Inspector General Gives EPA 90 Days to Assess Dangers of Coal Ash Products

An internal watchdog has told EPA to respond to research showing it has been promoting the use of coal ash products without assessing the health risks

Coal ash landfill, Benton County, Tenn. Credit: Sam Despeaux/Southern Alliance for Clean Energy

WASHINGTON—With all of the janitorial duties the EPA is being asked to perform on tasks left undone by the previous administration, perhaps mops should be standard issue at the agency.

Coal ash regulations are one of the latest additions to that catch-up list.

The agency's own internal watchdog has given Environmental Protection Agency authorities 90 days to respond to research showing the agency promoted the use of coal ash products — on farm fields, as structural fill for roadway embankments or bound into products such as wallboard, concrete, roofing materials and bricks — with incomplete information about potential risks to people's health and the environment.

The not-so-gentle reminder stems from a policy put in place during George W. Bush's presidency.

Inspector General Arthur Elkins Jr. sent his March 23 report to Mathy Stanislaus, assistant administrator for EPA's Office of Solid Waste and Emergency Response.

Elkins issued his findings as EPA authorities are reviewing thousands of comments in preparation for writing the final draft of first-ever national coal ash regulations. A rule laying out two potential paths was published in the Federal Register in June.

Environmental advocacy organizations such as the Knoxville, Tenn.-based Southern Alliance for Clean Energy and Earthjustice cheered the timing of the report, partially because it's focusing on an issue that they have urged the Obama administration to consider a priority.

"The inspector general's report shows us how important it is to get this issue under control," Josh Galperin, the alliance's policy analyst and research attorney told SolveClimate News in an interview. "It's important for the EPA to distinguish what is an actual beneficial reuse and what the industry is calling a beneficial reuse.

"This report sheds light on how the Bush administration was overlooking the science in order to make things easier for the coal industry," he continued, adding that clearly an assessment of coal ash is necessary. "My suspicion is that the inspector general realized what was going on here and thought this needed to be brought to light."

Legacy of Bush Administration

In response to an e-mail inquiry from SolveClimate News, an EPA spokeswoman said the agency plans to comply with the inspector general's two major recommendations. One calls for defining and putting into place risk evaluation practices for beneficial uses of coal combustion residuals, and the other suggests determining if further action is warranted to address historical coal ash structural fill applications.

Back in 2001, EPA's Office of Resource Conservation and Recovery created the Coal Combustion Products Partnership and rolled out a website to encourage 170-plus public and private participants to find moneymaking markets in the commercial, agricultural and consumer fields for what is otherwise considered a waste product. The goal was to bump up use from 32 percent in 2001 to 50 percent by 2011.

The amount of coal ash generated by the nation's coal-fired electricity plants has grown from 118 million tons in 2001 to 136 million tons in 2008, according to the EPA's latest figures. Ash contains a range of dangerous metals such as arsenic, selenium, cadmium, lead, and mercury that can leach into groundwater and migrate to drinking water sources.

Last summer, agency officials shut down the partnership website. EPA had already suspended promoting beneficial uses of coal ash via the partnership after announcing in May that it would be proposing coal ash regulations.

In mid-October, the internal inspector general issued a separate report determining that EPA's risk information about the beneficial use of coal ash was not only incomplete but also appeared to endorse commercial products.

What especially alarmed Galperin about the inspector general's most recent report was a chart on page 11 graphing various uses of coal ash that doesn't get turned into solid matter for use in bricks, concrete blocks or bowling balls. Figures collected from the American Coal Ash Association indicate that 70 million tons of coal ash was used in structural fill applications such as roadways and embankments between 2001 through 2008.

"That's tons of coal ash hidden underground that we don't even know about," Galperin said. "We've been saying we need it to be monitored as hazardous waste. We don't even know where all of this fill has been dumped."

Evidently, the inspector general is equally concerned about this lack of follow-through.

"EPA officials told us they relied on individual state beneficial use programs to review and approve specific CCR beneficial uses, and to manage associated risks," the inspector general wrote in the introductory summary of the 32-page March 23 report.

"EPA established, but did not implement, plans in 2005 to identify environmentally safe and beneficial use practices. Had EPA implemented its plans, it may have known earlier about risks from large-scale disposal of CCRs described as beneficial use."

Two Options for New Rules

EPA's decision to act on overall waste disposal regulations evidently was at least partially prompted by a disaster involving the Tennessee Valley Authority more than two years ago. An estimated 5.4 million cubic yards of coal ash sludge burst through a compromised disposal containment dike at a Kingston, Tenn., power plant on Dec. 22, 2008.

The ash covered about 300 acres of land and some 3 million cubic yards and polluted the Emory River and its tributaries. That catastrophic spill was the largest of several similar events in the Southeast.

Soon after the Kingston incident, EPA began identifying and assessing the structural integrity of impoundments and dams within the electric power generating industry built to contain "wet" coal ash, according to the inspector general's report. The agency then wrote reports cataloging the structures' stability and recommendations for improvements.

Agency officials are now considering two options for regulating coal ash waste under the Resource Conservation and Recovery Act. Green groups are rooting for the beefier version that would create federally enforceable new permitting and storage requirements under what's known as Subtitle C, or the hazardous waste section, of RCRA.

However, legislators from fossil fuel states have sided with the coal industry in pressing EPA to endorse a less-stringent route that turns regulating authority over to the states and the utilities. The latter measure falls under Subtitle D, or the nonhazardous waste section of RCRA.

EPA arithmetic involving close to 500 coal-fired power plants reveals that about 56 percent of the coal ash is disposed of in 584 surface impoundments and 300 landfills, most of which are owned by the electric utilities. Another 37 percent are beneficially used and the remaining 7 percent go toward filling mines, a use not being addressed in the current proposed rule.

Coal ash is currently generated in and disposed of in 45 states. The 10 largest generators, in order of volume, are Kentucky, Texas, Indiana, Pennsylvania, West Virginia, Ohio, Florida, Illinois, Tennessee and New Mexico. Hawaii generates the least amount of coal ash. It is followed by California, Oregon, South Dakota, Delaware, New Hampshire, Connecticut, Massachusetts, Nebraska and New Jersey.

Date for Final Rule in Limbo

EPA Administrator Lisa Jackson confirmed in early March that the new rule will not be completed this year and agency authorities have not yet committed to a 2012 release date. Observers at Office of Management and Budget Watch, a nonprofit research and advocacy organization, noted in January that the EPA now lists its pending regulation of coal ash as a "long-term action."

The EPA spokeswoman told SolveClimate News the agency is "committed to an expeditious process and a final rule that is based on all the public input, the science and the law."

"EPA also continues to strongly support the safe and protective beneficial use of coal combustion residuals," the spokeswoman said. "However, EPA is studying some uses of [residuals], including use in unencapsulated form, and has solicited comment on whether to regulate and, if so, the most appropriate regulatory approach to take."

The agency is in the midst of reviewing 450,000 comments that came in during a series of eight public hearings.

"Yes, there's some disappointment in the advocacy community with the speed at which they're moving," Galperin said. "We hope it's not political. I understand they have a lot to review and I'm respectful of the effort they have to go through to finalize the rule."

Not every environmental advocate is as forgiving.

Jeff Ruch, executive director of Public Employees for Environmental Responsibility, said via e-mail that he was especially disappointed that EPA said in the latest report that it would not commit to a specific timetable on the risk evaluation measures it will eventually put in place.

"EPA's ignorance-is-bliss posture on coal ash is the height of irresponsibility," stated Ruch, who also has questioned what qualifies as beneficial use. "By all appearances, EPA has shirked its public health duties and scientific objectivity to accommodate its corporate partners and their very powerful political allies."

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