Environmentalists Split With the Obama Administration Over Key Power Plant Rules

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After six years of furious lobbying and lawsuits, the Obama administration is offering the first-ever regulations on the waste from coal-fired power plants. But while the move provides a long-awaited answer for the environmental and industry groups that have waged legal war over the rule, it's a resolution that comes with little satisfaction.

The rule, issued by the Environmental Protection Agency under a court order, classifies coal ash as nonhazardous under the 1976 Resource Conservation and Recovery Act—in jargon, it's put under Subtitle D, which also includes household waste—and sets minimum federal standards for how to deal with the nation's second-largest source of waste.

Among the new measures in the regulation are requirements for groundwater monitoring and dust controls of existing sites, public disclosure of data and structural integrity standards for landfills and impoundments, which are also known as coal-ash ponds. The rule also requires that coal ash ponds be lined and keeps them out of sensitive areas.

But the rule has left environmentalists feeling empty. They had pushed for a more stringent rule that would have designated the toxic ash as hazardous, opening up federal regulations and enforcement. Today's decision, they say, won't do enough to change the status quo and avoid dangerous spills, like ones that polluted drinking water in Kingston, Tenn., in 2008 and in North Carolina earlier this year.

Every year, the U.S. produces some 140 million tons of coal ash, which contains toxic chemicals such as arsenic, lead, and selenium. It's stored in landfills or impoundments known as coal-ash ponds in water sources near power plants. Under the rules that EPA announced today, the agency can set minimum standards for waste control, but enforcement will be left up to states. Violations would have to be self-reported by companies or identified through citizens' lawsuits.

Speaking to reporters, EPA Administrator Gina McCarthy said there was not enough health data to justify a "hazardous" designation, but she said the rule "does essentially what we hoped to accomplish regardless of the subtitle." The standards, she added, would "protect our communities from the risk of mismanaged coal-ash disposal units, and [put] in place safeguards to help prevent the next catastrophic coal-ash impoundment failure, which can cost millions for local businesses, communities, and states."

It's the way the waste has been regulated for years, and it follows decisions in 1988 and 1993 to not classify coal ash as hazardous,. But greens say that's not what they fought for six years to achieve.

"We went into this with the aim that there would never be another spill like Kingston or the Dan River and that people's drinking water would be safeguarded," said Lisa Evans, an Earthjustice attorney who worked on environmentalists' lawsuit. "If one believes that rules can be self-implementing, that utilities can police themselves without clear oversight authority, then we got it. But we think industry doesn't have a very good track record when no one is watching."

Although it's still early, green groups say they'll keep pursuing a stronger standard, which could include a lawsuit. In a statement, Mary Anne Hitt, the director of the Sierra Club's Beyond Coal campaign, said the standard "still leaves people to largely fend for themselves against powerful utility interests" and said her group and partners "will use every tool available to strengthen this EPA rule." Among greens' concerns are that the rule wouldn't force the closure of sites at plants that have stopped running, which EPA said it does not have the authority to do (certain legacy sites at active plants could be closed). The rule also allows for utilities to rebuild polluting waste ponds with proper lining.

The decision caps years of regulatory and legal battles that were kicked off by the massive December 2008 spill at a Tennessee Valley Authority plant, which sent more than a billion gallons of ash waste flooding into the town of Kingston. After that spill, incoming EPA Administrator Lisa Jackson vowed to regulate coal ash, but stringent rules were weakened by the Office of Management and Budget and lingered untouched until environmental lawsuits forced a decision.

In February, another incident in North Carolina poured tens of thousands of pounds of coal ash and contaminated water into the Dan River after a pipe from a Duke Energy coal plant malfunctioned. That spill, the third largest coal-ash incident, thrust the issue back into headlines and reenergized calls from the left for tougher regulations.

In the weeks ahead of the rule's release—required under a court settlement with green groups—dozens of environmentalists, citizens groups, and industry sources met with the White House. More than 450,000 comments came in on the proposal.

Even though the rule is less stringent than it  might have been, industry groups say they're still concerned about the prospects of a patchwork system of regulations state by state. But the nonhazardous designation, they say, has protected the robust recycling industry for coal ash. Right now, roughly 40 percent of coal-ash waste is recycled in building materials, roadways, and as fertilizer, but reuse has been on the decline amid regulatory uncertainty.

According to the American Coal Ash Association, recycling was down by a half million tons in 2013, the fifth straight year that recycling was below 2008 levels. President Thomas Adams said that was attributable to questions about how the EPA would move.

"Consumers just aren't interested in buying materials if it's classified as hazardous waste, and builders don't want it in their structures," Adams said. "That designation would make recycling this material almost impossible."¦ The evidence says there's nothing to be concerned about, and we should be looking at a solution in recycling."

Industry has also argued that stricter storage regulations would be too expensive and require changes to older impoundments that they say are secure.

The rules also open up questions about enforcement, especially with citizen lawsuits on the table. In a joint statement, expected Senate Environment and Public Works Chairman Jim Inhofe of Oklahoma and incoming freshman Sen. Shelley Moore Capito of West Virginia said the rule "may not be as bad as some had feared," but noted that it still exposed the power industry to new costs and warned of a potential onslaught of citizen lawsuits.

"This places wealthy, left-wing environmental activist groups in the driver's seat of enforcing this federal rule," they said. "It will lead to excessive litigation and increased costs to consumers while putting at risk the reliability of our electric grid."

But greens say that stronger rules and attention are the only thing that will ensure that states and companies keep the disposal sites clean for nearby communities.

"For decades, states have really failed these communities, giving little to no oversight of how coal ash is regulated," said Dalal Aboulhosn, who works on coal ash for the Sierra Club. "We're talking about waste that contains things like lead, mercury, arsenic, selenium. These are substances the public understands they don't want in their air or their water."

This article is from the archive of our partner National Journal.