By: Elizabeth Elliott, Associate

On June 3, 2013, the U.S. House of Representatives (“House”) introduced the Coal Residual Reuse and Management Act of 2013. While two similar bills previously died in the Senate, Senator McKinley, who introduced the failed bills, stated that this time is different because the House bill was written with input from the Environmental Protection Agency (“EPA”).[1]

When coal is burned at power plants, a byproduct known as coal ash is produced. Coal ash, also known as fly ash, can be used in a variety of construction materials, such as concrete blocks and wallboard.[2] The United States produces about 140 million tons of fly ash per year, 34% of which is landfilled every year and 21% of which is dumped into impoundments.[3]

The House bill sets up minimum federal standards for coal ash, but would shift the majority of regulation, including permitting and groundwater monitoring, from the EPA to individual states.[4] Additionally, the bill includes an express prohibition on the EPA of over-filing and an explicit conclusion to the current EPA rulemaking on coal ash.[5] The bill also requires the installation of groundwater monitoring at all structures that receive coal ash[6] and provides deadlines for meeting groundwater protection standards.[7] Further, the bill sets deadlines for the issuance of fly ash permits and establishes criteria to assess whether a state’s permit program meets the minimum federal requirements.[8] Finally, the new bill also includes provisions to ensure structural stability, including a consultation with state dam safety officials, a periodic evaluation to identify structural weakness and potentially hazardous conditions, and the creation of an emergency action plan for high hazard structures.[9]

The express prohibition and explicit conclusion to the current EPA rulemaking is of particular note: the EPA wants fly ash listed as a hazardous waste.[10]

On December 22, 2008, the Tennessee Valley Authority’s (“TVA”) Kingston Fossil Plant suffered a major fly ash spill, releasing about 5.4 million cubic yards of fly ash around the fossil plant.[11] As a result, a nearby residential area had to be evacuated.[12] Additionally, a natural gas line was disrupted.[13] The TVA ultimately had to purchase all 180 properties and 150 houses affected by the spill and recovery effort.[14]

Despite the evacuation, the TVA has determined that “there is no harm to human health as a result of elements that are in coal ash.”[15] A September 2010 report by Earthjustice and Physicians for Social Responsibility, however, states that “coal ash commonly contains some of the world’s deadliest toxic metals: arsenic, lead, mercury, cadmium, chromium and selenium.”[16] These and other toxicants in coal ash can cause cancer and neurological damage in humans.[17]

Currently, the EPA designates fly ash as non-hazardous waste.[18] The EPA’s website, however, states that fly ash contains “contaminants like mercury, cadmium and arsenic associated with cancer and various other serious health effects” and that “without proper protections, these contaminants can leach into groundwater and often migrate to drinking water sources, posing public significant health concerns.”[19] As such, the EPA is promulgating final regulations on the management of coal ash from power plants.[20]

Right now, the bill sits with the House Committee on Energy and Commerce.[21] While the bill is co-sponsored by ten House Democrats, it still faces strong opposition from much of the Senate and many key Democrats.[22] Interestingly, Senator McKinley, R-W.Va, who introduced the bill, says that “the EPA is not opposed to the bill at all.  In fact, they have been supportive of many of its provisions.”[23]