EPA Offers Two Possible Coal Ash Disposal Rules for Public Comment

WASHINGTON, DC, May 4, 2010 (ENS) – The U.S. Environmental Protection Agency today proposed the first national rules to ensure the safe disposal and management of the residual ash from coal-fired power plants.

The ash remaining when coal is burned for power is disposed of in liquid form at large surface impoundments and in solid form at landfills. The ash contains contaminants like mercury, cadmium and arsenic, which can cause cancer and other serious health problems.

EPA’s risk assessment and damage cases demonstrate that, without proper protections, these contaminants can leach into groundwater and migrate to drinking water sources, posing health public concerns.

“The time has come for common-sense national protections to ensure the safe disposal of coal ash,” said EPA Administrator Lisa Jackson. “We’re proposing strong steps to address the serious risk of groundwater contamination and threats to drinking water and we’re also putting in place stronger safeguards against structural failures of coal ash impoundments. The health and the environment of all communities must be protected.”

Nationwide, there are almost 900 coal ash landfills and surface impoundments in almost all states, most often on the properties of power plants.

If adopted, the EPA proposals will ensure for the first time that protective controls, such as landfill liners and groundwater monitoring, are in place at new landfills to protect groundwater and human health. Existing surface impoundments will also require liners.

The stronger of the two options would phase out use of existing surface impoundments and transition to safer landfills, which store coal ash in dry form.

The proposed regulations will ensure stronger oversight of the structural integrity of impoundments in order to prevent accidents like the one at Kingston, Tennessee.

Coal ash slurry in the broken impoundment pond at the Tennessee Valley Authority’s Kingston power plant. December 29, 2010. (Photo © Wade Payne courtesy Greenpeace)

On December 22, 2008, a retaining wall at the Tennessee Valley Authority’s Kingston coal-fired power plant collapsed, causing 2.6 million cubic yards of fly ash to be spilled across hundreds of acres of land and river in a sludgy mess six feet deep. Cleanup is still ongoing.

Located at the confluence of the Emory and Clinch Rivers, the spill displaced residents, caused widespread environmental damage, and required hundreds of millions of dollars in cleanup costs at the facility, which is owned and operated by TVA, the nation’s largest public utility.

The disaster prompted an EPA investigation of all the coal ash impoundment facilities in the United States and the new rules proposed today.

Today’s proposal calls for public comment on two approaches for addressing the risks of coal ash management under the nation’s primary law for regulating solid waste, the Resource Conservation and Recovery Act.

One option is drawn from authorities available under Subtitle C, which creates a comprehensive program of federally enforceable requirements for hazardous waste management and disposal. This option includes standards for storage containers, tanks, and containment buildings

The other option includes remedies under Subtitle D, which would regulate coal ash as solid waste, not hazardous waste. This section of the law gives EPA authority to set performance standards for waste management facilities and would be enforced primarily through citizen lawsuits. States can act as citizens. The rule would be “self-implementing” by industry with minimal oversight.

U.S. Senator Barbara Boxer, a California Democrat who chairs the Senate Committee on Environment and Public Works and held hearings on coal ash disposal, today said she is “pleased” to see the EPA moving ahead. “It is critically important that protective standards for coal ash waste be established as soon as possible,” she said.

U.S. Senator James Inhofe, an Oklahoma Republican who is Ranking Member of the committee said he prefers the Subtitle D option. “Ensuring the safe disposal and management of coal ash is a job that states have performed responsibly and effectively for years. The Obama EPA has proposed regulations that could prove unworkable, and even environmentally counterproductive.”

Although the EPA proposal specifically encourages and does not restrict beneficial uses of coal ash, Inhofe said, “EPA’s proposed regulatory options for coal ash could restrict, or even prevent altogether, its various beneficial uses.”

Environmental groups favor the Subtitle C option.

Eric Schaeffer, executive director for the nonprofit Environmental Integrity Project says the Subtitle D option is really just a guidance that hands the issue over to the states. “The EPA can’t enforce it directly. Here, the agency says it intends to ask the states to require the same kinds of controls – lead detection, liners for landfills. They expect this option to be cheaper because they assume there will be little compliance.”

Mix line at convergence of Tennessee River and Clinch River, showing water pollution downstream from TVA coal ash spill site in Kingston January 9, 2009. (Photo by John Wathen courtesy SouthWings)

“The unregulated dumping of coal ash has already contaminated groundwater, creeks and wetlands at more than 100 sites across the U.S. with arsenic and other heavy metals,” said Schaeffer. “These pollutants are dangerous to human health, toxic to fish and other aquatic life, and notoriously difficult to clean up. EPA’s proposal finally acknowledges these risks.”

“This is certainly a win of sorts, in that the EPA is finally making strides to regulate coal ash as hazardous waste,” said Trip Van Noppen, executive director for the public interest environmental law firm Earthjustice. “Their inclusion of an option to regulate coal ash as hazardous waste is an important first step.”

“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,” said Van Noppen.

The National Association of Manufacturers today did express concern about the new regulatory environment. Vice President for Energy and Resources Policy Keith McCoy said, “While manufacturers are encouraged that EPA will accept arguments that coal ash should be regulated under less stringent ‘solid waste’ rules, the NAM is concerned that EPA raises the strong possibility that electricity generators and other coal burners that handle coal ash will fall under stricter ‘hazardous waste’ requirements.”

McCoy said manufacturers might be stuck shipping coal ash across the country to a facility certified to handle hazardous waste and they fear that a hazardous waste classification “raises the specter of lawsuits that could create uncertainty and place companies at a competitive disadvantage.”

McCoy said NAM members object to the way “EPA continues to pile proposed and final rules on the manufacturing sector.”

“Today’s action is the second rulemaking in a week that impacts manufacturers,” he said.

On Friday, EPA proposed stricter standards on emissions from industrial boilers, and in the next few days, EPA is expected to issue its so-called ‘tailoring rule,’ which will regulate greenhouse gas emissions from some industrial facilities.

“Cumulatively, EPA’s regulatory agenda will subject manufacturers to an avalanche of new permitting requirements and stifle job creation,” said McCoy. “More regulation will only hinder manufacturers’ ability to continue to lead the nation out of the steepest recession since the 1930s and create jobs.”

Under both approaches proposed by EPA today, the agency would leave in place an exemption for beneficial uses of coal ash in which ash is recycled as components of products such as concrete, cement, wallboard and other contained applications that do not expose the public to unsafe contaminants.

“EPA supports the legitimate beneficial use of coal combustion residuals,” said Mathy Stanislaus, assistant administrator for EPA’s Office of Solid Waste and Emergency Response, the agency office that will be responsible for implementing the final rule.

“Environmentally sound beneficial uses of ash conserve resources, reduce greenhouse gas emissions, lessen the need for waste disposal units, and provide significant domestic economic benefits,” Stanislaus said.

The public comment period is 90 days from the date the rule is published in the Federal Register.

Click here for more information about the proposed regulation.

Click here to view the chart comparing the two approaches.

To view results of the impoundment assessments conducted by the EPA since the TVA Kingston ash spill, click here.

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