CRS Report Says Lawsuits Likely if Congress Preempts EPA on Coal Ash Rules

Date: December 17, 2012

Source: News Room

The Congressional Research Service (CRS) says that legislation under consideration in both houses of Congress which would prevent EPA from declaring coal ash a hazardous waste, would prompt litigation that will result in courts having to determine disposal standards, in lieu of specific federal guidelines. The Dec. 5 CRS report analyzes H.R. 2273 and S. 3512, both of which contain provisions that would delegate authority to regulate coal ash disposal to the states. The CRS report notes that while the permitting program would be modeled in part on current rules for municipal solid waste (MSW) landfills, ambiguities in the bills, given that no new federal regulations would be created and no specific safety standards would be required to be met, "would be subject to state (and ultimately court) interpretation."

Environmentalists favor EPA regulating coal ash as a hazardous waste subject to subtitle C rules rather than less-stringent subtitle D rules favored by industry and some states. EPA proposed the rules in 2010 following the massive spill from a Tennessee Valley Authority ash pond in 2008. Industry fears that a hazardous designation would burden companies with high disposal costs and create a "stigma" that would discourage companies from recycling and reusing the material in cement and for other beneficial reuses.

Eager to resolve the uncertainty, environmentalists and coal ash recyclers have sued EPA to force a binding court-ordered deadline for issuing the final rule. With the case still pending, some lawmakers are looking to resolve the issue through legislation, offering bills that would largely preempt EPA from regulating coal ash, instead setting requirements for state-led disposal programs.

Rep. David McKinley (R-WV) introduced H.R. 2273, which would create the state-led permitting program for coal ash. The bill cleared the House in October 2011 in a 267-144 vote but failed to gain traction in Senate. Sens. Max Baucus (D-MT) and John Hoeven (R-ND) then introduced a similar bill, S. 3512, which was seen as an attempt to reach bipartisan consensus on the issue by making substantive changes to the requirements in the House bill.

A copy of the CRS report can be found here: earthjustice.org/sites/default/files/CRS_Rpt_R42847.pdf.

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