Settlement to force EPA to propose coal ash disposal rules

The Obama administration committed this week to finalizing coal ash regulations by the end of the year.

The deadline is part of a proposed settlement of a lawsuit challenging the U.S. Environmental Protection Agency’s failure to meet statutory deadlines for the rules.

The settlement of the litigation initiated by ten environmental organizations and one native American tribe does not specify the content of the new coal ash regulations.

Coal ash is the second-largest hazardous waste stream, by volume, in the nation. It is produced when power plants incinerate coal as a means of generating electricity.

The average American coal-fired generation facility produces 125,000 tons of hazardous ash and nearly 200,000 tons of toxic sludge every year, according to the Union of Concerned Scientists.

A Dec. 2008 accident involving the breach of a dam in Tennessee caused the release of more than 1 billion gallons of coal ash slurry. The toxic mixture contained more arsenic, chromium, lead, and manganese than the total amount of those dangerous chemicals released into all American waterways by the whole electric power industry in 2007.

Another accident in Jan. 2009, this one in Alabama, involved about 10,000 gallons of toxic wastewater resulting from coal-fired electricity generation.

Despite a promise by former EPA administrator Lisa Jackson to finalize regulations that specify safe methods of handling coal ash, the agency has not done so. After proposing disposal regulations in June 2010, the agency has not acted to finalize them.

The nation’s principal hazardous waste law, the Resource Conservation and Recovery Act, requires EPA to regulate coal ash disposal. EPA may be able to regulate the substance on the basis of statutory classification as either a “special” waste or a “solid” waste.

In 2011, and again last year, the U.S. House of Representatives passed bills that would have forced EPA to regulate coal ash only as a solid (i.e., non-hazardous) waste. Those proposals have thus far failed to clear the U.S. Senate and attempts to attach the proposal as an amendment to other legislation have not proven successful.

The question of whether to regulate coal ash as a hazardous waste is controversial because about 40 percent of the substance is re-used to make a variety of industrial materials, including concrete. Such a designation would also significantly increase the costs associated with disposal because utilities would have to assure that holding ponds are lined and that leaks are prevented.

In Oct. 2013 a federal district judge rejected the Obama administration’s efforts to secure the dismissal of the lawsuit that is the focus of the settlement.

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A huge coal ash slurry leak in Tennessee in 2008 has helped to provoke a debate about how the Environmental Protection Agency should regulate the byproduct of coal-fired electricity generation. Photo courtesy Tennessee Valley Authority.

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