Late yesterday, the Department of Justice on behalf of the EPA lodged a consent decree with the U.S. District Court for the District of Columbia that requires the EPA to publish a final rule addressing the disposal of coal ash by Dec. 19, 2014. The settlement came as a result of a lawsuit brought by 10 public interest groups and the Moapa Band of Paiutes against the EPA for its failure to review and revise its regulations pertaining to coal ash. The settlement does not dictate the content of the final regulation, but it confirms that the agency will finalize a rule by a date certain after years of delay.
If there has ever been a time to celebrate a victory on coal ash over the last three decades, today is the day.
EPA’s coal ash rulemaking was triggered by the largest toxic waste spill in U.S. history when a billion gallons of coal ash burst through a dam at the TVA Kingston Fossil Plant in Roane County, Tennessee. While damage to health and the environment had been occurring for decades at hundreds of sites throughout the nation, the headline-making disaster brought a commitment in 2009 from then-Administrator Lisa Jackson to establish federal disposal standards within the year.
But, amazingly, the catastrophic collapse of the TVA dam was not enough to push EPA to complete its rulemaking. Only after Earthjustice and other public health and environmental groups sued did the EPA commit to a deadline for a final rule and break the logjam of delay and dangerous deferral.
This consent decree ends the inexcusable and destructive 30-year delay in establishing rules for safe disposal of the nation’s second largest industrial waste stream. No other industry in this country, save the mining industry, has a license to dump toxic waste in our water at the massive scale enjoyed by our coal-burning power plants. The industry estimates that they have generated 3 billion tons of coal ash since the beginning of the last century. Not an ounce has been subject to disposal regulations that ensure its safe, long-term disposal. This, we hope, will change in 2014.
While the consent decree sets an enforceable deadline for the publication of the coal ash rule, it does not dictate its content. The EPA still has discretion to finalize either of the two proposals it published in June 2010.
The benefits of a strong coal ash rule for our health and environment are immense—and this ruling comes none too soon to protect the air, water and safety of communities living near more than 1,000 massive coal ash impoundments, ponds, dry landfills and other coal ash dumpsites.
Known* cases of coal ash contamination and spills:
* These cases of documented water contamination are likely to be only a small percentage of the coal ash-contaminated sites in the U.S. Most coal ash landfills and ponds do not conduct monitoring, so the majority of water contamination goes undetected. According to U.S. EPA, there are over 1,000 operating coal ash landfills and ponds and many hundreds of “retired” coal ash disposal sites.
Coal ash and sludge laden with toxic metals, including arsenic, chromium, lead, mercury and selenium, are dumped in unlined and unmonitored lagoons and landfills and stacked stories-high behind earthen dams without proper engineering, inspection or maintenance. In many states, where millions of tons of coal are burned for electricity, there are simply no regulations controlling the disposal of this toxic waste. For decades, communities have waited for protection from the waterborne and airborne chemicals that cause cancer, birth defects, neurological injury, and other diseases. The EPA made a very grave error when it failed to establish nationwide protections decades ago. The dumping of toxic ash nationwide has contaminated more than 200 rivers, streams, lakes and sources of underground drinking water.
In exchange for significant health, safety and environmental benefits, most power plants will pay a pittance. The EPA estimated that even under the most stringent rule, electricity prices would not rise more than one percent, even if all costs were passed on to the consumer. Both of EPA’s proposed rules, under subtitles C and D, will allow the continued operation of existing coal ash landfills, and both will require the eventual phase out of dangerous and leaking impoundments like the one that failed in Kingston, Tennessee. Those utilities that have managed their coal ash in the most dangerous, antiquated and irresponsible manner will have to make a larger investment to convert their dumping operations to safe practices. For utilities that invested in safer disposal practices, such as lined, engineered and monitored landfills, the cost of the rule will be negligible—even if the EPA regulates coal ash as a special waste under subtitle C.
The EPA’s primary statutory duty under RCRA is clear—to minimize the threat to human health and the environment from the disposal of solid waste. The agency’s final coal ash rule must meet these goals by phasing out dangerous coal ash ponds as soon as possible, establishing an enforceable baseline of engineering and disposal standards applicable in all states that protect both air and water, and establishing federal authority to ensure that such standards are timely instituted and effectively enforced. The coal ash rule must protect the nation’s most vulnerable communities and give all citizens a meaningful role in the siting of disposal facilities. Law, science, and sound public policy dictate that the EPA should finalize a subtitle C rule, regulating coal ash as a “special waste” under RCRA. It remains to be seen, however, whether considerations other than protection of health and the environment will take precedence in this politically charged rulemaking.
For now, we celebrate this historic agreement to finalize the rule by year’s end. A final rule marks a huge step forward for the health and safety of all American communities.