By Roy Belden

Environmental groups filed suit in federal court in late August to force the US government to regulate ash and other wastes from the combustion of fossil fuels, including coal, waste coal, and petroleum coke, as a hazardous waste. Such regulation would make it more expensive to use coal as fuel in US power plants.

The groups include the Citizen’s Coal Council, the Izaak Walton League of America, and the Conservation Law Foundation. The suit challenges a decision last May by the US Environmental Protection Agency not to regulate fossil fuel combustion wastes as hazardous under the Resource Conservation and Recovery Act. Earlier this year, EPA created a firestorm of protest from Congressional leaders and industry by indicating that it was leaning toward regulating such wastes as hazardous.

Environmental groups have charged that coal and petroleum combustion wastes should be subject to more stringent regulation to prevent groundwater pollution.

Most fossil fuel combustion ash is currently exempted from regulation as a hazardous waste and is managed as a “solid waste.” Past EPA studies have concluded that most coal combustion ash has low toxicity and generally does not present a risk to human health and the environment.

Last May 22, EPA concluded that fossil fuel combustion wastes do not warrant regulation as a hazardous waste. However, it determined that national solid waste regulations are warranted for coal combustion wastes that are disposed in landfills or surface impoundments or are used to fill surface or underground mines. Instead of regulating the ash as hazardous, EPA’s approach would build on the existing solid waste regulations for municipal landfills which require liners and leachate collection systems. However, the implementation of such standards will require a rule-making process, and it will be several years before new requirements are in place.

The EPA has projected that if fossil fuel combustion ash is regulated as a hazardous waste, the annual compliance costs for industry could exceed $1 billion a year. In addition, higher electric utility rates could be passed through to consumers to offset the increased management, transportation and disposal costs. The stigma of regulating fossil fuel combustion ash as hazardous could curtail many existing beneficial uses.

The environmental groups’ lawsuit is intended to force EPA to go back to the drawing board to address fossil fuel combustion wastes. A decision in the lawsuit is not expected until late 2001 or early 2002.