Redefining "Hazardous"

What could federal regulation of ash waste mean for the coal industry?

Harriman resident John Hoag went to a public meeting last week at Harriman United Methodist Church with one question on his mind. And it was directed at TVA CEO Tom Kilgore.

"Is fly ash a hazardous waste?" Hoag asked Kilgore.

"The EPA does not consider fly ash a hazardous waste," Kilgore responded.

"Do you?" Hoag said, sounding a bit more frustrated.

"I do not," Kilgore said.

That is basically the line—that is to say, the truth, technically—the utility's been giving residents since the containment wall on its coal ash storage pond burst late last month, spilling a billion gallons of (technically) non-hazardous material onto the city of Harriman.

But it seems that the "truth" may soon be adjusted, if Sen. Barbara Boxer, Democrat of California and the chairperson of the U.S. Senate Committee on Environment and Public Works, is able to pass new regulations on coal waste, as she's said she will.

"In 2000, the EPA recommended that coal ash be regulated by the federal government, but..." It's been an ongoing lament from the beginning of this whole mess. That "but" has, in the weeks since TVA's disastrous ash spill from the Kingston fossil plant, generated a firestorm of debate from activists, TVA and EPA officials, and now, politicians. Following last week's Congressional hearings with Kilgore and Stephen Smith, executive director of the Southern Alliance for Clean Energy, Boxer announced Monday afternoon that she would introduce a resolution this week or next calling for the EPA to regulate the disposal of coal ash.

Boxer has not, as yet, announced what sort of provisions such a resolution will include. But federal regulation could mean requiring soil and groundwater monitoring and requiring that all ash is stored in lined landfills. That would mean greater costs to the utility companies, especially a utility provider like TVA, which uses coal to generate 60 percent of its electricity. TVA officials have not yet released a statement on the prospect of federal regulation, and in public meetings, Kilgore has not commented on it. In last week's hearings, however, Kilgore said that he would not look to Washington to pay for the cost of the spill. And the utility has announced that it has hired a third-party consultant to assess any possible problems with its coal-storage facilities.

Last week, the American Coal Ash Association, a lobbying group for the coal-burning industry that lists TVA as one of its members, held a public meeting in Midtown, just miles away from the Kingston plant, with the goal of reassuring residents that the spill is not a public health hazard. And the idea of regulation has already been decried by industry insiders, most notably Jim Roewer of the Utility Solid Wastes Activities Group, which is made up of electric companies and lobbyists for utility providers, who was quoted in a Bloomberg report as saying that state regulations work and the costs of federal regulation could be difficult for the industry, as much as $5 billion per year. Roewer could not be reached for comment on Boxer's announcement by press time.

The 2000 report from the EPA justifies its case for regulation of coal waste under the Resource Conservation and Recovery Act by saying that "the composition of these wastes could present danger to human health and the environment" and that it had "identified 11 documented cases of proven damages to human health and the environment." It goes on to say that the estimated costs, industry-wide, could be as little as $1 billion per year.

"While large in absolute terms, we estimate that these costs are less than 0.4 percent of industry sales," the report says.

"So I'm not sure if that $5 billion Roewer cited was based on any actual study, but, even if you accept that, it's not much compared to the types of revenues these companies are taking in," says Lisa Evans, an attorney with the Massachusetts environmentalist group Earth Justice.

Evans, a vocal critic of current state-by-state regulation for coal ash, has repeatedly identified Wisconsin's coal ash regulations as a sort of model for any federal oversight. She says Wisconsin has the "most stringent disposal laws in the country."

"I wouldn't necessarily say the laws here are the most stringent in the country," says Aaron Wallin, an ash coordinator for Wisconsin Public Service Corporation, a utility provider for the northeastern part of the state. "We have simply identified that we need to store and dispose of this material properly."

Wisconsin's solid waste laws, enacted in 1996, were the first to receive an approval from the EPA. WPS—which produces nearly 200,000 tons of coal ash annually—is required by state law to "flush out" each of its ash storage ponds periodically.

"That's part of the agreement we have to make with [the Wisconsin Department of Natural Resources] in order to get the permits for the ash ponds," Wallin says.

After the ponds are cleaned, the ash is either taken to a municipal landfill—landfills in Wisconsin are required to have at least a clay lining—or it is recycled for use in asphalt. WPS is moving toward recycling all the ash it produces, which would put it in line with the rest of the state. According to a 2006 EPA report, about 72 percent of the coal ash in Wisconsin is recycled for "beneficial uses" like concrete, bricks, and asphalt. In Tennessee, that number is around 57 percent.

So, says Evans, under such a regulatory model, coal ash could still be recycled into consumer products, even if it were classified as hazardous.

"You may have people in the coal industry saying that regulation could affect recycling," Evans says. "But [the Resource Conservation and Recovery Act], when it was written, anticipated that these wastes could be reused."

She says that the RCRA can be adjusted to account for the needs of specific industries that produce large amounts of waste, like coal ash, so they can sell the waste products and, hopefully, recoup part of the cost of more stringent storage regulations. Ultimately, though, she says it comes down not to a question of cost, but of environmental responsibility and consistency. She points to the use of "scrubbers," which control the amount of air pollution coal plants produce.

"The absurdity that I wish everyone would acknowledge is how much money we're spending on scrubbers for air pollution," Evans says. "If we're committing to cleaning this up, we're only dealing with a part of the problem if it's just air pollution and not ground and water pollution. It's incomplete. It's like spending hours baking a batch of cookies that smell great, and then leaving them in the oven to burn up."