America's Second-Biggest Form of Waste Is About to Be Federally-Regulated for the First Time

By Emily Atkin, ThinkProgress

20 December 14

he EPA has confirmed that on Friday, it will release its first-ever regulations on the second-largest form of waste generated in the United States: coal ash.

EPA spokesperson Rachel Dietz told ThinkProgress that the new rule will be likely be released in the early afternoon. When it is finalized, the rule is expected to include requirements on how coal ash should be disposed, how existing coal ash pits should be cleaned up, whether coal ash should be designated as a hazardous material, and who should be responsible for enforcing the rules.

Coal ash is a byproduct of coal burning, and often contains chemicals like arsenic, chromium, mercury, and lead. After producing it, coal companies sometimes dispose of it by dumping it into ditches, and filling those ditches with water. Those ditches, called coal ash ponds or lagoons, are often unlined, meaning the coal ash comes in direct contact with the environment. Right now, the Sierra Club estimates there are more than 1,400 coal ash sites in the United States, most of which are located in close proximity to lakes and rivers due to the vast quantity of water needed to burn coal for power.

“This is the worst-stored material we have in the country,” said Frank Holleman, a senior attorney at the Southern Environmental Law Center. “Not everybody knows that the world’s leading country is allowing the storage of millions of tons of industrial waste containing toxic substances to take place in unlined pits filled with water, directly beside our nation’s water resources and our drinking water reservoirs.”

For environmental advocates, the rule is a long-time coming. Dalal Aboulhosn, who works on federal policy for the Sierra Club, cited a number of high-profile disasters surrounding coal ash pond failure, including the massive Dan River spill in February and the historic Tennessee Valley Authority coal ash spill in 2008. Both incidents saw thousands upon thousands of tons of coal ash dumped in to public waterways.

“We’re trying to lift the voices of the communities living on the fenceline of these sites,” Aboulhosn said, adding that Sierra Club has brought a number of affected citizens to speak with EPA officials about what they’d like to see in the rule. “We’ve helped bring in hundreds of citizens who live daily with coal ash who have experienced the negative effects — everything from their health to the devaluing of their property.”

The EPA is not crafting the regulations it on its own accord. In fact, the main reason the agency is releasing the rule on Friday is because a federal judge ordered them to do so after multiple environmental groups filed a lawsuit against the agency claiming it had skirted its mandatory duty to review and revise its waste regulations under the Resource and Conservation Recovery Act. A judge for the U.S. District Court for the District of Columbia agreed, and the EPA settled the lawsuit by agreeing to issue a regulation by December 19, 2014.

Right now, coal ash ponds are federally designated as nonhazardous, and enforcement over them is left to the states. Environmental groups hope that will change under the new rule. Among other things, they want the material to be officially designated as hazardous; they want to require companies to clean up existing unlined pits immediately; and they want the federal government, not states, to enforce the rules. They want companies to be required to dispose of coal ash in dry, lined landfills that have a lower chance of seeping into groundwater and soil. They also hope the regulations will include mandatory and frequent groundwater testing at ash dumps, shared public data on the results of that testing, and strict timelines for power companies to clean up the ponds.

Industry, however, is vehemently opposed to classifying coal ash as a hazardous waste, saying it would prevent them from doing recycling coal ash to make it into building materials, like concrete and wallboard. Indeed, the EPA has estimated that approximately 45 percent of all coal ash is currently recycled, whole the rest of it is disposed in ponds and landfills.

But environmentalists have taken issue with the recycling process too, saying the lack of regulation on the reuse process means that many recycling facilities are just “dumpsites in disguise.” Many point to a 60 Minutes segment from 2010 which featured a golf course that re-used coal ash as a “fill” to build it, and the waste wound up contaminating the environment.

As of Thursday, there has been little indication of what the EPA’s new regulation will entail. Jeff Holmstead, partner in the law firm of Bracewell & Giuliani, told Forbes that he expected the EPA would declare coal ash a nonhazardous waste instead of a hazardous waste, and would provide honed guidance for states on how to regulate the ash ponds instead of totally taking over the enforcement process. The sentiment was echoed in an article for the Raleigh News & Observer, which speculated that the final rule would likely disappoint environmentalists and buoy the coal industry.

Either way, Aboulhosn said she was hopeful and optimistic — if only for the fact that federal regulation would be in place for the first time.

“I am optimistic for the fact that we have not had any federal safeguards on the disposal of coal ash ever,” she said, “and considering that what we throw in our trash has more safeguards on it than coal ash that contains known carcinogens, I’m optimistic that we are finally moving in the right step.”