EPA Rethinking Coal Ash Regulation

After a flood of wet coal ash swept from a power plant containment pond in December 2008, contaminating a river and covering 300 acres of eastern Tennessee, the U.S. Environmental Protection Agency announced it would decide whether to issue new coal ash regulations by the end of 2009.

As that deadline approached last month, however, the agency admitted its findings would be delayed "due to the complexity of the analysis."

If it were simply a question of how best to protect the public, the decision would have been made weeks ago, health and environmental advocates say. But it appears cost has become as significant a factor as protection.

Coal ash, a byproduct from the burning of coal to produce power, contains arsenic, lead, mercury and other toxins that can leach into water if the ash is not properly contained.

Of the 125 million tons of byproducts — most notably coal ash — produced each year by burning coal for electricity in the United States, 55 to 60 percent are left in landfills or wet ash ponds like the one that broke at the TVA's Kingston power plan a year ago in Tennessee, Ken Ladwig of the Electric Power Research Institute told Congress last month.

The remaining 40 to 45 percent of the ash is recycled for uses such as construction and filler in cement and highway embankments.

This recycling of coal ash for construction materials has become a major point of contention in the regulation debate. The question is whether a hazardous material designation would impede coal ash recycling.

EPRI has said that any regulations that prevent utilities from selling byproducts like coal ash to be recycled for construction projects would take away $5 billion to $10 billion of the companies' yearly revenue.

But environmental groups say there are plenty of regulatory options and precedent that would not affect these recycling programs at all.

"There are options the EPA could take advantage of in the regulations that would not impact recycling," says Earthjustice attorney Lisa Evans. In fact, she says, it would benefit recycling.

"An increase in disposal costs should cause industry to find more beneficial uses because it would provide incentives. As long as the disposal prices are artificially low, those incentives will not be there," says Evans. She explains, "If you had to pay per bag for your garbage, you would certainly recycle more and probably not produce as much garbage in the first place."

If the price were raised for coal ash, more would be recycled and less would likely be generated, she said.

Ladwig, however, points out that, with coal-fired generation making up about half the U.S. electricity supply, regulations on coal ash could cause some plants to shut down rather than incur the new costs of compliance. Declaring coal ash a hazardous waste could risk losing between 40,000 and 97,000 megawatts of coal-fired power, he said.

Some industry groups also fear that if the EPA were to declare coal ash a hazardous waste — the likely form its regulation would take — that would not only bring an increase in the cost of disposal but an increase in the likelihood of lawsuits since the construction materials would now contain hazardous materials.

History, though, generally appears to be on the side of the environmental groups. Products like spent solvents have been classified as hazardous waste and are still widely recycled.

The concerns of industry, though, are suspected to have played a major role in delaying a decision on regulation so far.