EPA ash pond options include closing, liners

BY JAMES BRUGGERS | JBRUGGERS@COURIER-JOURNAL.COM | MAY 4, 2010

The Environmental Protection Agency proposed two different approaches for managing the nation’s huge volume of coal burning waste on Tuesday — and asked the public to help the government decide which path to take.

One approach would phase out all coal ash ponds and rely partly on dry landfills with liners. The other option would allow ash ponds, but require plastic liners under new and existing facilities.

Either would represent the first national requirements designed to protect the environment and the public from coal-fired power plant waste that contains toxic heavy metals and other pollutants.

Coal-burning waste “can pose serious threats to our health and our environment if it’s not properly managed,” said Lisa Jackson, the EPA administrator, in a telephone press conference.

But Jackson said the agency isn’t ready to commit to one course of action, 16 months after public attention was drawn to ash ponds by a massive slide blanketed several hundred acres and poured into a river outside Knoxville, Tenn.

“Over the course of developing these proposals, it became clear there are people who feel very strongly about one or the other,” Jackson said. “We believed the next best step would be to open a transparent public process, then the EPA does its job and makes a final decision.”

EPA said there were 136 million tons of the waste generated in 2008, up from 118 million tons in 2001.

The issue is of special interest Kentucky and Indiana, which the EPA says rank first and third for production of coal burning wastes. Indiana and Kentucky are also the nation’s top two states for coal ash ponds, with 53 and 44 respectively, according to the EPA. Coal ash ponds at several power plants in Kentucky and Indiana also hold some of the nation's highest amounts of six potentially toxic heavy metals, according to a report released last year by the Environmental Integrity Project, an environmental group.

The waste includes fly ash and bottom ash produced by burning coal. One other common type of waste is scrubber sludge left over from extracting sulfur dioxide from smoke and other gasses.

The EPA has been studying coal burning wastes for decades and decided in 2000 against regulating it as a hazardous waste.

The EPA’s proposed stricter approach — phasing out the ash ponds — would regulate ash and scrubber sludge under the hazardous waste provisions of the federal Resource Recovery and Conservation Act. If the waste were stored in dry landfills with liners, groundwater would be monitored for leaking pollution. The ash could still be used in concrete and other products, and the scrubber waste could still be turned into gypsum for drywall.

The more lenient approach would regulate the waste under non-hazardous provisions of the law and require plastic liners under ash ponds. The EPA said existing ash pond with no liners would need to dug out and fitted with liners within five years or be closed. Landfills would also need plastic liners and recycling would also be encouraged.

The EPA said it will also solicit public comment on whether to regulate certain uses of ash, such as using as construction fill, which has been common in Kentucky.

Perhaps the biggest difference between the two proposals is over how they would be enforced.

The stricter option would allow for full enforcement by federal or state officials, including requirements for various permits. But under the weaker option, enforcement of any new federal rules could only come through lawsuits brought by citizens or the states, EPA officials said.

Environmentalists said the announcement was a step in the right direction but that they preferred the stricter option.

“We are extremely pleased to see the rule come out,” said Lisa Evans, a senior attorney with Earthjustice, an environmental group. She said the EPA has documented enough evidence including elevated cancer risks and proven damage to the environment to show why robust action is needed.

But without permits and direct enforcement authority, compliance would be far from assured, environmentalists said. In fact, the EPA said it anticipates just a 47 percent compliance rate under the weaker proposal.

“Enforcement is what makes (regulations) real to the regulated industry, and in the long run to the environment and the public,” said Eric Schaeffer, director of the Environmental Integrity Project and a former top EPA enforcement official.

Industry officials, however, preferred the more lenient approach, saying it would be less expensive and tougher rules aren’t needed.

“Regulation as a non-hazardous waste is supported by years of study, steady improvements in state management of coal ash, and recommendations from state regulatory and environmental officials,” Jim Roewer, executive director of the Utility Solid Waste Activities Group, which represents more than 100 utilities, said in a written statement. The stricter regulations would make disposal of the waste more expensive without a corresponding benefit to the environment or public health, he said.

Chip Keeling, spokesman for Louisville-based E.On U.S, said in a statement that his company is analyzing the announcement to determine its potential impact. “As with any proposed environmental regulation, we will continue to follow the developments and act accordingly to achieve full compliance once it takes effect.”

Jackson said a 90-day comment period, triggered by publication in the Federal Register, would begin soon.

She said the agency, which had promised rules by last December, has heard from industry officials and environmentalists alike. “I’d like to hear from private citizens,” she added.

Reporter James Bruggers can be reached at (502) 582-4645.