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Obama May Soften Proposed Crackdown On Coal Ash Disposal

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Despite its efforts to unseat President Obama, the coal sector is now working closely with the White House on certain issues. The Obama administration, in fact, may acquiesce to the industry’s concern over how coal ash would be regulated.

While its environmental backers won’t be happy, the president and his Environmental Protection Agency will probably opt to continue regulating that coal combustion byproduct as a solid waste, as opposed to a hazardous waste. The difference is that solid wastes are allowed to be recycled and used in such things as cement and dry wall. A hazardous waste ruling would stigmatize that coal ash and would essentially dry up those secondary markets, which would also increase the amount of refuse that must be dispensed.

“About 40 percent of all coal ash is recycled,” says Rick Boucher, former Democratic lawmaker on the House Energy and Commerce Committee who spoke at an EnergyBiz forum last week. “No one would use hazardous waste in a commercial product.” He goes on to say that a final ruling, which could get published next summer, will fall into the non-hazardous category but with “stricter” disposal provisions.

EPA is feeling pressure from both industry and environmentalists. But the most politically feasible path is for the agency to finalize a rule that permits coal ash to keep its solid waste status while also requiring new disposal methods -- a move that would be litigated by opponents, delaying its implementation. For example, coal ash is now discarded as a liquid that goes into large surface impoundments or as a solid that is placed into landfills. EPA would like to see all such byproducts converted from “wet ash” to “dry ash” and buried in secured liners.

All this is coming on the fourth anniversary of the coal ash spill at the Tennessee Valley Authority’s Kingston facility near Knoxville, Tenn. On December 22, 2008, a dam had burst, releasing 5.4 million cubic yards of coal ash into the local communities there.

That prompted litigation with the U.S. District Court for the Eastern District of Tennessee recently concluding that TVA could have prevented the whole ordeal. Experts had testified that the federal utility failed to monitor and control water quality pressure at the dikes that constrained the material.

“Five hundred cubic yards is enough to fill a football field almost 94 feet high from end zone to end zone,” says Donna Lisenby, speaking for EarthJustice and Riverkeeper. “Coal ash contains arsenic, lead, chromium and many other toxic pollutants. Leaving that much ash in the river system to combine with all the other legacy pollutants just increases the total pollutant load.”

FirstEnergy Corp., meantime, closed in August a coal ash disposal site in Pennsylvania as its neighbors there had long complained that its presence created unhealthy conditions. It had been the nation's largest such site, covering 1,700 acres. Environmentalists are furthermore accusing Duke Energy of allowing 14 coal ash sites to contaminate ground water supplies in North Carolina and they are asking state regulators there to enforce state water quality standards.

EPA is sympathetic to the views of the green movement. Yet, it has not budged since its 2010 deadline to rewrite the rules. EarthJustice and a multitude of other environmental organizations are now trying to force the agency’s hand by filing suit to have the coal combustion byproducts reclassified as hazardous wastes that would fall under the Resource Conservation and Reclamation Act.

Coal-burning power plants consume 1 billion tons of coal each year, says EarthJustice. That equates to the production of 140 million tons of coal in the form of fly ash, bottom ash, scrubber sludge and boiler slag. About 200 coal ash impoundments are now in existence. EPA has reviewed the issue, noting that 49 coal ash sites in 12 states have “high hazard” potential if they should fail. It also identified 71 other sites that it says are responsible for the leakage of heavy metals into the ground water.

Despite those concerns, both politics and practicalities come into consideration. While the coal industry has been humbled since the presidential election, it still has money and power. But its main point is valid, which is that any change in the current status of coal would harm the secondary usage of the byproduct. That possibility is giving the Obama administration pause.

“I do not see EPA regulating coal ash as a hazardous waste,” says David Rieser, an environmental lawyer practicing in Illinois and Michigan. “The evidence that it is hazardous is extremely weak.” And a such classification, “would drive up the cost of power and highway construction and it would put a terrible burden on state governments that have to administer the program.”

The coal industry’s clout has waned. But it appears to be re-framing its fire-breathing techniques and instead outlining ideas that many contend make economic and political sense. In the case of coal ash, the Obama administration may oblige and refrain from playing politics. And while the president will extract concessions, the coal industry will likely keep the byproduct’s solid waste status.