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Don't Forget Recycling in Ash Regulation Discussions

Americans benefit from robust conversations about coal ash disposal and the best ways to manage it. Unfortunately, those conversations all too often degenerate into attacks on “toxic coal ash” that demonize the material and interfere with the best coal ash management strategy of all – beneficially using the ash instead of disposing it in the first place.

EPA’s recent six-year coal ash rulemaking was primarily a debate over who should enforce new disposal standards.  EPA presented both hazardous (Subtitle C) and non-hazardous (Subtitle D) approaches. Notably, the landfill engineering standards presented in both proposals were essentially the same. You wouldn’t get a better landfill under EPA’s hazardous proposal, just a different enforcer of the rules.

That’s what the coal ash debate was really all about: who gets to enforce the rules. Under a Subtitle C hazardous waste program, the federal government would have direct enforcement authority. Under a Subtitle D non-hazardous waste program, the standards are “self-implementing” and enforced by citizen lawsuits.

EPA chose correctly when it selected the Subtitle D option. That is the regulatory approach available to the Agency that 35 years of science and study supports and that is the approach that protects a recycling market that safely utilizes more than 40 percent of coal ash so that it doesn’t get stockpiled near rivers and other sensitive areas. But the Subtitle D non-hazardous option also leaves us with a regulation that is self-implementing and requires citizen groups and a patchwork of courts to become EPA’s enforcement arm.

HR 1734, the Improving Coal Combustion Residuals Regulation Act of 2015, recently passed the U.S. House of Representatives. It is primarily designed to fix the enforcement authority problem by requiring professional state departments of environmental protection to create permit programs and enforce them using the minimum federal standards EPA itself created. The bill also expands EPA’s authority to step in if states don’t do the job. The bill is not a rollback of environmental protections. In fact, in some cases (such as requiring financial assurances) the bill goes further than EPA could accomplish under its existing Subtitle D authority. 

By the way, shifting enforcement authority to the states does not remove the rights of citizen groups to sue if coal ash disposal practices cause harm. Citizens’ rights to sue are absolutely preserved. But HR 1734 shifts the responsibility for policing America’s coal ash disposal sites to state agencies with experience and resources to handle the job.

Another important benefit of HR 1734 is that it would create regulatory certainty that coal ash is not a “hazardous waste.” EPA has made final decisions before only to reverse course in the future. A “hazardous vs. non-hazardous” debate occurred prior to the Agency’s 2000 Final Regulatory Determination – which eight years later turned out to be not so final. Additionally, the 2015 Final Rule’s preamble holds open the possibility of revisiting the controversy yet again in the future.

Regulatory certainty is of utmost importance to coal ash recycling markets. In 2000, when the “Final” Regulatory Determination was issued during the Clinton Administration, the ash recycling rate stood at 29.5 percent. With regulatory certainty that encouraged investment in recycling rather than disposal, that recycling rate soared to 44.5 percent in 2008. As the regulatory debate reignited in 2009, recycling stalled. The greatest irony of the lengthy debate over coal ash disposal regulations is that the debate itself caused more ash to be disposed. If the past five years had simply remained equal with 2008’s utilization, we would have seen 26.4 million tons less coal ash deposited in landfills and impoundments.

The best solution to coal ash disposal problems is to quit throwing coal ash away. The best discussions about coal ash disposal regulations are those that focus on creating effective enforcement mechanisms instead of launching diatribes against the “dangers” of coal ash.

Citizens for Recycling First provided these comments in a coal ash regulation discussion on OurEnergyPolicy.org. Read the full discussion here: http://bit.ly/1E88Cq3 

Posted by: on: Aug 05, 2015 @ 09:47