Ash Time Goes By: Administration Continues Foot-Dragging on Coal Ash Rule as Toxic Landfills and Ash Ponds Grow by 94 Million Tons Each Year

Three years after the EPA proposed a rule to protect communities from coal ash—a byproduct of coal-power generation that’s filled with toxic chemicals like arsenic, lead, and mercury—a final rule is still nowhere in sight. Meanwhile, power plants are dumping an additional 94 million tons of it every year into wet-ash ponds and dry landfills that are already filled to capacity.

Seemingly untouched by this sense of looming disaster, the Obama Administration continues to dawdle in the face of resistance from the coal industry and perennial attempts from House Republicans to deprive the EPA of its authority over the issue. As the EPA fiddles with new power-plant data and reassesses the rule ad nauseam, the next coal ash catastrophe is waiting to happen. As we examine the wreckage, we’ll have to remember how this rule gathered dust on the Administration’s desk.

A Brief History of a Not-So-Brief Rulemaking

Although the EPA has debated whether to regulate coal ash for decades, the issue took on a new urgency after 1.1 billion gallons of ash slurry spilled from a ruptured dam in Kingston, Tennessee in 2008, doing irreversible damage to the surrounding community (but miraculously killing no one). The spill refocused attention not only on unstable ash ponds, but also on the leaching of chemicals into groundwater from unlined or improperly lined waste sites, and the spewing of dry ash into the air. Exposure to the toxic ash can cause cancer, birth defects, and a host of neurological and respiratory disorders, as nearby communities are painfully aware. (See here for a brand-new series of excellent films on coal ash).

After Kingston, the EPA promptly drafted a proposal that would regulate coal ash as hazardous waste, setting enforceable, nationwide standards for management and disposal. But before being released, the proposal had to pass through the deregulatory gauntlet of the White House Office of Information and Regulatory Affairs’ (OIRA) review process, which went four months beyond its deadline. During that time, industry groups met with OIRA a staggering 33 times, a record even for the heavily lobbied OIRA. They claimed that hazardous-waste regulation would impose a costly “stigma” on the use of recycled ash (in construction and landscaping materials), which would dwarf any benefits to public health and safety.

By the time the White House was through with the proposal in June 2010, it had become bloated with weak options that would regulate coal ash as “non-hazardous solid waste,” leaving in place a dysfunctional patchwork of state regulations with no federal oversight. The proposal was accompanied by a severely flawed cost-benefit analysis designed to make the weak options look attractive by embracing the industry’s unfounded stigma argument.

The coal-utility and ash-recycling industries launched a massive lobbying campaign in Congress and in public to further block the rule. The EPA was flooded with 425,000 comments, and the enormous task of sifting through them became part-reason, part-excuse for delaying the final rule—first beyond 2011, then to the end of 2012 or the beginning of 2013, and finally into 2014.

A Bird’s Eye View of Coal Ash Threats

While the Obama Administration stalls for time, communities remain vulnerable to more than 2,000 aging disposal sites, including the 45 ponds that the EPA has deemed “high hazard” (likely to kill people if their dams burst).

Coal ash sites have already been responsible for at least 211 documented cases of contamination. As if to show that Kingston was not an isolated event, another pond collapsed in 2011, spilling a football field’s worth of coal ash into Lake Michigan and swallowing trucks and machinery whole—but luckily none of the 100 nearby workers. How many close calls can we have left?

The Ohio ash reservoir seen below is held back by a 230-foot dam, with another 50-foot dam above it, menacing the town that sits underneath. Between 2009 and 2011, an additional 4.4 million pounds of toxic metals were poured into the pond, and the nearby groundwater exceeded federal standards for arsenic and molybdenum.

The Kentucky ponds shown below, one of them 227 feet high, contain some of the highest levels of lead, nickel, and thallium in the nation, and are poised above the Ohio River, which provides drinking water to more than 3 million people. Two towns sit 1-2 miles away, with schools and churches dotting the riverside.

Further along the Ohio River, there’s a pond literally across the street from a residential neighborhood (see below). It drains millions of gallons of contaminated water into the river under its state permit, to prevent overflow. Not only is the groundwater polluted with dangerous levels of arsenic, cadmium, lead, and selenium, but the landfill scatters “black soot everywhere” in the words of one resident, who said, “I‘ve lived there for 35 years and all I do is watch people die.”

Where the Rule Stands Now

Three years after it was proposed, the rule remains at a virtual standstill. Even worse, the chance that effective national standards will come out of the process is dwindling.

The Administration shied away from setting a deadline for the final rule in its newly released regulatory agenda. Instead, the EPA’s only new commitment is to issue a “notice of data availability” next month (its third one so far), highlighting information collected for another proposed rule on power-plant water discharges. The agency hinted that this information could lower the risk assessment for coal ash by an “order of magnitude,” which suggests that regulating it as a non-hazardous waste “would be adequate.” (No wonder the industries were celebrating an early victory.)

But if anything, the new data actually show the problem to be much worsethan previously imagined: they identify an additional 451 ponds and 56 landfills that the agency did not know about before, and reveal that at least 46 percent of ponds and 43 percent of landfills are unlined. The discovery that some of the new sites are “smaller,” as the EPA wrote, does not detract from the risks posed by the larger ones.

From a procedural standpoint alone, the EPA’s new notice is sure to open up a new round of comments—yet another opportunity for industry to minimize the dangers of coal ash and exaggerate the costs of safeguards—which will further delay the rulemaking process.

The rule on power-plant discharges may in fact solve a big part of the coal ash problem: several options would eliminate the use of wet ponds and require dry handling instead. But then again, the proposal also includes inadequate options that would allow plants to continue dumping ash in ponds—two of them cooked up by OIRA and given “preferred” status—and it doesn’t address the dangers of dry landfills at all. Given the connection between the two rules, it’s unlikely that the EPA will finalize the coal ash rule until it knows what approach it will take to the water-discharge rule, which has a deadline of May 2014. 

Keeping One Eye on Congress

Of course, it’s game over if coal-state members of Congress manage to take the matter out of the EPA’s hands by declaring coal ash a non-hazardous waste. Several such bills have passed through the House already, but they have so far stalled in the Senate.

Proponents of the latest House bill claim that it fixes the shortcomings of earlier ones, in an effort to make the bill more palatable to Senate Democrats. But as environmental groups and the Congressional Research Service have pointed out, the so-called fixes are superficial and misleading: the bill still fails to establish minimum national safeguards and leaves enforcement entirely up to the states, among other fatal flaws.

It took a highly publicized catastrophe to trigger the EPA’s rulemaking in the first place, but as the headlines waned, so too did the Administration’s commitment. Let’s hope it won’t take another, more deadly catastrophe to jog the Administration back into action.