The New Coal Ash Disposal Rules: EPA's Missed Opportunity

04/08/2015 04:04 pm ET | Updated Jun 08, 2015

Co-authored by Tony Schwartz

One always remembers the first job in their career, and I'm no exception to that rule. When I graduated from law school in 1993, I decided to commence my legal career as a mining attorney with the Pennsylvania Department of Environmental Protection. It was in those first few years of my fledgling legal career that I learned all the ins and outs of the mining industry, in particular, the coal mining industry.

Since coal-fired electric generation facilities were often placed proximately to the source of coal (i.e. the mines), one of the things that always struck me as strange was the handling of coal ash refuse. Sometimes placed in open impoundments in a slurry form, sometimes just backfilled into the active reclamation of the surface mine, and sometimes even used as fill in abandoned surface and underground mines, coal ash was practically treated the same as construction workers would treat excess fill at a construction site -- meaning that the coal ash was handled as some kind of innocuous, harmless byproduct, such as dirt. We know now that is not the case. In fact, the nation's handling of our largest energy waste is anything but safe or prudent.

Coal ash is a waste material that is produced when coal is burned for energy use. The Sierra Club estimates 336 functional coal-burning power plants continue to dump this dangerous byproduct into more than 1,100 coal ash-holding sites throughout the U.S. at an earth-shattering rate of 140 million tons per year.

Jettisoned into dry landfills and storage ponds, coal ash contains extremely toxic materials including arsenic, mercury and lead -- which the Physicians of Social Responsibility suspect to cause cancer, neurological disorders, heart damage, lung disease and birth defects in children if ingested. The U.S. Environmental Protection Agency (EPA) has identified 45 coal ash surface impoundments in 27 locations across the U.S. that pose a "High Hazard Potential" (full list here). Additionally, unlined active surface impoundments pose a serious threat to those living nearby since the refuse easily infiltrates the ground flowing to subsurface drinking water sources for local communities -- an imminent threat to the 1.54 million children living near coal ash storage sites. Not only do active impoundments threaten humans, plants, animals and their respective ecosystems, but inactive sites are of particular concern as well.

The jury is still out on best practices for closing the 750 domestic inactive sites. With discretion being left up to the state governments (who are not required to adopt EPA regulations), a number of Band-Aid approaches are being employed. The easiest method for utilities to address our growing coal ash crisis is to cap the impoundment with soil and literally cover the damage done. The problem here is that a cover-up does not equate to a solution. Pressing coal ash into the soil still poses a threat for vertical and horizontal leakage into groundwater.

Vice News recently reported on the nation's largest coal ash site known as "Little Blue Run" -- an impoundment so colossal that it can be viewed from space. As a way to mitigate concerns from local citizens, property surrounding "Little Blue Run" was marketed as "lakefront" and "recreational" for fishing and water skiing. The empty promises and ensuing lackluster dumping practices by local utilities led the federal government to intervene and require closure of the site -- a process that may use the "cap method" and could take up to an estimated 15 years to complete. In the meantime, any local who cooks or cleans with tap water runs the risk of exposure to carcinogens and heavy metals.

Unfortunately, it wasn't until Dec. 22, 2008, when the largest coal ash spill in history occurred in Kingston, Tenn., that the EPA decided it was time to pursue regulation of this toxic byproduct of an archaic energy source. On that day, more than 5 million cubic yards of coal ash dispersed and quickly contaminated the Emory and Clinch Rivers polluting nearly 300 acres. The earthen dam holding the refuse (under the oversight of the Tennessee Valley Authority), collapsed causing an unprecedented $1.2 billion cleanup operation, which is still underway seven years later.

10 months after the horrific environmental disaster in Kingston, in October of 2009, the EPA submitted a draft proposal to the White House Office of Management and Budget. This proposal requested that coal ash be designated as a hazardous waste under subtitle C of the Resource Conservation and Recovery Act (RCRA), which would require utility companies to handle coal refuse as a hazardous waste, from "cradle to grave." Additionally, collaboration between state agencies and the Department of Justice would be required under the program. Environmental agencies and advocacy groups felt this was crucial considering the Kingston incident occurred under state supervision. To the dismay of environmental groups, in mid-2010 the EPA released an alternative proposed rulemaking for handling of coal ash under the less-strict subtitle D of RCRA.

Subtitle D has a much less stringent compliance structure and allows states to self-govern the planning, regulating, implementing and control phases. It also does not require that states meet federal threshold standards pertaining to handling, discarding and storage of nonhazardous waste materials. In realty, under subtitle D coal ash would be treated as nonhazardous waste and the equivalent to household garbage. In other words, coal ash containing carcinogenic metals, such as lead, mercury and arsenic, could be discarded the same way as the core of an apple.

Finally, in October 2013 and after a three-year delay, a federal judge directed EPA to submit its final coal ash regulations within 60 days -- news which was well received by the environmental community. The deadline for EPA to act was set for Dec. 19, 2014.

Even after the National Academy of Sciences found coal ash to be toxic to humans and the environment in 2006, the largest spill of coal ash in the history of mankind in Kingston in 2008, the catastrophic calamity by Duke Energy in 2014 and findings of cancer-causing elements in drinking water, the EPA released final rules to regulate coal ash under subtitle D where coal ash is treated as household, nonhazardous waste. Making matters worse, states are not required to adopt regulations set by the EPA, develop a program that adheres to regulations or submit a containment program to the EPA for approval.

This is a missed opportunity by the EPA.

Between 2008 and 2014, groups such as the Electric Reliability Coordinating Council were able to leverage their ties in Washington, D.C. to lobby against subtitle C, propose profit-driven alternatives that neglect the health of human lives and walk away with a victory for the coal industry. With coal producing the vast majority of our total electricity generation in 2013 (about 40 percent), it is no wonder that industry rigged the game and won. Meanwhile, House Republicans are currently working to permanently legislate the finding that coal ash should be managed under subtitle D with the hopes that the EPA will not pursue tighter restrictions in the future. Read this misguided, economy-focused quote by Rep. John Shimkus (R-Ill) regarding the House's stance on coal ash:

"We share the same goal as EPA: to improve protections for health and the environment. But our bill goes a step further than EPA and breathes real-life enforcement authority into the standards. By putting states in charge of implementation, we can achieve the protections we all want and give job-creators the certainty they desperately need."

In other words, Rep. Shimkus puts job creation over protection of human health by advocating that coal ash be managed as regular old solid waste under subtitle D.

EPA's latest regulatory scheme for coal ash is largely ineffective. Not only does it fail to address pressing threats that coal ash and its handling, storage and disposal demand, but also it pushes responsibility for site inspections and regulation to states that are under no legal requirement to comply. Meanwhile, threats from current practices and failure to reclaim and correct our past transgressions remain. As a nation, we need to remove the threat to the environment by the largest energy waste created in our history. Otherwise, we risk the further destruction of our rivers, streams, precious drinking water aquifers and human health. In this case, not only has EPA failed us, but also it has actually made matters worse.