House panel looks at coal ash disposal, need for a federal fix

Some kind of federal coal combustion residuals (CCR) disposal regime, which impacts power generators across the U.S., needs to be implemented by Congress before the U.S. Environmental Protection Agency moves in with possibly stringent new disposal standards.

That is the view of some witnesses due to testify April 11 before the Subcommittee on Environment and the Economy of the House Committee on Energy and Commerce.

The subcommittee is looking at a discussion draft for the Coal Ash Recycling and Oversight Act of 2013. This draft bill is an outgrowth of H.R. 2273, which passed the House in the last Congress with bipartisan support. The text of H.R. 2273 was added as an amendment to H.R. 4348, the Surface Transportation Extension Act of 2012. The text of the discussion draft was introduced in the Senate in the last Congress as S. 3512 with 12 Republican and 12 Democrat cosponsors.

The discussion draft adopts the same approach as H.R. 2273 but it contains several significant changes, particularly in the details of the minimum requirements set out in the bill. Both bills would establish a new approach to environmental regulation by amending the Solid Waste Disposal Act (SWDA) to authorize states to adopt and implement coal combustion residuals permit programs that include the minimum requirements set out in the legislation.

Robert Martineau Jr. Commissioner of the Tennessee Department of Environment and Conservation and Secretary-Treasurer of the Environmental Council of the States (ECOS), said in his prepared remarks that the infamous 2008 coal ash containment breach at the Tennessee Valley Authority’s (TVA) Kingston coal plant in Tennessee made coal ash management an issue of national concern.

ECOS has adopted its position on the issue as a formal resolution, “The Regulation of Coal Combustion Residuals.” ECOS first passed this resolution in 2008, and reaffirmed it last month.

“In short, the resolution agrees with the multiple studies that the U.S. Environmental Protection Agency has conducted in fewer than three different administrations that coal ash is not a hazardous material,” Martineau said. “We also agree with EPA’s 2005 finding that the states should continue to be the principal regulatory authority for coal ash. We recognize that there are significant beneficial reuses for coal ash, and we support these. Regulation of coal ash as a hazardous waste would have a chilling effect on the beneficial reuse of coal ash in concrete, as road bed fill and other uses.”

EPA, which has never taken final action, in 2010 proposed two possible ways to regulate coal waste, one as regular waste and the other as hazardous waste. Power generators say a hazardous waste designation would skyrocket their waste disposal costs and be another factor in the decisionmaking to close coal-fired power plants so that no more such waste can be produced. Under the first proposal from 2010, EPA suggested that the proposed rule could reverse a 2000 regulatory determination and allow regulation of CCR as a hazardous waste under Subtitle C of the Resource Conservation and Recovery Act. The second proposal suggested regulation of CCR as a non-hazardous waste regulated under Subtitle D of RCRA.

“While we believe the states are the appropriate regulatory authority for coal ash, we also recognize there is benefit for some level of national consistency; therefore, ECOS supported the bi-partisan efforts in the House and Senate in the last Congress to create a federal program that allows states to regulate coal ash management and disposal under a set of federal standards created directly by Congress and implemented by the states,” Martineau added. “This is a new approach as some have noted, including the Congressional Research Service in its recent rewrite of an earlier report on this topic. We expect to support a similar effort in this Congress.”

As for the draft ash bill, Martineau wrote: “ECOS sees the approach in this bill as a new path forward for federal involvement in some of the environmental challenges we face. We live in an era of constrained resources at all levels of government: federal, state and local. Some national environmental challenges, air quality as an example, require significant partnerships between the states and the federal government. Other challenges, like coal ash, are suitable and would benefit from a new partnership model. The bi-partisan bill brought forward by Rep. [David] McKinley is a blueprint for that partnership. In this bill, the federal government sets standards that protect human health and the environment, and provides the states the opportunity to implement, enforce, and supplement the standards that are the most applicable for each state. If a state chooses not to implement the CCR program, then EPA will.”

Mine safety expert points to issues with ash dams across the U.S.

Jack Spadaro, a mine safety consultant, is also a hearing witness. He said he has had extensive experience writing federal regulations governing coal slurry impoundments dam, which are located at coal mining operations and are similar to the coal ash dam that failed in 2008 at the Kingston power plant.

“If we do not ensure long term structural integrity, the result has already been observed in the massive failure in Kingston, Tennessee,” Spadaro wrote in his prepared testimony. “The EPA completed a study of the structural integrity of over 400 coal ash dams, hundreds of which could cause loss of life or serious damage if a failure occurs. The EPA found that approximately twenty five percent (25%) were in ‘poor’ condition. The EPA has sent letters to the owners of the dams requesting that the deficiencies be remedied, but there is no law or regulation that requires the owners to do so.”

Stephen Cobb, Chief of the Governmental Hazardous Waste Branch of the Alabama Department of Environmental Management, wrote that coal waste should not be classified as hazardous waste and that his state has long experience with regulating waste disposal. He said that Alabama could build on its existing municipal solid waste program in regulating coal wastes.

Earthjustice says most states already doing a lousy job with ash regulation

Lisa Evans, Senior Administrative Counsel for the environmental group Earthjustice, said the proposals being floated by House Republicans to shift coal ash management to the states is the wrong way to go. “The majority of states fail to require essential safeguards for coal ash landfills and surface impoundments, including liners, groundwater monitoring, leachate collection, dust controls and financial assurance,” Evans wrote. “According to EPA data, the majority of states fail to prohibit the placement of coal ash in water tables, wetlands, unstable areas and floodplains. The EPA’s own analyses of state regulatory programs in 2005, 2006 and 2010 reveal that many states have not improved their regulations to close these gaps over the last decade.”

Evans said that twice in the last six months, the Congressional Research Service published reports on proposed coal ash legislation in the House and Senate, and both times CRS concluded unequivocally that such bills lack a clear purpose and would not ensure state adoption and implementation of minimum standards “necessary to protect human health and the environment.”

In December 2012, the CRS issued a report on pending coal ash legislation, H.R. 2273 and S. 3512. Following the publication of this report, Republican supporters of the legislation claimed that the CRS’ conclusions were erroneous and may have been “politically motivated,” and they pressed CRS to revise the report, Evans noted. On March 19, CRS published a second report where CRS expanded its analysis and reiterated the conclusions of the first report. The authors of this second report included the original analyst, but also included two additional senior CRS analysts. This second report again found that the legislation’s “unique” approach fell far short, Evans said.

“The report reiterated the uncertainty engendered by a bill that fails to guarantee basic nationwide protections and fails to provide EPA with the authority to write rules, approve state programs and enforce safety requirements,” Evans added. “The CRS reiterated that the bills contain no clear deadlines for states to issue permits and that terms usually defined by regulations would be left open for the states to decide. If the purpose of the legislation was to close significant gaps in health and safety protections that were identified by the EPA, this purpose was not achieved with certainty, according to CRS.”

The problems posed by coal ash can and must be solved, but the Coal Ash Recycling and Oversight Act of 2013 is not the answer, Evans wrote. “We remain open to further discussion of coal ash legislation with Members of the Subcommittee in the hope that we can arrive at a better understanding of our mutual concerns and establish common goals that benefit the health of all Americans, our environment and our economy,” Evans said.

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.