When President Obama finalized the rules for disposing of coal ash two years ago, his administration walked the middle line, labeling the remnant of burning coal a solid waste and not a hazardous waste. That meant that it could be buried in lined ponds or re-used make such secondary products as cement and drywall.
While that may have pleased the utilities and those manufacturers that use the coal combustion material in their end products, it upset the environmental movement that wanted it labeled as a hazardous waste. The Obama administration thought that this would stigmatize the residual material as well as force more of it into lined ponds — as opposed to being recycled. About 40% of all coal ash is recycled.
But in December 2016, the law regulating the disposal of solid waste –the Resource Conservation and Recovery Act — was changed to give the Environmental Protection Agency more say in how this material is disposed. States would remain central to the process but any technical standards it created had to comport with federal law. Utilities protested, as did those who buy coal combustion materials.
That prompted protests. The Utility Solid Waste Activities Group then petitioned the Trump’s EPA, which said this past week it would review its concerns. The petition from the Utility Solid Waste Activities Group was submitted May 12, 2017, EPA said, and it seeks reconsideration of 11 specific provisions of the final coal combustion rule that include provisions prohibiting the use of alternative points of compliance for ground water contamination, regulating inactive surface impoundments, and defining what activities constitute beneficial use of coal combustion products.
“After reviewing your petitions, I have decided that it is appropriate and in the public interest to reconsider the provisions in the final rule … The EPA expects to respond to your request that the agency seek to hold the litigation in abeyance prior to the September 18, 2017 deadline …,” EPA Administrator Scott Pruitt wrote in a letter.
The letter goes on to say that the EPA is simply reconsidering the merits of what is in that final rule. While it is not unknown what EPA will ultimately do, one could conjecture it would decide in industry’s favor given its previous moves and philosophical inclinations. That, of course, would spawn lawsuits from those who think the rule is already too weak and written in industry’s favor.
By way of background, both environmentalists and industrialists will appear before the US Court of Appeals for the District of Columbia to argue that either the rule is too weak or too harsh. Because EPA has said it will now review the contents of the utility petition, legal experts think the appeal’s court may hold off on making a call.
“This decision is a galling giveaway to industrial polluters, even by this Administration’s standards of pandering to industry at the expense of the public,” said Earthjustice attorney Lisa Evans, in a release. “The EPA is sending a crystal-clear message to families across the country: our job is to protect wealthy polluters, not you and your children. These toxic dumps should have been cleaned up decades ago. Americans will not stand idly by as the EPA puts their health and safety at risk—and neither will Earthjustice or our partners. We will fight for these critical safeguards.”
At present, most coal combustion residual is buried in landfills, although those sites must keep a safe distance from surface and groundwater supplies. For coal ash buried on utility grounds, the ponds need to be properly lined to keep the waste from bleeding out.
Coal power plants produce about 140 million tons of coal ash a year, at roughly 1,100 sites in 37 states. The waste contains arsenic, mercury and selenium that is harmful to human health and the environment.
