Did EPA Use Oil Spill to Keep Coal Ash Ruling Under the Radar?

The Environmental Protection Agency has announced that it still can’t decide if coal ash is hazardous.

Have you ever sat on a fence? It gets painful after a while. And so you’ve got to feel for the folks at EPA. They just can’t seem to get off their coal-ash fence.

The Sad and Checkered Story of Coal Ash and Coal-Ash Regulation

U.S. regulation (or more appropriately non-regulation) of coal ash, the solid stuff left over after power plants burn coal, dates back to the 1980s. But it wasn’t until April 2000 that the feds looked ready to declare it a hazardous pollutant, but then the Clinton administration stepped back at the eleventh hour, leaving the “hazard” label in limbo. (See here and here for more on coal ash.)

Since 2002, America’s coal-fired power plants have produced an average of more than 120 million short tons [pdf] of coal waste each year. In 2008 the United States produced about 136 million short tons of coal waste [pdf], recycling about 44 percent [pdf] of the total.

Every year, on average, about 75 million short tons must be disposed of somehow. Without serious federal oversight, the coal and power industries have followed the path of least resistance, simply dumping the waste into landfills and containment ponds. The numbers on how many of these sites exist around the country vary, with estimates ranging anywhere between 900 and 1,300 waste ponds and landfills of varying design and safety, some located near residences, schools, and even drinking water supplies.

The Spill That Gave Coal Ash a Household Name

 

The area of the Dec. 2008 coal ash spill in Tennessee.

Some might have speculated that all this was a recipe for disaster.

I suspect if you asked the folks who live near Kingston, Tennessee, they would say that that’s exactly what happened on December 22, 2008, when a dike at the Tennessee Valley Authority’s Kingston Fossil Fuel Plant in Harriman, Tennessee, failed, spilling more than one billion gallons of toxic sludge over approximately 300 acres, including into the Emory River. Estimated clean-up costs are expected to exceed $1.2 billion [pdf].

Needless to say, many thought this spill that put coal ash on the map would be the catalyst for drastic transformation of the coal-ash regulatory terrain. Indeed, EPA administrator Lisa Jackson promised swift action: a review of how safe coal ash containment ponds and impoundments are, and, by year’s end, a determination of whether coal ash should be regulated as a hazardous pollutant.

Other Posts on Coal Ash
Tennessee Coal Ash Contaminated With Radioactivity, Arsenic » (Jan. 29, 2009)
Statistically Speaking – Coal Waste: What’s It Good For? » (Jan 30, 2009)
Clean Coal’s Dirty Secret – When ‘Clean’ Isn’t Clean » (Feb 04, 2009)
Did a Coal Ash Trade Group Try to Pull a Fast One? » (Feb 13, 2009)
Grok Image: Lake or Waste Pond? You Decide. » (March 3, 2009)
Finally Standards for Coal Ash … Just in Time? » (March 11, 2009)
Update: Where Is the Coal Ash Waste Going? » (July 6, 2009)
Coal Ash Waste: Where We Are Now and Where We Still Have to Go » (July 13, 2009)

Some might argue that determining whether coal ash is a hazardous pollutant or not is a no-brainer. The stuff is loaded with arsenic, lead, mercury and other assorted toxic metals as well as radioactive elements like radium.

But there are those who disagree. Not surprisingly, among the coal-ash-is-not-hazardous-to-your-health crowd is the coal industry, which claims that treating coal ash as a hazardous pollutant would be too expensive and, anyway, they can deal with the problem on their own.

A Missed Deadline and a New ‘Announcement’ on Coal Ash

So the December 2009 deadline for deciding on the hazardous designation came and went without EPA’s ruling on whether coal ash is hazardous, but the agency did announce on December 17, 2009: a ruling would not be made by year’s end, as promised, but would be forthcoming after a “short period.”

After some two decades of dithering on the ruling, you might ask, so what’s been the holdup? EPA says it’s the “complexity of the analysis.” Others, who will remain nameless, speculate that the Obama administration’s reticence has been tied to garnering support for or at least neutrality on the climate and energy bill that might reach the Senate floor this year. Whoever said that should probably have his hand slapped because there is absolutely no solid, confirmed, on-the-record evidence that that’s the case.

Whatever the reason, hallelujah, our wait is over — the “short period” has ended. EPA’s ruling has been announced … well sort of, since the ruling is not quite a ruling. Instead EPA announced that it’s considering two options that have vastly different price tags and, as some environmentalists have noted, “dramatically different regulatory” approaches:

  1. Regulate coal ash as a hazardous pollutant under the federal Resource Conservation and Recovery Act (RCRA) Subtitle C; or
  2. Regulate coal ash as a non-hazardous pollutant under RCRA Subtitle D, which would allow EPA to issue narrower guidelines for states but would not give the agency the authority to enforce the guidelines.

The proposed “ruling” has two important exemptions [pdf]:

  • so-called beneficial uses of coal waste would be exempt from regulation and
  • the Office of Surface Mining, Reclamation and Enforcement will be tasked with developing rules for the controversial practice of using coal wastes as mine-fill.

Before making a ruling on its ruling, EPA is soliciting comments for 90 days.

So here’s the thing. After all the months and months of post-Kingston analysis and waiting (not to mention the years prior), EPA just happened to issue its non-ruling on Tuesday, May 4, 2010, when everybody’s attention was fixated on the still widening oil spill in the Gulf of Mexico. Is that just coincidence? Anyone who says otherwise should probably have his hand slapped … ouch!

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