Facing mounting pressure from environmental groups, the Obama administration yesterday proposed the nation's first federal rules that would regulate the disposal of toxic coal ash from coal-fired power plants.
"The time has come for common-sense national protections to ensure the safe disposal of coal ash," said U.S. EPA Administrator Lisa Jackson.
EPA offered two dramatically different options for the rules—the first under Subtitle C of the the Resource Recovery and Conservation Act would treat coal ash as "hazardous" waste, meaning the pollution controls would be mandatory in every state and EPA would have to enforce them.
The other option, presented under Subtitle D, would ask states to set guidelines through a weaker, household waste designation. Compliance would be enforced through citizen lawsuits with no federal oversight.
EPA said it will hold a comment period over the next 90 days in a "national dialogue" on the competing proposals.
The announcement is seen as a step forward by environmental groups who have long fought to regulate the coal-combustion byproduct that gets dumped in ponds and landfills, leaching into water supplies and causing harm to human health. But many groups said they would fight the weaker standard that would keep in place the status quo.
The decision comes a year and a half after a billion-gallon flood of coal-ash slurry spilled from a TVA impoundment into Tennessee's Emory River. Hundreds of acres of property and farmland were coated with a calamitous soup of arsenic, lead, mercury and other toxins.
To date, regulation of the almost 900 landfills and surface impoundments nationwide has been in the hands of states, but few require liners that prevent contamination of groundwater and even fewer demand double-liners considered best practice. Some of the nation's biggest coal-producing states have close to no regulations at all regarding coal ash.
The TVA disaster was seen as the wake up call to the government to step in after three decades of advocacy.
"We are extremely pleased to see the rule finally come out," said Lisa Evans, a lawyer with the Oakland, Calif.-based Earthjustice who formerly worked at EPA. "It's been 30 years in the making and long overdue."
But Evans told reporters there would be "significant" enforcement problems under Subtitle D. Earthjustice and a number of environmental groups said the diluted measure does not have the teeth to protect the public or the environment.
There is "not much law there," said Eric Schaeffer, executive director of the Washington, D.C.-based Environmental Integrity Project. The rule would be "impossible for EPA to enforce," Schaeffer said, and "if states are left to fend for themselves, they'll be little compliance."
According to the Southern Alliance for Clean Energy (SACE), a Knoxville, Tenn.-based advocacy group, the Subtitle D standards are "akin to those currently in place for the regulation of ordinary household garbage."
Under Subtitle D, wet ash storage ponds like the TVA impoundment that failed in East Tennessee, would have to be retrofitted with protective liners. If the disposal site chooses not to comply, the unit would be forced to shut down within five years but with no guarantee the closures would be carried out.
In contrast, under the more strict of the proposals, toxic wet ash impoundments—where waste gets washed out with water and stored in massive man-made ponds—would eventually be phased out altogether under the eye of the EPA.
Each would offer "strong incentives to close the impoundments and transition to safer landfills, which store coal ash in dry form," the EPA said. Both proposals would also prohibit coal ash disposal in unlined landfills, though disposal in old mining sites would still be allowed.
Big Coal vs. Green Groups
As environmental groups lobby for stringent hazardous waste regulation, industries will be expected to put up a strong fight.
Coal-burning utilities argue that giving coal ash any kind of "hazardous" stigma would destroy important coal ash recycling programs that allow them to dispose of the waste for positive uses. They sell close to half of the ash they generate for use in concrete, wall board, embankments and other recycling programs, generating up to $10 billion each year, according to figures from the Electric Power Institute. The fear is that a hazardous determination would make builders wary of using it.
EPA said such "beneficial use" of coal ash would be allowed to continue and even flourish under both proposals.
"This proposal will clearly differentiate these uses from coal ash disposal and assure that safe beneficial uses are not restricted and in fact are encouraged."
Because of this, "there is simply no reason to not impose the regulations under Subtitle C, which would allow for state and federal enforcement," said SACE.
Advocates: Science Points to 'Subtitle C'
EPA did not hint at a preference, but advocacy groups said the scientific case for coal ash regulation presented in its 562-page document would seem to point to the stronger rule.
"The EPA has paved two roads but all signs point to the hazardous waste management scheme," Evans said.
According to data in the rules, the excess cancer risk for individuals exposed to certain unlined coal ash ponds is one in 50. Arsenic is leaching at 1,800 times the drinking water standard and 3 times the hazardous waste standard. The EPA said the problem is getting worse.
"There is a growing record of proven damage cases to groundwater and surface water, as well as a large number of potential damage cases," the EPA wrote.
Last August, EPA rated 49 coal ash sites across the country as "high hazard" sites, which means a failure would "probably" cause loss of human life, the agency said.
90 Days: A Battle Between Two Proposals
"The next 90 days will be critical," for gathering more evidence on coal ash dangers, said Evans.
Evans said the environmental community is planning to identify more sites where water has been contaminated. In the last several months Earthjustice has identified 31 new cases, Evans said.
"Does EPA need more information? Probably not, but they're certainly going to get it," she added.
Jackson agreed it it is time for the public to weigh in.
"We've heard from elected officials, from members of congress, from state governments, from private industries. I'd like to hear from public citizens about what they think is the most effective rule," she said.
For Schaeffer, the comment period will set up a "fair fight on the facts" on the pending rules for the first time. He called it a "boxing ring" where interest groups will "weigh in, take their punches and throw their punches."
The value of having this fight publicly against a "living proposal," Schaeffer suggested, is that it could shine a spotlight on the dangers of doing nothing.
"Punting on this is never going to make the problem go away. These sites are leaking, and they're leaking in ways that are doing damage...This is too big a problem just put a cork in with some kind of wimpy rule."
Even if the stronger rules win out, however, the road to enforcement could be a rocky one, said Schaeffer.
"What matters as much as the content of these rules is how and whether they'll be enforced," he added.