The Environmental Protection Agency’s (EPA’s) first-ever national standards for the disposal of coal ash are ridden with complications, warned witnesses at a Senate oversight hearing. 

The June 17 hearing before the full Committee on Environment and Public Works (EPW) featured five witnesses representing a coalition of state environmental agency leaders, the American Coal Ash Association, the National Rural Electric Cooperative Association (NRECA), and two environmental groups.

The EPA’s final rule, which was signed on Dec. 19, 2014, will become effective on Oct. 14, 2015. When promulgated, industry lauded the agency for the rule’s classification of coal combustion residuals (CCR) as non-hazardous waste under Subtitle D of the Resource Conservation and Recovery Act (RCRA). However, some Republicans have criticized the rule as a “minimum one-size-fits all standards for the management and disposal of coal ash in landfills and surface impoundments,” as Sen. Jim Inhofe (R-Okla.), the chairman of the EPW committee, said on Wednesday.

Ranking Member Sen. Barbara Boxer (D-Calif.), whose concerns have been echoed by the environmental groups, has pressed the EPA for a stronger rule that would designate coal ash as “hazardous waste.” At the hearing, she said legislation moving through the House would “weaken the rule even further.”

The States’ View

But Alexandra Dunn, who is the executive director and general counsel of the Environmental Council of the States (ECOS), said the non-partisan association of state environmental agency heads backed the EPA’s determination that CCRs should be regulated as non-hazardous waste.

States also “generally find that the technical elements of EPA’s final rule are very sound,” she said, though she cautioned that the minimum standards do not necessarily take into account the differences between states and their hydrology, climate, and “other unique features that a state permitting program would incorporate.”

The states’ complaints about the rule were cemented in complications resulting from RCRA’s structure. One is that the rule is “self-implementing.” This meant that regulated entities could make all compliance decisions without regulatory oversight, she said.

Another concern is that “citizen suits are the only mechanism for enforcement of the rule,” Dunn said. Because regulated entities may have to comply with both an existing state permitting program and a final federal rule, they may find themselves facing conflicting provisions. “Rather than the clarity that this significant federal rule could bring, we may instead create a patchwork of varying federal court decisions interpreting the federal rule,” she said.

And yet another issue the states were dealing with is that due to RCRA’s structure, the EPA does not have authority to approve a state regulatory program for CCR. And that means that “facilities may now face duplicative federal and state regulatory requirements, a result that ECOS has long been concerned with due to the fact that regulatory duplication makes ineffective use of limited state and federal time and resources,” she said.

Responding to a question by Sen. James Inhofe (R-Okla.), Dunn also underscored the long and complicated process to get a state implementation plans approved by the EPA. “What states need to do under the final rule is kind of a work-around, because the program can’t be delegated, they are asked to open up and amend their solid waste management plans, reference the final rule in the solid waste plan, get those approved by the EPA,” she said.

“There’s no process for that; we’re not sure how long that would take the agency to do that. We also don’t know how long it would take the states to go through the process to update their solid waste management plans.” Per the rule, getting final approval from the EPA could take between a year to 18 months, she said

The Need for Legislation

Dunn and another witness, South Texas Electric Cooperative General Manager Mike Kezar, urged lawmakers in both the House and Senate to pass CCR legislation. “Only legislation can resolve these concerns by allowing state permitting programs to operate in lieu to the federal program,” Dunn explained.

Kezar, who testified on behalf of NRECA, noted that a House bill introduced on April 12, 2015 ( H.R. 1734: Improving Coal Combustion Residuals Regulation Act of 2015) addresses most concerns. Legislation provided desirable certainty over the rash of citizen suits and future court decisions that are expected as a result of the final rule, he said.

“Every day that passes is another day closer to October 14, 2015,” he declared. “Already, facilities like [the San Miguel lignite plant in Atascosa County, Texas] are having to spend hundreds of thousands of dollars toward what they hope will be sufficient compliance, but with no regulatory agency endorsement of that compliance to protect them from abusive citizen suit litigation.”

Legislation is also warranted “to allay concerns about the fact that a hazardous determination could still be in the cards given that EPA’s final rule merely defers the question,” Kezar noted.

Representing the American Coal Ash Association, Charah Inc. Executive Vice President Danny Gray also called for long-term regulatory certainty, which he said would attract the necessary investment for beneficial use of coal ash. “It may be time to recognize that there’s a reason coal ash regulation remains controversial even after decades of study and regulatory activity. RCRA as currently configured may not be well suited to regulating a material characterized by very low toxicity but huge volumes,” Gray said.

He added that the House bill would resolve these issues permanently. “The bills would put primary enforcement responsibility and authority in the hands of professional state environmental regulators and create new authority for EPA to step in if states don’t do the job. The landfill and impoundment protective standards that were proposed regardless of the enforcer will be incorporated as finalized by EPA,” he said.

More to Be Done?

For Frank Holleman, an attorney at the Southern Environmental Law Center, “EPA’s new coal ash rule does not by itself solve the problem of primitive coal ash disposal by our utilities. It sets some minimum national criteria.” Holleman argued that “communities must have meaningful minimum universal criteria, essential information, and the ability to enforce this rule if it is going to be effective.”

Nancy Cave of the South Carolina Coastal Conservation League agreed that the rule is a “critical first step to establish consistent nationwide … safeguards.” She called for continued “transparency, information, and protective action,” as is required by EPA’s final rule.

Sonal Patel, associate editor (@POWERmagazine, @sonalcpatel)