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Two Years After the Largest Toxic Spill in the Nation's History, Where's the Regulation on Deadly Coal Ash Dumps?

EPA identified 431 containment units for coal slurry and has labeled 49 of them "high hazard"—meaning they pose a risk to human health and the environment.

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In October 2009, the agency issued a proposed rule that would have designated the ash as hazardous waste that needed special handling and would be regulated at the federal level. But when the rule emerged from the White House Office of Management and Budget (OMB) seven months later, there were two potential new rules for public comment: The first (and more stringent) option would categorize coal as a "special waste" and require extra care in the disposal of the waste and tough federal oversight. But the second option is much more lenient: It would allow power plants to continue treating coal combustion waste as nonhazardous, and would leave regulation largely to individual states. Environmental groups worry that the second alternative arose after industry groups and other government agencies lobbied for a weaker rule.

The original draft rule EPA sent to OMB stated that labeling ash as nonhazardous "would not be protective of human health and the environment." Then, eight months later, the agency changed its mind: "After extensive discussions, the Administrator decided that both the options merited consideration for addressing the formidable challenge of safely managing coal ash disposal," the agency said in a statement to Greenwire at the time. It's clear that the Obama administration was under a good deal of pressure to issue a more lax rule. OMB held nearly 50 meetings on the rule, approximately 30 of them with industry groups, compared to a dozen with environmental groups, according to OMB's own records. The review period far exceeded the typical 90 days granted for proposed rules at the OMB's Office of Information and Regulatory Affairs says Matt Madia, a regulatory policy analyst for the group OMB Watch. 

One of the main points of pressure has come from the coal ash recycling industry, which buys the waste from some utilities and uses it for a variety of purposes—cement, wall board, kitchen counters, fill for construction and roadways, fertilizers for agriculture. Coal waste recyclers have even promoted it as an additive for toothpaste. The recycling industry has argued that labeling the waste hazardous would create a stigma for their products—no one will want products that contain something perceived as dangerous.

The utilities say they're just looking out for recyclers. "There are significant concerns about liability related to product designated as 'special' or 'hazardous,'" says Dan Riedinger, a spokesman for the Edison Electric Institute, the largest trade group representing utilities. "No one wants to look at the walls in their house, the wall board made of gypsum, and think, 'Gee, some of that material in the wall board EPA considers to be hazardous.'" Edison and a number of individual utilities have argued that the nonhazardous label and state-level regulations are adequate.

But dealing with the waste more responsibly could also be expensive for the industry. Ken Ladwig of the Electric Power Research Institute, an independent research organization for the electric power sector, said labeling the waste hazardous could cost the industry between $55 billion and $75 billion over the next two decades. But Frank Ackerman, an environmental economist and director of the Climate Economics Group at the Stockholm Environment Institute, points out that "under any reasonable scenario, the stricter regulation has the greater quantified monetary benefits to society."

Even if dams don't burst, unregulated coal ash disposal poses health risks to humans and the environment, as the toxic materials have been found to leach into groundwater at containment sites. An assessment prepared for the EPA noted that the cancer risk from drinking water contaminated with arsenic—just one of the many hazardous substances in the ash—is 1,800 times EPA's regulatory limit. The Environmental Integrity Project has been looking extensively at data on contamination, identifying 137 sites where toxic materials have leached into the groundwater. At some sites, they found arsenic and other heavy metals at up to 145 times what is permissible under federal guidelines. If EPA kicks in tougher federal regulations, these sites would be monitored more closely. "A lot of these guys are sitting on what really amounts to a Superfund site," says Eric Schaeffer, executive director of the EIP and the former head of the EPA's Office of Regulatory Enforcement.

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