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Revised coal ash bill up for vote in U.S. House

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A new attempt in the House of Representatives to prevent the Environmental Protection Agency from regulating the disposal of coal combustion residuals goes to vote on this week.

Promoted for several years by Rep. David McKinley, R-W.Va., the bill is part of a near-glacial process in Washington to decide whether the federal government or states will control this waste stream.

Coal combustion residuals, or CCRs — fly and bottom ash as well as scrubber residues, often referred to collectively as "coal ash" — are what is left over after coal is burned at power plants.

CCRs have found a number of beneficial re-uses, including in concrete blocks and in wallboard.

At the same time, EPA data has shown that CCRs that are disposed of in unlined landfills and in slurry ponds can leach contaminants into surface and groundwater. A number of such unlined storage facilities are located in West Virginia.

A protracted rulemaking in process at the EPA since 2010 would leave beneficial re-uses intact and, at the same time, would regulate disposal in one of two ways: either under the hazardous waste subtitle of the Resource Conservation and Recovery Act or in the same manner as household trash.

Meanwhile, McKinley has made it his personal mission since he took office in 2011 to keep regulation of CCRs out of the hands of the EPA.

The House bill is improving …

The House passed McKinley's H.R. 2273, the Coal Residuals Reuse and Management Act, in 2011, to create a state-implemented permit program for the management and disposal of CCRs.

But the companion S. 3512 did not passed in the Senate.

A revised H.R. 2218, the Coal Residuals and Reuse Management Act of 2013, goes to vote this week.

The revised bill includes "improvements made by the Senate," according to McKinley's office.

Among them are requirements that all coal ash management and disposal facilities be subject to permit, that facilities be engineered and inspected, that they have groundwater monitoring, and that surface impoundments that fail to meet standards are closed within a given time period.

The bill currently has 54 co-sponsors, including McKinley's West Virginia colleagues, Republican Shelley Moore Capito and Democrat Nick Rahall.

… but still not good enough?

The Congressional Research Service said in a report it issued in December that the state-run permit program proposed in the House and Senate bills — the program that the revised House bill would advance — would not protect human health.

The bills' approach broke from the model of successful environmental permitting programs, the CRS report said: federal standards that are intended to provide a required level of protection, carried out by state-run permit programs that implement the standards. The House bill would not provide for the establishment of federal standards by a regulating agency such as the EPA, but, rather, would dictate some characteristics of state-run programs.

In addition, the bill would release hundreds of power plants from one of the central requirements — the requirement to close leaking disposal facilities — if they don't have room to build another, according to the public interest law firm Earthjustice.

Three hundred coal plants use unlined impoundments, according to recent EPA data referenced by Earthjustice. Of those, the group said, 220 would not be subject to the closure requirement of the bill.

The re-use debate

CCR advocates, McKinley included, express concerns that if the disposal of CCRs is regulated by the EPA, particularly if it is regulated as hazardous waste, it will stigmatize the beneficial re-uses that reduce the costs of some items, reduce the costs of CCR management and slow the filling of disposal sites.

However, it has been pointed out that other waste streams are both regulated in their disposal, even as hazardous waste, and recycled without stigma — used motor oil, for example.

In the view of Lisa Evans, senior administrative counsel for Earthjustice, the fact that 20 percent or so of CCRs finds their way into encapsulated re-use — where toxic components cannot leach into the surrounding environment — does not justify the continued unsafe disposal of the other 80 percent.

"There's a need for safe disposal and we can't ignore that need in the guise of trying to protect recycling," Evans said, adding, "I would also argue that what drives recycling is the increase in disposal costs."

A review of old jobs numbers

Observers have disagreed about the jobs implications of regulation.

Supporters of McKinley's earlier bill cited a June 2011 study from Veritas Economic Consulting paid for by the Utilities Solid Waste Activities Group that found that regulation of CCRs as a hazardous waste could cause a net loss nationwide of more than 300,000 jobs.

Opponents reference a 2011 study that was prepared in response to that one by the Stockholm Environment Institute in Massachusetts and was commissioned by Earthjustice, the Sierra Club and the Natural Resources Defense Council. Using some of the same assumptions as Veritas study, SEI found a net gain of 28,000 jobs.

Those numbers are now two years old, though; since that time, many coal-fired power plants have been slated for closure, likely reducing the numbers of jobs that would be affected.

Next steps

The bill is expected to go to vote on July 25.

Most recently, the EPA's final coal ash rule has been expected in 2014.