Public Interest Groups Charge Senate Bill for State Oversight of Coal Ash

More than 300 state and national public interest groups on Friday asked U.S. senators to oppose a bill introduced in August by Sens. John Hoeven (R-N.D.), Kent Conrad (D-N.D.) and Max Baucus (D- Mont.) that they say will fail to protect public health and the environment because it encourages "unsafe dumping of toxic coal ash."

The Coal Ash Recycling and Oversight Act of 2012 (S.3512) essentially calls for state oversight for storage and management of coal residuals by allowing state permitting programs for coal ash under the federal Resource Conservation and Recovery Act (RCRA). It also makes it easier for industry to recycle coal ash into construction materials by amending subtitle D of the Solid Waste Disposal Act. The senators have argued that the "states-first approach" taken by the bill would provide for regulatory certainty for industry, local control for states, and "good environmental stewardship for the public." Though it was referred to the Senate Committee on Environment and Public Works on Aug. 2, no action has since been taken on the bill.

The bill came as a response to the Environmental Protection Agency’s (EPA’s) June 2010 proposal of the first federal rule to regulate disposal and use of coal ash. Under one option offered by the EPA’s 2010-proposed Coal Combustion Residuals rule, coal ash would be regulated under the hazardous waste provisions of RCRA (coal ash is currently considered exempt waste under an amendment to RCRA). Under the other option, coal ash would remain under RCRA’s nonhazardous waste provisions, and states would spearhead coal ash regulation. A final rule is expected at the end of the year.

But in their letter to senators on Sept. 14, the public interest groups said S.3512 allowed "dangerous [coal ash] ponds to continue operating without enforceable closure dates and engineering and inspection standards," which would ultimately thwart prevention of a large-scale disaster like the December 2008 failure of coal ash containment dikes at the Tennessee Valley Authority’s (TVA’s) Kingston Fossil plant in Roane County, Tenn., that resulted in the spill of more than a billion gallons of coal ash sludge. A federal district court judge in August ruled that TVA was liable for the disaster, finding that TVA did not properly maintain the facility to prevent failure of the dikes.

With no deadlines set for states to implement permitting programs, the bill would shield utilities from responsibility to clean up contaminated sites and close leaking and unstable ponds and landfills, the groups contended.

"Even though the sponsors of S.3512 claim this bill will help the recycling of coal ash, it will actually do the opposite by encouraging the continued operation of hundreds of coal ash ponds. Once ash is dumped in water, it cannot easily be recycled. Thus S.3512 encourages dumping that ruins billions of pounds of ash annually for reuse," they wrote.

Finally, the bill "nullifies" 450,000 public comments received by the EPA in response to its proposed coal ash rule, and prohibit all future EPA rulemaking relating to coal ash, the groups said.

Sources: POWERnews, Earthjustice, EPA, Sen. John Hoeven

—Sonal Patel, Senior Writer (@POWERmagazine)

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