U.S. EPA's proposed regulation of coal ash as a hazardous waste was changed at the White House to give equal standing to an alternative favored by the coal industry and coal-burning electric utilities.

The Obama administration is now considering two competing rules for regulating the ash that contains toxins that include arsenic, lead and mercury. The first would set binding federal disposal requirements for the ash, and the second would label the ash nonhazardous and leave enforcement to the states (E&ENews PM, May 4).

EPA released the two-headed proposal Tuesday for public comments.

But there was just one rule proposal that EPA sent to the White House's Office of Management and Budget last October and that would have labeled coal ash a hazardous waste, documents released yesterday show. EPA said then that compliance with the hazardous-waste regulations would be more expensive but that costs would be outweighed by health and environmental benefits.

EPA wrote then that "maintaining a [nonhazardous] approach would not be protective of human and the environment."

What changed in the six months that the proposal was in OMB's hands? Says EPA: Its administrator, Lisa Jackson, changed her mind about the hazardous-waste designation.

"After extensive discussions, the Administrator decided that both the [hazardous and nonhazardous] options merited consideration for addressing the formidable challenge of safely managing coal ash disposal," EPA said in a statement.

In its deliberations on the rule, OMB had more than 40 meetings with stakeholders, 30 with industry groups and at least 12 with environmental and public health groups, according to office's records. OMB declined to comment on the matter, referring questions to EPA.

Proponents of the hazardous designation say Jackson was bullied away from the agency's original proposal by industry lobbyists and OMB economists.

"OMB is substituting its judgment for the judgment of the EPA administrator, and that's not the way this is supposed to work," said Rena Steinzor, president of the Center for Progressive Reform and a professor at the University of Maryland Law School. "Lisa Jackson is accountable for environmental protection and that she could be overruled by a bunch of economists in the basement of the executive office tells us that this process is frighteningly dysfunctional."

Environmentalists have been pressing EPA for the hazardous designation for years, but the campaign gained momentum 16 months ago when a wet storage pond at a Kingston, Tenn., power plant failed, spilling about 1 billion gallons of sludge into surrounding lands and rivers. Even when the ponds do not fail, they can leach toxic concentrations of heavy metals into water supplies, said Lisa Evans, an attorney with the nonprofit Earthjustice.

Under the hazardous option EPA proposed Tuesday, such ponds would be phased out over five years. The nonhazardous alternative would allow new wet storage ponds to be built but require new safety measures and pollution monitoring devices.

Utilities and companies that sell coal ash for recycling as a building material argue that a hazardous designation overstates the health risks from coal ash and would unnecessarily impose new storage costs. They also say it would stigmatize building materials that use recycled coal ash and send more of the waste to landfills (Greenwire, Jan. 13).

The changes to EPA's proposal during the OMB review suggest the regulatory-review process worked properly, said Jim Roewer, executive director of the Utility Solid Waste Activities Group.

Both environmental groups and affected business had an opportunity to share their views, Roewer said. The number of meetings with industry groups should not be seen as "undue influence" but rather the result of the high number of companies affected by coal ash rules, he said.

The review process "does open the opportunity for interested stakeholders to present their views so that EPA or whatever federal agency is developing a rule can get as much information as possible," Roewer said. "To say this is a bad thing for public policy seems like a strange argument."

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