Two Years After Tennessee Disaster, U.S. Effort to Prevent the Next Coal Ash Catastrophe Faces Uncertain Future

Two years ago this week, an earthen wall holding back a giant coal ash impoundment failed in Kingston, Tennessee, sending more than a billion gallons of coal ash slurry over nearby land and into the Emory River. The ash had chemicals including arsenic, lead, and mercury. Clean up costs could be as much as $1.2 billion.

The coal ash issue is not "new" -- toxic chemicals from unlined coal ash pits have been leaching into the ground for a long time. But the Kingston disaster, and a new administration, brought attention back to the issue and its continuing danger. One-third of some 629 dump sites that hold ash mixed with water were not designed by a professional engineer, and 96 are at least 40 feet tall and 25 years old.

Just weeks after Kingston, in January, 2009, Lisa Jackson faced her confirmation hearing for EPA Administrator. Senators asked about coal ash, and Jackson pledged she would take on the issue. On October 16 of that year, EPA sent OMB a draft of a proposed rule to regulate coal ash waste. We suspected then, and know now, that the rule was a strong one. Finally, we were on track to fix this wrong.

But the train would be derailed. On that same October day, the Office of Information and Regulatory Affairs (OIRA) at OMB hosted two representatives from the electric power industry to discuss coal ash. Things soon got busy; by a month later, OIRA was hosting multiple meetings on the coal ash rule every week. The meetings finally slowed down in March 2010. There were 47 meetings, and most, though not all, were with industry representatives opposed to EPA's proposal.

By Executive Order, OIRA had 120 days to review EPA's proposal, but that deadline came and went. Documents later posted on the EPA website showed that OIRA was busy making more than 100 pages of deletions and edits to the EPA's original proposal. OIRA even added entirely new proposals, so when EPA announced the proposed rule in May, it actually issued multiple proposals -- a modified version of the original "strong" regulation as well as additional, weaker proposals.

The argument against strong regulation of coal ash has come to be focused nearly entirely on the “stigma effect.” Companies that reuse coal ash have argued that consumers and companies would no longer buy products that incorporate recycled coal ash if coal ash disposed at power plants is regulated as a hazardous waste (or euphemistically, in the strong proposal, as a "special waste"). The EPA's "strong" proposal would treat coal ash dumped into the ground as hazardous – because it is – but would not regulate coal ash when it is reused. Stigma proponents say companies (largely construction companies) will use more expensive materials to avoid using recycled coal ash, while utility companies will similarly forego their economic incentives to provide coal ash for reuse—instead paying more to dispose of it, out of an overwhelming fear of liability. The argument defies the history of regulation of toxic chemicals: increasing safety requirements for the disposal of a substance nearly always increases, not decreases, the incentives to recycle more of the product.

The public finally got its chance to weigh in this summer and fall, at a series of events EPA hosted around the country and through the public comment process. That ended on November 19^th. Now, we wait.

EPA had pledged that it would publish a proposed rule by the end of 2009. But because OMB all but hijacked the process, the proposed rule didn't come until May, and it was actually multiple proposals, not one, adding unnecessary complexity to EPA’s task of producing a draft final rule. Now we're waiting for EPA to look at the comments and issue a draft final rule that that selects and justifies one of the co-proposed options released in May. In other words, we're waiting for EPA to make a decision that was supposed to be made a year ago. And there's no deadline.

Public policy progress often comes in the wake of disasters. But two years after Kingston, it very much remains to be seen whether that disaster will at least lead to the needed regulations to stop the next one. Can EPA get the train back on the track? I hope so.