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North Dakota senators call for common-sense approach on coal ash

Dorgan, Conrad lead bipartisan effort to classify coal ash as non-hazardous

Basin Electric Power Cooperative - July 29, 2010

Originally published by the Office of North Dakota Sen. Byron Dorgan

(WASHINGTON, DC) – Senators Kent Conrad and Byron Dorgan today led a broad and bipartisan effort to press the Environmental Protection Agency (EPA) to continue to treat coal ash as a non-hazardous material. Senator Sam Brownback (R-KS) co-authored the letter.

"Regulating coal ash as a hazardous waste is simply not warranted. Doing so would fly in the face of years of research and force unworkable requirements on our state's utilities, resulting in serious economic consequences," Senators Conrad and Dorgan said in a joint statement.

On May 4, 2010, EPA released a proposed rule to treat coal ash and other combustion byproducts under the Resource Conservation and Recovery Act as either a hazardous or a non-hazardous substance. The EPA has previously found after multiple reviews that coal ash did not merit treatment as a hazardous waste.

The proposed rule is open for public comment for 90 days. In a letter to EPA Administrator Lisa Jackson, Senators Conrad and Dorgan are joined by 33 other Senators expressing concerns about the possible regulation of coal ash as a hazardous waste.

The Senators note a hazardous waste designation would create serious economic consequences for utilities, result in the loss of high-paying jobs in coal ash reuse businesses, and create a critical shortfall in hazardous waste disposal capacity. The Senators recognize that the TVA Kingston spill was a terrible tragedy and further support finding more ways to reuse and recycle these byproducts in the economy. At the same time, the Senators highlight the availability of an alternative, less burdensome regulatory option that still strongly protects public health and the environment.

"While coal ash must be handled properly, North Dakota and other states have the regulatory infrastructure in place to effectively manage it as a non-hazardous waste product. Additionally, EPA treatment of coal ash as a hazardous material would likely limit the current beneficial use of the ash in cement and other products, as well as placing an unnecessary burden on coal users," Senators Conrad and Dorgan said.

Below is the letter to EPA.

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Dear Administrator Jackson:

With the recent publication of the Environmental Protection Agency's (EPA) proposal for regulating coal combustion residues (CCRs), we write to express our concerns about the serious economic and environmental consequences resulting from the regulation of CCRs as a special listed waste under subtitle C of the Resource Conservation and Recovery Act (RCRA).

Despite decades of work by the EPA confirming that the regulation of CCRs under RCRA's subtitle C hazardous waste program is not warranted, the proposed subtitle C option would reverse these prior conclusions and regulate CCRs under RCRA's hazardous waste controls, placing unworkable facility and operational requirements on our state utilities. Indeed, the subtitle C option would regulate CCRs more stringently than any other hazardous waste by applying the hazardous waste rules to certain inactive and previously closed CCR units. EPA has never before interpreted RCRA in this manner in its 30 years of administering the federal hazardous waste rules. The subtitle C approach simply is not supportable given its myriad adverse consequences and the availability of an alternative, less burdensome regulatory option under RCRA's non-hazardous waste rules that, by EPA’s own admission, will provide an equal degree of protection to public health and the environment.

Moreover, we are concerned that the subtitle C option will result in the loss of important high-paying jobs in the CCR beneficial reuse and related "green" jobs markets, at a time when unemployment is high and the pace of economic recovery is uncertain. Federal policies should encourage greater recycling of CCRs by facilities that use coal. Despite assurances by the Administration that regulation of CCRs under subtitle C would have no negative impact on the beneficial reuse market, the mere discussion of regulating CCRs under RCRA's hazardous waste program has already produced a downturn in the market for these materials. We believe that those who argue that beneficial use of CCRs will increase under the subtitle C option do not appreciate the realities of the potential legal liabilities under today’s tort system. The reality is that the market place is already reacting negatively to these concerns, and we are losing important green jobs, along with the greenhouse gas emission reduction benefits that flow from the use of CCRs in numerous products, particularly in transportation infrastructure projects.

We are also deeply concerned that the subtitle C approach will, in one fell swoop, increase by approximately 50-fold the volume of hazardous waste disposed of annually in land disposal units (from the current volume of two million tons per year to over 100 million tons of CCRs disposed of annually). This will create an immediate and critical shortfall in hazardous waste disposal capacity, adversely impacting the pace of cleanups under Superfund and other ongoing federal

and state remedial and Brownfield programs. In fact, state environmental protection agencies from around the Nation have repeatedly cautioned EPA that the subtitle C approach for CCRs will overwhelm existing hazardous waste disposal capacity and further strain already stretched budgets and staff resources. It makes no sense to impose these adverse consequences on the existing hazardous waste program and state resources for a material that EPA has repeatedly found does not warrant regulation under RCRA subtitle C.

Given the ash spill disaster at the Tennessee Valley Authority’s Kingston facility in 2008, we understand the EPA raising concerns about the handing and storage of CCRs. All operators should take appropriate precautions and those who fail to do so should be held accountable. However, in light of the nearly unanimous opposition from the states and the opposition and concern expressed by other federal agencies that participated in the interagency review process of the CCR proposal, we urge EPA not to pursue the subtitle C option. Instead, there is little question that EPA can develop a federal program for CCR disposal practices under RCRA's subtitle D non-hazardous waste program that ensures protection of human health and the environment without the attendant adverse consequences of the Subtitle C option on jobs, CCR beneficial uses and state budgets and resources. Again, we strongly recommend the EPA pursue a subtitle D approach for CCRs.

Thank you for your consideration of this important matter. We look forward to your response and working with you to address this issue in a manner that is both environmentally and economically sound.

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