Catastrophic coal ash releases serve as a backdrop to regulatory battle

"In the sweat of thy face shalt thou eat bread, till thou return unto the ground; for out of it wast thou taken: for dust thou art, and unto dust shalt thou return." - Genesis 3:19

Just before Christmas, 2008, the people of Kingston, Tennessee were making preparations for the upcoming holiday.  On December 22, 2008, coal ash, stored in dikes at the Kingston Fossil Plant, burst from a landfill, spilling 5.4 million cubic yards of coal ash, covering 300 acres of adjacent lands and waters.  Tennessee authorities and the Environmental Protection Agency (EPA) quickly reacted to the spill, which also spawned lawsuits against the Tennessee Valley Authority.  The estimated costs of cleaning up the spill go as high as $825 million.  This wasn't and isn't an isolated case, however, as recently coal ash spilled from its containment in Wisconsin into Lake Michigan.  Throughout the United States coal ash is stored at 300 landfills and 554 surface impoundments, some of which EPA has determined represent a "significant hazard potential."

EPA refers to coal ash as "coal cumbustible residuals" and as its name suggests, it is the result of the collection of coal burned in power plants.  It contains substances like mercury, arsenic, chromium and lead. It may be surprising to some that currently coal ash is not regulated as a hazardous waste.  In 1980 and again in 1993, EPA concluded that coal as was not hazardous under the Resource Conservation and Recovery Act (RCRA), the federal statute that governs solid and hazardous wastes.  In fact, coal ash is used in many different ways, known as "beneficial uses," like sandblasting, shingle material, wallboard material or as fill material.

However, as result of the Kingston spill, EPA faced pressure on setting rules to manage coal ash better.  Under RCRA, hazardous waste is governed by subtitle C, while regular waste, like household waste, is regulated under subtitle D.  EPA proposed coal ash rules in 2009, but those rules were challenged, as they would have treated coal ash purely as a hazardous waste, finding that not doing so would not be protective of human health and the environment.  Those in the energy industry opposed these rules because they would have required much more extensive management and monitoring of coal ash disposal sites.  Those who used coal ash for "beneficial purposes" felt that designating coal ash as hazardous would place a stigma on the use of coal ash for those purposes.

EPA went back to the drawing board and has now issued a new rule.  Actually, EPA has proposed two rules: one in which coal ash is treated as hazardous waste and another in which it is treated as regular waste, but with special requirements for surface impoundments to prevent catastrophic releases.  You can compare the two proposals here.  Coal ash destined for "beneficial uses" would be exempt from either rule.  Under either rule, those storing or disposing of coal ash will incur substantial new costs.  EPA extended the comment period for coal ash rules to November 14.

Congress has gotten into the act, too.  The House of Representatives recently passed legislation that would prevent EPA from regulating coal ash.  Given the spill into Lake Michigan, however, the timing of this legislation could have been better.  The likelihood that this legislation will become law remains in question, however.  

The author, Saulius Mikalonis, is an environmental attorney with over 25 years of experience in the Bloomfield Hills offices of Plunkett Cooney.  He is also the author of The Green Blawg, in which he writes about environmental law issues for the non-lawyer.  In addition to practicing law, Mr. Mikalonis is an adjunct professor at the Thomas M. Cooley Law School, Auburn Hills Campus, at which he teaches a course entitled "Sustainable Development Law & Policy" and a Board Member of the Detroit Regional Chapter of the United States Green Building Council (USGBC).
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