The hidden history

Introduction

The massive coal ash spill in eastern Tennessee in late December is rekindling an old but contentious debate over just how to regulate coal ash — the often toxic solid waste left by burning the black rock to produce electricity. The recent spill is shining a new spotlight on coal ash, but the regulatory history is little known. The debate came to a head in a fierce inter-agency struggle in the waning days of the Clinton administration, only to fade during the Bush years.

The Senate Environment and Public Works Committee will hold a hearing on the coal ash spill and subsequent cleanup efforts at 10 a.m. Thursday. The recent spill is believed to be the largest ever of its kind. Just three days before Christmas, a billion gallons of ash-laden slurry burst out of a Tennessee Valley Authority (TVA) disposal site onto rural Roane County, 40 miles southwest of Knoxville, deluging 300 acres in gray muck, damaging dozens of homes. Tests by government agencies and environmental groups alike have revealed soaring levels of arsenic and other poisons in area water supplies, including one river.

American power plants generate 129 million tons of coal ash each year, but regulation is largely left to the states. Since the 1980s, the Environmental Protection Administration has considered treating the tainted ash as “hazardous” under federal waste laws, but has decided against it. The “hazardous” designation triggers a series of strict federal controls for handling, transporting, and dumping of waste: power plants, for instance, would have to use expensive protections like double-liners at disposal sites, or to regularly monitor groundwater for any leaching.

In some ways, the EPA’s hands have been tied: In 1980, in fact, Congress passed the so-called “Bevill Amendment,” named for former Representative Tom Bevill of Alabama, exempting coal ash from such rules. The amendment required EPA to study the health and environmental effects of disposing coal ash in order to declare the waste hazardous, and even laid out certain parameters for doing so. EPA released two reports to Congress — first, in 1988, then, in 1999 — essentially affirming that coal ash damage did not reach a threshold high enough to negate the exemption.

Then came 2000, and a push from environmental groups to document nearly 60 cases of contamination caused by the leaching of ash at surface ponds and landfills. What to do about coal ash was vigorously debated within the EPA; many at the agency believed coal ash should continue to be classified as “non-hazardous,” thus leaving oversight of its disposal mostly to the states, as it exists today. But by March of that year, the EPA seemed on the verge of proposing stricter federal controls under a “hazardous” designation for coal ash; by then, coal ash was thought to be contained in 600 sites — mostly lagoons and landfills — across 43 states. Professional staff in EPA’s Office of Solid Waste even wrote a draft determination promising as much. A portion of the draft determination, a copy of which was obtained by the Center, said the following:

Public comments and other analyses . . . have convinced EPA that these wastes can, and do, pose significant risks to human health and the environment when not properly managed, and there is sufficient evidence that adequate controls may not be in place for a significant number of facilities. This, in our view, justifies the development of tailored regulations under [the hazardous] Subtitle C of RCRA.

Carol Browner, then the EPA administrator and now energy czar in the incoming Obama administration, sent the draft “hazardous” determination, dated March 5, 2000, to the Office of Management and Budget (OMB) for review.

But the document, says one EPA employee involved in the internal debate, “really hit a brick wall at OMB.” Within days, the White House budget and policy analysts became inundated with letters from the utility industry criticizing the prospect of a “hazardous” determination. One letter warned that “the high costs of [hazardous] regulation . . . will ultimately be shared nationwide by employees, taxpayers, ratepayers, investors, and customers.” Former EPA insiders familiar with the OMB review say the process, as with most environmental regulations, came down to cost-benefit economics; indeed, correspondence between OMB and EPA staff in the public record focuses on the total costs to utilities if coal ash were deemed hazardous. While the EPA estimated that additional disposal expenses would hover around $1 billion a year under a “hazardous” designation for coal ash, the utility industry argued that figure was “significantly understated.” One economic analysis commissioned by the Edison Electric Institute and the Utility Solid Waste Activities Group, two associations of power companies, pegged the costs as high as $13 billion a year.

Ultimately, the EPA backed away from the hazardous label and instead pledged to issue less stringent national standards under a “non-hazardous” designation, which essentially would have amounted to guidelines telling states what their coal-ash disposal rules should look like. Even many in the EPA’s solid waste office supported the “non-hazardous” designation. Michael McCabe, deputy administrator at the EPA at the time, acknowledges that politics weren’t in the agency’s favor.

“You cannot just spring these things on the process,” he explains. “You’ve got to do your science work and your political homework, too, so you’re not shot out of the water.”

Over the past eight years, though, the EPA has not followed through on its promise to issue new national standards, despite its own research suggesting that coal ash is more perilous than it once thought. In August 2007, an EPA analysis found that people exposed to coal ash have a substantially greater risk of getting cancer than they would otherwise. The delay and inaction has irked even some former EPA employees who didn’t support new regulation under a “hazardous” designation. As Andrew Wittner, the former EPA economist who studied coal ash’s environmental and health risks back in 2000, puts it, the “EPA promised to regulate this under [non-hazardous] waste regulations and it has not. That annoys me. It should be drafting regulations as we speak.”