House Passes Bill to Block EPA From Regulating Coal Ash

The U.S. House of Representatives has passed a bill that would block the Environmental Protection Agency from regulating coal ash, which is a byproduct of burning coal in power plants, and instead give the authority to individual states.  The bill passed 265 to 155; all of Kentucky’s representatives voted in favor of the measure except for Congressman John Yarmuth, who voted against it.

The bill is in response to pending regulations from the EPA, which have been in flux for the past three years and haven’t been finalized. The agency is considering two different ways to regulate coal ash: by categorizing it as a hazardous waste, or a “special” waste. Environmental groups have argued it’s the former; coal ash contains heavy metals and other toxic chemicals, and can leach into groundwater. But the product is sometimes also beneficially reused in building products, and the industry argues it should be categorized as a special waste to encourage recycling.

This new bill is only the latest coal ash measure to pass the GOP-controlled House; so far, all have died in the Senate. Bill sponsor David McKinley (R-W.V.) said this new bill addresses some of the environmental issues earlier measures didn’t, in this article from Bloomberg BNA:

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.

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.

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.

But environmental groups have called the fixes “superficial.” Earthjustice cites a Congressional Research Service report in listing the bill’s flaws:

In response, Rep. McKinley made mostly cosmetic changes to his dangerous bill, and today CRS called his bluff. CRS’ latest report to Congress should settle any remaining controversy over what his confusing new verbiage accomplished in HR 2218. This new disastrous bill is a charade of words—HR 2218 squarely fails to cure fatal deficiencies identified in the two previous CRS reports.

CRS concludes that HR 2218 is “unique” among federal environmental laws because it:

  • Fails to establish minimum national safeguards;
  • Fails to establish federal backstop authority;
  • Fails to define what facilities the bill applies to; and
  • Fails to contain any minimum federal requirement to protect health and the environment

Coal ash has been a problem in Louisville in recent years. Louisville Gas and Electric stores it in both ponds and dry landfills at its Mill Creek and Cane Run power plants; residents near both sites have complained the ash is leaving the company’s property and contaminating their homes. LG&E has been issued several Notices of Violation from the Louisville Air Pollution Control District and settled some of them; several are still pending.

Erica Peterson

Erica Peterson reports on energy and the environment for WFPL.

@ericampeterson

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