By: Richard Kinch

March 2015

The U.S. Environmental Protection Agency’s (EPA) recent coal ash rule addresses environmental concerns associated with the solid residuals left over after burning coal at electric utilities.  Within this regulatory process, there was an array of concerns, including the structural safety of dams used to impound mixtures of water and coal ash, potential leaching of pollutants into groundwater, and fugitive dusts.  This rulemaking required a very significant effort, involving 450,000 comments on the proposed rule and an estimated cost of $735 million per year.  The intent of this column is to relay my perspective, based on my prior 40-plus years as an EPA employee, on the problematic human tendencies leading to conflict and excessive delays – and to suggest how these might be overcome.

While citizen groups, industry, and states have shown overall support for the development of coal ash regulations, a highly controversial and confrontational atmosphere exists regarding the details of those regulations.  Some of the primary differences are whether EPA should use hazardous waste regulations with federal enforcement authority, whether impoundments should be forced to close, and how federal requirements could be coordinated with states.  In addition, while there was general support for beneficially using these materials (i.e., coal ash can be used as a partial substitute for cement in making concrete, with improved properties, and cost and environmental benefits), there is conflict on how to ensure the wide range of uses is done in an environmentally protective manner.

The long painstaking process started on October 12, 1980, when Congress enacted the Solid Waste Disposal Act Amendments temporarily exempting fossil fuel combustion wastes, including coal ash, from hazardous waste regulation until “further study” could be completed.  With the December 19, 2014 signing of the coal ash rule, this painstaking work may finally be over – unless reassessment or litigation continues the process. In protecting human health and the environment, timeliness needs to be important, and 34-year studies should be unacceptable.

In addition to continuing exposure to health and environmental hazards, long delays waste taxpayer dollars and squander expertise when EPA staff change jobs or retire. In addition, citizen groups, and industry and state representatives are also tying up their valuable time as they advocate their strongly felt convictions throughout the entire EPA process.  All of these stakeholders deserve a better process.

While the coal ash venture took an exceptionally long time, it does shine a brighter light on process shortcomings, whose lessons can be valuable for ongoing projects. Based on my career at EPA, which included work on the coal ash rule, I believe that three critical behaviors need to be reconsidered:

First, senior leadership at times simply needs to make the tough decision – despite knowing that more evidence can be gathered and that not every group will be perfectly satisfied.  It can be tempting to believe that a little more time, data, and analysis will somehow make the decision-making process more straightforward, but at some point “we need to study this more” simply postpones a challenging decision.

Second, the desire for a complete and comprehensive solution can hinder the making of any decision at all, including one that substantially solves the most significant environmental problems at hand.  The desire to address all actual and hypothetical problems not only takes more time, but also ties up the limited resources that could be focused on the other significant environmental concerns that remain unattended.

Third and finally, we can greatly benefit by working together.  In the earlier stages of dealing with coal ash as part of a broader assessment of fossil fuel combustion, EPA found substantial concerns with oil ash in unlined impoundments.  We relayed the information to industry, and they voluntarily closed down the unlined oil ash impoundments – a simple, quick, and largely unnoticed success.  Subsequently, the association for the electric utilities offered to negotiate and establish a voluntary action plan to immediately initiate addressing the environmental concerns, but EPA declined – a missed opportunity to try and bring together EPA, industry, citizen groups, and states.

Early in EPA’s history, we addressed untreated industrial wastes that caused a river to catch fire, wholesale dumping of drums of toxics, and uncontrolled air emissions.  We have made great progress, which can be attributed to the conjoined works of EPA, citizens, industry, and states.  Still, there are difficulties in designing efficient and effective environmental regulations.  It is natural to want more analysis, to strive for greater comprehensiveness, and to expect contentiousness as a natural part of the regulatory process.  But, we should all be open to seeking something better and abandoning the underlying flaws of a 34-year regulatory process.

Richard Kinch is an independent consultant on environmental matters associated with solid waste, water pollution, beneficial use of industrial residuals, and sustainability. Throughout a 40-year career at EPA and his current endeavors, he seeks to improve our environment, respect the views of all parties, and foster sound societal decisions.