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EPA moves to regulate toxic coal waste spotlighted in Center investigation

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Today the U.S. Environmental Protection Agency announced much-anticipated proposals to regulate the disposal of coal ash — an environmental hazard that was the subject of an investigation by the Center for Public Integrity last year.

The Center’s probe revealed the havoc that coal ash has wreaked on the environment and on human health near ponds, landfills, and pits where it gets dumped ash gets dumped while debate over federal regulation dragged on for decades. That debate has flared again since the disastrous December 2008 coal-ash spill in eastern Tennessee, a spill which led EPA to pledge to finally regulate the waste — a toxic byproduct of burning coal to produce electricity.

In a conference call with journalists, EPA Administrator Lisa Jackson unveiled two proposals for first-ever national standards regulating the disposal of coal ash. One approach would classify coal ash as “hazardous” under federal waste laws, triggering a series of strict controls for handling, transporting, and dumping. Coal-fired power plants, for instance, would have to use expensive protections like double liners at disposal sites and to regularly monitor groundwater for any leaching. Under this so-called “Subtitle C” approach, utilities would be required to phase out wet storage in ponds — a major source of surface and groundwater contamination caused by coal ash — over a five-year period.

The second proposal, by contrast, would deem coal ash “non-hazardous” and subject to less stringent national standards that amount to guidelines telling states what their coal-ash disposal rules should look like. Utilities would be required to upgrade existing unlined ponds and landfills with double liners under this option or to close them. Both proposals, meanwhile, would allow unrestricted recycling of coal ash into such products as cement.

Either option, according to Jackson, “reflects a major step forward at the national level to reduce the risk caused by coal ash.” EPA’s proposal clearly “says coal ash should be regulated as waste,” the administrator added. “Now, the question is, ‘What kind of waste?’”

This latest development in the decades-old battle over federal regulation of coal ash seems remarkably reminiscent of a draft plan backing the Subtitle C approach draft determination put forward by the EPA in 2000, when the agency appeared on the verge of proposing stricter federal controls under the hazardous label. Ultimately, after fierce industry lobbying and political pressure, the agency backed away from that option and instead pledged to issue the non-hazardous guidelines. Throughout the Bush administration, however, the EPA failed to implement those standards.

Reaction among environmental groups on the proposed rules is mixed. “We were hoping for a C rule,” confided Jeff Stant, of the Environmental Integrity Project, which has been pushing for strict federal controls of coal ash dumpsites for years. Under the alternative Subtitle D approach, he noted, EPA would have no enforcement powers to ensure the guidelines are followed, leaving action primarily up to state regulators and the utility industry. “We’ve always said that the government just needs to do its job. The science is there and it’s well-established that this stuff is hazardous.”

Stant said he’s at least heartened that the agency’s 563-page proposal “establishes a clear basis for a C regulation.”

Jackson told reporters that the agency decided to put forth both options after a stalemate with the Office of Management and Budget. OMB officials have held more than 40 meetings on the matter since the EPA sent a draft proposal reportedly favoring the Subtitle C approach in October. Utility lobbyists and other industry players landed most of the OMB meetings — roughly 30 — while environmental groups had seven.

“It’s clear that people feel very strongly on both sides,” Jackson said. “We thought it was best not to delay the regulatory process any more and get both proposals out.”

Today’s announcement will kick off a comment period on the two options over the next 90 days, during which the EPA will hold a series of public hearings across the country. Senior EPA officials say they are asking stakeholders for information on the approaches, as well as on the effectiveness of state regulatory programs and cost-benefit economic analyses. After considering public comments, the agency will release a final rule, though Jackson declined to lay out a specific timeline.