NO ONE LIKES AN ASH HOLE: ADVOCATING FOR A MANAGEMENT SCHEME THAT PRIORITIZES BENEFICIAL UTILIZATION OF COAL ASH IN THE UNITED STATES AND GEORGIA THROUGH DOMESTIC AND INTERNATIONAL COMPARISONS
Ethan Keith Morris*
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I. Introduction...............................................................................790
II. Background.................................................................................791
A. History of Regulation in the United States...............................791
III. Statement of Law.......................................................................795
A. Kingston, TN & Eden, NC Spills: Prompting the Need for Federal Action ......................................................................... 795
B. Georgia's Proposed Rule.........................................................798
C. The Indian Response................................................................799
IV. Analysis.......................................................................................800
A. Insufficiency of the "Minimum Standards" Approach Taken by the EPA.....................................................................801
B. Greater than the Minimum, but How Much Greater?.............803
C. The Indian Example: Leading the Way to Optimal Utilization................................................................................804
D. Problems with the Indian Plan.................................................805
E. Why the United States Must Adapt and What We Can Learn from India......................................................................806
V. Conclusion..................................................................................807
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Coal Combustion Residuals (CCRs), also known as coal ash, are by-products generated from burning coal to produce electricity.1 CCRs contain harmful substances such as mercury, cadmium, and arsenic and if not managed properly can cause pollution of waterways and air.2 In 2015, the United States generated approximately 33% of its power from coal-fired power plants.3 This high level of coal fired power utilization produces a substantial amount of coal ash, with approximately 120 million tons of CCRs being generated in the United States each year.4 While coal-derived energy output has decreased over the years,5 coal's status as an abundant, cheap, and reliable energy source makes it unlikely to be completely replaced by a viable alternative in the foreseeable future. With this in mind, the United States and countries around the world are faced with a difficult question—what should be done with all the ash?
This Note will examine the CCR management issue by evaluating the efficacy of three regulatory schemes: (1) the Environmental Protection Agency (EPA) minimum standards approach, (2) the Georgia greater than the minimum approach, and (3) the Indian beneficial utilization approach. After examining each of these approaches, this Note will analyze the benefits and drawbacks of each approach so the United States and Georgia can ensure that CCRs are managed in a way that prioritizes the protection of citizens and preservation of valuable natural resources while optimizing the beneficial use of coal ash.
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A. History of Regulation in the United States
In 1965, Congress passed the Solid Waste Disposal Act (SWDA) as a response to industrial pollution and widespread trash burning.6 Since its passage, the SWDA has been amended numerous times to address gaps in regulation.7 On October 21, 1976, Congress passed its first significant amendment to the SWDA—the Resource Conservation and Recovery Act (RCRA).8 The RCRA set national goals for "protecting human health and the environment from the potential hazards of waste disposal; conserving energy and natural resources; reducing the amount of waste generated; ensuring that wastes are managed in an environmentally-sound manner."9
RCRA also gave the EPA the power to regulate solid and hazardous wastes according to management standards developed using EPA research.10 Under subtitle D of the RCRA, the EPA set criteria for solid waste landfills, barred the open dumping of solid waste, and prompted states to develop and submit comprehensive management plans for solid waste.11 Under RCRA Subtitle C, the EPA set strict standards for the regulation of hazardous waste generators, transporters, owners, and operators as well as treatment, storage, and disposal facilities (TSDFs).12 Because subtitle C of the RCRA regulates hazardous wastes from generation to disposal, it is known as a "cradle-to-grave" management scheme.13 On December 18, 1978, when the EPA released its regulations for hazardous waste under RCRA Subtitle C, it decided to withhold judgment for six categories of wastes that it deemed
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"special wastes," until further study could be completed; among these wastes was what is now known as coal ash.14
Until the "Disposal of Coal Combustion Residuals from Electric Utilities" final rule was signed by the EPA Administrator on December 19, 2014, the United States had no minimum standards for the management of CCRs.15 Since the 1980s, the EPA considered treating coal ash as hazardous waste under Subtitle C of the RCRA,16 but after the EPA deferred judgment in December of 1978, Congress took action and passed the Bevill Amendment to the RCRA on October 8, 1980, which exempted CCRs from classification as hazardous waste under Subtitle C of the RCRA.17 The passage of the Bevill Amendment ensured that coal utilities would be free from strict federal regulations and costs associated with management of hazardous substances under Subtitle C of the RCRA.18 Congress's primary motive for enacting the Bevill Amendment was that certain wastes, namely "solid waste[s] from the extraction, beneficiation, and processing of ores and minerals," were generated in extremely large volumes compared to other substances regulated under Subtitle C.19 Congress believed that prematurely imposing stricter Subtitle C standards upon these substances would give rise to astronomical management costs, so the legislature held off on regulation until more research could be presented as to the effects of coal ash.20
While Congress decided to exempt coal ash from Subtitle C regulation in the interim, it required the EPA to study coal ash extensively to determine
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whether the substance was truly dangerous enough to be declared hazardous.21 In 1988, the EPA completed initial studies and published its findings in a report to Congress, although the agency failed to complete the regulatory determination mandated by Congress.22 Three years later, as part of a consent decree to complete said regulatory determination, the EPA divided CCRs into two categories—one category containing "fly ash, bottom ash, boiler slag, and flue gas emission control waste from the combustion of coal by electric utilities and independent commercial power producers,"23 and the other category containing "all remaining wastes subject to the Bevill exemption."24 While this determination provided insight as to the varying categories of CCRs, the EPA still gave no explanation as to how CCRs should be regulated under the RCRA. In August of 1993, the EPA again decided not to subject either category of CCRs to Subtitle C regulation.25
In 1999, the EPA submitted a second report to Congress that again addressed whether the Bevill Amendment should continue to apply to CCRs.26 The report concluded that Bevill Amendment wastes would continue to be exempted from Subtitle C and that CCRs disposed in landfills and surface impoundments would be subject to national minimum standards under Subtitle D of the RCRA.27 Although the EPA decided to regulate CCRs disposed in landfills and impoundments under Subtitle D, the proposed minimum standards were never issued, and Congress took no action in light of the EPA recommendations.28 While environmental groups were disappointed by this outcome, the EPA promised to revisit its decision
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not to regulate CCRs under Subtitle C of the RCRA after completing further studies on the substances.29
Following the 1999 EPA decision to regulate CCRs under Subtitle D, environmental stakeholders continued to urge the EPA to reclassify coal ash as a Subtitle C hazardous substance due to its potential to leach from impoundments into water stores.30 The EPA evaluated these claims and appeared to take note of stakeholder concerns when it proposed a draft determination to the White House Office of Management and Budget (OMB) that stated:
Public comments and other analyses . . . have convinced [the] EPA that these wastes can, and do, pose significant risks to human health and the environment when not properly managed, and there is sufficient evidence that adequate controls may not be in place for a significant number of facilities. This, in our view, justifies the development of tailored regulations under [the hazardous] Subtitle C of RCRA.31
EPA Administrator Carol Browner proposed a draft rule to the OMB containing the above determination, but this is as far as the rulemaking process would go.32 Once the OMB received the EPA draft rule, utility lobbies learned of the EPA's intention to reclassify coal ash as a hazardous substance and immediately mounted fierce opposition to the proposal.33 After analyzing scientific studies and comments from interested parties, the OMB performed what amounted to a cost-benefit analysis, concluding that the cost of management to utilities, estimated at a minimum of $1 billion per year and a maximum $13 billion per year, outweighed the benefit of regulating CCRs as hazardous waste.34 After OMB revisions, the original EPA proposal to regulate coal ash as a hazardous waste was abandoned in favor of less stringent standards for CCR management, although the agency did not address the proposed less stringent regulations again for eight...
