Congressional Research Service: coal ash bills lack state mandates

The Environmental Integrity Project said Dec. 10 that a new report from the Congressional Research Service on two pending pieces of coal ash legislation—H.R. 2273 and S.3512—finds that the bills lack a clear purpose and would not ensure state adoption of standards “necessary to protect human health and the environment.”

These bills—one passed by the U.S. House in October 2011 and the other now pending in the Senate—would prevent the EPA from ever setting federally enforceable safeguards for the disposal of toxic coal ash, the project said. The report concludes that both bills:

  • give states the discretion to implement coal ash permit programs that are less stringent than the programs applicable to household waste landfills;
  • have a “level of uncertainty [that] defeats the purpose of a permit program and would not be consistent with other programs under RCRA”;
  • provide “no federal backstop authority to implement federal standards comparable to its authorities established under other environmental law, including RCRA”;
  • creates a program without “detailed regulatory standards, [which is] unprecedented in federal environmental law”;
  • lack a clear “standard of protection” to guarantee that state programs actually protect human health and the environment, which is “unique among all federal environmental law.” 

The report also questions the reason for creating a program that fails to address the risks posed by both dry and wet disposal of coal ash stating, the project said.

“The Congressional Research Service has confirmed what we’ve known all along,” said Earthjustice attorney Lisa Evans. “The Senate coal ash bill is a sham that will not protect communities from toxic coal ash or prevent another Kingston disaster. Congress must get out of the way and let EPA do its job.”

The Kingston coal plant in Tennessee, controlled by the Tennessee Valley Authority, was the site of a massive wet coal ash spill that triggered a new round of consideration by regulators of more stringent coal ash regulations. EPA has proposed two possible regulatory approaches – one that would classify ash as a normal waste and another that would designate it as toxic waste – but has not issued a final decision.

The Senate bill—the “Coal Ash Recycling Act of 2012,” (S. 3512)—blocks an EPA rulemaking that would prevent spills and water contamination at hundreds of coal ash sites across the country. Over 200 sites have already contaminated nearby rivers, lakes, streams, or aquifers with dangerous pollutants like arsenic, lead, selenium and more. Introduced earlier this year, rumors abound that S. 3512 could be attached to unrelated must-pass legislation at any time, the result of intense lobbying from the coal and power industries, the project said.

“This report highlights that both bills would do little or nothing to change the status quo of coal ash dumps prone to leaking coal ash pollutants or catastrophic breaches,” said Lisa Widawsky Hallowell, attorney with the Environmental Integrity Project. “Given the fact that there are nearly 200 damage cases nationwide, coal ash legislation that fails to phase out dangerous surface impoundments and strips the EPA of the ability to set minimum design criteria for landfills is simply indefensible in 2012.”

CRS says the bills lack any real mandates for the states

“On October 14, 2011, the House passed the Coal Residuals Reuse and Management Act (H.R. 2273),” said the CRS report. “The bill would amend Subtitle D of the Solid Waste Disposal Act, more commonly referred to as the Resource Conservation and Recovery Act (RCRA), by adding Section 4011, Management and Disposal of Coal Combustion Residuals. On August 2, 2012, the Coal Ash Recycling and Oversight Act of 2012 was introduced in the Senate (S. 3512). Both amendments would create a state-implemented permit program for the management and disposal of coal combustion residuals (CCRs).”

Section 4011, in both bills, would create both the federal standards and the program to implement them, under the umbrella of creating a CCR permit program. “Established entirely in statute, the program would be unique among environmental laws,” the CRS analysis said. “The permit program would draw from the regulatory program applicable to municipal solid waste (MSW) landfills. In contrast to the statutory directives and resulting federal requirements associated with that program, the proposed amendments to RCRA include no provisions that would ensure state adoption and implementation of a CCR permit program that would result in the adoption and implementation of minimum federal standards necessary to protect human health and the environment from risks associated with CCR disposal.”

Based on the structure of each bill, it would appear that the proposed amendments are intended to create a program similar to the one applicable to MSW landfills, the report added. “However, it cannot be determined whether states would implement their programs as such. There are complex variables that make that determination difficult. The primary reasons stem from the limited authority that Congress has to require and, given the limits to its authority in the proposed amendments, EPA would have to compel states to implement the program. Also, provisions in each bill lack detail comparable to regulatory standards with regard to key issues such as how, when, or to which facilities the permit program would apply. As a result, program requirements would be subject to the interpretation of each state that chooses to implement it.”

That level of uncertainty defeats the purpose of a permit program and would not be consistent with other permit programs created under RCRA, the report added.

About Barry Cassell 20414 Articles
Barry Cassell is Chief Analyst for GenerationHub covering coal and emission controls issues, projects and policy. He has covered the coal and power generation industry for more than 24 years, beginning in November 2011 at GenerationHub and prior to that as editor of SNL Energy’s Coal Report. He was formerly with Coal Outlook for 15 years as the publication’s editor and contributing writer, and prior to that he was editor of Coal & Synfuels Technology and associate editor of The Energy Report. He has a bachelor’s degree from Central Michigan University.