Environmentalists say February’s spill inspires doubts about EPA’s strategy. EPA coal ash rule still not done

A month before President Barack Obama moved into the White House, a dike failure sent 5.4 million cubic yards of black, sludgy ash spilling out of a pond near a coal plant in Roane County, Tenn., wiping out 300 acres and damaging homes.

Last month, 27 million gallons of wastewater and 39,000 tons of coal ash washed out of a pond near a closed Duke Energy power plant, fouling North Carolina’s Dan River.


Between the two disasters, the Environmental Protection Agency attempted to regulate the often-toxic ash produced by coal-burning power plants, but the effort has become mired in bureaucratic delay. Environmentalists have repeatedly gone to court to prod the agency to move faster, while utilities have argued that the rules’ costs could be crippling; early drafts of rules have encountered some opposition from the White House; and lawmakers have tried to strip the agency’s power to handle the issue at all.

In the past five-plus years, EPA has produced more than 200 pages of proposed rules, received more than 600,000 written comments and outlined two possible approaches to clamp down on companies that produce and stockpile the stuff.

The end is finally in sight, with crucial deadlines approaching in the next nine months. But EPA still hasn’t made it clear exactly what its final rules will look like.

Environmental groups say coal ash ponds populate the outskirts of hundreds more power plants around the country, tempting another inevitable accident. The draft rules EPA has released so far wouldn’t have affected dormant storage sites like the one in North Carolina.

“After the [Tennessee Valley Authority] coal ash disaster of 2008, hundreds of thousands of people across the country demanded action, yet more than five years later the [EPA] has still not issued modern, science-based safeguards for toxic coal ash,” Mary Anne Hitt, director of the Sierra Club’s Beyond Coal campaign, said after February’s spill. “The EPA has allowed polluters to continue business as usual.”

Last week, the Sierra Club launched an ad campaign in Washington, D.C., and North Carolina urging EPA to get moving. Some businesses are also unhappy about the wait, saying it’s hurting the market for recycling the ash in products like concrete — so instead, millions more tons have ended up in landfills.

The agency says it’s working diligently.

“Since [the] proposal, we have been gathering additional information, including through public comment as well as other data sources, to inform our final disposal rule,” EPA spokeswoman Alisha Johnson said in response to questions about the delay. She said the number of coal ash storage sites also keeps changing “as individual facilities change their management practices.”

The EPA effort has faced heavy obstacles: Costs to the utility industry could run in the billions of dollars. Political opposition is heavy. And it appears that someone at the White House isn’t convinced, based on the major revisions it has made to past drafts.

But some key milestones are coming up.

By May 22, the agency is scheduled to finish its water pollution discharge standards for coal-fired power plants, the first revision to the regulation since 1982. That rule addresses the coal ash issue by limiting the pollution allowed in power plants’ waste streams. If it’s costly enough, utilities would choose to stop dealing with the waste in its more unwieldy watery state, instead managing it as a solid waste.

By Dec. 19, the agency faces a court-imposed deadline to finish a separate rule regulating the massive ponds where liquid coal ash is stored.

Each of the two regulations is subject to environmental lawsuits aimed at forcing the agency’s hand, but the finish lines may still slip out of sight. EPA told a federal court Tuesday that it will miss the water rule’s May 22 deadline and is negotiating with the Sierra Club and Defenders of Wildlife for more time.

Environmentalists say February’s North Carolina spill inspires doubts about EPA’s strategy.

“I think the North Carolina spill raises the question of whether the final rule addresses the risky and dangerous situation that we have with old surface impoundments that are not currently active,” said Earthjustice attorney Lisa Evans, who is involved in litigation over the delay.

EPA has the authority to regulate coal ash ponds that are no longer taking on waste, as was the case with Duke’s North Carolina plant, Evans said. But its proposed rules would not.

Now Duke is facing a federal inquiry about the company’s relationship with state environmental regulators, the company says it will take two years to restore the river and taxpayers may be on the hook for the cleanup. The disaster ranks as the third-worst coal ash spill in U.S. history.

Meanwhile, EPA still isn’t done with the federally led $1.2 billion cleanup of the nation’s worst-ever coal ash spill, which occurred at the TVA’s Kingston Fossil Fuel Plant on Dec. 22, 2008. That recovery will take until the end of this year at the earliest, EPA says.

The spill spurred near-immediate action from EPA in the form of the proposed waste rule.

“The time has come for common-sense national protections to ensure the safe disposal of these materials,” then-Administrator Lisa Jackson said on May 4, 2010, pointing to the devastation of the Kingston spill in a speech announcing the proposal.

But after a review by the White House Office of Management and Budget, the rule came back to EPA with two proposed options for regulating, one less stringent than the other. EPA still hasn’t chosen between them.

In the years since proposing the coal ash waste regulation, EPA has gathered new information, perhaps trying to see whether the effort is worth it.

The agency crafted assessments of 516 coal ash ponds but found none to be “unsatisfactory,” although it rated 144 “poor.” For the pond that spilled in North Carolina, EPA’s assessment did not warn of the potential for the type of accident that occurred last month.

But greens say the problem is much larger than the Tennessee and North Carolina spills let on. In fact, they say, coal ash ponds often contaminate wells and waterways but go unnoticed.

Earthjustice has identified more than 200 instances of contamination and spills in more than 35 states. The number is probably on the low end because many coal ash landfills and ponds don’t monitor for water contamination, the group says.

The issue is hardly new. In 1993, the Energy Department estimated that 1 billion tons of coal ash were sitting in retired landfills and ponds. The report said existing regulations push utilities to use coal ash impoundments instead of dry landfills, even though they run a much higher risk of causing soil and water pollution.

But the report also said utilities could face costs of $1.2 billion to $5.6 billion a year, and electricity rates could rise by 0.5 percent to 2.3 percent, from efforts to clean up existing ponds. Costs are an even bigger issue these days for a coal industry struggling to keep its longtime dominance in the market.

Since October 2011, Rep. David McKinley (R-W.Va.) has annually introduced bills to give states full control over regulating coal ash ponds. The Senate showed brief interest with a companion bill introduced by Sen. John Hoeven (R-N.D.) just before the August recess in 2012, but the upper chamber has been relatively quiet on the issue since.

The most recent House bill — H.R. 2218 — is based on Hoeven’s bill ( S.3512), with revisions aimed at pulling enough middle-of-the-road Democrats to get the bill to President Barack Obama’s desk.

The legislation’s supporters point to EPA’s slowness to establish regulations and the resulting uncertainty for industry.

But some recent EPA moves have given hope to coal ash recyclers for a resolution sometime soon.

Adding calcium hydroxide to the ash allows it to be used as concrete, and an entire industry has grown up around using the ash as an ingredient for roads and bridges. More than 75 percent of the concrete used in the nation’s infrastructure contains partial blends of coal ash, according to the Utility Solid Waste Activities Group, an industry coalition.

Two new things happened, said Kirk Benson, CEO of Headwaters Resources, a company that uses coal ash in building products: EPA has signaled to some that it plans to regulate the waste ponds as “nonhazardous” waste and that it is considering a discharge rule that would push utilities toward dry landfill disposal of coal ash.

Those decisions would eliminate worries about a “hazardous” designation and would make many more utilities’ ash available for the recycling industry, Benson said.

Any rule that limits ash recycling could boost the cost of materials for roads, runways and bridges by about $5 billion a year, according to a Headwaters-sponsored analysis by the American Road & Transportation Builders Association.

Last month, EPA announced that it had completed its methodology for reviewing the safety of reusing coal ash in building materials, roads, bowling balls and other products and reiterated the agency’s support for reuse.

Already, “we’ve seen some folks that were reluctant to use fly ash come back into the market,” Benson said. If the reuse industry had maintained the recycling rate that it had before EPA launched its five years of rule-making, about 25 million tons of material could have been kept out of landfills, he said.

But he said the agency had better get moving. “If they’re not writing it right now, then they don’t have a chance” of meeting the December deadline, he said.

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