Nearly every day over the last 32 months, members of a citizens group in Giles County, Va., have paid a visit to a seven-acre stretch of land along the ancient New River, where a planned business park is now under construction. They’ve snapped photos and shot video of bulldozers unloading more than 100,000 cubic yards of “structural fill” into an unlined bed, raising the site’s height by 30 feet, making it level with a nearby highway.

“To put [the fill material] in the flood plain down by the river without a liner, to me, it’s almost criminal,” says Vernon Kelly, who heads the Concerned Citizens of Giles County.

All that fill is actually coal ash — the often toxic byproduct of coal-burning power plants, and the focus of a Center for Public Integrity investigation last year. But coal ash in this form — structural fill that is actually loose ash, packed tightly — is known as a “beneficial use,” and is subject to little regulation. In 2009, as much as 8.9 million tons of coal ash went for fill at construction sites and highway embankments across the nation.

In Virginia, where state environmental regulators have allowed coal ash to be used as structural fill since the 1990s, the material has turned up in all kinds of developments, from department stores to utility service centers. There’s even a golf course made from coal ash in Chesapeake, where residents have complained that the ash’s toxins are tainting their drinking water. In 2008, city officials tested the private wells around the golf course, and detected pollutant levels higher than permitted in the area’s water. Earlier this year, a U.S. Environmental Protection Agency investigation found “no current evidence” that the course’s coal ash is poisoning groundwater. But that hasn’t stopped residents from suing the ash-producing utility, Dominion Virginia Power.

Over in Giles County, the Appalachian Power Co., the utility supplying all the coal ash for the Cumberland Park Fly Ash Project, as it’s known, touts its benefits. According to Appalachian’s John Shepelwich, the property “would basically be inaccessible” without the ashen fill. Now, he argues, the site abuts the main highway, making it perfect for an office park, which will create new jobs and tax revenue for the county. The alternative would be trucking the coal ash to a landfill across the border, in West Virginia.

Some residents see things differently. To them, there’s little difference between dumping coal ash in ponds, landfills, and pits — where its heavy metals have often wreaked havoc on the environment and on human health — and dumping it as fill, on the flood plain of a historic river. Says Darlene Cunningham, of the 35-member concerned citizens group, “This is a dumpsite covered over with grass.”

The disagreements are reflected in deliberations over coal ash at the EPA. Now in the midst of a rulemaking on coal ash, the agency has proposed, in a 563-page draft plan, two options to regulate the material’s disposal. Under the toughest option, the agency would essentially classify coal ash as “hazardous,” triggering a series of strict controls for its dumping. The EPA’s second option would deem coal ash “non-hazardous,” and subject it to less stringent national standards that amount to guidelines for the states. At recent hearings on the proposal, EPA officials have hinted that certain structural fill operations, including “large-scale fill operations,” should not be exempted from federal oversight. Instead, the agency has said it would consider them a form of disposal, and subject to the relevant regulations.

Whatever the agency does in the coming months, it seems, will affect structural fill sites just like the Cumberland Park project.

A Beneficial Use?

Howard Spencer bristles at the idea that Cumberland Park amounts to a dump. The director of the Giles County Partnership for Excellence — the foundation that owns the site, and that has teamed with Appalachian Power to develop it — Spencer works as town administrator in Glen Lyn, where Appalachian’s plant has burned coal for decades. He says he broached the project with the utility after the town successfully developed a municipal site, in 1999, filled with 200,000 cubic yards of coal ash.

Spencer and Shepelwich, of Appalachian Power, point out that coal ash at Cumberland Park has been packed into an earthen berm, designed according to engineering standards. Vegetation covers the berm. And the engineers have supplemented the ashen fill with nearly an equal amount of dirt. Shepelwich calls the Cumberland Park project “an engineered landfill project”; to Spencer, it’s the antithesis of a “thrown-together” dump.

Since 2008, the utility has voluntarily tested the area’s groundwater for those telltale metals associated with coal ash — arsenic, cadmium, and selenium, for instance. According to a January 2009 report, provided by Appalachian Power, tests have shown no sign of contamination coming off the site.

“If it’s not suitable for placing in the ground,” Spencer argues, “why would we want to use it in wallboard, paint, concrete, and God only knows what else?”

It’s a sentiment echoed by electric utilities and their industry partners, which favor the EPA’s second option — regulation of coal ash as “non-hazardous.” Industry representatives stress the “stigma” of a hazardous label, and argue that such a label would jeopardize not just the beneficial use of structural fill, but the entire ash-recycling market. Jim Roewer, of the Utility Solid Waste Activities Group, the industry’s main lobbying group on this issue, says the EPA proposal proves particularly problematic for structural fill sites because it does not define what a large-scale fill operation actually means. “On its face,” he argues, “that’s patently unfair.” He wonders about similar “unrestricted” beneficial uses for coal ash — such as a road traction or a blasting agent — which could fall victim to the agency’s lack of a definition.

In a brief statement to PaperTrail, the EPA explained that fill projects, “such as restructuring the landscape,” would not constitute a beneficial use under its plan. The agency is weighing comments and holding judgment on other “un-encapsulated” uses, like road and agricultural applications.

Ultimately, if the agency implements its first option, as Roewer puts it, “EPA is imposing [the] most costly regulatory option it can.” He says the utility industry estimates it would have to incur costs of $55 to $75 billion more just to upgrade existing ash ponds and to handle the ash as hazardous waste. If those utilities cannot use coal ash for structural fill, Melissa McHenry, of American Electric Power, which owns Appalachian, says, “It will be costly for electricity consumers.”

Back in Giles County, residents are hoping that any EPA rule would be retroactively applied to structural fill sites, thus requiring liners at Cumberland Park. Such a prospect seems a long shot, since new regulation under federal waste laws does not typically affect existing sites. But there are so many such projects in so many states that, John Robertson, a Virginia lawyer who represents the Concerned Citizens points out, “If EPA passes even one regulation, all these sites are in question.”

Ever since those residents learned about Cumberland Park in a legal notice in 2007, they have fought hard to stop the influx of coal ash there. They filed a lawsuit against the site, alleging it was a “public nuisance,” which went before a special grand jury in 2008. The suit was eventually dismissed. They have challenged the site’s permitting process, as well as the partnership itself. They have even drilled their own wells to test groundwater near the project, which have yet to detect contamination.

But they’re not comforted by those tests. For them, it’s just a matter of time before the toxins in coal ash leach, and the sort of harm that coal ash has wrought elsewhere is repeated in their own backyards.