In an unusual two-option proposal that drew clashing views from green groups and power plant operators, the Environmental Protection Agency (EPA) has proposed regulating coal combustion ash either as a nonhazardous waste subject to tougher management and disposal requirements or as a "special" hazardous waste that would have similar controls but still be eligible for recycling and reuse in products such as Portland cement.
The announcement comes after months of delay and indecision in the Obama administration over the appropriate scope of federal regulations, and more than a year after a billion gallons of coal ash burst through a dam at a Tennessee Valley Authority (TVA) power plant in Kingston, Tenn., spreading a torrent of toxic-laced sludge into nearby waterways and across 300 acres of local land.
Much of the administration’s angst was over whether to label coal ash as a hazardous waste under the Resource Recovery and Conservation Act (RCRA), the primary federal law regulating solid waste disposal.
While green groups supported such a designation due to toxic metals in coal ash piles, utility industry groups argued those residues were too small to warrant hazardous waste regulation, which they said would impose huge disposal costs on utilities and their ratepayers and kill beneficial recycling of coal ash, which is reused by many industries.
Looking for Direction
In a conference call with reporters to explain the agency’s two-track proposal, EPA Administrator Lisa Jackson said both options were aimed at reducing the potential for spills and groundwater contamination from the huge amounts of coal ash now stored in surface impoundments at many power plants and disposed of in landfills under widely varying state regulations and waste management standards.
One option proposed by the EPA would regulate coal ash as a nonhazardous waste under RCRA’s Subtitle D. Utilities and landfill operators would be subject to siting reviews and restrictions; required to install protective liners on the bottom of impoundments and landfills to prevent spills; conduct groundwater monitoring; and comply with "corrective action standards" to clean up coal ash spills and seepage into groundwater.
Under that option, existing facilities without liners would have to retrofit within five years or shut down, and new coal ash facilities would have to be built with protective liners.
Under the alternate proposal, the disposal of coal ash would be regulated as a hazardous waste under Subtitle C of RCRA, which would subject coal ash to similar disposal and management requirements, but also include compliance with strict federal limits on leakage of toxic materials from storage and disposal facilities.
"Under the Subtitle C proposal, surface impoundments would be phased out" over five years, said Jackson.
However, the EPA said that if it goes with a more stringent, hazardous determination, it would create a new "special waste" listing for coal ash so as to allow it to continue to be recycled and reused in industrial applications that Jackson said were safe.
The potential creation of a new waste category under RCRA subtitle C—a move that appears to be without precedent—aims to address concerns raised by industrial firms and manufacturers that reuse coal ash in various products that a hazardous waste designation would effectively kill recycling by stigmatizing their products.
"EPA and other federal agencies will continue to study these applications in places where we do have concerns," said Jackson. "But EPA supports the safe reuse of these materials and under either of our two options we believe that safe, controlled reuse will continue.
"We have heard some people complain that if you call it a hazardous waste, that will stop people from recycling it; we’ve never seen that to be the case," said Jackson. "However, with a nod towards those concerns, EPA has said, ‘let’s call it a special waste.’"
Dry Ash Systems Favored
Jackson said the overall intent of the proposals is to push electric utilities and other operators of coal-fired power plants and boilers to convert coal ash ponds to dry storage facilities.
Environmentalists say an ash management system that employs drying coal combustion waste with blowers and hauling the dried ash offsite is preferable to a wet system, which creates more opportunities for contaminants to leach out into the environment.
"Under either option, we’re confident that management of coal ash will be held to national standards that increase safety and environmental protection," said Jackson.
"Combined with stronger measures to assess impoundment safety in the interim, we believe this is the best way to prevent a repeat of the devastating spill in Kingston."
TVA to date has removed more than 3.2 million cubic yards of ash from the site of the ash spill and cleanup operations are ongoing. The TVA board in August adopted a 10-year plan for converting storage facilities throughout its fleet of coal-fired plants from wet to dry—an initiative that the federal utility believes will cost as much as $2 billion.
Will the EPA Label Coal Ash Hazardous Waste?
When pressed under questioning, Jackson declined to indicate which of the two regulatory proposals EPA was leaning toward.
Environmental groups were generally positive on EPA’s announcement, expressing cautious optimism the agency will ultimately go with a hazardous waste determination.
"This is certainly a win of sorts, in that the EPA is finally making strides to regulate coal ash as hazardous waste," said Trip Van Noppen, executive director for Earthjustice, in a statement following the EPA’s announcement.
"Their inclusion of an option to regulate coal ash as hazardous waste is an important first step. The science is clear that coal ash is hazardous waste, and we are confident this administration will stand by its commitment to follow the science in its policy decisions."
However, national trade groups representing investor-owner utilities, municipal power companies, and rural electric cooperatives were not swayed by the EPA’s plan to carve out a "special waste" category for coal ash in the case of a hazardous waste determination.
"EPA might want to call it something else, but Subtitle C is a hazardous waste," said Jim Roewer, executive director of the Utility Solid Waste Activities Group, which represents the Edison Electric Institute, the American Public Power Association, and the National Rural Electric Cooperative Association, among other industry groups.
"The Subtitle C label matters. The stigma would still be applied no matter what you call it . . . and have adverse impacts" on producers of coal-fired power, said Roewer.
Such a determination would require expensive management and disposal safeguards and could lead to federal calls to close certain, older surface coal ash impoundments.
Indeed, in a draft version of the EPA’s proposed rulemaking posted to the agency’s website, the EPA notes the regulatory costs of a Subtitle C determination would be more than double than that for a nonhazardous determination under RCRA Subtitle D.
According to the EPA, 36% of states do not have minimum liner requirements for coal ash landfills, and 67% lack liner requirements for surface impoundments.