A report is expected to be released soon.

Daniels, the Virginia Tech fly-ash expert, said if he serves on the new DEQ panel, his top priority will be to ensure the enforcement of rules that keep ash away from water, whether from groundwater below or rain draining from above.

"That's my bottom line," he said. "If water gets to it, something is going to leach."

Robert McCabe, (757) 222-5217, robert.mccabe@pilotonline.com