A new version of coal ash legislation introduced in the U.S. House of Representatives on Monday sets minimum federal standards for coal residuals from coal-fired power plants, but it gives states—not the Environmental Protection Agency (EPA)—responsibility for crafting their own permit programs.

Introduced by Rep. David McKinley (R-W.Va.), The Coal Residuals Reuse and Management Act of 2013 (H.R. 2218) retains some of the same principles the lawmaker proposed in similar legislation that passed the House by a bipartisan vote of 267 to 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.

According to McKinley, the new bill adds clarifications and key improvements, 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. The legislation also includes new provisions to ensure structural stability, including a consultation with state dam safety officials, a periodic evaluation to identify structural weakness and potentially hazardous conditions, and the creation of an emergency action plan for high-hazard structures.

The House Subcommittee on Environment and the Economy is expected to mark up the new legislation later this week.

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.

The EPA in April proposed revised effluent limitation guidelines (ELGs) for power plants, establishing new or additional requirements for wastewater streams from processes or byproducts associated with flue gas desulfurization, fly ash, bottom ash, flue gas, flue gas mercury control, and gasification of fuels to include coal, petroleum, and coke.

According to attorneys Averil M. Edwards and May Wall from law firm Winston & Strawn LLP, the EPA stated in its preamble to the ELGs rule that "Although a final risk assessment for the CCR rule has not yet been completed, reliance on the data and analyses…may have the potential to lower the CCR rule risk assessment results by as much as an order of magnitude."

The agency went on to say that its "current thinking" is that regulation of coal ash under subtitle D requirements of RCRA "would be adequate," the attorneys said.

Sources: POWERnews, EPA, Rep. McKinley, Winston & Strawn

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