“What we’re trying to do tonight is to fix stupid,” Steve Scarborough, a Roane County resident, told a group of about 60 gathered last Thursday evening in the student center at Roane State Community College’s Harriman campus. “I know you’ve heard you can’t. I think you can.”
The stupid that Scarborough says he wants fixed is the lack of federal regulations governing the disposal of coal ash residue, the by-product of coal combustion that contains a host of toxic minerals, and 5.4 million cubic yards of which spilled forth so dramatically in the pre-dawn hours of Dec. 22, 2008, in Kingston. More than a year and a half after that disaster, the Environmental Protection Agency is still working to put in place a federal framework governing the storage and disposal of coal ash to prevent another Kingston accident from occurring.
The delay in putting forth regulations is partly a result of the EPA’s own bureaucratic process but also a result of the Obama administration’s approach to the issue. EPA administrator Lisa Jackson had originally promised that proposed regulations would be made public before the end of 2009, around the first anniversary of the spill. But the Office of Management and Budget, which sits inside the White House, held up the proposed rule for months while it met with industry and environmental groups (more than twice as many of the former as the latter). Then in May, more than four months after its deadline, the EPA announced two rules, rather than one, as is the norm—one that would create a strict federal framework for regulating ash and one that would merely offer guidelines for ash disposal without measures for enforcing them. Soon after that announcement, a 90-day public comment period began, and in July the EPA said it would hold seven hearings around the country to gather testimony from anyone who wished to participate.
But the meeting last Thursday evening, when Scarborough and others were each given the chance to submit five minutes of testimony to the EPA, wasn’t one of them. Instead, it was a “People’s Coal Ash Hearing,” an event sponsored by a number of local environmental groups upset that, despite being the site of the largest coal ash spill in history and the explicit impetus for the most recent push for regulation, Tennessee was left out of the hearings. The nearest EPA hearing to those in Roane County was in Louisville, Ky.
The apparent snub left more than just local environmentalists feeling slighted. Sen. Lamar Alexander sent a letter to the EPA asking it both to extend the comment period beyond the Sept. 20 deadline, which it has agreed to do—to Nov. 19—and to hold a hearing in Tennessee. “Having hearings on coal ash without asking Tennesseans what they think would be like having hearings on Katrina without asking people in New Orleans what they think or on the oil spill without asking people who live on the Gulf what they think,” Alexander wrote.
It’s unclear what the EPA’s motivation was in leaving Tennessee out. “To not have a hearing in this area—it’s really confusing, more than anything,” says Josh Galperin, a lawyer with the Southern Alliance for Clean Energy and one of the event’s principal organizers. Galperin recalls that even in announcing the two options in May, Jackson made clear Roane County’s importance to the issue. “Although concerns about risks to drinking water and health have been growing for some time, coal ash came to national attention in late 2008 when a worst-case scenario unfolded as an impoundment holding disposed ash waste broke open in Kingston, Tenn.,” Jackson said. “In response to the Kingston spill, EPA began investigating the structural integrity of coal ash impoundments across the country and incorporating this new concern into our assessment of the safety of liquid impoundments.”
The EPA hasn’t explained why it didn’t include Tennessee, but it did release a statement saying a number of factors went into site selection, including “feedback from the public on where to hold the hearings, proximity to coal-fired power plants and disposal sites, proximity to mass transportation hubs, and proximity to EPA Regional Offices. EPA also sought to ensure that different geographic regions of the country were represented by the locations selected.” Galperin says within the environmental legal community, nobody seems to know what the real reason was, but he says there are rumors it had something to do with the lack of a convenient airport. He doubts that, though.
At any rate, at last Thursday’s hearing, Alexander’s deputy chief of staff, Patrick Jaynes, said he thought the EPA’s decision to extend the deadline may indicate a hearing could still be held in Tennessee. But Galperin says he thinks that is “next to impossible,” because the federal register requires at least 30 days’ notice before a hearing can be held, and furthermore the EPA has indicated it isn’t going to happen.
For all the controversy surrounding the lack of a Tennessee hearing, the comments delivered Thursday were fairly tame and dispassionate considering the proximity to the spill. The audience skewed older, and while everyone who spoke said they supported the stricter of the two proposals, few gave the sort of heartfelt, personal anecdotes some organizers had hoped for. One possible explanation for the lack of personal accounts is many of those most affected by the spill have pending litigation against TVA.
Regarding the options before the EPA, under the Resource Conservation and Recovery Act, the Subtitle C proposal would effectively classify ash as hazardous waste and provide strict cradle-to-grave regulations, enforceable at the state and federal level; the other option, Subtitle D, would classify coal ash as solid waste and provide only guidelines for its disposal but no enforcement of them. Everyone who spoke at Thursday’s hearing spoke in favor of Subtitle C, Galperin says.
Despite the controversy over these hearings, Galperin says the EPA has done a fairly good job thus far throughout this process. He and many environmental advocates think Subtitle D should not have been put forth as an option, but he blames the White House for that decision. “I wouldn’t criticize the EPA too hard,” he says. “Most of the EPA seems to be supportive of the Subtitle C alternative,” noting that that’s not been explicitly stated.
As for TVA’s position, TVA spokesman Jim Allen attended Thursday’s hearing but didn’t speak. TVA has said it doesn’t have an official position on whether it prefers Subtitle C or Subtitle D, but will submit comments to the EPA. However, a document entitled “Interagency Working Comments on Draft Rule under EO 12866” released last year by the EPA shows that TVA prefers Subtitle D. “TVA considers most of these observations as positives and supports a subtitle D program which would alleviate many of our concerns stated above with EPA’s preferred subtitle C rule,” the document reads.
After the comment period closes on Nov. 19, the EPA will address all the issues raised by those who submitted comments and testimony. It will then issue its final rule, choosing either Subtitle C or Subtitle D, in a process likely to take more than a year.
***Update: The EPA announced Wednesday it plans to hold a formal hearing in Knoxville in late October.***
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