EPA Coal Ash Rule Sends Mixed Signal on Strong, Federally Enforceable Safeguards

Leaves open the possibility that at least half of all toxic ash will remain unregulated


Jared Saylor, Earthjustice, (202) 667-4500, ext. 213

The U.S. Environmental Protection Agency proposed two options to regulate coal ash dry dumps and waste ponds. One option offers a groundbreaking solution to closing and monitoring leaking toxic dumps, while the other option perpetuates the status quo, ensuring that coal ash will continue to threaten lives and communities. The EPA must embrace the stronger option in order to protect public health and the environment.


Today, the Agency published the proposed federal regulation of coal ash — the first of its kind — in the Federal Register. The plan seeks comment on two separate proposals: one that regulates coal ash as a "special waste," with strong, federally enforceable requirements for monitoring and cleanup, and another that treats coal ash as a "non-hazardous waste" and offers only guidelines that leave many communities at risk of exposure to toxic contaminants found in coal ash. Under the weaker option, the EPA assumes that in Alabama, Arizona, Georgia, Iowa, Illinois, Indiana, Kansas, Mississippi, Montana, Ohio, Tennessee, Texas, Virginia and Wyoming, coal ash dumps and waste ponds will retain their current status quo: poorly regulated, unprotected and unsafe. Thus even in Tennessee, where the largest environmental disaster occurred short of the Gulf oil spill, the EPA predicts that protections will not be put in place.

The two-rule option demonstrates the power and influence of lobbyists for the coal and power industries who continue to block the EPA attempts at strong coal ash safeguards that protect communities. The EPA’s ‘special waste’ proposal is the only way to guarantee the closure of the most dangerous waste ponds, ensure strong federal oversight and cleanup of contaminated streams, rivers and drinking water supplies, and protect communities across the country from coal ash contamination. The EPA itself admits that under its weaker option, many states will not adopt strict federal guidelines and that approximately 50% of the coal ash generated in the U.S. will continue to be managed under state programs that do not require basic disposal safeguards. Power plants in the U.S. produce enough coal ash annually to fill train cars stretching from the North Pole to the South Pole.

Below is a brief summary the EPA provided of its two regulatory options for coal ash:

Regulating coal ash as a "special waste":

  • Requires phase out of waste ponds within five years.
  • Eliminates health risks from groundwater and surface water contamination for both coal ash dumps and waste ponds, and avoids damages from uncontrolled ground "fill" operations and attendant environmental remediation costs.
  • Eliminates the future threat of catastrophic failures of waste ponds.
  • Provides for corrective action, including at closed units at facilities with waste ponds or dumps regulated under the rule, and imposes groundwater monitoring requirements.
  • Provides for Federal oversight, which EPA experience has shown is necessary for successful implementation of…industrial waste regulations, especially as it relates to groundwater monitoring and corrective action, when needed.

Regulating coal ash as a "non-hazardous waste" (emphasis added):

  • Requirements would not be enforceable by the EPA or the states (unless states had similar requirements under state law). Lack of enforcement and Federal oversight may significantly reduce compliance and effective implementation of regulatory requirements.
  • Liners required for all coal ash waste ponds but only for new landfills. This option sets national criteria for landfills and waste ponds that manage coal ash after the rule goes into effect. For any coal ash dumps and waste ponds that closed before the effective date, there would be no regulatory controls over those units, unless the states choose to adopt controls over such units.
  • Eliminates some ground-water contamination over the current situation (e.g., because of waste pond retrofitting), thus avoiding some damage cases, again assuming effective implementation.
  • Requires review of waste ponds for stability by independent experts, but because these ponds could remain in operation (because they are currently lined or owners choose to retrofit line them rather than phase them out), there would still be a risk of future structural failures of waste ponds.

"Only one road leads to protecting public health and the environment from toxic coal ash and collapsing ponds — and the EPA has clearly laid out this option," said Lisa Evans, Senior Administrative Counsel at Earthjustice. "If the EPA predicts that the dangerous conditions will persist under the weaker option, that option must be left by the wayside."

"If the ongoing BP oil disaster and the Tennessee coal ash tragedy taught us anything, it’s that we can no longer ignore scientific and safety concerns without a very high cost," said Lyndsay Moseley, Sierra Club coal ash analyst and Tennessee native. "EPA should issue enforceable federal safeguards quickly before more communities are exposed to toxic coal ash."

"The voluntary guidance EPA has proposed as a second option just kicks the ball back to state agencies, which have already been overwhelmed and outmatched by the coal lobby," said Jeff Stant, Director of the Coal Combustion Waste Initiative at the Environmental Integrity Project. "The states’ failure to enforce standards has led to at least 71 sites where EPA admits coal ash has contaminated drinking water, injured wildlife, or caused other environmental or property damage, as well as untold other damaged sites that we do not know about because so many coal ash dumps do no monitoring at all. EPA needs to do the right thing by getting uniform standards in place, and having the guts to enforce them."

"Coal ash that is being disposed meets the chemical definition of a hazardous waste. As a hazardous waste, coal ash needs to be disposed in a properly engineered landfill so deadly chemicals do not leach into our drinking water sources or threaten our environment and wildlife," said Scott Slesinger, Legislative Director, Natural Resources Defense Council. "All other industrial hazardous waste must meet these requirements; there is no rationale for treating this waste differently. We expect the EPA to finalize this rule so it protects human health and the environment."

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