EPA's Coal Ash Rule Continues to Draw Criticism - From Both Sides

The EPA's publication of a coal ash rule on April 17, 2015, did little to resolve the debate about the proper management of the material (EPA Coal Ash Page). Members of Congress have continued to push for legislation which would change significant parts of the rule, and EPA is now being criticized by the U.S. Commission on Civil Rights for not providing sufficient protection to minority communities potentially affected by the issue.

Members of Congress have, for several years, attempted to regulate coal ash by statute even as EPA was proceeding with the very protracted process of developing regulations. Proponents of legislation believe that the regulation of coal ash must avoid any possibility of classification of the material as a hazardous waste under Subtitle C of the Resource Conservation and Recovery Act. Those Members believe that the language of the rule as finally promulgated leaves EPA with the flexibility to revisit the issue and to classify coal ash as a hazardous waste in the future (Rep. McKinley applauds action). The House has passed the legislation on more than one occasion, but it did not receive floor action by the Senate until mid-September. At that time, language on coal ash was added to the Water Resources Development Act, which then received floor approval (Statement by Sen. Inhofe). Of course, concerns about this approach were immediately raised by environmental interest groups (E.g. Environmental Integrity.org).

Adding to criticisms of EPA on the issue, the U.S. Commission on Civil Rights specifically focused on the coal ash rule as a part of a lengthy report. The Commission report took EPA to task generally over its efforts to comply with both the Civil Rights Act of 1964 and an Executive Order requiring Agencies to consider environmental justice when creating rules. Its report was critical of EPA's overall efforts and pointed specifically to concerns with respect to the coal ash rule. It went so far as to recommend that EPA classify coal ash as a "special waste" and to assess the soundness of coal ash dams and disposal sites as well as funding research on the health effects of coal ash (EPA Blasted, and Report Slams EPA).

The Senate's inclusion of language regarding coal ash in the Water Resources Development Act raises the possibility that it will become law, but that is not a certainty. The matter must be addressed in a conference committee between the House and Senate to resolve differences in the versions passed by each. And the House version of the bill does not contain any coal ash language or several other provisions related to EPA that are found in the Senate version. Those differences must be resolved when Congress is expected to return from recess after the election (Engineering News). While Congressional action will not resolve the fundamental difference of opinion over proper management of coal ash, it would clarify its legal status and, perhaps in the process, take EPA out of the crosshairs, at least on this one.

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