Noting the Irony, Republican Praises EPA Coal-Ash Rule

Posted March 20, 2015 at 2:44pm

An unusual event transpired last week in the House: A senior Republican opened a hearing by praising the Environmental Protection Agency.

In a departure from the usual “War on Coal” rhetoric, Illinois Rep. John Shimkus lauded the EPA’s “hard work” on a rule it finalized in December to govern the disposal of the vast quantities of toxic coal-ash waste generated from power plants, as well as the agency’s cooperation on a related bill. The long fought over rule came as a relief to the coal industry because it avoided the most stringent restrictions on waste that could have been possible, though environmentalists were not pleased.

“[The] EPA has been extremely constructive and helpful during the last Congress and recently working through the issues with the final rule and the discussion draft,” Shimkus said at the outset of a hearing by the House Energy and Commerce Subcommittee on the Environment and the Economy, which he chairs.

Shimkus laughed when pressed on the irony after the hearing, but said the EPA’s recent actions move a long-standing policy dispute closer to resolution. “I have to give credit to staff,” he said of the EPA in an interview. “There’s good discussions.”

Such praise is all the more noteworthy given the high stakes surrounding the disposal of coal ash, which has vexed regulators for decades.

Coal-fired utilities churn out the stuff by the ton, with the bulk of the ash — which includes traces of toxins such as arsenic, lead and mercury — deposited in nearby surface impoundments, which resemble boggy landfills.

States have generally taken the lead on overseeing such facilities, an arrangement the industry says has worked well and should continue.

However, several high-profile coal-ash accidents in recent years have raised questions about the safety of the practice. In 2008, a dike failed at the Tennessee Valley Authority’s Kingston Fossil Plant, releasing more than 5 million cubic yards of ash into two rivers and blanketing a local neighborhood with up to six feet of toxic sludge.

Local residents and Duke Energy are still dealing with the fallout from a similar accident that spilled up to 39,000 tons of ash into North Carolina’s Dan River in February 2014.

The incidents highlight environmentalists’ concerns over coal ash, which they say warrant stringent federal hazardous waste disposal rules.

That scenario is the industry’s worst nightmare, because it would impose expensive disposal costs. But a major secondary concern of a hazardous listing is the effect on the recycling of coal ash, which is widely used in cement, as road base and in wallboard, among other uses.

The EPA has struggled with coal ash for years, in no small part because of intense pressure from industry and coal supporters in both parties. But in December, the agency finalized disposal standards under a legal agreement forced by environmentalists.

The rule set minimum national standards for coal ash, but bypassed the hazardous restrictions sought by green groups. The industry and its congressional allies breathed a sigh of relief after dodging the hazardous listing, but say additional legislation is necessary to address lingering issues.

Environmentalists were not satisfied, though.

“The only stakeholders who really did not get what they sought in this rule were the environmental and public health advocates,” said Energy and Commerce ranking member Frank Pallone Jr. of New Jersey, noting the EPA rebuffed green groups’ calls for hazardous waste rules.

Draft legislation by Shimkus and David B. McKinley, R-W.Va., would establish enforceable state permit programs for coal-ash disposal that would still be overseen by the EPA, while incorporating key requirements from the agency’s final rule. Shimkus hopes to pass the bill through the House before the August recess.

McKinley said the bill would offer peace of mind to workers in the ash recycling sectors. “Bottom line: This legislation promotes closure and certainty,” he said.

The measure would also do something that the EPA’s rule doesn’t: foreclose the possibility of future hazardous waste controls for coal ash.

During last week’s hearing on the bill, Pallone said the EPA had already gone to great lengths to address the industry’s concerns by forgoing hazardous waste requirements.

“So I think that this legislation is unnecessary, and dangerous for public health and the environment,” he said, adding the bill would leave key regulatory decisions up to states.

Sen. John Hoeven, R-N.D., who has worked closely with Shimkus and McKinley on the issue, said he thinks the EPA is OK with the legislation.

“I don’t know that they can officially say it, but I think we’ve spent enough time with them to make sure it really does work from their standpoint,” he said last week.

Liz Purchia, a spokeswoman for the EPA, said staff may have provided technical support for the lawmakers, but the agency is not taking a position on the legislation. Citing years of work by the EPA on writing the rule, she said the agency stands behind the result.

“The science and the information we gathered tells us that we can effectively and pragmatically protect the environment and communities with the strong standards we are putting in place,” she wrote in an email.

The EPA’s resolve not to take a stance on the bill will be tested Tuesday, when the head of its waste office, Mathy Stanislaus, will appear before Shimkus’ panel.

Shimkus said by essentially codifying the EPA’s rule, enacting the bill would offer the agency some peace of mind against future litigation and other factors that could necessitate further regulatory consideration. However, he doesn’t expect the EPA to acknowledge that.

“They know that we’re helping in some areas,” he said. “Now, will they publicly say that? No.”