The ash, leftover from the coal-burning process, contains low concentrations of arsenic, boron, cadmium, chromium, lead, mercury and other metals, according to the EPA.
The EPA has said it would pick one of two options. One proposal would classify coal ash as hazardous waste, bringing it under direct federal enforcement. But the agency could also choose a second option, favored by the coal industry and electric utilities, classifying the ash as non-hazardous and leaving regulation of the substance to the states.
The suit says most of the nation's coal ash is currently stored in unlined or inadequately lined ponds, landfills, structural fills or mines.
Some companies use the ash as filler or in building materials such as drywall and concrete. They argue that a hazardous classification would harm sales since consumers would shy away from the products. Coal ash recycler Headwaters Resources in Utah says using coal ash in construction products keeps it out of landfills. Like the environmental groups, Headwaters also sued the EPA this month, urging more speed in the decision-making process.
Ward said the pro-coal ash industries want the EPA to move faster because the uncertainty is hurting the recycling market, as businesses are afraid to make future plans and customers are worried that a hazardous designation from the EPA could lead to potential liability problems.
More than 500 property owners in Tennessee whose land was damaged by the 2008 coal ash spill are suing the TVA, but they need a federal judge to declare the utility is liable for damages. The TVA has argued in court that the spill at its Kingston plant wasn't caused by negligence but a deep foundation failure. The utility has dredged more than 3.5 million cubic yards of coal ash from the Emory River and has spent $46 million in buying up some 900 acres near the plant from about 150 owners.
At the EPA's public hearings in 2010, hundreds of residents, business people, lobbyists and activists gave federal authorities a range of opinions on what should be done. A New Mexico rancher said the ash is killing his sheep, while numerous industry supporters, including Ward and the American Coal Ash Association, argued that the substance is not harmful. A tribe of southeastern Nevada Indians said birds on their land are being poisoned by water in coal ash ponds.
"We once hunted geese and ducks on our land, but no longer," said William Anderson, chairman of the Moapa Band of Paiutes. The tribe is also a party in the federal lawsuit against EPA.
Smith said he fears the Obama administration, facing an election year, may have decided to wait on new regulations.
"My view is EPA has made a political judgment on which regulations they want to keep on track and which ones they're going to kick down the road until they see a better moment," Smith said.
For Kathy Little and others living near the towering ash heap in Louisville, it's vexing to wait in seeming limbo.
The power plant near Little's home in Louisville is scheduled to stop burning coal in 2016, but she said she doesn't know what will happen to the giant ash pile.
She said before the Tennessee spill, she never worried about it "because I thought the government was taking care of me. I thought I was safe," Little said.
She paused and added: "How stupid was I?"
Follow Dylan Lovan on Twitter at www.twitter.com/dylanlovan
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