by Sue Sturgis.
A special Facing South investigation.
When 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.
But
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.
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.
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