Obama EPA punts on coal ash regulations

May 4, 2010 by Ken Ward Jr.


U.S. Environmental Protection Agency officials just finished their phone-in press conference to announce their action regarding regulation of toxic ash from coal-fired power plants.

In its press release, EPA describes its action this way:

The U.S. Environmental Protection Agency today is proposing the first-ever national rules to ensure the safe disposal and management of coal ash from coal-fired power plants.

And it quotes EPA Administrator Lisa P. Jackson saying:

The time has come for common-sense national protections to ensure the safe disposal of coal ash. We’re proposing strong steps to address the serious risk of groundwater contamination and threats to drinking water and we’re also putting in place stronger safeguards against structural failures of coal ash impoundments. The health and the environment of all communities must be protected.

But after listening to the press conference, and as I read the 563-page document EPA just posted on its Web site,  I have a hard time understanding how this is more than the Obama administration punting on making a decision here.

As Coal Tattoo and many others in the media have reported, perhaps the most basic and important call for EPA on this issue is which part of the Resource Conservation and Recovery Act the agency is going to use to regulate coal ash.

RCRA Subtitle D leaves many decisions to the states, while Subtitle C sets up a nationwide regulatory program set up by EPA. There’s an EPA breakdown of the differences available online here.

We’re now more than 16 months since the failure of a coal-ash impoundment at a TVA power plant in East Tennessee caused a huge environmental disaster, and thrust coal-ash regulation back into the public eye.  And we’re five months into 2010, after EPA’s Jackson had promised a regulatory proposal by the end of 2009.

And in today’s announcement EPA has put forth not an actual proposal … they’ve put forth two proposals — one that would use Subtitle D and another that would use Subtitle C.


Jackson told reporters that the two proposals involve “varying approaches to enforcement and oversight,” but that both “reflect a major step forward on the national level.” EPA is going to accept public comment on the two approaches for 90 days, and then decide which route to take.

On the one hand, Jackson told reporters today’s announcement is the start of  “a national dialogue” on which of these approaches would be best. On the other hand, she acknowledged there “has been lots of discussion already” and said, “EPA believes it is very important to get on with this regulatory process.”

It will be interesting to see how environmental groups react now to this …  here’s an initial comment from Lisa Evans of Earthjustice (whose group prefers the tougher approach of Subtitle C):

EPA’s coal ash proposal is certainly a step forward. While EPA has published two options, the science and law dictate only one path. Coal ash is hazardous and only hazardous waste regulations can protect communities and safeguard our drinking water. EPA has proposed that option and should be commended for this action.

10 Responses to “Obama EPA punts on coal ash regulations”

  1. Thomas Rodd says:

    At the beginning of the report, it says:

    “The proposed rule would apply to all coal combustion residuals (CCRs) generated by electric utilities and independent power producers. However, this proposed rule does not address the placement of CCRs in minefills. The U. S. Department of Interior (DOI) and EPA will address the management of CCRs in minefills in a separate regulatory action(s), consistent with the approach recommended by the National Academy of Sciences, recognizing the expertise of DOI’s Office of Surface Mining Reclamation and Enforcement in this area.”

    Is it correct, then, that the current practice around Morgantown WV of dumping massive amounts of toxic-metal-laden coal combustion waste in “reclaimed” surface mines (like, 10,000 TONS per acre) is not going to be affected by these particular rules, whenever they are released?

  2. Roy Silver says:

    I received this from the Kentucky Resource Council. It raises additional concerns.

    Among the issues of immediate concern to KRC in reviewing the proposed rulemaking are that the proposed rule does not extend to regulation of coal ash from non-utility boilers combusting coal, and that the rule proposes as an option the underprotective approach of using Subtitle D of the Resource Conservation and Recovery Act even though EPA acknowledges that it cannot enforce compliance by generators of coal combustion wastes with national standards adopted under that section of RCRA, nor can it mandate that states adopt the national standards or require that the ash disposal be permitted.

    Additionally, EPA unfortunately deferred to the Office of Surface Mining to develop regulations for disposal and use of coal combustion wastes as minefill at surface coal mining operations. At the end of the last Administration, OSM had drafted and sent to OMB a weak national rulemaking on that issue which failed to heed the advice or to incorporate the recommendations of the National Academies of Science concerning such ash disposal, and deference to OSM to take the lead in managing the environmental risks of disposing of metal-laden ash in coal mines is unwarranted given the lack of institutional experience and understanding at OSM regarding the proper characterization and management of coal combustion wastes.

    The other approach proposed by EPA and preferred by KRC would regulate disposal under Subtitle C (i.e. as a hazardous waste) while continuing to allow legitimate beneficial reuse.

    KRC will be developing and posting comments on the proposed rule.

    To read KRC’s presentation to the Centers for Disease Control on management of coal combustion wastes, which addresses a number of the issues raised in the new rulemaking, visit us at http://www.kyrc.org or go to http://www.kyrc.org/webnewspro/125752582733564.shtml

  3. Matt Wasson says:

    That is correct, Thomas. They have kicked the entire minefilling issue down the road to a separate rulemaking headed by the Dept. of Interior in coordination with the EPA – with no timeframe specified. This may be the biggest punt of all if a 2009 report from Earthjustice is correct that more than 20% of coal ash is minefilled. The EPA says 7%, but Earthjustice makes a compelling case that that is a drastic underestimate.

  4. Petra Wood says:

    There is more than enough evidence that all forms of coal ash disposal are a hazard and that states cannot be trusted to regulate ash use for the best interests of citizens. EPA needs to put in a nation-wide regulatory program that includes ALL forms of coal waste disposal including minefills. The millions of tons of coal waste that are dumped on almost all surface mines in northern WV is not “beneficial” to the many families that live nearby and have to breathe air laced with fine particulates and toxic metals found in coal ash (over 450 families live near just one proposed mine). It also is not “beneficial” to aquatic systems that are polluted by the many contaminants that leach from minefills into nearby streams.

  5. Bruce Boyens says:

    The EPA giveth on some MTR issues and taketh away on coal ash regulation. The usual Potomac two-step from DC. Very toubling and sad.

  6. Thomas Rodd says:

    I like “the Potomac two-step.”

    How about the “Capitol cha-cha?”

  7. Greenspace says:

    Both proposals would require landfill liners, groundwater monitoring with remediation if leakage detected, fugitive dust controls, runoff controls. The “hazardous” approach would cost twice as much to implement due to the additional red tape.

  8. […] of that actual regulatory proposal, EPA punted earlier this week by putting out an announcement seeking public comment on whether it should take this approach or […]

  9. Ken Ward Jr. says:


    There are a lot more differences than just “red tape,” as outlined here by EPA:


    Key among these is EPA vs. state enforcement … and while I’m at it, could you point to where in any of the rulemaking data and documents there is evidence to support your statement that the tougher approach would cost twice as much?


  10. Germany, France and other EU countries don’t have a coal ash problem. They have been treating coal ash as an industrial building material. Instead of stockpiling it, ignoring it and hoping the problem goes away, the Europeans have wedded coal ash to the concrete industry. Since the 1970s, they have been using it in concrete, where it is inert, returning it to the environment as “synthetic rock,” if you will, where it doesn’t leach into the watershed. I wrote more about it here:


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