(Thanks to Doyle Coakley, board member of the Citizen’s Coal Council, for forwarding this information)

(Contact: Armond Cohen <armond@clnatf.org> 617-292-0234)

Here’s a quick explanation of the US Environmental Protection Agency (EPA)’s decision on April 27 concerning fossil fuel combustion waste and some provisional thoughts about next steps. EPA after much hemming and hawing has refused to regulate the waste as "hazardous."

As you know, we care about this waste, in part, because improper disposal has led to numerous cases of groundwater contamination, often beyond any use. Moreover, those of us advocating for air emission controls do not want to succeed merely to have the air contaminants end up in an unregulated waste stream poisoning us through our water supplies instead.

In short, EPA was under court order by April 25 to make a determination whether to regulate fossil fuel combustion wastes as "hazardous" under federal solid waste laws. A positive determination would begin a multi-year process of developing federal regulations governing the waste. A negative determination could (1) surrender all federal oversight on the issue; or (2) involve the setting of loose federal guidelines with voluntary compliance through the states. EPA last night issued a negative determination, promised loose federal guidelines in the future, and left the door open to revisit the issue, perhaps soon, if further review of the science and/or new scientific evidence comes to light establishing the waste poses a threat and should be regulated as "hazardous."

Fossil fuel combustion waste enjoys a statutory exemption from regulation as hazardous waste under the Resource Conservation and Recovery Act (RCRA) until EPA issues a report to Congress and makes a determination as to whether that exemption should continue. EPA in its Report to Congress last year indicated that it was inclined to issue a negative determination. Public comments, which many of you filed or joined, along with determined advocacy with EPA officials, convinced high-ranking agency officials that further protections were required. Evidence of damage included fish kills, amphibian deformities, and water supplies contaminated beyond any use by coal waste disposal practices of the type still employed. On the basis of the new evidence, EPA drafted a positive determination that would treat the waste as "hazardous" under RCRA Subtitle C. EPA then submitted its proposal to an interagency review process facilitated by the White House Office of Management and Budget (OMB). Administrator Carol Browner confirmed EPA’s change of direction publicly in response to questions at a congressional hearing last month.

The Department of Energy and Office of Surface Mining opposed EPA’s proposal vigorously on behalf of coal and utility interests. The Council on Environmental Quality, supposedly an advocate for the environment within the White House, while fully briefed, never engaged in support of EPA’s position. Meanwhile, industry woke up to the shift in EPA’s position and began an intense lobbying campaign with the White House and on Capitol Hill. Their efforts yielded several letters from members of Congress, including a letter from 33 Senators asking the Administration for further justification of its new position. Other letters opposed a positive determination outright. An earlier letter from co-sponsors of the Allen power plant bill (a bill which repeals the statutory exemption) supported a positive determination. Environmental advocates and citizen activists from ten states attended meetings with OMB and hundreds more weighed in with the White House through a letter-writing/fax/phone call campaign. We thank you for all your efforts.

Late last week it became clear that EPA could not push a positive determination through the White House concurrence process, and EPA began to search for a fallback position. EPA officials arrived at a two-part strategy: (a) seek an extension from the court for some months to allow for further development of the record, including release of the Toxic Release Inventory (TRI) data and the National Academy of Sciences mercury report hoping this information would strengthen their hand; and (b) if the extension was denied, to issue an "interim" negative determination that would treat the waste as non-hazardous and subject to state enforcement under loose federal guidelines, but use the NAS study or further review of scientific data as an excuse to revisit the determination before the end of this Administration.

EPA sought the extension Tuesday, but when the court denied the extension late in the afternoon, EPA defaulted to (b) and last night issued a negative determination, promised federal guidelines with voluntary implementation at the state level, and held out the possibility that it might revisit the issue.

No question, this is a regrettable betrayal by the Clinton/Gore administration only three days after Earth Day. The organizations that have been spear- heading the effort are considering next steps at this time. Short-term, we need to hold EPA to its pledge to further investigate the issue and consider additional evidence. We must create the scientific and political preconditions for EPA to revisit the determination e.g., to hammer the coal waste issue in relation to the upcoming TRI release, carefully use the NAS study to advance the issue, etc.

At the outset of this initiative some months ago, the Clean Air Task Force (CATF) did not expect to win a positive determination this round. It is a testament to a lot of hard work by many parties that all of us came as close as we did. All in all, we are where we expected to be at this time: likely challenging a

negative determination in court, building public support for the issue outside and inside of Washington, raising public awareness of the issue,

mounting site-specific litigation, and bringing additional scientific evidence to decision makers and the press. This round is over. The next step is to identify and execute a strategy to win the issue over the long haul. We welcome your input and support. ª

Dear CCC Members & Allies,

Above is an explanation of what happened with the EPA’s determination on fossil fuel combustion wastes from the Clean Air Task Force. The Citizens Coal Council, Hoosier Environmental Council and Clean Air Task Force will be meeting soon to assess this situation fully, and figure out some next steps. We are determined to get EPA to do the right thing: make these wastes hazardous and set strong rules for disposing them. We are thinking about lawsuits to challenge the determination.

We appreciate the fine efforts everyone has made. Thanks to you, this has become a national issue in record time, less than a year. We need to get more groups actively involved to gain responsible safeguards for disposal of this waste that states must comply with. Do you think a summit of groups and citizens involved in this issue to bring everyone up to speed and plan a strategy would be useful? Would you or your organization participate? Please let us at CCC know of your thoughts on such a meeting. Contact CCC at <citzcoal@essential.org> or 202-544-6210.

In the meantime here are some steps that you or your organization can take to keep the movement for responsible standards moving forward:

1) Gather more information on damages being caused by coal-fired power wastes. EPA officials have announced that they may reopen this determination if new information on further damages continues to come in.

Information can be found at ground and surface water monitoring records at state environmental agencies. We also have scientists willing to review monitoring data that groups retrieve and help prepare it for submittal to EPA. The typical divisions at these agencies to approach will be involved in regulation of solid waste (which usually handle landfills accepting coal combustion wastes) or water pollution (for impoundments where power plant wastes are slurried). This is extremely important work that we need help with urgently.

2) Confront Vice President Gore on the Campaign trail. He should be coming through every state before November. He needs to be hit with people, questions, chants, signs, etc., protesting his torpedoing of EPA's attempt to regulate this waste. Please don’t wait for his visit either. Letters to the editor and call ins to talk radio shows would really help!

3)Let your federal representative and senators, governor and the local news media know of how upset you are over EPA’s failure to safeguard water supplies and the environment from this waste.

We look forward to hearing from you,

Carolyn Johnson, Staff Director, Citizens Coal Council

1705 S. Pearly Street, #5, Denver, CO 80210