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House Makes End Run on Coal Ash Rules

Tuesday, October 18, 2011

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Thrusting quickly to parry stiffer federal rules, the House has approved a bill that would allow states to regulate coal ash from power plants as if it were municipal garbage, not hazardous waste.

House Republicans shepherded H.R. 2273: Coal Residuals Reuse and Management Act to passage Friday (Oct. 14) on a 267-144-22 roll call vote, potentially undercutting the Environmental Protection Agency’s authority to set stricter disposal regulations nationwide.

CCR Rule Uncertainty

With more than 100 million tons of coal combustion products produced every year for use in cement, as fill material and abrasive blast media, EPA has long been under pressure to promulgate stronger disposal standards.

 The House measure would regulate coal waste like landfilled municipal garbage

 Sierra Club Rio Grande Chapter

The House measure would regulate coal waste like landfilled municipal garbage.

The agency issued its controversial Proposed Rule for Disposal of Coal Combustion Residuals [CCRs] from Electric Utilities in June 2010. 

The proposal, which includes two options for CCR disposal, was the subject of extensive public hearings last fall, and the comment period closed 11 months ago. Still, EPA has not said when a final version might be released.

EPA has long defended the safety of CCRs, even taking criticism from its own auditors for doing so.

Moreover, given the Obama Administration’s recent retreat on several other federal rules, and with the EPA under fire by President Obama’s opponents, it seems an unlikely time for the Administration to introduce new regulations that businesses oppose.

Still, members of Congress aren’t taking any chances.

Amending RCRA Subtitle D

The House legislation, introduced June 22 by Rep. David McKinley (R-WV), would amend Subtitle D of the Resource Conservation and Recovery Act (RCRA) “to authorize states to adopt and implement coal combustion residuals permit programs.”

 Rep. David McKinley
Republicans “want clean air and water for our children and grandchildren as much as Democrats do,” said the bill’s sponsor, David McKinley (R-WV).

Subtitle D of RCRA, also known as the Solid Waste Disposal Act, addresses non-hazardous solid wastes, including certain hazardous wastes, such as those from households, which are exempted from the Subtitle C regulations.

McKinley’s bill would require:

• State CCR programs to be “no less stringent” than the requirements set for municipal solid waste landfills, which have liners to protect groundwater, monitors to test water for contamination, and equipment to control dust;

• State programs to regulate management of CCRs in surface impoundments and other land-based units; and

• Landfills and surface impoundments for CCR disposal to be “designed, constructed and maintained to provide for containment of the maximum volumes of such residuals appropriate for the structure.”

Coal ash now stored in surface ponds or impoundments would not be affected.

The bill would allow EPA to implement a disposal program for a state that refuses to comply, but the agency could not design a program that treats CCRs the same as hazardous waste in that state.

The measure also preserves EPA’s 2000 “Regulatory Determination on Wastes from the Combustion of Fossil Fuels,” which concluded that fossil fuel combustion wastes did not warrant regulation as hazardous waste.

White House Opposition

The bill arrived Monday (Oct. 17) in the Senate, where it was read for the first time. Although the measure faces an uphill battle in the Democratic-controlled chamber, 37 Democrats supported the bill in the House and 22 abstained, indicating that the fight may not be one that Democrats want to pursue at this time.

The White House has roundly opposed the bill, calling it “insufficient to address the risks associated with coal ash disposal and management.”

Although he stopped short of threatening a veto, Obama said last week that the measure “undermines the Federal government’s ability to ensure that requirements for management and disposal of coal combustion residuals are protective of human health and the environment.”

 The measure would apply to fly ash, bottom ash, boiler slag and FGD material

 ACAA & ACC 2010 Coal Ash Economic Assessment

The measure would apply to (clockwise from top left) fly ash, bottom ash, boiler slag and FGD material.

Obama cited the 2008 failure of a coal ash impoundment in Kingston, TN, as a “stark reminder of the need for safe disposal and management of coal ash to protect public health and the environment.”  That disaster spilled more than five million cubic yards of coal ash and will cost $1.2 billion to clean up.

McKinley’s bill “would replace existing authorities with inadequate and inappropriate minimum requirements,” Obama said.

‘Regulation That Protects Jobs’

Republicans disagreed.

“The results of EPA’s regulations would have been devastating on the effects of jobs, higher utility rates at home, and cripple a very successful emerging byproducts industry,” Rep. John Shimkus (R-IL), chairman of the Energy and Commerce Committee’s environment and economy panel, told the Associated Press.

The coal ash rule is one of a host of environmental regulations targeted by Majority Leader Eric Cantor (R-VA) in a memo to House Republicans in August.

McKinley recently told The Dominion Post, of Morgantown, WV, that the Administration and its supporters “have an agenda to stop burning coal. They don’t seem to understand the consequences of doing that.”

And in an op-ed essay Friday in The Hill, McKinley wrote: “House Republicans do not oppose regulation. We want clean air and water for our children and grandchildren as much as Democrats do. But it must be responsible regulation that protects jobs. This legislation does just that.”


Tagged categories: Abrasive blasting; Coal ash; Coal Combustion Residuals; EPA; Laws and litigation; Regulations; Surface preparation

Comment from William Cornelius, (10/19/2011, 8:15 AM)

"...undermines the Federal government’s ability..." The last I heard, the House was a part of the Federal government. The fact is, I think it's the Congress that sets our policies and not the Executive.

Comment from paul mellon, (10/19/2011, 8:30 AM)

This bill is bad news if you or your company use, buy or sell coal slag abrasives. 1. Despite the fact it won’t pass the Senate, the House GOP has now admitted that coal waste will be nationally regulated for disposal. Thus coal slag abrasives will be the first abrasive media to fall under national federal disposal guidelines. 2. Notice the bill does not mention the former Beneficial Use Program which was invalidated by the EPA Office of Inspector General’s ( OIG ) report in March 2011. 3. That report also invalidated the TCLP test for proving a CCR waste is safe for human health when used on the surface, like coal slag abrasives. 4. Without the artificial protection of the “beneficial use program” , coal slag abrasives will have to be sent to a lined landfill after use according to the GOP bill and the EPA proposed rule. Thus the GOP and EPA are now in agreement. 5. That means if used or spent coal slag is left on the ground or water, that is no longer an allowed disposal site in any state. 6. The OIG also reiterated that the first criteria the EPA must use on an new Beneficial Use Program is that the CCR must be safe for human health. 7. Unless the EPA can find a new human health test to conclusively refute the current tests by OSHA,NIOSH and the EPA itself, then coal slag abrasives will not be included in any new reformulation of the Beneficial Use Program.

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