EPA Puts Forth Two Very Distinct Options for Regulating Coal Ash

Last Tuesday, about 16 months after a coal ash pond at the Kingston Steam Plant ruptured and spilled a billion gallons of sludge in Roane County, the Environmental Protection Agency finally put forward its first proposal for regulating coal ash at the federal level. In fact, it put forward two plans­—one that seemed aimed at pleasing environmental groups and another apparently geared towards industry—and EPA head Lisa Jackson called on the public to help determine which to adopt.

This is not a common practice, says Lisa Widawsky, a lawyer with the Environmental Integrity Project, an environmental nonprofit based in Washington, D.C. She says the EPA would typically issue one rule, and that its decision to offer two options may be indicative of the pressure it faced from industry and states that wish to regulate ash themselves. In the proposal, Widawsky says the EPA didn't present a preference for one option over another, but they did include "a lot of new data about the grave risks to human health and the environment when coal ash is not stringently regulated."

Both proposals fall under the Resource Conservation and Recovery Act. The first, known as Subtitle C and preferred by environmental groups, would classify coal ash—also known as coal combustion waste or coal combustion residue—as a special waste, imposing requirements on its disposal, transportation, storage, and handling. This would mean utilities and landfills disposing or storing ash would have to obtain a federal permit, which the Tennessee Department of Environment and Conservation could issue. To do so, the landfill would have to be located a certain distance from the water table, have synthetic and clay liners, groundwater monitoring, a leachate collection system, dust controls, and long-term financial assurances to guarantee the owners could handle a cleanup should one be necessary. The rule would require retrofitting existing wet-storage ponds, like the kind that breached at Kingston in December 2008, effectively phasing out their use altogether in favor of dry storage. If any of these rules were violated, the state or federal government could step in to enforce compliance.

The second, Subtitle D, is favored by the American Coal Ash Association, and would be considerably less robust: It would label coal combustion residue as solid, non-hazardous waste, and suggest guidelines for its treatment but not provide federal enforcement of those guidelines. A permit would not be required for disposal, although states could create a permit process, as they are able to do now. The primary means of addressing guideline violations would be through citizen lawsuits.

"It's very clear that there's only one proposal of these two that is protective of human health and the environment, and that is the Subtitle C proposal," Widawsky says. "The Subtitle D proposal is full of holes."

Both proposals would allow recycling of ash, a crucial sticking point for this $10 billion a year industry. But ACAA executive director Tom Adams says Subtitle C would carry with it a hazardous-waste stigma, limiting the material's reuse. "As you look at trying to market these products and develop more use of this product, as opposed to seeing it go to disposal, you're really dealing with a delicate situation," Adams says. "Once you get a hazardous-waste stigma, that really turns off people who are maybe on the fence about using these materials."

Both options would also require liners and groundwater monitoring for new landfills. Neither option would apply to coal combustion waste stored in abandoned mines, something the EPA will address in conjunction with the Department of the Interior in a separate rule.

A 90-day period for public comment is expected to commence soon, possibly this week, when the rule is published in the federal register. Citizens can write to the EPA to voice their support for either, and can also suggest components of either proposal be made stronger or weaker. For those who wish to voice their concerns in person, there will be a hearing held in Washington, D.C., but EIP and other groups are requesting that more meetings be held around the country. They're also encouraging citizens who want to attend to contact their offices for assistance.

As to which option TVA supports, spokeswoman Barbara Martocci says TVA plans to offer comments but doesn't yet have a position. She points out that TVA is already moving to convert wet ash ponds at six facilities to dry storage over the next eight to 10 years at a cost of $1.5 to $2 billion. Widawsky applauds this move but also cautions that the utility has made such pronouncements before without following through, and that this illustrates why the enforcement of Subtitle C is necessary.

After the 90 days, the EPA will review comments, which is likely to take six months to a year, and then issue its final rule.

This whole process has been slowed considerably by the White House's Office of Management and Budget, which reviews the potential costs of rules before they're submitted for public comment. The EPA rule was originally submitted in October, and while it typically takes 30 days before being returned, in this case it took more than six months, during which time OMB met with more than 30 industry representatives and at least 12 environmental groups.

What took place at those meetings is not available to the public because the rule had not yet been proposed, but a side-by-side comparison of the proposal that went in and the one that came out shows the rule was watered down. For example, the original proposal called for coal combustion residue to be classified as hazardous waste under RCRA, whereas neither of the two options lists it this way (although according to Adams, a Subtitle C designation is tantamount to a hazardous-waste designation). Lisa Evans, an attorney with Earth Justice, a nonprofit that advocates for environmental causes, says this is a mistake because coal ash easily leaches pollutants. She also notes that even the EPA offers that the difference in cost for companies between Subtitle C and Subtitle D is due to the lack of enforcement in Subtitle D, a fact which she says further demonstrates that option's fecklessness.

For those interested in reading the 563-page document describing the rule, visit epa.gov. The agency has also created a handy chart comparing the two options, as well as a list of frequently asked questions with answers. Comments can be submitted at regulations.gov, or by e-mail to rcra-docket@epa.gov, with the subject line: Attention Docket ID No. EPA–HQ–RCRA–2009–0640.

On a related note, last week the EPA and TVA announced the Emory River would remain closed until May 29, two weeks later than originally announced, so that dredging operations can be completed and equipment removed.