The Environmental Protection Agency (EPA) is still working to develop a program for safely handling coal ash, the industrial waste that is left behind after coal is burned for energy production. Coal ash is the second largest industrial waste stream in the United States, it contains numerous toxins such as arsenic, chromium, mercury, selenium and others, and yet it was largely ignored as a human health and environmental problem until the massive coal ash spill at the Tennessee Valley Authority’s Kingston coal plant in Eastern Tennessee in late 2008.
While EPA has been studying the environmental and human health impacts of coal ash and reviewing hundreds of thousands of public comments regarding how to safely address this massive industrial waste stream, members of Congress are anxiously working to undermine the scientific and public process that they themselves established through the Resource Conservation and Recovery Act (RCRA) and the Administrative Procedure Act, both of which call for EPA to review science, take public comment and issue regulations. Just last night, freshman Republican Representative David McKinley from West Virgina introduced a bill, H.R. 1391, to prohibit EPA from treating coal as as a hazardous waste under Subtitle C of RCRA. Representative Robert Latta of Ohio introduced a similar bill, H.R. 1405. Last month Rep. McKinley also offered a policy rider on the the temporary budget bill that would de-fund any efforts to classify coal ash as a Subtitle C hazardous waste. The budget rider passed and if yesterday’s bill comes up for a vote in the House of Representatives it is also expected to pass.
In the spring of 2010, EPA proposed two alternative rules for regulating coal ash. One option would list coal ash under Subtitle D of the Resource Conservation and Recovery Act (RCRA) and treat the waste under the same paradigm as household garbage, establishing guidelines for disposal but failing to create enforceable rules. The alternative option is classification as a hazardous waste under Subtitle C of RCRA. Such a listing would establish enforceable rules covering the entire life-cycle of the toxic waste. After proposing these rules, EPA took public comment from interested parties and is now in the process of reviewing these comments. EPA is expected to announce in 2012 whether it will classify coal ash as a Subtitle C or Subtitle D waste.
Whether or not you agree with the substance of Reps. McKinley and Latta’s bills and Rep. McKinley’s budget amendment, the legislative acts are premature and improper because they completely undermine the scientific process and the public input that EPA has been carefully examining for the better part of a decade. EPA has proposed two options, and they have given no indication of which option they will ultimately chose. By broadly interjecting into the rulemaking process, Congress is interfering in a very open and rigorous process. Some critics of administrative rulemaking will crow about “unelected bureaucrats” necessitating Congressional interference, but in reality, public involvement in the administrative process is very direct and in many ways more precise than in congressional elections. While Rep. McKinley was elected to office by the majority of his constituents, it is not always clear which issues brought them to the voting booths. While they may have supported his positions on foreign affairs or health care policy, they may not have agreed with Rep. McKinley’s ideas on coal ash. In the administrative process these very same constituents are invited to write or speak directly to the decision makers on this very precise issue of coal ash classification. By legislatively diving into the coal ash rulemkaing process, supporters of H.R. 1391 are effectively undermining the opinions of over 450,000 interested parties who submitted comments on both sides of the issue. At the very least, Rep. McKinley should have waited until EPA issued a final decision and then developed legislation responsive to this final act.
Of course, the problem with this new legislation is not only procedural. Critics have clearly voiced their opinions that coal ash is safe or that regulation will raise electricity prices. Both of these concerns are easily addressed. First, and most importantly, coal ash is not safe. In introducing this new bill, Rep. McKinley said that “Fly ash is an unavoidable byproduct of burning coal to produce electricity, and the EPA has repeatedly studied and approved its beneficial use prior to President Obama.” The EPA “approval” of beneficial use to which Rep. McKinley refers was thoroughly rejected by the EPA’s independent Inspector General in a report issued just two weeks ago. In that report, the Inspector General criticized EPA for instituting a program to support and promote beneficial use of coal ash without properly assessing the true dangers. EPA had promoted so-called “beneficial” uses such as dumping ash as structural fill for roads and golf courses. It turns out that EPA never actually analyzed the real impacts of this disposal. Rep. McKinley also asks “Why would this administration want to increase the cost of electricity on our senior citizens, hospitals, schools and working families?” Ignoring the clear pandering of the loaded question, the fact is that even the strictest regulatory option would only have a negligible impact on energy prices, increasing a monthly bill by less than 1%.
Here in the Southeast, and in Tennessee in particular, we’ve seen the type of damage that coal ash can cause. There is the terrible and very visible damage of the Kingston disaster and the slower more insidious damage of groundwater contamination, such as what is happening in West Tennessee. The benefits of stopping these human health and environmental harms far outweigh a less than 1% increase in our energy bills. It is too late to tell EPA how you feel about coal ash, but please call your representatives in Congress and tell them you oppose any attempts to undermine EPA’s rulemaking process.