Look at Unintended Consequences

• Author: Elliott P. Laws
• Position: Former EPA Assistant Administrator and former President for Safety, Health & Environment of Texaco, is Senior Counsel at Crowell & Moring
• Pages: 14-14

Page 14 ❧ THE ENVIRONMENTAL FORUM Copyright © 2010, Environmental Law Institute®, Washington, D.C. www.eli.org.

Reprinted by permission from The Environmental Forum®, Jan./Feb. 2010

EPA has worked

hard to expand the

reuse market that this

decision threatens

By Elliott P. Laws

Look at Unintended

Consequences

In writing this column over the past

eight years, I try not to touch on the

same issue too often. Certainly many

issues are of such import to environ-

mental law and business that I have

touched on them several times — cli-

mate change and environmental jus-

tice come to mind — but I f‌ind that I

need to vent a little again on the issue

of unintended consequences, the sub-

ject of my last column.

While there are few things that

the new administration is embark-

ing on that trouble me, I f‌ind a trend

emerging in the Obama EPA that is

both puzzling and disturbing. I wrote

about it in the last issue in the context

of a relatively obscure provision of the

Clean Water Act. Now I see it again

in somewhat less obscure provision of

the Resource Conservation and Re-

covery Act.

You may recall that in December

2008, a holding pond at the Kingston

Fossil Plant operated by the Tennes-

see Valley Authority failed, spilling

an estimated 5.4 million cubic yards

of water, f‌ly ash, and mud over 300

acres. Since then there have been calls

from environmentalists and mem-

bers of Congress to regulate f‌ly ash,

with Senate Environment and Pub-

lic Works Committee Chair Barbara

Boxer (D.-California) calling for EPA

to designate the material as hazard-

ous waste under RCRA: “e federal

government has the power to regulate

these wastes, and inaction has allowed

this enormous volume of toxic mate-

rial to go largely unregulated.”

Can we stop and catch our breath

for a moment? Make no mistake, the

failure of the TVA holding pond was

a disaster, especially for the people

whose lives and homes were directly

af‌fected by it. But it was an example

of a safety issue, not an environmental

issue. EPA has looked at f‌ly ash nu-

merous times over the years and has

consistently found it not to be hazard-

ous. Not, as some might argue, under

pressure from the coal and electricity

industries, but because it has not been

found to be “hazardous” under RCRA

— a conclusion reached by both Re-

publican and Democratic administra-

tions.

e spill clearly highlights the

weaknesses of RCRA, particularly

Subtitle D, which gives enforcement

authority for nonhazardous wastes to

the states, some of which fail to ad-

equately perform under the law. But

still, we are talking about the physical

failure of the holding

pond — a safety de-

sign issue, not a haz-

ardous waste issue.

e agency is right-

ly looking at safety

surrounding these im-

poundments. Howev-

er, under pressure from Boxer and oth-

ers, the agency is also looking at wheth-

er f‌ly ash needs to be regulated under

Subtitle C — ostensibly due to the

constituents of the material, but in real-

ity due to lax Subtitle D enforcement

from some states. Reports indicate that

EPA is looking at a hybrid approach,

which will ultimately endorse a f‌inding

that f‌ly ash is “kind of hazardous.” Un-

der this approach EPA would regulate

“wet” storage of ash in ponds as hazard-

ous while “dry” storage will continue to

be regulated under Subtitle D.

I understand that there are strong

safety reasons for the dry/wet dis-

tinction. ere is less rationale for

the non-hazardous/hazardous dif‌fer-

entiation. at issue, I’m afraid, will

ultimately need to be decided by the

courts. But what seems to be lost in

all of this are the practical ramif‌ica-

tions — or unintended consequences

— that will f‌low from EPA’s current

course of action.

More than 130 million tons of f‌ly

ash are produced annually in the Unit-

ed States; over 40 percent of that ash

is recycled for benef‌icial uses, includ-

ing asphalt roads; road dividers; and

cement. ere is insuf‌f‌icient capacity

to handle this huge amount of waste if

it is designated as hazardous.

Further, such a designation will de-

stroy the reuse market by making vir-

tually every paved road in the country

“hazardous by implication.” It will cre-

ate massive budget problems as cities

and states are forced to look for non-

hazardous alternatives to f‌ly ash for

road construction and repair. Would

a class action be far behind — accus-

ing local of‌f‌icials of exposing citizens

to hazardous waste? It could create la-

bor problems as city maintenance and

utility workers refuse to be exposed to

this “hazardous waste” as they break

through roads to ac-

cess utility lines and

water pipes. Whether

the ash is non-hazard-

ous “dry” or hazardous

“wet” will ultimately

become a distinction

without a dif‌ference.

Hopefully, cooler heads and the

agency’s commitment to “sound sci-

ence” will prevail in this instance and

EPA will not make an ill-advised deci-

sion because of the broader shortcom-

ings of Subtitle D. But beyond that,

EPA must recognize that its actions

have both obvious and unintended

consequences. It needs to do a much

better job of identifying the full range

of results that f‌low from its decisions,

especially where EPA has worked hard

to sustain and expand the reuse market

that this decision threatens to destroy.

Elliott P. Laws, f o rm e r E PA

Assistant Administrator and former President

for Safety, Health & Environment of Texaco, is

Senior Counsel at C rowell & Moring. He can

be reached at elaw s@crowell.com.

T B  E