EPA won’t regulate coal ash as hazardous waste

The first federal rules on coal ash from power plants, released Friday, set the bar generally lower than North Carolina did in responding to Duke Energy’s February spill into the Dan River.

The Environmental Protection Agency said it will regulate coal ash as solid waste, such as municipal garbage, instead of as a hazardous waste. Ash contains elements that can be toxic in water.

That decision leaves it to utilities to comply with the new federal rule, without federal enforcement. States can adopt similar standards if they choose, but enforcement is otherwise left to citizens by filing lawsuits.

“It’s good that EPA is setting the first national standards for groundwater monitoring and cleanups,” said Eric Schaeffer, a former EPA enforcement chief now at the Environmental Integrity Project. “But we’re concerned that it relies too much on industry self-policing.”

Industry groups praised the federal decision, saying the designation as nonhazardous would continue to make ash available for reuse in products such as concrete. Environmental advocates said EPA missed a chance to rein in a waste that’s known to contaminate water.

The federal rule requires groundwater monitoring and says contaminating ash ponds have to be closed. It sets design, siting and inspection standards for ash ponds or landfills, including protective liners for new ones.

North Carolina’s law, which took effect in September, bans new ash ponds and closes existing ones over 15 years. It expands groundwater monitoring, already underway, that has found contamination at each of Duke’s 14 North Carolina power plants.

Unlike the EPA rule, the state doesn’t allow inactive ash ponds to be capped without further study of their environmental impacts.

Industry practices and some state standards already eclipse the EPA in some ways, said Frank Holleman, an attorney with the Southern Environmental Law Center, which has filed citizen lawsuits against Duke.

“This is not the industry standard, but the industry minimum,” Holleman said of the federal rule.

On Thursday, Duke announced an agreement with the law center to move 3.2 million tons of ash at its W.S. Lee power plant in South Carolina away from the Saluda River. Two other South Carolina utilities made similar commitments in 2012 and 2013.

Duke said it’s working to close ash ponds but won’t have a detailed review of the complex rule until January. “Duke Energy will adjust its existing ash management plans, as necessary, to comply with all state and federal regulations,” the company said in a statement.

The industry group Edison Electric Institute praised EPA for not regulating ash as hazardous waste, which would have added to disposal costs. But the institute dislikes the “self-implementing” nature of the rule and said EPA could later revisit the hazardous waste decision.

“Passing legislation that establishes state-enforced federal requirements for the disposal of coal ash would address many of our concerns and help eliminate uncertainty,” Tom Kuhn, the Edison Electric president, said in a statement.

The N.C. Department of Environment and Natural Resources praised the rule for preserving reuses of ash, such as in making concrete products and roadways.

EPA administrator Gina McCarthy told reporters the federal rule is “a pragmatic step forward that protects the public while giving utilities enough time to be thoughtful about the regulatory requirements.”

U.S. power plants generated 110 million tons of ash in 2012. Duke stores about 150 million tons at its North Carolina power plants alone.

Environmental groups welcomed some parts of the federal rule, such as increased dam inspections and public websites to relay environmental findings. But most called it a weak response.

EPA proposed the rules after a massive spill by the Tennessee Valley Authority in late 2008 that focused the federal agency’s attention on ash. Duke’s was the third large ash spill in a decade.

Hundreds of people attended a public hearing in Charlotte in 2010 over the proposed federal rules. EPA received 450,000 comments from the public.

When the agency didn’t release the rules after those hearings, Boone-based Appalachian Voices, Asheville’s Western North Carolina Alliance and other groups filed lawsuits to force its hand. EPA later agreed to release them by Friday.

This story was originally published December 19, 2014 at 2:33 PM with the headline "EPA won’t regulate coal ash as hazardous waste."