EPA Offers Two Alternatives in Coal Ash Regulation

The U.S. Environmental Protection Agency has chosen not to regulate coal ash as a hazardous waste. Administrator Lisa Jackson and senior EPA officials outlined the proposals today, with Jackson saying two alternatives were proposed because EPA believes it's important to get on with this regulatory process.

The proposal opens a national dialogue by calling for public comment on two approaches for addressing the risks of coal ash management under the nation’s primary law for regulating solid waste, the Resource Conservation and Recovery Act (RCRA). One option is drawn from authorities available under Subtitle C, which creates a comprehensive program of federally enforceable requirements for waste management and disposal. The other option includes remedies under Subtitle D, which gives EPA authority to set performance standards for waste management facilities and would be enforced primarily through citizen suits. A chart comparing and contrasting the two approaches is available on EPA’s Web site.

Under both approaches, the agency would leave in place the Bevill exemption for beneficial uses of coal ash in which coal combustion residuals are recycled as components of products instead of placed in impoundments or landfills.

Officials would not answer reporters' questions asking whether the Office of Management and Budget had forced EPA not to propose regulating the ash as hazardous waste.

Today’s action will ensure for the first time that protective controls, such as liners and groundwater monitoring, are in place at new landfills to protect groundwater and human health. Existing surface impoundments will also require liners, with strong incentives to close the impoundments and transition to safer landfills, which store coal ash in dry form. The proposed regulations will ensure stronger oversight of the structural integrity of impoundments and promote environmentally safe and desirable forms of recycling coal ash, known as beneficial uses.

One or more public hearings will be held during a 90-day comment period; Jackson and the other officials said they expect many comments. The American Coal Ash Association (ACCA), whose members include numerous energy companies, says coal ash -- although it can contain arsenic, lead, and other hazardous materials -- is a recycling success story. Coal ash is used as fill material following strip mining, for making concrete and Portland cement, and as a road base material in highway construction. ACCA and other energy interests have lobbied vigorously to prevent EPA from designating coal ash a hazardous waste. Comments are being sought from the public about "unencapsulated" reuse such as in highway construction, the EPA officials said.

Despite an impressive recycling record, not all coal ash is reused. A Dec. 22, 2008, disaster in Tennessee focused public and congressional attention on coal ash impoundments. A retaining pond's wall at the TVA Kingston Fossil Plant collapsed, releasing 5.4 million cubic yards of coal fly ash, causing damage that has required hundreds of millions of dollars in cleanup costs, Jackson said today.

"Our goal in this rulemaking is to ensure health and safety of all communities," she said. "The time has come for common-sense national protections. Today's proposal is the beginning of a national dialogue.

Once a rule becomes final, under one alternative, existing impoundments would have to install a composite liner or stop receiving new waste within five years and then close. The other alternative has the same timeline and would require removing solids from the waste and retrofitting with a new liner, but it would have to be accomplished through implementation of public state programs, she said.