More than a year after 1 billion or so gallons of water polluted by ash spilled from a coal-burning power plant in Tennessee, the Obama administration is struggling to decide whether to declare such waste "hazardous."
Slapping a hazardous label on coal ash and other coal byproducts would trigger the writing of a federal disposal standard to replace a patchwork of state regulations. The standard could outright ban wet storage ponds -- such as the one that ruptured in December 2008 in Kingston, Tenn. -- and require landfill liners, leak controls and groundwater monitoring at ash dumps.
The industry also fears that the hazardous designation would kill an ash-recycling enterprise that the Electric Power Research Institute (EPRI) says generates $5 billion to $10 billion a year in revenue for coal-burning utilities. In 2008, about 60 million tons -- 45 percent of the 136 million tons of coal-combustion ash that the industry generated -- were used to fill abandoned mines, make concrete and shore up eroding highway embankments, according to the American Coal Ash Association.
The designation would also cause disposal costs to soar. Ken Ladwig, a senior program manager for EPRI, said a hazardous designation could raise the cost of ash disposal from $10-15 a ton to $150 per ton, a total of $10 billion to $15 billion more a year. And that estimate cost could balloon, he added, if the designation chokes recycling programs.
The American Society for Testing and Materials International, a coalition that sets material and building standards, warned U.S. EPA last month that it would not support the use of coal ash in concrete if the ash is declared a hazardous waste. "If a material is excluded from the standard, you're not going to be able to use it," said Jim Roewer, executive director of the Utility Solid Waste Activities Group.
Said Tom Addams, executive director of the coal ash group, "A hazardous determination would make builders reluctant to use coal ash not because of what it may contain, but because of tort activity. If litigation was filed on a national basis, it would be mind-boggling to see what the defense costs were."
But environmentalists pushing for the hazardous designation say the industry groups are trying to scare EPA away from protecting waterways and groundwater from arsenic, selenium and other heavy metals that leach from power plant ash. There is no evidence, they say, that the "beneficial use" of ash would stop with a hazardous-waste designation.
"I have never seen the first study or piece of data to substantiate the claim that there would be this stigma that would stop recycling of coal ash," said Jeff Stant, director of the Environmental Integrity Project's campaign for federal regulation of coal-combustion waste. "It's important to note that the people who have been making that claim are the ones who have a financial interest in not having the designation."
And Stant added, "The job of EPA first and foremost ... is to prevent wastes from causing harm. It is not to worry over whether the concrete industry is going to have some component stigmatized."
Push at White House, on Hill
The industry is working hard to promote its argument about recycling or "beneficial use" of coal-combustion waste. After all, that argument was key in persuading the Clinton administration's EPA in 2000 to forego regulation of ash under the Resource Conservation and Reclamation Act (RCRA).
Industry groups have met 16 times with EPA, the White House Council on Environmental Quality and the Office of Management and Budget's Office of Information and Regulatory Affairs (OIRA) since October to discuss ash regulations and question their potential effect on recycling programs, according to documents posted on the OMB Web site.
Among the players are American Electric Power Co. Inc., Duke Energy Corp., the Utility Solid Waste Activities Group, the American Coal Ash Association, the National Association of Manufacturers and lobbyist Lisa Jaeger, who was EPA's acting general counsel during the George W. Bush administration. Jaeger is representing the Council of Industrial Boiler Owners.
During that same period, Obama administration officials discussed the ash issue in four meetings with environmentalists and two with health professionals.
"By executive order, if a stakeholder on a proposal asks to meet with OMB (OIRA), they are required to take the meeting," an administration official said in a statement. "For this proposal, OIRA has met with groups on both sides of the issue. The numbers of meetings that 'one side' gets versus another is not indicative of one side getting more input into the process."
EPA declined to comment for this story, but the agency is crafting its decision on a coal ash standard with beneficial use in mind, Stan Meiburg, acting director of EPA's Region 4, told Congress at a hearing last month.
The agency is struggling to find a way forward. After pledging early last year to decide the ash issue by December, EPA Administrator Lisa Jackson announced last month the "complexity of the analysis" of the matter had delayed the decision.
Meanwhile, the industry groups' pitch has struck a chord in Congress. "Beneficial use" was cited in a letter signed by 25 senators and more than 70 House members last month that asked Jackson to forgo the hazardous designation.
The argument was repeated at two December House hearings on ash regulations. "How could coal ash be hazardous in a landfill and not hazardous in recycling?" Rep. Bill Shuster (R-Pa.) asked at a House Transportation and Infrastructure hearing Dec. 9. "It's frightening that we come up with that sort of illogical ruling."
Rep. Jim Matheson (D-Utah) echoed that notion at an Energy and Commerce subcommittee hearing two days later. Matheson's top campaign contributor for the current election cycle is Ceramatec Inc., a materials science company in his Salt Lake City district that is exploring new ways to recycle coal ash.
The company, whose political action committees and individuals have donated $10,000 to Matheson's campaign according to nonpartisan watchdog Open Secrets, has conveyed to Matheson through several forums that a hazardous designation would cripple its recycling programs, Ceramatec chemist Chett Boxley said in an interview.
On the other side are environmentalists and construction industry stakeholders who maintain that a hazardous-waste designation won't doom ash recycling efforts.
"It's really hard to say how markets react and what ultimately happens once you have that kind of designation," said Scot Horst, senior vice president of the U.S. Green Building Council. "I know, just from talking to people, that that's what the fear is, but EPA has the ability to make a ruling any way it wants.
"It could say that beneficial use isn't a hazardous material, but the waste is, and I suspect that's the work that they're trying to figure out."
The council offers incentives for builders to use the ash in concrete in its famous LEED program for certifying "green" buildings, and those incentives would remain in place even under a hazardous determination, Horst said.
RCRA gives EPA flexibility to craft a "hybrid" hazardous designation that would set strong disposal standards but make exemptions to encourage recycling, Earthjustice attorney Lisa Evans said.
Evans argues that other materials classified as hazardous wastes -- such as spent solvents and steel production byproducts -- enjoy robust recycling programs, and there is no reason to believe coal ash could not as well.
"People are acting as if this is the first time that hazardous waste would ever re-enter the stream of commerce," Evans said. "That's really far from true."