A consensus for regulation grows

Meanwhile, even within the EPA, evidence was mounting that coal ash posed a growing threat to environmental and human health.

In 2007, a draft assessment was prepared for the EPA titled “Human and Ecological Risk Assessment of Coal Combustion Wastes” that found some unlined coal ash impoundments pose a cancer risk 2,000 times above what the government considers acceptable. The assessment found that the use of a composite liner — a multi-layered liner like those required in municipal waste landfills — significantly reduced the risk of exposure to health-threatening pollution. However, most states don’t require such liners for coal ash impoundments.

That same year, a report by the EPA Office of Solid Waste tallied up the number of cases nationwide where coal ash was found to have caused environmental damage, documenting 24 cases of proven damages caused by coal ash and another 43 potential damage cases related to coal ash. Most of those cases involve toxic contamination from coal ash impoundments leaching into groundwater, rivers, and lakes. (For a map with more details about confirmed U.S. damage cases, click here.)

The EPA’s internal studies were complemented by a growing body of research by independent scientists and advocacy groups documenting the environmental and health consequences of coal ash.

Earlier this year, for example, the Environmental Integrity Project and Earthjustice released a report titled “Out of Control: Mounting Damages From Coal Ash Waste Sites” that found serious water contamination problems from coal ash dumps at 31 locations in 14 states. The report noted that the contamination is concentrated in communities with family poverty rates above the national median.

Recently the EPA also acknowledged that toxic elements like arsenic, chromium, and selenium can leach out of unlined coal ash dumps and into local water supplies in much higher concentrations than was earlier believed. After 20 years of using a testing method that the EPA’s own Science Advisory Board argued was low-balling the contamination risk, the agency recently began using an updated test that found the level of toxic contaminants leaching into water clearly crossed the threshold for designating coal ash as a hazardous waste.

“These unregulated sites present a clear and present danger to public health and the environment,” said Earthjustice attorney and former EPA official Lisa Evans. “If law and science are to guide our most important environmental decisions, as EPA Administrator Lisa Jackson has promised, we need to regulate these hazards before they get much worse.”

Hitting another brick wall

But Washington’s latest effort to regulate coal ash — spurred by the TVA disaster — has again met massive resistance from a familiar array of powerful political interests.

Last October, the EPA sent a draft regulation to the White House Office of Management and Budget. The proposed rules immediately became the target of a massive lobbying onslaught by electric utilities and energy interests determined to prevent coal ash from being regulated as hazardous waste.

The Charleston Gazette reported that OMB held 30 meetings about the rules with industry officials compared to only 12 with environmental and public health groups. The intense lobbying campaign was notable because of the electric utility industry’s already considerable clout in Congress: One of the most politically generous, it’s contributed more than $9 million to members’ campaigns during the 2009-2010 election cycle so far, according to the Center for Responsive Politics.

Joining the lobbying effort were state agencies and federal lawmakers who voiced concern about the cost of strict regulation and how it would affect the recycling of coal ash into products and its use as fill in construction projects.

Many of the congressional defenders of coal ash represent states where the toxic waste has been implicated in environmental damages. For example, a Facing South analysis found more than 50 proven and suspected coal ash damage cases in the states represented by the more than 90 senators and representatives who wrote to the Obama administration opposing the regulation of coal ash as hazardous waste.

As the political battle raged behind closed doors, the latest push to regulate coal ash seemed like it might again be derailed. The EPA originally said it would roll out a proposed rule for public comment by the end of 2009, but the release was postponed with the agency blaming the delay on the “complexity of the analysis.”

The new rules were then supposed to be released in April 2010, but were put off again.

Finally, earlier this month the EPA released the rules to the public. But instead of issuing a clear standard that would treat coal ash as a hazardous waste as it originally planned, the agency released two options: one that would empower the federal government to oversee the material like other hazardous waste, and one that would treat coal ash like ordinary trash and leave oversight up to the states.

The agency asked the public to help decide which approach makes the most sense during a three-month comment period that will begin when the regulation is published in the Federal Register, which is expected to happen as soon as this week.

Environmental watchdogs expressed disappointment over the agency’s equivocation. Eric Schaeffer, a former EPA official who now directs the nonprofit Environmental Integrity Project, said the move “sets up a boxing ring.” However, he also said he sees value in moving the fight from behind OMB’s closed doors out into the open.

“It’s in the public arena now, and that’s really important to move things along,” he said.