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Friday, May 27, 2011

EPA’s Proposal to Regulate 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 approximately 135 million tons were generated in 2009. 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. That risk is largely eliminated 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 actual surface and groundwater contamination when CCW was deposited into unlined disposal units or used as construction fill.

CCW disposal is essentially exempt from federal regulation. Instead, it is regulated in accordance with individual state requirements. Inconsistencies among state regulatory programs were identified by EPA in a May 2000 regulatory determination as one reason that national standards to regulate CCW were needed. More recently, EPA called into question the effectiveness of some state regulatory programs in protecting human health and the environment. For example, EPA cited state survey data that showed that over 60% of states do not require liners or groundwater monitoring for surface impoundments (the disposal units with the highest potential for contaminant spread).

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 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.

The proposal generated comment from industry groups, environmental and citizen groups, state agency representatives, individual citizens, and some Members of Congress. Concerns regarding the Subtitle C proposal relate to its ultimate impact on energy prices, state program implementation costs, 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 the varied concerns over EPA’s existing regulatory options. Suggested legislative options include an explicit directive to EPA to regulate or prohibit CCW regulation under Subtitle C; expansion of EPA’s authority to regulate CCW under Subtitle D; or creation of a new subtitle under RCRA that requires EPA to develop an entirely new set of disposal criteria specific to CCW management. To date, two bills (H.R. 1391 and H.R. 1405) have been proposed that would prohibit EPA from regulating CCW under Subtitle C.

Date of Report: May 20, 2011
Number of Pages: 26
Order Number: R41341
Price: $29.95

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