First coal ash regulations in the offing

The Obama administration will soon finish rules aimed at controlling pollution from toxic coal ash, making good on a promise it made less than two months after President Obama’s inauguration.

The rules would be the first federal standards regulating coal ash, a byproduct from coal-burning power plants that contains substances like arsenic, mercury and chromium, frequently stored in ponds next to rivers or other waterways.

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Lisa Jackson, then the head of the Environmental Protection Agency (EPA), promised the rules in March 2009, just over two months after a pond at a coal plant in Kingston, Tenn., spilled more than a billion gallons into the Emory River and nearby land.

Now, nearly six years later, the EPA is getting ready for a Dec. 19 court-imposed deadline to finalize rules it proposed in 2010.

Administration officials have held more than 20 meetings in recent weeks with dozens of environmental groups, utilities, academics and local elected officials trying to sway the agency one way or another on the standards.

“We’ve been making a final push to just make it clear that there’s huge demand out there from the public for these coal ash safeguards to be strong,” said Mary Anne Hitt, director of the Sierra Club’s Beyond Coal campaign, which has sent representatives to many of the meetings with the White House Office of Management and Budget (OMB).

“We have helped some folks directly affected by coal ash pollution come to Washington to share their stories with OMB, and we’ve been having our members fly in,” she said.

The main issue facing regulators is whether to designate coal ash as hazardous waste, which would bring with it a host of costly rules, including restrictions on the wet ponds that coal plants use to store ash on site.

The alternative, a non-hazardous waste designation, would still bring some new rules for the way that utilities dispose and recycle the ash, which has an active market for secondary uses like pavement.

Each side of the issue believes that its preferred pathway would be sufficient to protect human health and the environment, which is the EPA’s charge.

“For us, the question has always be how to regulate, not whether to regulate,” said Jim Roewer, executive director of the Utility Solid Waste Activities Group, an organization that represents the owners of coal-fired power plants.

“And we think federal non-hazardous waste regulations, implemented by the states, is right for coal ash,” he said.

Roewer and his group organized an OMB meeting with executives from many of the country’s largest utilities.

To utilities and the companies that buy coal ash from them, limited federal standards that allow states to enforce them would be best. They would provide certainty across the country, instead of the patchwork of state rules that currently exist.

The industry also would prefer that states implement federal standards, instead of requiring ash ponds and landfills to get two permits.

“What we want to avoid is having a dual regulatory program,” he said. “The state regulatory programs aren’t going to go away, and then you have these federal regulations as well.”

But for environmentalists, strong federal oversight is the only way to protect drinking water and animals from the more than 1,000 ash ponds and 400 dry landfills that dot the nation.

“Since some of the weakest state programs are in the states with the most coal ash, it’s essential that there’s federal oversight to ensure that those communities are protected,” said Lisa Evans, an attorney with Earthjustice.

After proposing the rules in 2010, EPA took no action for years, prompting a lawsuit from recycling companies and environmental groups, including Earthjustice.

The agency agreed to a Dec. 19 deadline, though it did not commit to go one way or another on the regulation.

Another factor that added urgency was the spill this year of coal ash into the Dan River in North Carolina from a Duke Energy coal plant.

That showed the need to regulate not just ponds that are currently being used, but also the ones from closed plants that are inactive, greens say.

“Following the Dan River spill, it should be apparent that EPA must regulate inactive sites,” Evans said. “So we’re hoping for a rule that covers those sites.”

Regulations for old sites could require that ash in ponds be moved to dry landfills that are lined and capped to prevent leaking into soil, groundwater or waterways, Evans said.

Roewer and the industry disagree, and they say the EPA does not have the authority to regulate inactive ash storage sites.

No matter where the EPA goes on the rule, it’s likely to face opposition in Congress.

Incoming Senate Majority Leader Mitch McConnellMitch McConnellLawmakers eye early exit from Washington Confirm Scott Palk for the Western District of Oklahoma Overnight Healthcare: GOP in talks about helping insurers after ObamaCare repeal MORE (R-Ky.) has vowed to fight any rule that could hurt the coal industry, including the ash rule, which could increase costs for coal-fired plants.

Sen. Jim InhofeJames InhofeFeds to consider renewed protections for bird species Trump’s nominees may face roadblocks ‘Covert propaganda’ in federal rulemaking MORE (R-Okla.), long skeptical of most environmental rules, will also be watching the EPA closely.

“In a new Congress, the first step will be to conduct rigorous oversight of the coal ash mandate, and a host of burdensome regulations from the EPA,” Inhofe, incoming chairman of the Environment and Public Works Committee, said in a statement.

“With input from hardworking Americans, my colleagues and I in Congress will be able to take appropriate action to reign in mandates like coal ash,” he said.

The House has passed legislation to fight coal ash rules in each of the last two Congresses.

The legislation would force the EPA to defer to states on the ash rules.

“The House has already voted several times on a bipartisan basis to regulate coal ash in a way that would be better for the economy and the envrionment — creating a state-run program with enforceable federal standards,” Rep. John Shimkus (R-Ill.), chairman of the House Energy and Commerce Committee’s environment and economy subcommittee.

“And come next year, I believe we can finally get the votes we need in the Senate to see this commonsense bill enacted into law.”