House Subcommittee Approves Coal Ash Legislation And Proposals To Modify Superfund


The Subcommittee on Environment and the Economy of the Energy and Commerce Committee of the U.S. House of Representatives approved legislation on June 6, to direct the regulation and management of coal combustion ash residuals.  As previously noted here, the issue of the proper regulation of residuals from the combustion of coal for the generation of electric power has perplexed the U.S. Environmental Protection Agency for several years.  The Agency is currently evaluating over 450,000 public comments received in response to competing regulatory proposals it initially proposed in June, 2010.  If adopted by the Congress, legislation approved by the Subcommittee today would resolve this regulatory dilemma and direct EPA’s future actions with respect to this material.

EPA’s competing proposals (which are explained at the Agency’s website here) would either regulate the coal combustion ash essentially as a hazardous waste or alternatively to allow the material to be managed as a recyclable material that is otherwise a solid (but not hazardous) waste when it is disposed.  The legislation approved by the Subcommittee, H.R. 2218 known as the Coal Residuals Reuse and Management Act of 2013, builds on bipartisan, bicameral work from last Congress.  It would direct EPA to establish standards that would allow the individual states to create their own permitting programs so long as they are consistent with those standards. A more complete description of the legislation can be found here.

Currently, much of this material is used in wall board, concrete blocks and road bed construction.  Both EPA and Congress have received numerous comments from manufacturers who use the coal ash indicating that they would cease this use if the ash is classified as a hazardous waste.    The resulting programs would allow the coal ash to continue to be used as a recyclable material without the stigma of being classified as a hazardous waste.  Given the fact that the legislation reflects work done by both the House and Senate in the last congress, the prospects for the bill, or a similar version, appear to be good.

Additionally, the Subcommittee also acted on the same day to approve legislation that would eliminate certain deadlines under the federal Resource Conservation and Recovery Act and the Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA” or “Superfund”).  Among other things, the legislation would protect the financial responsibility requirements of states and other federal agencies by insuring that financial responsibility requirements promulgated by EPA under CERCLA will not preempt existing requirements by the states or otherwise previously promulgated under RCRA.  More information about this bill can be found here.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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