Insisting on Coal Ash will Harm the Prospects for a Transportation Bill

DEAR COLLEAGUE LETTER - What Proponents of the McKinley Motion to Instruct Won't Tell You: Portland Cement Is Categorized as Hazardous

Dear Colleague:

Coal ash is used as a substitute for Portland cement in concrete, lowering costs, reducing waste, and reducing greenhouse gas emissions.  This is a practice that should continue, and it will continue without legislation.   

EPA has not proposed to designate coal ash as "hazardous," yet some are using the fear that the agency may do so as a "Trojan Horse" for stripping EPA of authority to regulate coal ash disposal. 

What proponents of deregulating coal ash don't tell you is that Portland cement is already designated as hazardous under a host of laws.  Portland cement:

• Is considered to be a hazardous chemical under the OSHA Hazard Communication Rule
• Qualifies as a hazardous substance with delayed health effects under the Superfund Amendments and Reauthorization Act (SARA)
• Is a hazardous substance subject to statutes promulgated under the Federal Hazardous Substances Act
• Is considered a hazardous material under the Canadian Hazardous Products Act.

Despite the fact that it is a hazardous substance, Portland cement continues to be used extensively in concrete and transportation projects. 

Regulation of coal ash as a "special waste," which is one option that EPA has proposed, would increase the beneficial reuse of coal ash.  This is what happened in Wisconsin when state regulators cracked down on the unsafe disposal of coal ash.  Recycling of coal ash, which is already a common practice, becomes more attractive when dangerous, unlined disposal pits are regulated.  

We should allow EPA's regulatory process to work.  Please vote against the McKinley motion to instruct the transportation bill conferees.

Thank you,

DEAR COLLEAGUE LETTER - Oppose the McKinley Motion to Instruct

Insisting on Coal Ash will Harm the Prospects for a Transportation Bill

June 20, 2012

Dear Colleague:

Today, the House will vote on whether to instruct the House conferees to the transportation bill to insist that the McKinley coal ash bill be included in the transportation conference report.

The McKinley coal ash bill will weaken current environmental law and do nothing to assure the safe disposal and recycling of coal ash.  Attached is a fact sheet that provides more information on the deficiencies of the McKinley coal ash bill.

Moreover, the McKinley coal ash bill is extraneous to the nation’s transportation policy.  Insisting on controversial proposals will simply make it harder to reach agreement on a much-needed transportation bill.

Please join me in voting no on the McKinley motion to instruct.

Sincerely,

Henry A. Waxman
Ranking Member
Committee on Energy and Commerce

FACT SHEET: The McKinley Bill Does Not Ensure the Safe Disposal of Coal Ash

Fact sheet available for download here.

Committee on Energy and Commerce, Democratic Staff

The McKinley bill, H.R. 2273 passed the House on October 14, 2011.  Subsequently, identical language was added to the House transportation bill on April 18, 2012.  This language, however, does not address the demonstrated risks of improper coal ash disposal.

There are many documented problems with improper coal ash disposal. Under the existing system of state regulation, coal ash has contaminated drinking water supplies, destroyed home values, and polluted the air.  Coal ash impoundments have catastrophically failed and closed disposal structures have collapsed, leading to significant environmental damage, economic damage, and impairment of public drinking water systems. 

Coal ash impoundments are located in 46 states, and 45 impoundments are currently considered “High Hazard,” meaning that failure or misoperation of the impoundment will probably cause loss of human life.

Examples of High Profile Damage Cases.  In recent years, there have been several high-profile failures of coal ash impoundments:

• On October 31, 2011, a bluff constructed of coal ash at WE Energies Oak Creek Power Plant collapsed into Lake Michigan. 
• On December 22, 2008, a coal ash impoundment in Kingston, Tennessee, burst, releasing 5.4 million cubic yards of toxic sludge, blanketing the Emory River and the surrounding land, and creating a superfund site that could cost up to $1.2 billion to clean up.
• On August 23, 2005, an ash impoundment at the Martins Creek power plant in Allentown, Pennsylvania was breached, releasing over 100 million gallons of contaminated water and ash into Oughhoughton Creek and the Delaware River and elevating arsenic levels to 3,000 times the drinking water standard.
• On January 25, 2005, an old coal ash embankment in Friendship Township, Pennsylvania, gave way, dumping 55,000 gallons of ash in a residential neighborhood.  In Gambrills, Maryland, disposal of dry ash in unlined sand and gravel pits from 1995 to 2007 by Constellation Energy caused groundwater contamination and particulate air pollution, leading to reports of respiratory disease and cancer.   

The House-Passed Language Is Full of Loopholes.  The bill does not apply minimum safety requirements to existing impoundments.  In order to ensure a minimal level of safety, groundwater monitoring, run-on/run-off controls, inspection, and corrective action requirements should be required at existing coal ash impoundments.  However, the bill does not apply any minimum safety requirements to existing wet impoundments.

The bill does not cover inactive or closed sites.  Although closed and inactive sites, such as those that collapsed in Wisconsin in 2011 and Pennsylvania in 2005, can pose significant risks to the public safety and drinking water resources, the bill does not apply to these sites.

The bill does not allow EPA to develop relevant disposal criteria to address the risks of coal ash.  Because of its toxic constituents, coal ash poses different disposal challenges than municipal solid waste, such as the groundwater contamination and particulate air pollution seen in Gambrills, Maryland.  According to the EPA, the House bill does not include sufficient requirements for groundwater protection or dust control, and the bill will not allow EPA to establish such relevant requirements.

The bill does not establish a minimum federal floor of protection.  The language does not hold state programs to any standard of protection, and states have discretion to waive the “minimum requirements” in the bill.  This differs from all other federal environmental statutes, including state delegation under the Resources Conservation Recovery Act.