While it’s unlikely that the issue will be raised during a lame duck session of Congress following the November elections, AGC will nevertheless continue to press for legislation that will keep the Environmental Protection Agency (EPA) from regulating coal ash residues, including fly ash, as a hazardous substance. Legislation (H.R. 2273) to preempt EPA from regulating the waste as hazardous and instead empower states to establish disposal programs was passed with bipartisan support in the House last October. H.R. 2273 was added as an amendment to the House-passed version of the transportation reauthorization legislation. However, when the reauthorization bill – MAP-21 – was reported from the House- Senate conference committee, this provision was dropped.
In the Senate, a bill (S.1751) that mirrored the House bill was introduced by Sen. John Hoeven (R-N.D.) and received bipartisan support from nine co-sponsors (four Republicans, five Democrats). However, that bill failed to get any traction. On Aug. 2, Sen. Hoeven and a bipartisan group of Senators released a compromise bill (S.3512) with the hope of getting the votes necessary to pass it in this Congress. AGC has been working to garner co-sponsors – currently at 25 – and additional support for the Senate bill. If Congress fails to complete action on this legislation in the lame duck session, AGC will be pushing to have legislation enacted early in the 113th Congress. AGC members are urged to ask their Senators and Representatives to co-sponsor this legislation now and in the next Congress and to work for its enactment.
EPA began its work on a rule to regulate the disposal of coal ash following a December 2008 spill from an impoundment at a Tennessee Valley Authority (TVA) facility in Kingston, Tenn. The containment failure released approximately a billion gallons of coal ash sludge into the adjoining rivers and neighborhood and put a national spotlight on impoundment and disposal practices.
AGC submitted comments urging EPA to weigh the potential impacts of its regulatory options on the beneficial use of these materials and take into consideration the real environmental benefits of reusing these materials and the lack of negative reports (i.e., alleged or proven damage cases) associated with the beneficial use of fly ash in many construction applications including concrete and wallboard. AGC urged EPA to either rely on state requirements or establish non-hazardous waste requirements that protect the beneficial use of fly ash in construction. After pushing back its decision multiple times, a final rule is not anticipated until 2013.
For more information, please contact Brian Deery at (703) 837-5319 or deeryb@agc.org.
Nov. 2012 Update: The U.S. Environmental Protection Agency (EPA) is now saying that it cannot finalize a rule on how it will regulate coal ash until at least 2014; environmental groups are pushing hard for a six-month deadline. In an Oct. 11 filing in a lawsuit currently pending before the U.S. District Court for the District of Columbia, the Agency argues that the scope of its review will require "substantial additional time" to conduct a “scientifically sound and legally defensible final action,” as recently reported by InsideEPA.com.
For more updates, please contact Melinda Tomaino at tomainom@agc.org.
EPA is seeking a dismissal of the lawsuit, Appalachian Voices, et al., v. EPA, on the grounds that there is no statutory requirement for it to even revise the rules in the first place. EPA has not completed its evaluation of the more than 450,000 public comments it received on the proposed rule, according to a spokesperson in EPA’s Office of Solid Waste. Industry sources speculate that the lengthy timeline reinforces the need for Congress to enact coal ash reform legislation that could see a push in a lame duck session of Congress later this year.