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Federal Court Forces EPA to Issue Coal Ash Ruling

After sitting on its tail for the last three years, the Obama administration must stand and decide. The issue: coal ash, which a federal court has just ruled that it has 60 days to craft new rules on how power plants must dispose of the material and exactly how such toxins would be classified.

Currently, coal ash is considered a solid waste, as opposed to a hazardous waste. Solid waste can be recycled and in this case, those materials go into such things as cement and dry wall. But a hazardous waste ruling would make the stuff taboo and potentially dry up secondary markets. Instead of re-using it, more of it would need to be dispensed, which is the second part of what the U.S. Environmental Protection Agency must decide.

Coal ash is now discarded either as a liquid or as a solid. As a liquid, it goes into large surface impoundments and as a solid, it is put in landfills. EPA would prefer all such byproducts be converted from “wet ash” to “dry ash” and then buried in secured liners.

After the notorious coal ash spill in Kingston, Tenn. over Christmas 2008, the EPA suggested that such toxins could be regulated as hazardous waste at the federal level while also leaving the oversight at the state level.

Since then, it has dragged its feet. But a 2012 suit filed by Earthjustice and other organizations has sought to force EPA’s hand. Earlier this month, the DC Court of Appeals sided in favor with environmental and public health groups and ordered EPA to act. On Wednesday, the same court gave the agency 60 days to write the rules. Earthjustice had expressed fears that Congress would come in and make laws that would water down EPA’s authority.

The debate has long been strident, especially after a dam burst 40 miles outside of Knoxville, Tennessee and 5.4 million cubic yards of the material spilled over into neighborhoods and waterways.

Coal-burning power plants consume 1 billion tons of coal each year, says Earth Justice. That equates to the production of 140 million tons of coal combustion byproducts in the form of fly ash, bottom ash, scrubber sludge and boiler slag. About 200 coal ash impoundments now exist:

“We turned to the courts to force the EPA to set long overdue protections from this toxic menace. This decision marks the first step towards federally enforceable safeguards from coal ash. For decades, coal ash has been dumped into unlined and unmonitored pits, poisoning water supplies and the communities that rely on them,” says Earthjustice and its supporters. 

Political Feasibility

If the byproduct would be regulated as a hazardous material, EPA says that industry would pay $1.5 billion a year whereas if it is considered nonhazardous, it would spend $600 million a year. By contrast, TVA is paying $1.2 billion to clean up its accident that covers 300 acres — something that the agency contends might have been prevented with sounder rules.

Under both approaches, EPA would leave in place an exemption that allows for the beneficial recycling of coal ash — a huge business that alleviates already stressed landfills and a process that EPA says will keep the public safe. Today, about 54 million tons annually of the material are recycled.

Industry will continue its push to ensure that it maintains the solid waste classification, and that the states retain primary oversight. Any attempt to reclassify that byproduct as a hazardous waste would stigmatize it, making it more likely that it would pile up in pools and landfills, and less probable that it would re-used, says the Edison Electric Institute. 

The institute adds that Congress, not the EPA, is best suited to regulate coal ash. To that end, an industry-backed bill would give the states control over regulating the coal combustion byproduct but would do so with input from EPA

The Obama administration is not looking to do favors for a coal industry that shares publicly its disdain of current federal policies. But the most politically feasible path is to finalize a rule that permits coal ash to keep its solid waste status while also requiring new disposal methods — a move that would be litigated by opponents and delay implementation.

In two months, stakeholders will know the outcome. But it may be many years before the issues are actually resolved. 

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