With its bill delegating the regulation of coal ash to the states stalled in the Senate, the House of Representatives added it on April 18 as an amendment to the Surface Transportation Extension Act.
"After fighting hard on this issue for over a year, I'm grateful for my colleagues' support," said Rep. David B. McKinley, R-W.Va., original sponsor of the coal ash bill. "The chance to save thousands of jobs and billions of dollars in costs now rests in the Senate's hands."
The House transportation extension, which would extend funding from the federal Highway Trust Fund through September, is the House's response to a Senate transportation bill.
The measure was approved by a vote of 293-127, with West Virginia's three representatives in voting in favor.
It goes now to conference with the Senate — and takes McKinley's Coal Residuals Reuse and Management Act to the table with it.
Coal combustion residuals, or CCRs, often called coal ash, are the waste products of producing electricity from coal. They include, primarily, fly and bottom ash and scrubber residues, with smaller amounts of fluidized bed combustion ash and boiler slag.
About 130 million tons of CCRs was created by the power sector in 2010, according to the American Coal Ash Association. More than 40 percent was used as raw material in other industries, with nearly half of that — almost 16 million tons in concrete and cement and 9 million as structural fill — directly relevant to construction of highways and bridges.
However, the U.S. Environmental Protection Agency is considering, at very great length, whether to regulate some CCRs as hazardous waste under the Resource Conservation and Recovery Act.
The agency's attention responds in part to a 2006 report from the National Research Council. Coal ash contains arsenic, lead, mercury and other toxic metals, the NRC found. It recommended long-term research into the environmental behavior of the various CCRs across the range of geographic and climatic conditions.
That research has not yet been produced.
Meanwhile, though, the EPA has proposed to regulate CCRs through one of two approaches.
One would be a set of national standards under RCRA Subtitle D, the same one that regulates household garbage, which states could adopt at their discretion.
In the other, under the Subtitle C hazardous waste section of RCRA, only CCRs destined for disposal would fall under a federally enforceable permitting program. Those destined for beneficial re-use — for example, in construction materials — would not be regulated as waste.
Even though the re-used ash would not be regulated under the Subtitle C option, opponents fear that a hazardous waste designation will attach a stigma to ash that could be re-used. Supporters point to other substances for which hazardous waste designation and re-use work in parallel — for example, used motor oil.
The EPA released its proposals in June 2010 and many believe the agency will not act further before the presidential election in November.
McKinley's Coal Residuals Reuse and Management Act, and its new incarnation as an amendment, aims to reserve regulation of coal ash for the states rather than allowing federal regulation as hazardous waste.
Stakeholders disagree about the jobs impact of Subtitle C regulation.
McKinley and supporters cite a June 2011 study from Veritas Economic Consulting of Cary, N.C. paid for by the Utilities Solid Waste Activities Group that found that regulation as a hazardous waste could cause a net loss nationwide of 184,000 to 316,000 jobs.
Opponents reference a study prepared in response by Frank Ackerman of the Stockholm Environment Institute in Somerville, Mass. and commissioned by Earthjustice, the Sierra Club and the Natural Resources Defense Council. The Ackerman study used some of the same assumptions as Veritas and found a net gain of 28,000 jobs.
McKinley said CCR regulation as a hazardous waste also would increase costs of road and bridge building by $110 billion dollars over the next 20 years, referencing the American Road and Transportation Builders' Association.
The administration has threatened to veto the House transportation extension if it is passed by the Senate, at least in part because it also has a measure supporting the Keystone XL pipeline that President Obama previously blocked.
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