We have reported in POWER and COAL POWER on the development of new coal ash regulations since the sordid story began in December 2008. That’s when the Tennessee Valley Authority’s (TVA’s) Kingston Power Plant’s wet ash storage pond dike failed, releasing five million cubic yards of wet ash into the plant’s environs. Since that event, the Environmental Protection Agency (EPA) has been busy developing new regulations for wet ash impoundments.

Developing New Regulations

The EPA made known its intent to regulate coal ash ponds in March 2009 by ordering a review of 300 utility wet ash storage sites. The issue of whether coal ash residue is a hazardous waste (as defined by Subtitle C of the Resource Conservation and Recovery Act [RCRA]) was again raised by several members of Congress, even though the EPA had ruled in May 2000 that it was not. Soon thereafter, the EPA began collecting new data and promised to revisit that decision. I found these events ironic given that Carol Browner, President Obama’s top environmental aide, was the EPA administrator in 2000 when she made that ruling.

The Edison Electric Institute (EEI) entered the discussion (some might say negotiations) in May 2009, stating that the industry is in support of new ash waste storage regulations as long as the ash remains classified as a nonhazardous waste (under RCRA Subtitle D).

By August, the EPA revealed the locations of 44 "high-hazard" coal ash storage ponds. A trial balloon appears to have been released in April 2010 when the EPA discussed new rules that would require conversion of all wet coal ash storage to dry ash storage to prevent future leaks. At about the same time, TVA released its draft environmental assessment for a similar conversion at the Kingston plant. The industry, through EEI, did not push back on the mandatory conversions; it only noted that the cost to convert a plant from wet to dry ash collection was $10 million to $20 million and the cost for a new dry ash landfill was $30 million to $50 million. The public negotiations were moving along well.

That is until proponents of a Subtitle C determination turned the discussion nasty by accusing the White House Office of Information and Regulatory Affairs (OIRA) of "watering down" the new regulatory requirements by siding with utilities. One group’s web campaign pictured OIRA Director Cass Sunstein soiled with coal ash, emerging from a trash can, and charged the official with weakening the EPA‚Äôs draft regulation. Insiders say that the draft recommended classifying the waste as hazardous. The EPA wrote that "maintaining a [nonhazardous] approach would not be protective of human and the environment."

The infighting apparently had an effect, because the draft regulations send to OIRA in October 2009 and scheduled for release by December didn’t appear until April 2010.

The Coal Combustion Residual proposed rule was finally released on June 21, 2010, but without the EPA taking a position on the key regulatory issue of RCRA Subtitle C versus D classification of the waste products. The EPA website includes this language: "The Agency considers each proposal to have its advantages and disadvantages, and includes benefits which should be considered in the public comment period." The public comment period, in response to public requests, is currently scheduled to end on November 19, 2010.

Remember Asbestos?

In my opinion, the EPA is pushing its decision out past the November elections because it is determined to recategorize waste ash as a RCRA Subtitle C hazardous waste but wishes to avoid the inevitable industry backlash that will follow. That backlash will be loud and furious but ineffectual, because the Kingston debacle destroyed any hope of avoiding harsh new regulations. The EPA has taken advantage of a bad situation to push what appears to be the administration’s anti-coal agenda, and the industry has no one to blame but itself. If it hadn’t been for Kingston, these new regulations wouldn’t have been on the EPA’s radar screen.

I also believe that the cost of these regulations will be much more profound than what the EEI described as the capital costs of building new dry ash-handling and storage facilities. There are about 100 plants that collect and store wet ash. If $50 million per is the estimate, then the industry cost could be about $5 billion to update and comply with a "hazardous" determination. In my view, that cost will be seen as chump change in the future. Consider what happened with asbestos.

Asbestos was mined by the Greeks. It was recognized by the Persians for its insulating properties. And Marco Polo saw garments woven from asbestos cleaned by placing them in a fire. The industrial revolution found new uses for the mineral, especially in bricks, pipes, drywall, and insulation. A material containing asbestos was even used in cigarette filters in the early 1950s.

Today we know that the material is the cause of many acute health problems, which gave rise to the longest and most expensive tort action in U.S. history. An article in The Economist (January 26, 2005) estimated that the total payout for asbestos injury claims to that date was over $250 billion (with almost 50% going to pay lawyers’ fees). There have been at least 200,000 asbestos-related suits filed in U.S. federal court and, by one estimate, the number is expected to grow to 700,000 over the next 40 years. The Fairness in Asbestos Compensation Act (1999) limited payouts to those who were affected by asbestos, but many companies were forced out of business.

Many Profound Effects

If waste coal ash were to be redesignated a hazardous waste, the industry should brace itself for an asbestos-like legal response from any person who formerly worked at a power plant or related facility and now has a serious disease, regardless of its cause. What about the tens of thousands of workers now employed at coal-fired plants and the tens of thousands of retired, construction, or repair workers? What about the Federal Express worker who delivers parcels to the plant every day and motorists who drive by waste ash ponds on their way to work every day? What about plant operators who walk by a wet ash sluice system in the plant during their inspection rounds? If the waste is hazardous, then failing to protect workers with sufficient isolation, containment, or from even the least exposure with the waste could bring liability. Walking out to the plant or an ash pond will require suiting up in a white environmental suit with internal air supply, much like asbestos abatement workers do today.

Another side effect will be killing the thriving business of recycling waste ash into building products, such as cement blocks. If the ash is found to be legally "hazardous," then the business of finding a good home for waste ash ends. And then, what about all those people who handled the ash to make the brick, build buildings, and live in buildings that used products with recycled waste ash? With some more thought, I’m sure you can come up with another dozen crazy scenarios where potential liability flows without end.

Do the Numbers

Some quick numbers: If the $250 billion paid out in asbestos claims cited earlier is eventually split among 500,000 plaintiffs, that equals an average payout of half a million dollars per plaintiff. If 50,000 people were "exposed" to coal ash and at some time during their life found reason to file similar suits, then the potential liability to the industry is $25 billion.

Just to be clear, I’m not suggesting that there is a causal relationship between coal ash and health effects like those experienced by asbestos-related diseases. I do suggest that the number of claims, valid or otherwise, that may have to be litigated or negotiated will be very high.

My quick estimate of potential liability may be on the high side, but I have no way of knowing what the real numbers might be. The industry has been completely mum on the subject. I do know there are a lot more lawyers looking for a quick score today than there were when the first asbestos lawsuits were filed. This factor may also be part of the reason that the EPA is having such a difficult time making a decision.

I predict that the EPA will select the Subtitle C approach to regulating coal ash, even though Browner’s EPA ruled differently a decade ago, and the rules will be tied up in federal district court for years. I also predict that within weeks of that decision there will be television commercials by lawyers trolling for litigants ostensibly harmed by coal ash exposure, hoping to build a class-action lawsuit against the power industry.

—Dr. Robert Peltier, PE, is COAL POWER‘s editor-in-chief.