Before President Obama had even taken the oath of office, his administration was promising to protect the public from toxic coal waste produced by power plants. But well into the president’s second term—and nearly five years after Americans learned of the dangers of coal ash after a massive spill devastated a Tennessee town—that pledge is a green dream that is at least deferred, and quite possibly dead.
The Obama administration has all but halted its review of the existing policies for storing coal ash, and although environmentalists are eagerly awaiting a final answer on the issue, they’re not optimistic. While they’re loathe to admit it publicly, environmental advocates will privately concede they no longer expect the administration to issue the tough rules they’ve long sought.
Environmental groups—including the Sierra Club, Earthjustice, and Appalachian Voices—were handed a minor victory two weeks ago when a federal judge gave the administration two months to set a deadline to finish its review of coal-ash storage rules. But the victory is bittersweet at best, because even securing that deadline required the environmental groups to sue an administration that once seemed all but certain to side with them.
Momentum built for new rules in December 2008, when the containment wall of a coal-ash pond at a Tennessee Valley Authority power plant gave way, sending more than 1 billion gallons of the arsenic- and lead-laden waste into the town of Kingston. The spill flooded homes and dumped lingering toxins into the local water supply.
At her confirmation hearing weeks later, Lisa Jackson, the incoming administrator of the Environmental Protection Agency, promised to review the existing rules for storing coal waste, and by October of that year agency scientists had prepared a plan to radically change them. EPA was ready to propose reclassifying coal ash as a hazardous waste and to issue the first set of binding federal standards for its storage and disposal.
Before EPA could publicize its preferred approach, however, officials had to route it through the White House Office of Management and Budget, which conducts interagency reviews of regulations that are deemed to be economically significant. And that’s where everything changed. The rules lingered at the White House for nearly seven months, and when they emerged, the unambiguous push for stricter standards had been removed.
The draft that EPA sent to the White House also mentioned a second option for regulating the waste, which would assign the ash nonhazardous status and leave enforcement to the states—an arrangement that has been in place for decades. But the agency didn’t endorse that approach, saying it “would not be protective of human [health] and the environment.” During the White House review, however, the hazardous and nonhazardous options were placed on equal footing.
The coal-mining and utility industries applauded the elevation of the nonhazardous option in 2010, saying it was enough to ensure public safety and that the stricter alternative would place an unnecessary burden on coal-fired power plants.
EPA released that “multiple choice” proposal in May 2010. Since then, little has happened. More than three years later, the agency has not released a final rule, and the only sign of life on the issue was EPA’s October 2011 request to the public for more information.
Why did the administration reverse course on coal ash? The White House referred questions about the 2009 change to OMB’s press office, which did not reply. For its part, EPA insists that it’s simply doing due diligence. The agency is evaluating new data and looking through the nearly half-million comments it has received on the proposed rule, said EPA spokeswoman Alisha Johnson. She declined to comment on when the agency might comply with the federal court’s order to publish a schedule for finishing the rule.
The administration’s environmental critics, however, say the troubles are not technical or scientific but political. The push for coal-ash rules has few congressional champions and no shortage of critics. The House in June voted to block EPA from declaring the waste hazardous, with 39 Democrats joining a Republican majority. Also voting in favor was Republican Rep. Chuck Fleischmann, whose Tennessee district includes the site of TVA’s Kingston spill. The bill is likely dead in the Senate.
That opposition led the White House to blunt EPA’s regulatory push in 2009, and the same forces within the administration are delaying it now, said Rena Steinzor, a University of Maryland law-school professor and the president of the Center for Progressive Reform. “I continue to believe it is a matter of political convenience and weakness,” she said. “I’m just waiting to hear about the next spill. It’s a disaster waiting to happen.”
But tired though they are of waiting, patience may be environmentalists’ best hope for the coal-ash rules they say are vital. The White House now has a different relationship with the coal industry, as well as with coal-state lawmakers, than it did in 2009. Then, the administration was still wooing both groups in a bid to get support for cap-and-trade legislation to cut carbon emissions. Now the climate bill is dead, and so is the charm campaign.
Congressional opposition, including from moderate Democrats, did nothing to deter EPA from introducing greenhouse-gas regulations for power plants. And a bipartisan revolt has made no progress in lifting the administration’s tight new rules for mountaintop mining. If this administration wants to declare coal ash a health hazard, nothing is really standing in the way. Except, of course, itself.
This article appears in the November 16, 2013 edition of National Journal Magazine as In the Ash Heap.