In a major change to the industry’s position on federal regulation of coal combustion waste and waste impoundments, a senior electric utility official recently told Congress that utilities “need to do a better job” of managing coal waste. The Edison Electric Institute (EEI) also would support federal regulation of coal ash as a nonhazardous waste, if the program were to be implemented by the states.

New Coal Ash Regulations Pushed

The statement by John McManus, vice president of environmental services for American Electric Power Co. Inc., comes as the Tennessee Valley Authority (TVA) is cleaning up the massive coal ash leak that occurred at its Kingston, Tenn., plant in December last year—and as the U.S. Environmental Protection Agency (EPA) is moving toward issuing a proposed rule on coal waste management by the end of this year. A short video of the aftermath of the TVA coal ash spill can be viewed on YouTube.

Since the Kingston accident, key congressional Democrats have questioned the efficacy of the existing patchwork of varying state regulations currently governing coal waste management and have pushed for more uniform federal standards.

At a hearing of the House Transportation and Infrastructure Committee’s water resources and environment subcommittee, subcommittee chair Rep. Eddie Bernice Johnson (D-Texas) said the accident stemmed in part from “regulatory neglect and ineffective federal oversight” and that “federal standards for structural integrity would have gone a good way towards preventing” the incident.

Testifying before the committee on behalf of his company, the EEI (which represents investor-owned electric utilities), and the EEI-associated Utility Solid Waste Activities Group, McManus agreed that the Kingston incident was “unacceptable.” He also said the accident prompted coal-fired power plants nationwide to double-check the safety and stability of their coal combustion by-product (CCB) impoundments.

Is Ash a Nonhazardous Waste?

Noting that the EPA was planning to review coal ash impoundments and act on the issue, McManus said the industry would support “the development of federal, non-hazardous waste regulation under Subtitle D of the Resource Conservation and Recovery Act (RCRA), implemented by the states.”

The industry’s new position in support of federal coal ash regulation appears to acknowledge that EPA action on the issue is inevitable in the wake of the Kingston accident, which let loose more than one billion gallons of sludge across 300 acres of surrounding land and water, destroying three homes and despoiling nearby streams.

Indeed, prior to initiating its assessment of the nation’s 400-plus CCB impoundments, the EPA in February requested that states comment on three possible options that the Obama administration is considering with respect to new coal waste regulations: (1) under RCRA Subtitle D as a nonhazardous waste and (2 and 3) under RCRA Subtitle C as a hazardous waste, with varying degrees of management criteria.

Saying the issue of whether CCBs should be regulated as hazardous wastes “has been thoroughly evaluated and resolved,” McManus said the option under RCRA Subtitle D was the utility industry’s preferred approach and would be protective of groundwater. The EPA has previously ruled that toxic residues in coal ash are too small to warrant classifying the ash as hazardous waste, which would make it subject to the stringent management and disposal requirements set by RCRA.

Maryland Asks for Stiffer Standards

Shari Wilson, secretary of the Maryland Department of the Environment, also appearing at the hearing, told the subcommittee her state would prefer to have CCBs regulated under RCRA Subtitle D as well, despite Maryland officials having recently discovered “significant” contamination incidents at two sites.

Speaking of that option’s advantages, Wilson said, “it’s a known process, there are no legal authority questions associated with it . . . and it would be effective.

“We believe that EPA could implement similar rules under subtitle D and afford states the opportunity to demonstrate that they can implement those standards much more quickly than regulation under Subtitle C,” she said, adding that Maryland officials believe the latter would discourage the beneficial re-use of CCBs.

Wilson said new laws are set to take effect in Maryland that will establish new permit requirements for coal plant operators that are similar to modern industrial landfill standards, improved requirements on groundwater monitoring, and a new, annual reporting requirement on CCB volumes at those plants.

In addition, she said the Maryland General Assembly recently passed legislation to establish a fee to be paid by CCB generators based on a per-ton rate of coal waste generated annually, excluding CCBs for re-use.

“We have been a strong advocate for the fact that there should be federal standards for the disposal of coal combustion wastes,” said Wilson, adding that Maryland has consistently called for “some minimal federal threshold” in that regard.

So far the EPA has declined to say whether its regulations would set national minimum standards for managing CCB sites, or whether it plans to regulate CCBs as a hazardous waste—a move that would sharply increase utilities’ costs of managing those materials.

Rep. John Boozman (Ark.), ranking Republican on the subcommittee, asked Wilson if Maryland has determined whether utility rates would rise should the EPA deem CCBs to be hazardous. “I can’t tell what impact that would have on utility rates,” she said.

Boozman then asked Acting Assistant EPA Administrator Barry Breen if any states have thus far stated a preference for anything other than the RCRA Subtitle D option. “I am not aware of any states choosing any other alternative at this time,” said Breen.

—Johnathan Rickman (jrickman@accessintel.com) is a reporter COAL POWER’s sister publication, The Energy Daily.