House GOP Moves to Block EPA from Regulating Coal Ash as Toxic Waste

Continuing the House Republicans’ aggressive attack on Obama administration environmental proposals, a House subcommittee approved legislation to prevent the Environmental Protection Agency from regulating coal ash as a hazardous waste—one of two options the EPA is considering for tightening coal ash management regulations in response to a disastrous leak from a Tennessee Valley Authority ash impoundment in 2008.

On June 21 the House Energy and Commerce Committee’s subcommittee on environment and the economy approved by voice vote legislation (H.R. 1391) by Rep. David McKinley (W.Va.) and 63 co-sponsors that would prohibit the EPA from regulating coal ash and other coal combustion residuals (CCR) under Subtitle C of the Resource Conservation and Recovery Act (RCRA), which sets tough and costly management and disposal rules for toxic waste.

The EPA is also considering regulating coal ash under RCRA’s Subtitle D, which sets much less stringent disposal and management standards for municipal garbage and non-toxic industrial waste.

Utility industry officials and congressional Republicans, along with some Democrats, have charged that regulation of CCR under Subtitle C would be horrendously costly for utilities and their ratepayers, and was unnecessary because coal ash contains only trace quantities of toxic metals.

However, environmentalists contend the Tennessee Valley Authority (TVA) spill released substantial loads of toxic metals into nearby streams, showing the need for tougher regulation.

In 1980, Congress prevented the EPA from imposing hazardous waste regulations on CCR until the agency studied the issue to determine if regulation under Subtitle C was warranted. In subsequent determinations in 1993 and 2000, the agency concluded that regulation of CCRs under Subtitle C was unwarranted.

However, the December 2008 failure of a surface coal ash impoundment at TVA’s Kingston power plant-which released more than a billion gallons of sludge into nearby rivers and flooded more than 300 acres of land-led the EPA in June 2010 to propose regulations that offered two options for managing CCR.

Under Subtitle D regulation, utilities and landfill operators taking coal ash would be subject to siting reviews and restrictions and required to install protective liners at ash impoundments and landfills to prevent leaks into groundwater. They also would have to conduct groundwater monitoring and comply with corrective action standards to clean up ash spills and groundwater contamination.

Under the Subtitle C option being considered by the EPA, CCR would be subject to "cradle to grave" management requirements, including compliance with strict federal limits on leakage from storage and disposal facilities. This option effectively would phase out the use of wet surface impoundments over five years, the EPA said.

However, the agency also said that if it chose this option, it also would create a new "special waste" listing for coal ash so as to allow it to continue to be used in various "beneficial use" applications, such as road construction.

The utility industry has been lobbying strenuously against the EPA regulating CCR as a toxic waste. An analysis of the proposal, undertaken by Veritas Economic Consulting on behalf of the Utility Solid Waste Activities Group, an industry coalition, concluded that regulating CCR under Subtitle C would result in as many as 316,000 lost jobs, and cost the industry up to $110 billion over two decades.

In contrast, the study, released June 15, said the Subtitle D option would be far less onerous, costing the industry an estimated $23 billion and leading to the projected loss of 39,000 to 64,700 jobs.

The study noted that the impacts of the EPA regulation would hit hardest on regions that depend primarily on coal for electricity generation, including the Midwest and the Southeast. Electricity prices in the Midwest Independent Transmission System Operator’s service territory would increase by 1.9% if the EPA chose the Subtitle C option, and increase by 1% throughout the rest of the nation, the study said.

The study also suggested that regulation of CCR as hazardous waste would have a deleterious use on the "beneficial use" market, which currently consumes more than 51 million tons of CCR-or 41% of the total amount of CCR generated in the United States-each year.

House Environment and Economy Subcommittee Chairman John Shimkus (R-Ill.) said that regulation of CCR under Subtitle C "would have very devastating effects on jobs and a very successful and emerging byproducts industry.

"At the same time, this proposed over-regulation by the [EPA] will raise utility prices for families across the country," Shimkus continued. "With the economy sputtering, we cannot afford to have jobs put at risk because the political appointees think it’s a good idea."

When the agency proposed the rule in 2010, EPA Administrator Lisa Jackson told reporters the overall intent of the proposal is to push utilities and power generators to convert coal ash ponds to dry storage facilities.

She also dismissed claims that regulating CCR under Subtitle C would kill the "beneficial use" market for CCR. Nevertheless, the EPA proposed to establish the "special waste" category to ensure that market remains robust.

TVA’s response to the failure of its coal ash impoundment may give a hint as to which option EPA will choose in its final regulation on CCR. The federal utility in August 2010 adopted a 10-year plan for converting ash storage facilities throughout its fleet of coal plants from wet to dry, an initiative TVA said will cost as much as $2 billion.

Chris Holly is a reporter for The Energy Daily, where this article first appeared. It has been edited, and links added, for this publication.

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