Coal Ash Waste Standards Inch Forward, But Industry Opposition Strong

Kingston coal ash spill aftermath

This December will mark the fifth anniversary of a massive spill of coal ash in Tennessee that destroyed three houses and damaged more than 40 others. This event sparked intensified calls for the regulation of coal ash, a waste by-product produced when coal is burned. Federal efforts to deal with the problem of coal ash have progressed slowly, but agency action on the issue may be gaining momentum in light of recent policy developments. Meanwhile, coal industry proponents in Congress are revamping legislative efforts to thwart national protections against coal waste.

The Push for Stronger Federal Standards

New calls for the regulation of coal ash began in 2008 after an embankment holding 1.1 billion gallons of wet coal ash ruptured at the Tennessee Valley Authority's Kingston plant, releasing 5.4 million cubic yards of coal ash sludge that buried a community and severely contaminated a nearby river. Coal ash can contain arsenic, lead, chromium, and other heavy metals, all of which poison humans. Roughly five times more coal ash sludge engulfed the area around Kingston, TN than oil spilled into the Gulf of Mexico during the BP oil spill disaster.

In 2010, the U.S. Environmental Protection Agency (EPA) proposed two options for regulating coal ash:

  • The first option would designate coal ash as a hazardous waste under Subtitle C of the Resource Conservation and Recovery Act (RCRA), requiring special handling, transportation, and disposal, and would closely monitor any potential reuse. This option would be the most protective of Americans' health and the environment.
  • The second would regulate coal ash under RCRA Subtitle D – an option that would limit EPA's responsibility and authority over coal ash management.

Both options would require that surface impoundments of coal ash have protective liners, mandate groundwater monitoring for landfills, and provide for corrective action when contamination is found (though the corrective action requirements are more extensive under the first option).

More than three years later, EPA has yet to finalize national requirements for coal ash disposal. The agency's most recent Unified Agenda indicated that the action was in the "prerule stage" and provided no timeline for completing a final rule. Seeing that little progress had been made, environmental groups filed a lawsuit in 2012 to compel EPA to complete a review of the regulations applying to coal ash and issue necessary revisions.

Court Decision Forces Steps Forward

On Oct. 29, the U.S. District Court for the District of Columbia issued a memorandum opinion ordering EPA to submit a plan for finalizing the coal ash rulemaking process it began in 2010. Judge Reggie Walton agreed with environmental and public health groups' argument that EPA has a non-discretionary duty to review and, if necessary, revise RCRA waste regulations, including the solid waste regulations under Subtitle D concerning coal ash, at least every three years.

The order does not specify a deadline for completing the review, but requires EPA to propose its own schedule for complying with the review requirements. By Dec. 29, EPA must "file a written submission with this Court setting forth a proposed deadline for its compliance with [EPA's] obligation to review and revise if necessary its Subtitle D regulations concerning coal ash, along with its legal justification for its proposed deadline."

Although experts caution that a court order will not guarantee action, the environmental groups involved in the suit were pleased with the decision, stating, "The decision by this federal court to put the EPA on a schedule for finalizing federal coal ash regulations is a victory for the communities and neighborhoods living next to these toxic sites. Federal protection is long overdue."

New Evidence of the Need for Federal Rules

A report released Nov. 7 by the Environmental Integrity Project (EIP) shows that TVA ponds and landfills have contaminated groundwater around all eleven of its coal-fired power plants. The contamination around the plants included pollutants associated with coal ash, including arsenic, boron, and sulfate. While TVA notes that it is taking steps to prevent future damage from coal ash, the report recommends that TVA develop a comprehensive plan to strengthen groundwater monitoring and remediate the contamination caused by decades of mismanagement, and emphasizes the importance of new federal standards to ensure all electric utilities modernize their coal ash disposal practices. The recommendations conclude, "EPA must finalize its coal ash disposal regulations, and in those regulations must require rigorous [monitoring] requirements [after facilities close], clean-up requirements, and groundwater protections."

The report follows a number of previous studies documenting the dangers of coal ash but serves as a timely reminder of the importance of finalizing comprehensive federal coal ash pollution and disposal standards.

Coal Industry Allies in Congress Continue Attacks on Coal Pollution Standards

In July, the House of Representatives passed the latest version of familiar legislation that would impede EPA's ability to regulate coal ash as a hazardous waste. According to opponents of the bill, H.R. 2218 removes EPA's "authority to establish safeguards for the disposal of toxic ash, yet fails to establish adequate protective standards that states must enforce."

More recently, the House Natural Resources Committee advanced legislation to prevent a different agency from issuing new standards addressing coal mine waste. On Nov. 14, the committee approved H.R. 2824, the Preventing Government Waste and Protecting Coal Mining Jobs in America Act, which would amend the Surface Mining Control and Reclamation Act and require states to implement a 2008 Bush administration rule that removed restrictions on dumping coal waste near streams.

The House majority is expected to attach this and similar anti-environmental measures as policy riders to funding bills and other must-pass legislation, as it has done in recent years.

The stakes are high for environmentalists and residents living near coal ash production and storage operations. The U.S. generates roughly 140 million tons of coal ash every year, about half of which is kept in storage ponds and landfills. Many of these storage locations have received "high hazard potential" ratings, yet there is still no comprehensive federal policy for controlling the storage and disposal of coal ash waste. And, as EIP's recent report illustrates, poorly managed coal ash waste can contaminate groundwater and cause long-lasting harm to the environment and nearby residents exposed to the toxins.

EPA should establish a schedule for completing its review of outdated regulations, as directed by the recent court order, and swiftly finalize a new rule to provide a minimum health and safety standard for coal ash disposal. Continued inaction leaves the public at risk and provides anti-environmental interests with more opportunities to restrict the agency's authority to prevent another disaster like the spill at TVA's Kingston plant.

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