Competing Forces Clash over Coal Ash

(Energy Biz 1-24-2012) Issue tied to presidential outcome: Two competing forces with regard to how coal ash is regulated are headed for a collision. Environmentalist groups have just said that they would sue the U.S. Environmental Protection Agency to force prompt action while U.S. lawmakers from coal-producing states are working to head off those attempts.

EPA, ironically, is sympathetic to the views of the green movement. Yet, it has not budged since its 2010 deadline to rewrite the rules that affect coal ash and how it will ultimately be disposed. Earth Justice and a multitude of other environmental organizations will therefore force the agency’s hand by filing suit in a move that would get coal ash reclassified as a hazardous waste to fall under the Resource Conservation and Recovery Act.

“The EPA’s violation of the three-year statutory deadline for revision of regulations pertaining to coal ash places hundreds of communities at great risk,” writes Lisa Evans, an Earth Justice attorney, in a letter to EPA Administrator Lisa Jackson. “Thus ... we will ask the the court to direct EPA to complete its review ....”

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 in the form of fly ash, bottom ash, scrubber sludge and boiler slag.

That effort, however, runs counter to legislation that passed the U.S. House of Representatives last October. That measure would empower the states to continue regulating coal ash. Right now, it is considered a solid waste that allows it to be recycled and used in the production of such things as cement and dry wall. The states are unlikely to tamper with that re-use but may, in fact, tighten the rules to mitigate the odds of spills.

About 40 percent of all coal ash is recycled. 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 likelihood, however, that such a bill will pass the Democratically-controlled U.S. Senate is small. Previous efforts to dull the impact of EPA have died on the vine. Nevertheless, the counterforce could serve to weaken future coal ash regulations, allowing the states to maintain a leadership role. 

“This legislation gives us a common sense fix: Let each state use existing EPA health and environment regulations to set up their own permitting program that allows them to recycle and reuse coal ash,” says Rep. David McKinley, R-WV, the bill's author. “This approach will protect jobs and our economy, and give families and businesses the certainty they need to help restore confidence.”

Heavy Lobbying

The issue is expected to come to a boil now that a U.S. District Court is deciding damages in a coal ash spill that occurred in TVA’s territory. On December 22, 2008, a dam burst that enabled the escape of 5.4 million cubic yards of coal ash about 40 miles west of Knoxville, Tenn. -- something that EPA said was an unequaled environmental disaster that must be remedied with new regulations.

But this is a presidential election year and the role of politics has invariably seeped its way into the process. Even Earth Justice acknowledges this dynamic, saying that the administration can’t evade the heavy lobbying tactics that have sidelined the regs.

The agency reviewed the issue, noting that 49 coal ash sites in 12 states had "high hazard" potential if they should fail. It also identified 71 other sites that it said are responsible for the leakage of heavy metals into ground water.

In EPA’s ideal world, coal ash would be regulated as a hazardous waste. A more practical solution, however, is to mandate new disposal standards, to which industry seems amendable. For example, coal ash is now discarded as a liquid that goes into large surface impoundments or as a solid that is placed into landfills. EPA would like to see all such byproducts converted from “wet ash” to “dry ash” and buried in secured liners -- a move that TVA is already making.

Regardless of how it is regulated, the administration would allow coal ash to be re-cycled. “The Administration supports the development, implementation, and enforcement of appropriate standards for facilities managing coal ash, while encouraging the beneficial use of this economically important material.”

Any movement, though, will have to wait until the November election. Whoever wins will then direct the fate of coal ash, which is now edging toward a compromise of the two competing visions.

EnergyBiz Insider is the Winner of the 2011 Online Column category awarded by Media Industry News, MIN. Ken Silverstein has also been named one of the Top Economics Journalists by Wall Street Economists.