Continued delays in the release of federal coal ash regulations have some in the Hawkeye State once again pushing for state officials to take the lead in order to protect public health.

It’s been more than a year since Iowa regulators decided to abandon their efforts to strengthen rules governing the disposal of coal ash, the toxic byproduct of coal combustion. Their reasoning at the time was that the U.S. Environmental Protection Agency was going to release federal rules later in the year. Better to wait, officials said, than waste time on state regulations that would be trumped when nationwide standards were instituted.

The Waterloo South Quarry, used by the University of Iowa, the University of Northern Iowa and Iowa State University as a coal ash dump. (Photo courtesy of Plains Justice)

The Waterloo South Quarry, used by the University of Iowa, the University of Northern Iowa and Iowa State University as a coal ash dump. (Photo courtesy of Plains Justice)

The EPA promised rules by December 2009, a deadline that has come and gone. Wayne Gieselman, division administrator with the Iowa Department of Natural Resources, said the EPA’s goal then shifted to releasing draft rules by the end of February. Now, a tentative deadline has been set for April.

In the meantime, environmental watchdogs and the Wall Street Journal have pointed out that the White House has held an unprecedented number of meetings with coal industry groups since October to discuss whether the EPA should classify coal ash as a hazardous waste. It is unheard of, the groups say, for the White House to get so involved in the process before draft rules are released to the public for hearings and comment, and is an unsettling sign that the EPA may once again take a pass on tough coal ash rules.

State Sen. Dennis Black, who chairs the the Senate Environment and Energy Independence Committee, said he’s attempted numerous times to get clarity from the EPA on their timeline and on what sort of scope the rules may have. He wrote a letter in November and has attempted calling the agency several times. He has received no response to his inquiries.

When contacted by The Iowa Independent, Tisha Petteway, press officer for the EPA, referred to her agency’s December press release announcing an indefinite delay in coal ash rules.

The delays and secrecy surrounding the federal government’s efforts to regulate coal ash disposal has renewed calls for state action. Carrie La Seur, president of Cedar Rapids-based environmental law center Plains Justice, said it is imperative that Iowa begin the process of toughening regulations on ash disposal.

“In response to intense industry pressure, the EPA is now continuing to delay a rulemaking it has already delayed for 30 years,” she said “Iowa has a responsibility for public health and safety that it can’t delegate to EPA under these circumstances. Iowa must act.”

Unlined, unmonitored disposal sites

Coal ash contains much greater concentrations of elements such as mercury, zinc, lead, arsenic and selenium than the coal itself. The by-product is also believed to be radioactive. Exposure to these toxins can lead to cancer, birth defects and reproductive problems.

Despite the well-documented dangers of coal ash, the EPA does not regulate its disposal, leaving each state to set its own rules. In Iowa, four disposal sites received a waiver from the state allowing them to accept ash without installing protective liners and without mandatory groundwater monitoring. Environmentalists fear the lack of oversight and protective measures could lead to dangerous toxins leaching off the site and into local groundwater supplies, something that has been documented in states that mandate monitoring. The DNR’s lead staffer on coal ash issues acknowledged to The Iowa Independent that contamination might already be taking place but without monitoring there is no way of knowing.

In its 2007 report, Plains Justice showed that there is evidence that even at properly lined dump sites there is an increasing level of contaminants escaping, making the likelihood that leaching is taking place in unlined sites even larger. Peter Taglia, a hydrogeologist with environmental watchdog Clean Wisconsin who worked for five years as a consultant for utilities, said he’s seen leaching into groundwater at even the most state-of-the-art disposal sites.

An EPA report released last 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 push for tougher regulations got a boost last September when the state’s three largest public universities announced they would bow to mounting pressure and begin testing groundwater at the disposal site they shared — a quarry in Waterloo. Jeffrey Witt, assistant director of utilities at Iowa State University, said at the time that “we know whatever new [federal] regulations come out are going to require groundwater monitoring at the very least. So we figure we would just get a head start on that.”

Many are pointing to the university’s answer and wondering why the state can’t go down a similar path and at the very least mandate that groundwater must be monitored at the three remaining sites — quarries in Goose Lake and Waterloo and a mine in Buffalo — to ensure toxins are not leaching out of the site.

Federal delays

The DNR’s Gieselman said the requirements and the extent of groundwater monitoring is dependent on any decisions that EPA may make as to whether the ash falls under the Resource Conservation and Recovery Act’s Subtitle D, which would regulate coal ash at the federal level as a solid waste, or Subtitle C, which would designate coal ash as hazardous waste.

Iowa’s DNR has come out in support of Subtitle D, 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. Environmentalists say under this method 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.

“It is hard for DNR to do its job without appropriate funding for monitors and other staff,” said Donna Wong-Gibbons, a public health specialist with Plains Justice. “It is an unfortunate side effect that many state agencies are facing — limited or inadequate funding to do work that is critical to protecting the lives and health of Iowa citizens, and its an issue that I wouldn’t presume to have answers to.”

The long process

If the state wanted to regulate coal ash, tougher rules couldn’t happen overnight, Gieselman said.

“The fastest we can do it is six months because of legal requirements for public comments; the department responding to comments; public hearings; EPC meetings; and Legislative review of the rules,” he said.

Since it appears the EPA is having its own problems figuring out whether coal ash should be considered a hazardous waste, “it’s fairly apparent that there is not universal agreement as to how this should be classified.”

But it has already been more than a year since the state’s efforts were abandoned, and many national environmental groups are not sure regulations will be coming any time soon from the EPA.

Wong-Gibbons said she understands the arguments DNR is making about the perils of moving forward on coal ash regulations before federal action. But her stance remains the same.

“Iowa should not be waiting on EPA to provide guidance before taking steps to protect the health of Iowans,” she said.

Black, a Democratic state senator from Newton, said he isn’t surprised by the lack of openness in regards to the EPA’s rules, calling it “almost typical.” He said it wouldn’t be prudent to move forward until the state has some idea of what the EPA’s rules will look like, and he continues to be unable to get any response from federal regulators.

“It’s paramount that we know what the EPA’s intentions are,” he said. “I’ve been contacted by several Iowans who are trying to figure out what regulations are going to look like. I can’t give them any answers because I can’t get any myself from the EPA.”