EPA Caves on Coal Ash Regulation

NY Times reporter asks Jackson if EPA is “wimping out”

[5 Important Updates below]

Given the huge difference in effectiveness and the level of protection provided by these two RCRA alternatives (i.e. Subtitle C versus Subtitle D), EPA’s failure to propose Subtitle C requirements, the far more protective option – or at least include a preference for the more protective option – was a transparent abdication of their responsibility to protect the public.

Tim Wheeler of the Baltimore Sun writes an excellent overview of the reaction: EPA’s new coal-ash rules – a punt, or a feint?

To some, that looked like a copout. “EPA postpones decision that would toughen coal ash rules,” reads the headline on a story by Renee Schoof in the Kansas City Star. “EPA Caves on Coal Ash Regulation,” reads another, on an analysis by environmental blogger Bill Wolfe.  Industry lobbyist Frank Maisano also seemed to think the agency’s either-or proposal was simply a face-saving setup for going easy on ash regulation.

Over a year after EPA’s commitment to adopt regulations to reduce risks associated with coal power plant ash, today, US EPA Administrator Lisa Jackson announced a proposal that would be the first step towards regulation of coal combustion residue (see this for proposal).

Coal ash contains numerous toxic chemicals that are hazardous to public health and can poison the environment.

But instead of taking leadership and biting the bullet by proposing a strong national regulation based on science, Jackson caved in to the politically powerful coal lobby and dodged the fundamental issues.

EPA merely proposed for public comment two very different “alternative approaches”. EPA proposed regulation under either Subtitle C or Subtitle D of the Resource Conservation and Recover Act (RCRA).

[Jackson refused to commit to a schedule for making a decision or promulgating a final rule following the 90 day public comment period on the “alternative approaches”. Any final rule likely to take many months to a few years, and is likely to be weakened further by industry lobbying. What EPA proposed is years away from being actually implemented or changing the current unacceptably risky conditions on the ground.]

As anyone who has worked on these issues knows, these two RCRA programs are very different (even look at EPA’s side-by-side comparison).

Subtitle C is known as the “hazardous waste management” program. Subtitle C is overseen and enforced by EPA. Subtitle C provides far more protective management and disposal and “corrective action” (cleanup) requirements.

Regulating coal ash under Subtitle C would also result in the phase out of all surface impoundments, which are the worst management option because they pollute groundwater, surface water, and are structurally unsound and prone to massive failure. Subtitle C also would end or severely restrict current potentially dangerous, unmonitored, and unregulated so called “beneficial reuse” of toxic coal ash.

Subtitle D is designed to manage far less dangerous wastes, such as municipal trash. It is not enforceable by EPA but is either purely voluntary or a state level program. Some states, such as NJ, have fairly protective Subtitle D programs, but most do not. Regardless, Subtitle D requirements do not come close to Subtitle C requirements in terms of level of protection afforded. Subtitle D is just not the appropriate management scheme for the risks posed by coal ash.

Given the huge difference in effectiveness and the level of protection provided by these two RCRA alternatives, EPA’s failure to propose Subtitle C requirements, the far more protective option – or at least include a preference for the more protective option – was a transparent abdication of their responsibility to protect the public.

I listened in on the EPA press conference and was pleased that Jackson’s spin didn’t fool any reporters.

But reporters failed to note that the rule was signed by Jackson on April 10, 2010, just days after a West Virginia coal mine explosion killed 25 workers. (at least President Obama supported off shore oil drilling BEFORE the Gulf blowout! Talk about bad timing!)

Yet the proposal was just publicly released today. My guess on the timing is that EPA knew that this would be received as a total capitulation to coal interests and would be deeply unpopular in many places, particularly in the wake of the fatal coal mine explosion. So I suspect that EPA delayed release for a time when they could minimize public criticism – the oil spill disaster in the Gulf of Mexico provides exactly that kind of cover for Jackson to hide behind.

In fact, a NY Times reporter asked Jackson to respond to the likely concern that polluted communities and environmental groups would view the proposal as “wimping out by EPA“.

I couldn’t have said it better myself.

Other reporters asked tough questions about why EPA failed to prefer strict EPA enforceable regulations under what is known as “RCRA Subtitle C” (hazardous waste program) instead of the far weaker and not federally enforceable “RCRA Subtitle D” (solid waste).

Others asked about the role of Obama adviser Cass Sunstein, head of the Office and Management Budget Office of Information and Regulatory Affairs . EPA submitted a draft rule in October 2009 for Sunstein’s review. Some have said that he was pressuring EPA to weaken and delay the rule via OIRA’s regulatory review and cost benefit analysis.

EPA refused to answer questions about OIRA’s role and how the October version differed from today’s proposal (particularly about whether the October draft included an EPA preference). That silence basically confirms the suspicion that the EPA science was politically over-ruled by Obama’s OMB acting though OIRA based on economic considerations.

The rule is a response to the massive environmental disaster of December 2008 when a Tennessee Valley Authority power plant impoundment storing coal ash blew out, causing toxic devastation of over 300 acres of land and hundreds of millions of dollars in cleanup costs. As EPA noted in their press release:

The dangers associated with structurally unsafe coal ash impoundments came to national attention in 2008 when an impoundment holding disposed waste ash generated by the Tennessee Valley Authority broke open, creating a massive spill in Kingston that covered millions of cubic yards of land and river. The spill displaced residents, required hundreds of millions of dollars in cleanup costs and caused widespread environmental damage. Shortly afterwards, EPA began overseeing the cleanup, as well as investigating the structural integrity of impoundments where ash waste is stored.

But it is not only catastrophic failures of surface impoundments that are causing risks to public health and the environment.

The management and disposal of coal ash has long been a problem because of EPA’s failure to regulate it. As a result, soil, groundwater, and rivers are polluted by leaking landfills and impoundments.

The so called “recycling” or “beneficial reuse” of coal ash has raised concerns about unknown exposure when these toxic materials are reused in all sorts of potentially unsafe ways. I was disappointed by Jackson’s emphasis that EPA would continue to support these questionable practices, and shocked when Jackson claimed – without supporting data – that coal ash was

“only a problem when large amounts are disposed in unlined landfills (and impoundments)”

The EPA proposal states that EPA will continue to allow this loophole to persist, perpetuating errors of the past (including the huge loophole for so called “mine reclamation“):

EPA is not proposing to change the May 2000 Regulatory Determination for beneficially used CCRs, which are currently exempt from the hazardous waste regulations under Section 3001(b)(3)(A) of RCRA. However, EPA is clarifying this determination and seeking comment on potential refinements for certain beneficial uses. EPA is also not proposing to address the placement of CCRs in mines, or non-minefill uses of CCRs at coal mine sites in this action.

[End initial post]

Update 1: See this AP story. Looks like EPA is more concerned about stigmatizing the coal industry than protecting public health:

An EPA e-mail sent after Jackson’s comments said the agency was creating a “special waste” classification within the hazardous waste regulations, “to help remove the stigma that some believe attaches when a waste is called hazardous.”]

[Update 2 – The Wall Street Journal story nails the real issues – EPA choosing industry costs over public health (note, as is typical, there is no mention of the benefits, which EPA analysis showed exceeded costs by a factor of 4.3 – 5.2 times (benefits ranged from $35 – $102 billion, per a “senior EPA official” on the press call):

The EPA estimates the cost of the hazardous-waste and non-hazardous waste approaches at $20 billion and $8 billion, respectively. The EPA won’t actually refer to coal ash as hazardous under either approach. That’s because industry groups have raised concerns the terminology could hurt the reuse of the waste material in such products as cement and drywall.

The issue of coal-ash waste was the subject of 48 meetings since last fall between the staff of President Barack Obama’s regulatory czar, Cass Sunstein, and industry groups, environmental advocates and others. The EPA’s announcement Tuesday fueled the ongoing divide. A utility-industry group in a statement said regulation of coal ash as a non-hazardous waste alongside new federal standards for ash pond safety would be the only “prudent” course for the EPA.

“Adoption of more stringent regulation–including regulating coal combustion byproducts as hazardous waste or mandating closure of certain types of ash-management facilities–will drive up costs for our customers without providing a commensurate health or environmental benefit,” said Jim Roewer, executive director of the Utility Solid Waste Activities Group, in a statement.]

[Update 3 – I just checked out the cost-benefit analysis in the proposal itself – my above quote is accurate (Huge benefits, positive net benefits, and large benefit/cost ratio. And EPA admits that the benefits are much larger, because significant benefits were not calculated (*benefits of Sub C are far greater):

In addition, the RIA did not quantify or monetize several other additional benefits consisting of future avoided social costs associated with ecological and socio-economic damages. These include avoided damages to natural resources, damages to property and physical infrastructure, avoided litigation costs associated with such events, and reduction oftoxic chemical- contaminated effluent discharges from impoundments to surface waters ( see: Coal Combustion Residuals – Proposed Rule (PDF) @page 81)

[Update 4 – Tim Wheeler of the Baltimore Sun writes an excellent overview of the reaction: EPA’s new coal-ash rules – a punt, or a feint?

After the images of the TVA disaster faded from the news, though, industry pushed back against treating the ash as hazardous. It argued that such a label would choke off a growing recycling effort to market the ash as a cheap, safe ingredient in wallboard, concrete and other environmentally beneficial uses.

EPA Administrator Lisa Jackson said Tuesday that she didn’t buy that argument. Indeed, some have countered that stringent rules should boost reuse of ash by making it more costly to bury it. But on Tuesday, EPA proposed a dual approach, either requiring it be treated similar to hazardous waste or letting it be disposed of like other less toxic industrial waste. In a nod to industry, even under the more rigorous approach, ash wouldn’t be offically categorized as hazardous, but as a “special waste.”

To some, that looked like a copout. “EPA postpones decision that would toughen coal ash rules,” reads the headline on a story by Renee Schoof in the Kansas City Star. “EPA Caves on Coal Ash Regulation,” reads another, on an analysis by environmental blogger Bill Wolfe.  Industry lobbyist Frank Maisano also seemed to think the agency’s either-or proposal was simply a face-saving setup for going easy on ash regulation.

I want to note two important things that will occur, even if EPA chooses the tougher alternative they proposed: the “special waste” classification. Although this would significantly increase protections from current unregulated disposal at landfills and surface impounds, it would not provide the full range of protections afforded by Subtitle C hazardous waste. Second, special waste classification would increase the costs of disposal and therefore create economic incentives to increase so called “beneficial reuse”. Because EPA continues to promote unsafe “beneficial reuse” of this highly toxic waste in things like wallboard, the overall effect of “special waste” classification would be to GREATLY INCREASE widespread and uncontrolled, unmonitored distribution of this waste in the environment. This would INCREASE overall exposure and risks to human heath and environment. This is why EPA must enforce Subtitle C with strictly limited reuse, an option they didn’t even propose.

[Update 5 – Although in keeping with proper style they didn’t use the “W” (wimpy) word, the NY Times get it about right: E.P.A.’s Plan to Regulate Coal Ash Draws Criticism (but repeat the above distinction between “special” and “hazardous waste” classification, which the Times does not address, i.e. EPA didn’t defer the decision to treat it as hazardous waste, they abandoned it. There is more than semantics operating here. “Special waste” is under a completely different statutory provision of RCRA and regulatory regime)

The Environmental Protection Agency issued a long-awaited proposal Tuesday to regulate coal ash, the toxic byproduct of burning coal to produce power. But the agency deferred a decision on whether to treat it as hazardous waste, drawing criticism from environmentalists who had hoped for a stronger stance. … […]

Environmental groups said the disaster made clear the need for strict oversight.

“We are disappointed that the rule brings forward two dramatically different regulatory options”, Scott Slesinger, legislative director for the Natural Resources Defense Council, said in a statement. “We expect E.P.A. to choose the option that adequately protects the public, particularly our precious groundwater, and treats this hazardous waste as a hazardous waste.”