Regulating Coal Combustion Waste Disposal: Issues for Congress

Linda Luther
Analyst in Environmental Policy

Coal combustion waste (CCW) is inorganic material that remains after pulverized coal is burned for electricity production. A tremendous amount of the material is generated each year—industry estimates that as much as 136 millions tons was generated in 2008. On December 22, 2008, national attention was turned to issues regarding the waste when a breach in an impoundment pond at the Tennessee Valley Authority's (TVA's) Kingston, TN, power plant released 1.1 billion gallons of coal ash slurry. The cleanup cost has been estimated to reach $1.2 billion. 

While the incident at Kingston drew national attention to the potential for a sudden catastrophic release of waste, it is not the primary risk attributed to CCW management. An April 2010 risk assessment by the Environmental Protection Agency (EPA) indicated that CCW disposal in unlined landfills and surface impoundments presents substantial risks to human health and the environment from releases of toxic constituents (particularly arsenic and selenium) into surface and groundwater. Those releases are largely prevented when the waste is disposed of in landfills and surface impoundments equipped with composite liners. In addition to potential risks, EPA has reported numerous cases of documented damages to surface and groundwater when CCW was deposited into unlined disposal units or used as construction fill. 

The disposal of CCW is essentially exempt from federal regulation. Instead, it is regulated in accordance with requirements established by individual states. Deficiencies in many state regulatory programs outlined by EPA in a May 2000 regulatory determination have not been addressed. Recently collected data regarding existing state regulatory programs are seen as calling into question the effectiveness of those programs in protecting human health and the environment. Many state regulatory CCW management programs do not include protections such as requirements for liners and groundwater monitoring. 

To establish national standards intended to address risks associated with potential CCW mismanagement, on June 21, 2010, EPA proposed two regulatory options to manage the waste. The first would draw on EPA's existing authority to identify a waste as hazardous and regulate it under the waste management standards established under Subtitle C of the Resource Conservation and Recovery Act (RCRA). The second option would establish regulations applicable to CCW disposal units under RCRA's Subtitle D solid waste management requirements. Under Subtitle D, EPA does not have the authority to implement or enforce its proposed requirements. Instead, EPA would rely on states or citizen suits to enforce the new standards. 

Industry groups, environmental and citizen groups, state agency representatives, and some Members of Congress have expressed concern over EPA's proposal. The primary questions and concerns regarding the Subtitle C proposal relate to its ultimate impact on coal-producing states, energy prices, and CCW recycling opportunities. Concern about the Subtitle D proposal primarily relates to whether it would sufficiently protect human health and the environment, given EPA's lack of authority to enforce it. Commenters have proposed various legislative options in response to these varied concerns. Some suggest Congress should designate CCW as hazardous waste under Subtitle C. Alternatively, others suggest prohibiting EPA from regulating the material under Subtitle C and/or providing EPA with direct authority to develop criteria applicable to landfills and surface impoundments that receive CCW under Subtitle D. Congress might also consider a new subtitle under RCRA directing EPA to develop disposal facility criteria similar to those under Subtitle D, but providing EPA with federal enforcement authority similar to Subtitle C, without explicitly designating the material a hazardous waste.


Date of Report: August 9, 2010
Number of Pages: 23
Order Number: R41341
Price: $29.95

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