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Environmentalists fear possible loophole in EPA coal ash rules
The U.S. Environmental Protection Agency is on schedule to release federal guidelines for the disposal of coal ash some time this month, but a potential loophole in the new rules has some worried they will leave Iowans unprotected.
For three decades, rules governing the disposal coal ash, the toxic byproduct of burning coal, have been left up to states, creating a patchwork of differing regulations with questionable effectiveness. However, after the massive coal ash spill in Kingston, Tenn., last year, which resulted in nearly a billion gallons of coal ash sludge flooding 300 acres of land, the EPA promised it would finally regulate coal ash.
But some fear the new rules may only cover ash stored in wet ponds, leaving sites many consider the most dangerous in the Hawkeye State unregulated.
A report released last month by the U.S. Government Accountability Office laid out several potential options for federal regulations. Included among the possibilities is designating coal ash as a hazardous material if it’s kept wet, and non-hazardous if it’s moved to a dry landfill.
In Iowa, environmentalists are most concerned with disposal of dry coal ash in unlined, unmonitored former quarries and mines that received a waiver from the state allowing them to use the ash as fill. The sites face little state oversight and few regulations.
And because the sites are considered dry landfills, many fear new federal regulations wouldn’t apply.
“Regulating wet coal combustion waste as hazardous waste is an important first step, but it doesn’t go far enough,” said Carrie Le Seur, founder and president of Cedar Rapids environmental law center Plains Justice. “The EPA itself has documented many cases of proven damage around the country where coal ash landfills have contaminated groundwater because water leaches through the fill site.”
Coal ash contains much greater concentrations of elements such as mercury, zinc, lead, arsenic and selenium than coal itself, but it is currently not considered hazardous waste by federal law. An EPA report released earlier this year found the cancer risk to be 1 in 2,000 from exposure to arsenic in drinking water for residents living near unlined landfills containing coal ash and coal refuse, which is 500 times the level usually regarded as safe by current federal regulations.
The fear among environmentalists is that using it as fill in a quarry or mine reclamation project could result in the toxins leaching off the site into groundwater, something which has been documented in other states. Even in Iowa, officials with the state’s Department of Natural Resources have said contamination could already be occurring, but without monitoring it would go undetected.
“This contamination process can take many years, but for nearby residents, the health risk is very real,” Le Seur said. “The difference between coal ash and municipal waste is that every time a coal ash fill leaks, it leaks toxic heavy metals that poison human beings and other living things. We know that.”
Numerous paths to regulation
The GAO document said the wet-dry designation was only one potential method of regulating coal ash. Also under consideration is for federal guidelines to mirror the Resource Conservation and Recovery Act’s subtitle D, which would regulate coal ash at the federal level as a solid waste. The ash would not be considered hazardous waste and regulation would largely be left up to the state. Iowa’s DNR has come out in support of this method, saying it would force the state’s most potentially hazardous sites to install protective liners, test groundwater for contamination, and provide financial assurances and corrective action provisions, among other provisions.
Opponents of this method say the EPA couldn’t inspect disposal sites or require permits, and public involvement would be limited. They also contend states may not be able to regulate the sites as well as the federal government due to lack of resources.
Another option would be regulating the ash using RCRA subtitle C, which would designate coal ash as hazardous. Under Subtitle C, states are required to adopt regulations that are at least as stringent as whatever federal standards are set up and the EPA will have the power to inspect sites and bring enforcement actions.
Opponents of this method say it would be prohibitively expensive and would eliminate any and all beneficial use of coal ash in most states.
Iowa’s DNR worked for nearly a year on rules to toughen regulations on coal ash disposal. But opposition from site owners and coal-burning businesses, along with uncertainty about what regulations the federal government may eventually impose, caused the effort to stall.
Several elected officials have said that once the EPA releases its draft rules, the state may need to rework its rules to make sure the public health is protected.
In July, Charlotte Hubbell, chair of the state’s Environmental Protection Commission, called on the state legislature to hold public hearings on tougher rules regarding coal ash.
The chair of the state Senate Environment and Energy Independence Committee, Sen. Dennis Black of Grinnell, said at the time that he would request that Legislative Council, a bipartisan group of Senate and House leaders that serves as a steering committee for the General Assembly when it is not in session, to appoint a committee to look into the matter after the 2010 session. He said doing so before the EPA released its rules would be improper.
In September, Gov. Chet Culver joined the call, saying he was confident the EPA would take the appropriate steps, but if state action was needed there should be no hesitation. He said he was open to the legislature looking at the issue in 2010.