EPA's new coal-ash rules - a punt, or a feint?

Did the Obama administration just kick the can down the road on whether to crack down on slipshod coal-ash disposal? Or did it feint toward light treatment of the troublesome power plant byproducts while laying the foundation for a tough regulation later?

The Environmental Protection Agency unveiled Tuesday its long-delayed decision on what to do about coal combustion byproducts in the wake of the calamitous blowout of a Tennessee Valley Authority ash impoundment in December 2008.  

The resulting flash-flood of coal sludge wasn't the first horror story.  Just the year before in Maryland, officials found homeowners wells in Anne Arundel County had been tainted with toxic pollutants from ash being dumped by Constellation Energy at a nearby gravel pit - a lapse that cost the Baltimore company $55 million in a civil settlement and government fines.  But the dramatic Kingston, Tenn. impoundment failure ratcheted up the public pressure on the federal government to rethink its Clinton-era decision not to regulate ash as a hazardous waste because of the toxic contaminants it harbors, like mercury and selenium.

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.

Environmental activists, though, weren't ready to concede the Obama administration had lost its nerve.  As they pored over the 500-plus page proposal, they took heart from the EPA's statements in it about health risks from exposure to toxic ingredients in ash and the growing list of problem disposal sites around the country. Some also noted that the agency had included findings from a new testing method that found more toxic contaminants leaching from ash than previously accepted sampling had shown.

"The EPA has paved two roads, but all signs point to a hazardous-waste management scheme," said Lisa Evans, senior legislative counsel for Earthjustice.  And just to be sure, she  said, activists intend to present the agency with still more information on other leaking coal-ash impoundments and landfills that pose risks to people, fish and wildlife.

Eric Schaeffer, director of the Environmental Integrity Project, speculated that "there was a political calculation" in EPA's decision to pair its tough approach to ash disposal with a "soft option."   But he said he remained convinced the Obama administration would see it their way in the end. "This is too big a problem to put a cork in with some kind of wimpy rule," he concluded.

Still to be settled, though, is whether all the "beneficial uses" to which coal ash is being put are a good idea. 

Unnamed EPA officials at the agency's telephone press conference said the agency wants to encourage environmentally safe recycling of ash, but intends to take a hard look at its use as fill material in construction projects.  Large-scale spreading of ash across the ground to fill in in low places on construction sites would be no better than the current slipshod practices of dumping it in pits without liners to keep toxic contaminants from seeping out, they said.  Yet even there, they said they wanted to leave room for using ash in some highway construction projects. 

The Maryland Department of the Environment has been wrestling with similar issues.  After adopting stringent rules for disposing of ash two years ago - ones similar to what EPA is now proposing  - the state is now putting the finishing touches on rules defining what uses of ash would be considered "beneficial" and what not.  

Where to draw the line is critical, and potentially costly.  The state's coal-fired power plants and other factories produce about two million tons of ash a year, and that amount is expected to grow.  Coal-fired power plants have been required to install air pollution scrubbers, which leave behind an additional load of "sludge" containing the contaminants pulled out of the stack emissions.

And in a related vein, there is also the practice in Maryland and other Appalachian states of using coal ash as fill dirt in reclaiming strip mines.  Though environmentalists contend that the practice is further fouling mountain streams often already tainted with mine waste, EPA has left the decision on whether to crack down on that with the federal Office of Surface Mining.

(AP photo of 2008 TVA coal sludge flood; Baltimore Sun photo of coal ash being dumped to reclaim strip mine near Frostburg, MD, by Doug Kapustin.)

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