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Report: Congress’ state-run coal ash disposal program inadequate

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The state-run program that House of Representatives and Senate bills propose for disposing of coal ash would not protect human health and the environment.

As proposed, the permit program is unprecedented, according to an analysis released Dec. 5 by the Congressional Research Service.

"Such a permit program would be created in a manner inconsistent with other permit programs established under (the federal Resource Conservation and Recovery Act that governs waste disposal) or other federal environmental law," the report reads.

"The Senate bill is most often described as a compromise, somewhere between the House bill and what the environmentalists or public interest groups want," said Lisa Evans, senior administrative counsel for the public interest law firm Earthjustice.

"But CRS talks about the two bills, McKinley's bill and the Hoeven-Conrad-Baucus bill, as being of the same cloth — giving the states far more discretion over this waste than they've had over previous environmental problems," Evans said.

Environmental Protection Agency data have shown that coal combustion residuals, or CCRs, often referred to as coal ash, frequently are disposed of in unlined landfills and slurry ponds, where they leach contaminants into surface and groundwater. (See background notes on CCRs, below).

The agency aims to regulate disposal either under the hazardous waste subtitle of the Resource Conservation and Recovery Act or in the same manner as household garbage.

The bills — H.R. 2273, introduced by Cong. David McKinley, R-W.Va., and passed by the House in October 2011, and S.3512, now pending in the Senate — are aimed at preventing the EPA from setting federally enforceable regulations.

Both bills would, rather, create a state-implemented permit program for the management and disposal of CCRs.

But the bills' approach breaks from the model of successful environmental permitting programs, the CRS report says: "federal standards intended to provide a required level of protection and the permit program that will implement the standards."

Evans at Earthjustice spelled it out.

"First, you don't have the overall protective standards, which you have in all environmental laws," she said.

"And then, in any permit program you have three things: what the laws apply to, what the regulations are and then how implementation will work," she said.

"(In these bills), you don't have what the law applies to — states could say it applies only to structures built after 2013 or they could apply it to everything that's ever been built," she said. "You don't have clear standards; for example, there's nothing dealing with liquid waste disposal. And on implementation, you have no deadlines for issuance of permits and you don't have EPA oversight and enforcement."

Evans said the bills do not address the risks that are particular to CCRs — for example, leaching of contaminants from coal ash slurry impoundments into surface water and groundwater, the possibility of impoundment failure such as the one in Kingston, Tenn., in 2008, and the threat of fugitive dust.

CCR advocates, McKinley included, express concerns that if the disposal of CCRs is regulated by the EPA, particularly if it is regulated as hazardous waste, that will stigmatize its inclusion in concrete, aggregate, wallboard and other such uses — inclusion that reduces the costs of those items, reduces the costs of CCR management and slows the filling of disposal sites.

Others say that other waste streams are both regulated in their disposal, even as hazardous waste, and recycled without stigma — used motor oil, for example.

In Evans' view, the fact that 20 percent or so of CCRs finds their way into encapsulated re-use — where toxic components cannot leach into the surrounding environment — does not justify the continued unsafe disposal of the other 80 percent.

"There's a need for safe disposal and we can't ignore that need in the guise of trying to protect recycling," Evans said, adding, "I would also argue that what drives recycling is the increase in disposal costs."

Evans would like the EPA to be allowed to finish its rulemaking. A final coal ash rule is expected from the agency in the summer of 2013 unless Congress acts first. At the end of November, the sponsors of the Senate bill were interested in attaching it to a military spending measure; it is not clear now how the bill might move forward.

The CRS does not make its reports available in an easily accessible way; this report may be downloaded from Earthjustice's web site.


Background notes on CCRs:

Coal combustion residuals, or CCRs, commonly referred to as coal ash, are the fly and bottom ash, boiler slag and other materials left behind when coal is burned for electricity.

More than 40 percent of the 130 million tons of CCRs generated in the U.S. each year is directed into fill and construction materials, according to the American Coal Ash Association. Much of the remainder is disposed of in unlined landfills and slurry impoundments.

CCRs have been found by the National Research Council to contain arsenic, mercury, lead and other toxic heavy metals that can leach into the environment when disposed of by unencapsulated methods.

Forty-four percent of CCRs found beneficial re-use in fill and construction materials in 2011, according to the ACAA. The public interest law firm Earthjustice puts the level of encapsulated re-use at about 20 percent.

Also, coal ash slurry impoundments are not held to the same design and inspection standards as coal slurry impoundments, increasing the possibility for collapse.