During the Clinton administration, the EPA took its first hard look at coal ash. In March 2000, the agency concluded that "these wastes can, and do, pose significant risks to human health and the environment when not properly managed." But rather than officially designate coal ash as hazardous, the EPA offered the industry a deal. If polluters agreed to dump or recycle coal ash according to "tailored" federal standards, their waste would remain labeled as nonhazardous. If not, the EPA would step in and brand a company's coal ash as hazardous, prompting stricter oversight.
But that wasn't good enough for Big Coal. The proposal set off a lobbying frenzy by coal-burning utilities and the Utility Solid Waste Activities Group, the industry's front group on coal-ash disposal. "The high costs of regulation," the group warned, "will ultimately be shared nationwide by employees, taxpayers, ratepayers, investors and customers." Citing an analysis it commissioned, USWAG claimed that the annual cost of regulating coal ash would be as high as $13.8 billion — even though EPA data showed that proper disposal would cost no more than $3.5 billion. The industry's numbers were "wildly excessive," says Andrew Wittner, who oversaw the EPA's assessment of coal ash during the Clinton years.
The scare tactics worked: Thanks to the lobbying campaign, even the Energy Department and the federal Office of Surface Mining came out in opposition to the EPA's proposal. In May 2000, coal ash was officially designated as "nonhazardous," allowing the states to deal with the toxic waste as they saw fit.
A year later, when Bush took office, the agency became even more industry-friendly. "He purged the EPA," says Wittner. "All interest in doing anything about coal ash stopped." The agency actively began suppressing information about the danger that coal waste posed to public health. It deleted references to coal ash's "high risk" potential from fact sheets and PowerPoint presentations, and blacked out key passages in documents released to environmentalists under the Freedom of Information Act. It sat on the damning results of a 2002 study, which found that residents near unlined waste ponds face a risk of cancer that is far higher than the level used to justify federal regulation. The EPA even formed an official "partnership" with industry trade groups like USWAG to promote the "beneficial use" of coal ash in everything from highways to carpets. The sweetheart deal allowed the industry to avoid the cost of disposing of coal ash as hazardous waste, while at the same time making a profit off its toxic mess. The working relationship between regulators and coal polluters was so close that — in an October 2008 e-mail to the EPA itself — one industry representative joked about being "in bed again" with the agency.
"EPA is supposed to be a regulatory agency," says Jeff Ruch, executive director of Public Employees for Environmental Responsibility, a watchdog group composed of federal and state workers. "And regulatory agencies are not supposed to be in a 'products partnership' with the very industries that they are supposed to regulate."
In their latest lobbying blitz, coal-burning utilities and their allies continue to argue that putting stringent federal regulation on coal ash will cost billions of dollars, jack up electricity prices, destroy the economy, force the shutdown of coal plants and perhaps even cause blackouts. But they downplay the danger that coal ash poses to human health. USWAG insists that the way to determine if coal ash should be regulated as a hazardous waste is to use a test called the Toxicity Characteristic Leaching Procedure. Essentially, you put some coal waste in water, shake it up for 18 hours, then measure what leaches out of it. If the toxicity of the remaining junk exceeds allowable levels, the material is listed as hazardous. "By this standard, coal ash is not a hazardous waste," says Jim Roewer, the head of USWAG.
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