Coal Ash Bill Clears House with 265–155 Vote, Heads to Senate

Coal ash legislation that would protect the recycling of coal ash and gives states the authority to set their own standards for the disposal of fly ash with oversight from the Environmental Protection Agency (EPA) last week cleared the House by a vote of 265–155.

The Coal Residuals Reuse and Management Act of 2013 (H.R. 2218) introduced by Rep. David B. McKinley (R-W.V.), a professional engineer, passed the House on July 25 with the support of 39 Democrats and 226 Republicans. "The Obama Administration and EPA have indicated they would not oppose the legislation. The bill … improves on previous versions and a strong majority vote [last week] and broad support of more than 300 organizations across the country proves that," said Rep. McKinley.

The bill retains some of the same principles the lawmaker proposed in similar legislation that passed the House by a bipartisan vote of 267–144 in 2011. It also contains requirements for groundwater monitoring at all structures that receive coal ash after the legislation’s enactment and corrective action for unlined, leaking impoundments within a specified time period, as outlined in a previous Senate bill. It adds clarifications, such as setting deadlines for issuing permits, creating an interim compliance period for many of the requirements, and identifying criteria to assess whether a state permit program is meeting the minimum requirements. Finally, it gives the EPA "backstop authority" in the event a state does not enforce its standards.

But public interest law firm Earthjustice warns the bill "creates a giant loophole for the toxic waste generated by coal-fired power plants." According to Lisa Evans, who serves as senior administrative counsel for Earthjustice, the bill would allow leaking coal impoundments to operate indefinitely, it limits EPA authority to take over state programs, and potentially blocks all future EPA rules concerning coal ash—including the EPA’s recently proposed Clean Water Act rule addressing wastewater from coal plants . Evans says of the five versions of McKinley’s bill voted on by the House since 2011, "this latest iteration is the most deadly."

The bill has, however, been strongly endorsed by a number of industry groups, including 900 private, not-for-profit consumer-owned electric cooperatives that make up the National Rural Electric Cooperative Association (NRECA). H.R. 2218 "thoughtfully balances state-based permitting and an EPA-based environmental framework,” said Kirk Johnson, senior vice president of government relations at NRECA. Johnson also said the bill recognizes the beneficial re-uses of CCR, including in gypsum wallboard and concrete. "Managing CCR under a non-hazardous framework helps ensure that the jobs and tax revenue created from the reuse of CCR will continue benefitting our economy," he said.

The bill now heads to the Senate, where Majority Leader Harry Reid (D-Nev.) started a procedural motion Monday to insert the legislation in the Senate’s calendar. However, the legislation has a number of prominent critics in the Senate, indicating it could face several roadblocks before passage. Sen. Barbara Boxer (D-Calif.), who chairs the Senate Committee on Environment and Public Works through which the bill must pass, has opposed the measure.

The Senate’s Coal Ash Recycling and Oversight Act of 2012 (S.3512) introduced last year by Sens. John Hoeven (R-N.D.), Kent Conrad (D-N.D.), and Max Baucus (D-Mont.) was referred to the Senate Committee on Environment and Public Works in August 2012, but no action has since been taken on the bill.

In a statement on Friday, Sen. Hoeven said he has been working to reintroduce and pass a companion coal ash bill in the current session of Congress.

A June 2010 "Coal Combustion Residuals (CCR)" rule proposed by the EPA calls for federal regulations on coal ash for the first time. Coal ash is currently considered exempt waste under an amendment to the Resource Conservation and Recovery Act (RCRA). Experts suggest there is a greater likelihood that the EPA will consider regulating coal as a nonhazardous municipal and solid waste under Subtitle D of RCRA rather than as a special waste under Subtitle C, which subjects the material to stricter waste management rules. The move might ameliorate industry complaints about the EPA’s recent string of stringent regulations on coal-fired power plants.

If Subtitle D is chosen, the rule would be effective six months after promulgation. For Subtitle C, requirements will go into effect in authorized states when the state adopts the rule. Timing will vary from state to state. Earlier this month, in a Notice of Data Availability, the EPA asked and invited comments on new information obtained in conjunction with the agency’s draft June 2010 CCR rule.

Sources: POWERnews, Rep. McKinley (R-W.V.), Earthjustice, NRECA, EPA

Sonal Patel, Senior Writer (@POWERmagazine, @sonalcpatel)

NOTE: This story was originally published on July 31

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