A special Facing South investigation.

Lisa Jackson.At her January 2009 confirmation hearing, Lisa Jackson promised to take action on coal ash.Photo: Senate Enviroment and Public Works CommitteeWhen the catastrophic coal ash spill occurred at the Tennessee Valley Authority’s Kingston plant in 2008, a quiet debate over how to regulate coal ash had already been going on for decades, largely outside the view of the public or press.

That all changed with the Kingston spill, which aside from releasing a billion gallons of toxic waste into a nearby community and river system also pushed the problem of coal ash into the national spotlight and led to calls for change.

The month after the Tennessee disaster, EPA Administrator Lisa Jackson signaled during her Senate confirmation hearing that the agency would revisit the issue of coal ash regulation. “The EPA currently has, and has in the past, assessed its regulatory options, and I think it is time to re-ask those questions,” Jackson said.

Jackson soon began to make good on her promise. The EPA launched an inventory of coal ash impoundments like the one that failed at Kingston, sending information requests to more than 160 electric generation facilities and 60 corporate offices. Armed with this and other data, Jackson and the EPA concluded that the nation’s standards for regulating coal ash needed revision.

But the agency’s efforts soon ran up against massive resistance from an array of powerful interests — industries and groups that had succeeded in enabling coal ash to escape federal oversight for decades, creating a regulatory vacuum that many say made a Kingston-like disaster almost inevitable.

Fending off ‘burdensome regulatory requirements’

The battle over regulating coal ash goes back to 1976, when Congress passed the Resource Conservation and Recovery Act, the main federal law that governs disposal of hazardous and non-hazardous waste.

In the beginning, coal combustion waste was not included in RCRA, and in 1978 EPA proposed that coal ash be covered under the law as a special hazardous waste.

Tom Bevill.Rep. Tom Bevill played a key role in stopping federal regulation of coal ash in the 1980s.Photo: Wikipedia commonsBut before that happened, Congress passed the Bevill Amendment in 1980, which effectively exempted the coal waste from RCRA. The amendment was named for Rep. Tom Bevill, a 15-term Democratic congressman from coal-dependent Alabama who chaired the powerful House Energy Development and Water Appropriations Subcommittee. During congressional debate, Bevill declared that “it would be unreasonable for EPA to impose costly and burdensome regulatory requirements without knowing if a problem really exists, and if it does, the true nature of that problem.” Bevill’s amendment called on the agency to delay regulation and study the matter instead.

Congress’ reluctance to regulate was reinforced when the EPA went on to release two reports — one in 1988 and another in 1999 — finding that damages from coal ash did not warrant lifting the regulatory exemption.

But in 2000, the agency began to change course. That year, as required by the Bevill Amendment, the EPA published a proposal titled “Regulatory Determination on Wastes from the Combustion of Fossil Fuels” that concluded federal regulations for the disposal of coal ash — either under RCRA and/or the Surface Mining Control and Reclamation Act — were necessary to protect public health and the environment.

“Public comments and other analyses … have convinced EPA that these wastes can, and do, pose significant risks to human health and the environment when not properly managed, and there is sufficient evidence that adequate controls may not be in place for a significant number of facilities,” the proposal found. “This, in our view, justifies the development of tailored regulations under Subtitle C of RCRA.”

In other words, the EPA was saying that it was finally ready to treat coal ash as hazardous waste.

The EPA sent its report to President Bill Clinton’s White House Office of Management and Budget for review. An EPA employee involved in the internal debate told the Center for Public Integrity “it really hit a brick wall at OMB.”

The administration was flooded with letters from electric utilities and visits from their lobbyists warning that regulating coal ash as hazardous waste would lead to economic hardship for them and their customers. New standards would increase the cost of disposing of coal ash waste, an extra cost the EPA estimated at about $1 billion per year. But industry representatives argued the cost would be astronomically higher — perhaps upwards of $13 billion.

After the lobbying onslaught, EPA backed away from regulating coal ash as hazardous waste in 2000. But the agency promised to issue guidelines to help states oversee it more effectively — a critical step, since most states lacked even basic safeguards for coal ash disposal sites.

But the EPA didn’t follow through. And without federal guidelines, states continued with business as usual. Five years later, a report prepared for EPA’s Office of Solid Waste found that most states didn’t require monitoring the impact of coal ash disposal sites on groundwater, more than half didn’t require liners, and more than a quarter didn’t even require something as basic as dust controls at coal ash landfills. The report also found that most of the coal ash produced in the top 25 coal-consuming states could legally be disposed of in a way that directly threatened drinking water supplies in underground aquifers.