House Panel Approves Coal Ash Bill, Offering Clarification of EPA Authority

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By Anthony Adragna  


A House Energy and Commerce subcommittee approved legislation June 6 that would add deadlines for states to issue coal ash permits and strengthen the Environmental Protection Agency's authority to assess potential deficiencies in state ash management programs.

The bill (H.R. 2218), introduced June 3 by Rep. David McKinley (R-W.Va.), also would require periodic evaluations of the structural integrity of coal ash impoundments. The House Energy and Commerce Subcommittee on Environment and the Economy approved it by voice vote.

The Coal Residuals Reuse and Management Act of 2013 would clarify that EPA still has the authority to investigate and remediate sites under the Comprehensive Environmental Response, Compensation, and Liability Act, clarify that closure of deficient structures occur as quickly as “practicable,” and mandate that high-hazard structures prepare an emergency action plan.

EPA and committee staff conferred on the legislation after a senior agency official told the subcommittee April 11 that aspects of the discussion draft of the legislation needed “further clarity” (44 ER 1064, 4/12/13).

EPA Input May Improve Bill's Chances

The legislation stands a greater chance of passage because it incorporates many of the recommendations made by EPA to clarify timelines and criteria for state programs, McKinley said June 5.

“This is a legislative remedy that has been … years in coming, and we're going to get it passed,” McKinley told reporters before a markup on the bill by a House Energy and Commerce subcommittee.

McKinley said H.R. 2218 would help eliminate the “stigma” attached to coal ash and resolve regulatory uncertainty for recyclers that has been “swirling” while EPA considers a rulemaking on the issue.

The legislation would settle a debate at EPA on whether to regulate coal ash generated by power plants as either a hazardous waste or a nonhazardous waste. Coal combustion residuals are currently considered an “exempt waste” under the Resource Conservation and Recovery Act.

A final rule is not expected until 2014 unless a court orders the agency to issue one sooner (44 ER 733, 3/15/13).

EPA had expressed concern in April that a draft version of the bill needed “further clarification” on deadlines for the development and implementation of state programs, criteria for determining when a state program is deficient, criteria for determining when a unit is structurally sound, and deadlines for closing unlined or leaking facilities (44 ER 1064, 4/12/13).

After follow-up discussions with EPA, language was added to the bill to address most of these issues, including timetables for states, a requirement that high-hazard coal ash impoundment structures prepare an emergency action plan, and specific criteria for determining deficiency in state programs, McKinley said.

35 Bipartisan Co-Sponsors

There are 35 co-sponsors, including 10 Democrats, of the legislation on the management of ash from coal-fired power plants.

“Coal-fired power plants in 48 states create coal ash every day, but there are no federal standards for safe disposal of the material,” McKinley said in a statement. “Our approach sets minimum standards and gives the states flexibility to implement a disposal program that protects the environment and jobs.”

Legislation on the management of coal ash has been approved multiple times by the House--most recently as part of a broader package called the Stop the War on Coal Act in September 2012 (43 ER 2486, 9/28/12).

Sen. John Hoeven (R-N.D.) is expected to introduce a similar bill in the Senate soon that is designed to attract bipartisan support.

Since 2010, EPA has been considering whether to regulate coal ash under the Resource Conservation and Recovery Act under the hazardous waste provisions of Subtitle C or under the nonhazardous provisions of Subtitle D.

The agency recently said in the text of its newly proposed effluent guidelines for power plants that regulating coal ash under Subtitle D “could be adequate” (44 ER 1229, 4/26/13).

Coal Ash Recyclers Pleased

Several coal ash recycling groups told BNA they were pleased with the McKinley legislation and said they were optimistic the legislation would be adopted this year.

John Ward, chairman of Citizens for Recycling First, which advocates for the recycling of coal ash products, said the legislation combined the input of all interested parties into a bill that “fixes the problem.”

“This bill began over two years ago as a simple one-paragraph provision to block EPA from designating coal ash as hazardous waste,” Ward told BNA. “After vigorous debate and input from every sector, the bill now creates meaningful federal regulatory standards for coal ash disposal while resolving the regulatory uncertainty that is damaging recycling.”

Kirk Benson, chief executive officer of Headwaters Inc., a coal ash recycling company, told BNA in a statement the company was “encouraged by the EPA's cooperation and is optimistic that the House and Senate will advance a strong, bipartisan bill this year that sets permanent federal standards for fly ash disposal and resolves the issue for the long-term.”

Environmental Group Raps Bill

Environmental group Earthjustice criticized the legislation and said McKinley was continuing on a “misguided mission” that endangers human health and the environment.

“Once again, Rep. McKinley has ignored science, safety standards, and coal ash problems in his own district in order to deliver a bill that threatens community health and safety, water quality, and caters to industry demands,” legislative representative Andrea Delgado said in a statement.

Co-sponsors of the legislation are Reps. Lou Barletta (R-Pa.), Andy Barr (R-Ky.), John Barrow (D-Ga.), Sanford Bishop (D-Ga.), Marsha Blackburn (R-Tenn.), Larry Bucshon (R-Ind.), Shelley Moore Capito (R-W.Va.), Henry Cuellar (D-Texas), Renee Ellmers (R-N.C.), William Enyart (D-Ill.), Bob Gibbs (R-Ohio), Paul Gosar (R-Ariz.), Brett Guthrie (R-Ky.), Gregg Harper (R-Miss.), Lynn Jenkins (R-Kan.), Bill Johnson (R-Ohio), Mike Kelly (R-Pa.), Ron Kind (D-Wis.), Billy Long (R-Mo.), Cynthia Lummis (R-Wyo.), Jim Matheson (D-Utah), Alan Nunnelee (R-Miss.), Collin Peterson (D-Minn.), Nick Rahall (D-W.Va.), Jim Renacci (R-Ohio), Harold Rogers (R-Ky.), Todd Rokita (R-Ind.), John Shimkus (R-Ill.), Steve Stivers (R-Ohio), Marlin Stutzman (R-Ind.), Bennie Thompson (D-Miss.), Tim Walz (D-Minn.), Ed Whitfield (R-Ky.), Steve Womack (R-Ark.), and Todd Young (R-Ind.).


The Coal Residues Reuse and Management Act of 2013 is available at

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