Bipartisan Group of Senators Urge EPA Not to Regulate Coal Waste as Hazardous

Date: July 15, 2009

Source: News Room

A number of both Democratic and Republican senators are urging EPA not to regulate coal combustion waste as a hazardous substance. Instead, they would like the agency which has promised to propose rules for the waste by the end of the year, to regulate coal waste as non-hazardous under subtitle D of the Resource Conservation & Recovery Act (RCRA). In a June 26 letter to EPA Administrator Lisa Jackson, 25 senators, nine Democrats and 16 Republicans, urged "a balanced approach to ensure the cost-effective management of [coal waste] that is protective of human health and the environment, while also continuing to promote and encourage [the waste's] beneficial use."

Western Maryland was the site of a March 9 spill from a coal waste pipeline, which prompted Sen. Ben Cardin (D-MD) to co-sponsor a resolution introduced in March by Senate environment committee Chairwoman Barbara Boxer (D-CA) and Thomas Carper (D-DE) urging EPA to "comprehensively" regulate coal waste. Maryland officials have said there has to be some measure of federal regulation for coal waste, but it does not necessarily need to be regulated as a hazardous waste.

The senators' letter says that states have the regulatory infrastructure in place to ensure the safe management of coal waste under subtitle D of RCRA rather than as hazardous waste under subtitle C of the law. The letter also says that regulation as a non-hazardous waste would continue to encourage the beneficial reuse of coal ash in products such as cement, while hazardous waste designation would discourage its reuse.

Industry officials say EPA's recent approval of a plan to dispose of roughly three million cubic yards of coal ash at a solid waste landfill rather than a hazardous waste landfill that would impose more stringent disposal requirements boosts their claim that the ash is non-hazardous and should only be regulated as a solid waste.


June 16, 2009

Dear Senator:

On behalf of our respective associations and their membership, we are writing to urge you to co-sign a letter to EPA Administrator Lisa Jackson regarding regulation of coal ash being circulated by Senators Conrad and Brownback. The bipartisan letter calls on EPA to promulgate first-of-their-kind federal regulations for coal combustion byproducts ("CCBs") under Subtitle D of the Resource Conservation Recovery Act ("RCRA").

We agree with the Senators' conclusion that such a program, under EPA's federal non-hazardous waste rules, would reflect a balanced approach that ensures the cost-effective management of CCBs in a way that is protective of human health and the environment while also continuing to promote and encourage the recycling or beneficial use of CCBs. With so much congressional attention focused on climate concerns, it is worth noting that the beneficial use of CCBs contributes to significant reductions in greenhouse gas emissions.

Furthermore, we are critically concerned that regulating CCBs as hazardous waste - an approach opposed by every State (over 20) that has weighed in on the issue - would not only effectively end the beneficial use of these materials, but also would jeopardize the ability of certain of our power plants to remain in service. Closure of these plants could raise serious reliability and cost concerns for the electric power that we provide to hundreds of millions of customers throughout the United States. As the Senators' letter makes clear, there is no reason to pursue such a counter-productive regulatory regime when EPA itself has properly determined on four prior occasions that hazardous waste regulation of CCBs is not necessary because the regulatory infrastructure is in place for EPA to promulgate cost-effective and environmentally protective rules under RCRA's Subtitle D program. Indeed, pursuant to an EPA-approved CERCLA cleanup order, material from the TVA Kingston ash spill is being safely disposed of in a non-hazardous waste Subtitle D landfill.

We also agree with the Senators that EPA has ample authority to ensure compliance with Subtitle D rules for coal combustion byproducts. In addition to existing State enforcement controls, EPA has broad authority under RCRA's imminent and substantial endangerment provision to respond immediately and aggressively to any violation of a Subtitle D rule for coal combustion byproducts that may pose a threat to human health and the environment.

Again, for all the above reasons, we respectfully urge you to join the bipartisan effort to have EPA develop federal rules for CCBs under RCRA Subtitle D. This approach will ensure the safe management of these materials while continuing to promote and expand their beneficial use.

Very truly yours,

American Public Power Association

Edison Electric Institute

National Rural Electric Cooperative Association

Utility Solid Waste Activities Group

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