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EPA Expected to Finalize First Federal Coal Ash Regulations This Month

Four-and-a-half years after they were first announced, the Environmental Protection Agency plans to finalize the nation’s first federal rules on the handling of coal ash this month.

Coal ash is a byproduct of burning coal for electricity. In Louisville, the ash is stored in both wet ponds and dry landfills at both the Cane Run and Mill Creek power plants. Different aspects of the pond and landfill are regulated by the state, but right now, there are no federal laws regulating coal ash storage.

The EPA has proposed two ways to regulate the material. One option—called “subtitle C,” would effectively regulate it as a hazardous waste. The other—“subtitle D”—would treat it as solid waste. Environmental groups are lobbying for the former, while industry representatives prefer the latter.

“While there are similarities between the two proposals, there are some areas where the two proposals differ in very important ways,” said Lisa Evans, an attorney for non-profit Earthjustice. “And one of those ways is how surface impoundments will be closed.”

These surface impoundments, or ponds. are a top concern for environmental groups and people living nearby.Some studies have suggested the ponds are leakinginto groundwater, and high profile breaches like that at the Tennessee Valley Authority pond in Kingston, Tennessee.

Under the EPA’s subtitle C option, coal ash ponds would effectively be phased out. Under subtitle D, new ponds could still be built, but the law would require them to be lined to protect the groundwater.

“Right now, over a thousand ponds can continue to operate indefinitely,” Evans said. “And we know many are leaking profusely, have potentially unsafe stability, and it’s absolutely necessary for these coal ash ponds to close as soon as possible. Subtitle C offers much more long-term protection for communities in what they require during and after the closure of coal ash ponds.”

In Louisville, Louisville Gas and Electric has ponds at both its Mill Creek and Cane Run power plants. Cane Run is scheduled to be closed next year; depending on which rule regulators end up finalizing, the pond at Mill Creek would have to either be retrofitted with a liner (under subtitle C), or have to stop receiving coal ash within five years (subtitle D).

Industry groups and power plants have lobbied for the looser subtitle D regulations, in part because they say treating coal ash as a hazardous waste could quash recycling efforts. According to the American Coal Ash Association, nearly 110 million tons of coal ash was produced in the U.S. in 2012, and about 47 percent of that was re-used. The rest was disposed of in landfills and ponds.

Whichever rule the EPA ends up finalizing, Evans said either is an improvement over current regulations. Kentucky law doesn’t explicitly require coal ash ponds to be closed. But Tony Hatton of the Division of Waste Management said his agency's position is to treat them as a special waste landfill.

“As a special waste landfill, the ash pond must be addressed by either removing the waste or managing the waste as a landfill, which would include the necessity to design and install a landfill cap and to conduct groundwater monitoring,” Hatton wrote in an email.

In response to a lawsuit filed by environmental groups earlier this year, the EPA has said it will finalize the regulations by Dec. 19.


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