Coal ash regulations closer to reality

Nov 01 - Knoxville News-Sentinel (TN)

It took six years, a lawsuit and a court order, but the federal government is finally on the verge of putting in place the first-ever federal regulations for the storage and disposal of coal ash.

The U.S. Environmental Protection Agency moved closer toward enacting the new coal ash regulations last week when it sent the proposed rules to the White House Office of Management and Budget for final review.

That development is "hugely significant -- this is the last hurdle before the rule is signed," said Lisa Evans , an attorney with the environmental group Earthjustice.

The government is under a court order to publish the new rules by Dec. 19 , just three days before the sixth anniversary of the devastating 2008 coal ash spill at the Tennessee Valley Authority's Kingston Fossil Plant in Roane County .

The spill was triggered by a storage pond that ruptured, setting loose a cascade of 5.4 million cubic yards of coal-ash slurry that polluted the Emory River , damaged nearby homes and property, and necessitated a cleanup that cost more than $1 billion . The accident galvanized environmentalists and led to demands the federal government regulate ash from coal-fired power plants.

But even with the new regulations in sight, a key question still has not been answered: Whether the EPA will regulate coal ash under hazardous materials laws or impose less stringent standards.

Based upon comments the agency made last year, environmentalists fear the EPA is leaning toward a non-hazardous designation. But activists are hoping a spill of 39,000 tons of coal ash at Duke Energy's Dan River Steam Station in Eden, N.C. , in February will cause the EPA to reconsider and regulate ash under hazardous materials laws.

Coal ash "is a hazardous material because of the constituents that are found in it and their ability to impact human health," said Stephen Smith , executive director of the Southern Alliance for Clean Energy .

Coal ash contains mercury, cadmium, arsenic and other heavy metals that can cause cancer and other illnesses.

The difference between a hazardous and non-hazardous designation is significant.

If coal ash is regulated under hazardous materials laws, wet storage ponds like the one used in Kingston would be phased out by 2016, and the federal and state governments would have the authority to enforce the new rules.

If the EPA goes the other route and regulates ash as a non-hazardous material, wet storage ponds could remain in operation as long as they are lined and contain other safeguards. Enforcement would be left up to the states or would be handled through "citizen" lawsuits.

The non-hazardous designation is favored by the TVA , as well as road builders and other industries that use recycled coal ash in concrete, cement and other construction materials.

Regulating coal ash as a non-hazardous substance "provides the opportunity for more effective and flexible handling of that material, less administrative burden and associated management costs," said TVA spokesman Jim Hopson . "It also allows for better effective state oversight of that program."

What's more, Hopson said, analysis has shown coal combustion residuals generally are non-hazardous "by any definition, in the sense that the constituents that are of concern are certainly there, but they are found in concentrations that are much lower than any other associated waste that is considered hazardous by EPA ."

Environmentalists don't accept that argument.

"You can't just wave your hand over chemistry and pretend the chemicals that are in that stuff aren't there," Smith said.

Regulating coal ash as a non-hazardous substance would be inadequate because it would essentially leave in place the status quo -- a patchwork of state regulations that vary dramatically from one state to another, Evans said.

"A scheme that cements the status quo by definition doesn't solve America's coal ash problem," she said.

Even if the EPA decides to regulate coal ash under hazardous substances laws, states would have two or three years to modify their own programs before enforcement could begin, Evans said.

After the Kingston spill, the EPA proposed coal-ash regulations in 2010 but never finalized the rules amid objections from power companies, the recycling industry and others. Led by Earthjustice, 13 environmental and health advocacy groups sued in 2012 to force the agency to finish the regulations. A federal judge sided with the groups and set the Dec. 19 deadline.

Evans said the regulations were long overdue, even before the Kingston spill six years ago.

"I'm very happy we're going to see a final rule in December," she said, "but I hope the response is truly up to the task of curing the problem."

___

Visit the Knoxville News-Sentinel (Knoxville, Tenn.) at www.knoxnews.com

http://www.energycentral.com/functional/news/news_detail.cfm?did=34168602&