kingston coal ashThis is the final installment in Facing South’s week-long investigation into the growing national problem of coal ash waste and the looming battle over regulation. To read earlier installments in the series, visit here.

A series of coal ash disasters — both catastrophic, like the spill of a billion gallons of toxic ash at a Tennessee Valley Authority plant in 2008, and ongoing, such as the contamination of North Carolina’s drinking water from ash used in building fill — have exposed gaping holes in how the United States regulates coal ash, the second-biggest stream of industrial waste.

As Facing South documented earlier this week, an array of powerful interests — led by the electric utilities whose coal-fired plants generate 150 million tons of coal ash each year — have successfully lobbied to ensure coal ash has escaped regulation by federal officials. That has left regulation to the states, whose uneven patchwork of standards has allowed these disasters to happen.

But that may soon change: Earlier this month, the Environmental Protection Agency released its long-awaited proposed rule on coal ash. But in reality, the EPA released two proposals with very different visions of how to confront the national coal ash threat.

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One option — the stricter version favored by public health and environmental advocates — would regulate coal ash under Subtitle C of the Resource Conservation and Recovery Act, which governs hazardous waste. The other option handles coal ash as an ordinary solid waste under RCRA Subtitle D.

That distinction will become a flashpoint in the coming months for energy interests, environmental groups and state officials. And it will have an enormous impact on how much — or how little — officials and regulators can do to protect communities from coal ash hazards.
What’s in the EPA’s new rules?

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According to an analysis of the proposed regulations by environmental groups, both approaches would impose dam safety requirements on coal ash impoundments in an effort to prevent another disastrous collapse like the one at TVA’s Kingston plant in eastern Tennessee.

Both proposals would also require the installation of composite liners — multilayered liners like those now required at municipal waste landfills — at new and existing surface impoundments as well as at new dry coal ash landfills in order to prevent groundwater contamination.

The stricter Subtitle C version of the rule would effectively phase out the construction of new coal ash impoundments. However, the less strict alternative under Subtitle D would also likely lead to their phase-out because of the requirement that they be retrofitted with liners — a costly prospect that many utilities would likely seek to avoid.

Both proposals leave some of the status quo intact: For example, they would continue to allow coal ash to be recycled into concrete and other products. However, the proposed rules draw a distinction between such generally beneficial reuses and other reuses like large-scale structural fills that essentially constitute disposal operations.

Neither proposal addresses the use of coal ash for filling mines; the EPA is leaving regulation of that up to the Department of Interior’s Office of Surface Mining. Nor do they address the use of coal ash on agricultural crops, which is currently under study by EPA and the U.S. Department of Agriculture, with those findings set for release in 2012. And neither proposal regulates the 3 million to 6 million tons of coal ash generated each year by non-utilities like factories with coal-fired boilers.

But the differences between the two alternatives are significant. For environmentalists, the stricter proposal’s acknowledgment that coal ash should be treated like other hazardous waste is a breakthrough.

“Their inclusion of an option to regulate coal ash as hazardous waste is an important first step,” said Earthjustice Executive Director Trip Van Noppen. “The next important step will be to maintain this position in the face of inevitably misguided claims by polluters that the sky will fall under this new regulatory environment.”

One of the most fundamental differences between the two approaches is enforcement. While the stricter RCRA Subtitle C would give EPA clear authority to enforce the law, under Subtitle D EPA would have the power only to set guidelines, leaving oversight to the states and enforcement to citizen lawsuits.

In addition, Subtitle C would require states to issue solid waste permits for coal ash disposal sites while Subtitle D does not. Permits are not only critical enforcement tools — they’re also the only avenues for meaningful public involvement when it comes to where these facilities are located and how they’re operated.

Electric utilities and other interests opposed to the stricter rules say their biggest reservation is cost. The EPA estimates that the stricter regulations would cost the entire industry $1.5 billion a year, while the less strict ones would cost about $600 million. To put that cost in perspective, though, consider that the profits earned last year alone just by North Carolina-based Duke Energy were $1.1 billion.

The reason for the cost difference is that EPA assumes less compliance under the latter approach — which environmentalists say is precisely why the tougher rules are needed.

“Polluters will claim EPA’s plan to designate coal ash as hazardous waste will come with a cost to industry as they conveniently ignore the costs to public health of dumping unregulated coal ash into ponds and landfills,” said an alliance of environmental groups calling for the tougher rule.

‘I’d like to hear from citizens’

Right now, the public can find the unofficial, pre-publication version of the EPA’s proposed rules on the agency’s website. Once the rules are published officially in the Federal Register, the clock begins ticking on the 90-day comment period.*

EPA Administrator Lisa Jackson said her agency would also hold public hearings on the proposed rule, though none have been announced yet.

At the close of the 90-day comment period, EPA will evaluate what it expects to be an extensive set of comments and then make a decision. The agency has not said how long that might take.

Because the EPA is not asking for comment on just one proposal but on two competing visions of how to oversee coal ash, some regulatory watchdogs like Rena Steinzor of the Center for Progressive Reform have raised concerns that because of the release of what are essentially two proposals, the agency will have to extend the process.

“The EPA will almost certainly have to go back and get another round of public comment before making a final decision,” Steinzor said.

But after months of navigating the rules behind closed doors, Jackson seems eager to send a message that Washington is ready to tackle the problem of coal ash.

“I want communities to know that EPA thinks it’s important to get on with this regulatory process,” she said. “We’ve heard from government officials and private industry. Now I’d like to hear from citizens about what they think is a protective rule.”

* The supporting materials for the rule and the public comments that EPA receives on the proposal are available for public review online at To use that site, type in the docket number EPA-HQ-RCRA-2009-0640 in the Keyword or ID Search box and press “Enter” on your keyboard.