Saying they have “grave concerns” about the agency’s two-option proposal to regulate coal combustion ash, 31 members of the House Energy and Commerce Committee have urged the Environmental Protection Agency to continue to regulate coal ash as a non-hazardous waste, saying an EPA proposal to designate it as a “special” hazardous waste eligible for reuse would lead to costly and unnecessary management and disposal requirements.

The concerns about the EPA’s proposal  to regulate coal ash were expressed in a letter to EPA Administrator Lisa Jackson that was spearheaded by Reps. Rick Boucher (D-Va.) and Fred Upton (R-Mich.) and signed by a majority of the members of the House Energy and Commerce Committee, which has jurisdiction over EPA and the coal ash issue.

Most of those signing the letter were Republicans, but it also included eight other Democrats besides Boucher: Reps. Bart Stupak (Mich.), Baron Hill (Ind.), Charles Gonzalez (Texas), Mike Ross (Arkansas), Jim Matheson (Utah), Charlie Melancon (La.), John Barrow (Ga.), and Zachary Space (Ohio).

In their letter to Jackson, Boucher and Upton amplified concerns raised by various industry groups that EPA’s recently released coal ash plan—which contemplates regulation as either non-hazardous or a special hazardous waste—would impose huge and unwarranted costs on utilities operating coal-burning power plants and their ratepayers.

The letter stopped short of threatening legislative action to stop EPA, but Boucher spokesperson Courtney Lamie said in a statement that if the agency declares coal ash a hazardous waste, “all options will be considered for a response.”

The letter follows EPA’s announcement in May of a two-track plan to increase federal oversight of coal ash management in response to the catastrophic coal ash spill at the Tennessee Valley Authority’s Kingston, Tenn., coal-fired power plant in December 2008.

The plan emerged after months of delay within the Obama administration over whether EPA should designate coal ash as a hazardous waste under the Resource Recovery and Conservation Act (RCRA), the primary federal law regulating solid waste disposal.

Environmentalists contend coal ash is a hazardous waste because it contains toxic metals, but utility industry officials say the metal concentrations are too low to warrant such designation, which would require costly procedures and safeguards in management, storage and disposal of that material.

EPA announced May 4 it would consider regulating coal ash as a non-hazardous waste under RCRA’s Subtitle D or as a “special” hazardous waste under RCRA’s Subtitle C that would still be eligible for recycling in products such as Portland cement.

The two-track proposal drew clashing views from green groups and power plant operators who blasted EPA for delaying the rule only to propose a non-definitive plan.

Jackson said at the time the overall intent of the proposals is to push electric utilities and other coal plant and boiler operators to convert wet coal ash ponds to dry storage facilities.

Additionally, EPA in a statement on its Web site says the federal government needs to step up coal ash management oversight to address “gaps in coverage” at the state level “that indicate that we need consistent federal standards and a level playing field.”

However, in their letter, Boucher and Upton said they believe EPA should stand by their 2000 determination that regulation of coal ash under Subtitle C of RCRA is not warranted and that the state rules governing coal ash management and disposal has proven effective.

“As our economy struggles to rebound, we have grave concerns that this proposal could destroy jobs and increase electricity rates,” said Boucher and Upton.

“We are additionally concerned about the potential unnecessary costs which would be imposed on electricity consumers as a result of Subtitle C regulation.

“Furthermore, the imposition of these regulations and subsequent costs may result in the closure of some coal fired electricity generating units, and the inflexible nature of RCRA’s hazardous waste requirements would result in regulation of virtually all aspects of power plant operations due to the de minimis emissions from the operations of the plant,” the lawmakers continued.

“Permitted fugitive emissions, process-related releases, and transportation releases would constitute improper hazardous waste disposal and subject facilities to non-compliance and RCRA corrective action.

“While the agency’s hazardous designation proposed alternative would list [coal ash] as a ‘special waste’ under Subtitle C, the effect is that the materials would be subject to the full requirements of hazardous waste under RCRA.

“In fact, the proposal would extend the regulations to previously closed, inactive [coal ash] impoundments and would subject [coal ash] to more onerous disposal controls than for any hazardous waste currently regulated under Subtitle C,” said the lawmakers.

While clearly spelling out their preference for a non-hazardous determination, Boucher and Upton said they believe EPA’s Subtitle D option “is not without flaws and requires some important adjustments for implementation,” including a requirement that the non-hazardous option “recognize the role of states in implementation of Subtitle D rules.”

Johnathan Rickman is a reporter for COAL POWER’s sister publication, The Energy Daily.