EPA Technical Analysis Raises Significant Concerns About Dangerous Coal Ash Legislation

Oct 7, 2011

Next week, the House of Representatives is schedule to debate and vote on H.R. 2273, the “Coal Residuals Reuse and Management Act.  This legislation has not been the subject of any Committee hearing and the final text was made available only moments before it was to be reported out of Committee. As a result, there was significant disagreement and confusion about the practical effect of the bill. In response, Ranking Member Waxman requested a technical analysis of the legislation which details significant concerns by the U.S. Environmental Protection Agency.  The memo below summarizes the concerns raised by EPA’s technical analysis. 

Memorandum

October 7, 2011

To:           Committee on Energy and Commerce Members and Staff

Fr:           Committee on Energy and Commerce Democratic Staff

Re:           EPA Technical Assistance on H.R. 2273, the “Coal Residuals Reuse and Management Act”

On September 26, 2011, the Energy and Commerce Committee reported H.R. 2273, the “Coal Residuals Reuse and Management Act.”  No hearing was ever held on H.R. 2273.  In fact, the final text of H.R. 2273 was made available to the Committee members only moments before it was voted to be reported.  As a result, there was significant disagreement and confusion as to the practical effect of this legislation during the full committee markup. 

In order to better understand how H.R. 2273 would be implemented and its strengths and weaknesses, Rep. Waxman requested a technical analysis of the legislation from the U.S. Environmental Protection Agency.  That technical assistance is attached. 

As you will see from EPA’s analysis, H.R. 2273 in its current form has many shortcomings. 

The most significant concerns raised by the technical assistance are as follows: 

  • H.R. 2273 does not establish any legal standard for state programs.  Under each of our environmental laws, Congress has established a legal standard when delegating programs to the states.  These standards are the yardsticks by which it is determined whether a state’s efforts measure up and they ensure a consistent level of effort and protection throughout the nation.  This approach has worked well, because it prevents a race to the bottom among the states in which a state willing to have the laxest protections becomes the dumping ground for the nation.  In the case of municipal solid waste, the legal standard is “protect human health and the environment,” but under H.R. 2273, this standard does not apply to coal combustion residuals (CCR).  According to EPA, “the absence of an explicit legal standard of protection will significantly complicate EPA’s ability to effectively determine that a state program is deficient under section (d).”
  • H.R. 2273 will not ensure structural integrity of wet impoundments.  H.R. 2273 requires that structures, including wet impoundments, be designed, constructed, and maintained in accordance with generally accepted engineering standards to contain “the maximum volumes of coal combustion residuals appropriate for the structure.”  These impoundments, however, are often used for other purposes too, such as a repository for storm runoff, and there is no requirement that they be built and maintained to contain the actual volumes of liquid they will hold.  According to EPA, this will exclude “several key design requirements that relate to the long-term structural stability of a surface impoundment.” 
  • H.R. 2273 will not ensure groundwater protection or require necessary dust controls.  According to the EPA, “the bill would not require facilities to conduct ‘assessment monitoring’ for the following constituents or parameters that are particularly associated with coal ash: aluminum, boron, chloride, fluoride, iron, manganese, molybdenum, ph, sulfate, and total dissolved solids.”  This failure, if not addressed by changes to the legislation, “could result in further contamination of groundwater and surface water resources to levels that exceed safe drinking water maximum contaminant levels.” Another deficiency, according to EPA, is that the bill does “not establish any minimum Federal requirement specific to dust control.  Consequently, the bill would not require all CCR landfills to control fugitive dust by covering or managing CCR to control wind dispersal, wetting CCR to control wind dispersal, or requiring storage in tanks or buildings.”
  • H.R. 2273 does not ensure other appropriate criteria for disposal of coal ash.  Because of its toxic constituents, coal ash poses different disposal challenges than municipal solid waste.  In addition to needing different standards for groundwater monitoring and dust control than conventional solid waste facilities, coal ash sites also need tailored requirements relating to runoff controls, disease vectors, and waste handling.  According to EPA, however, “EPA is not authorized under H.R. 2273 to develop criteria that are specific to CCR.”  EPA states that the bill contains no requirements or authority for EPA to promulgate requirements “relating to run on or runoff control systems, procedures for receipt or handling of wastes, or controls to protect surface water, among others.”    
  • H.R. 2273 does not authorize meaningful review of state programs.  According to EPA, “H.R. 2273 does not grant EPA the authority to meaningfully evaluate the substance or adequacy of state coal combustion residuals programs.”  There are multiple provisions in the legislation that work together to limit the effectiveness of EPA’s review.  They include a requirement that EPA “defer” to state officials, broad authority for states to waive requirements of the legislation, a time-consuming and cumbersome procedure for EPA to override state determinations, and the absence of requirements that state officials notify EPA of changes in their policies.