Behind the Curtain in the Fight Over Coal Ash Disposal
The State Journal
30 July 2013
By Pam Kasey
My July 26 story on the passage of West Virginia Republican Cong.
David McKinley's coal ash bill in the House last week and on the
bill's circumvention of the standard rulemaking process for state
environmental permitting programs prompted strong response from
I ran those responses by Lisa Evans, the environmental lawyer
whose interpretation I relied on in that story, for her reactions.
It's a peek behind the curtain in this complex process and I
thought I'd share some of it for interested readers.
For background, I'll reiterate here that McKinley has been working
since he entered office in 2011 to oppose an Environmental
Protection Agency rulemaking effort on the disposal of coal
combustion residuals, or CCRs, commonly known as coal ash. The
agency has proposed to affirm its support for the safe
re-purposing of CCRs — in wallboard, for example — but to regulate
coal ash that is disposed of in one of two ways: as a hazardous
waste, in recognition of concerns about health effects from toxics
that leach into ground water from unlined dry landfills and wet
impoundments, or, alternatively, in the same manner as household
Re-purposing of CCR's reduces power plants' disposal costs and so
helps to keep the cost of coal-fired power down and to maintain
that market for coal. McKinley is concerned that designation of
CCRs as a hazardous waste will stigmatize re-use, although there
is precedent: for example, used motor oil, which is handled as a
hazardous waste in its disposal but also is widely re-used.
He aims with this bill, which would add a new section 4011 to the
Resource Conservation and Recovery Act, or RCRA, and which passed
in the House on July 25, to prevent a hazardous waste designation
by establishing in federal law the framework for a state-run
permitting program for CCR disposal that is modeled on the EPA's
rules for municipal solid waste, or household garbage. It would
not go to the agency for rulemaking, as is typically done for RCRA
and for other permitting programs. The next step would be for
states to define their own programs and to self-certify, to the
EPA, that their programs comply with the federal framework.
This issue is complex. CCRs are one of the nation's largest waste
streams, and have been shown to contain arsenic, selenium and
other toxics and to leach them into the environment when disposed
of in unlined structures — of which there are more than a few in
West Virginia. The way this struggle is resolved between federal
and state control of disposal standards could have implications
for human health and for the economy.
But fully understanding this bill and its implications seems to
require detailed knowledge of how rulemaking works: the fact that
effective rules always include definitions of fundamental terms,
for example, and that avenues for public participation are
prescribed. For those of us who don't read a lot of rules from
beginning to end, and that includes me, those kinds of omissions
are impossible to spot. For that reason, rather than interpret all
of this, I provide McKinley's and Evans' responses, organized by
questions they raise:
Is incorporating the EPA's rules for municipal solid
waste enough to make this a comprehensive and effective rule
for coal ash disposal?
I wrote last week that this process is being conducted in a way
specifically designed to cut out the usual environmental
rulemaking body, the EPA.
McKinley's Communications Director Jim Forbes responded that
existing EPA rules are specifically included. "Instead of granting
broad discretion to the EPA to write new regulations, the bill
applies an existing program for municipal solid waste landfills to
a new waste, coal ash," he wrote. "Unlike EPA's proposed
regulations, the bill gives states primary authority to craft a
coal ash program that best fits the state. The bill sets a federal
baseline for regulation of coal ash, but allows states to take the
lead with developing, implementing and enforcing it."
Remember that reference to a federal baseline, or minimum
standards — that subject comes up again below.
Forbes also quoted the EPA from its own proposed 2010 rule, saying
that its municipal solid waste criteria represent a reasonable
balance between, on the one hand, protecting human and health and
the environment and, on the other, facilities' ability to
implement the criteria.
Evans responded: "The quotation is absolutely accurate—but it
tells only half the story."
Coal ash, remember, is disposed of in both dry landfills and wet
The agency goes on in its proposed rule, Evans said, to describe
additional requirements that are needed to ensure safety from the
disposal of liquid waste.
With regard to wet disposal, McKinley's bill could rely on the
Mine Safety and Health Administration's requirements for coal ash
dams and impoundments as it does on the EPA's requirements for dry
landfills, she said, but instead it creates requirements
piecemeal. And it requires, for example, emergency action plans,
but doesn't specify what they must include, she pointed out — the
kind of detail that would be specified by experienced rule
Is there a minimum federal standard in the bill?
I wrote that the EPA has found that unlined landfills and
slurry ponds can leach contaminants into surface and ground water
and, in a related point, quoted Evans saying that "The bill only
lets the EPA evaluate a state program based on what the state says
it's going to do in the first place."
Forbes responded with a list of specific sections of the bill that
he said would protect groundwater and surface water as well as a
list of sections that he said not only protect human health and
the environment but provide the EPA with authority.
Evans responded that, even with requirements for water monitoring
and some authority granted to the EPA, the bill does not include
the fundamental requirement to protect human health and the
environment — a basic characteristic of environmental rules, the
"minimum standard" that must be met, and a point that the
Congressional Research Service has made more than once. States
would define their own programs and the EPA would only be able to
hold them to the programs they define. "Since the failure to
protect human health and the environment is not listed as one of
the specific criteria, it will be legally impossible (or at least
very difficult) for the EPA to use this as a basis for finding a
program ‘deficient,'" she wrote.
Are definitions necessary?
I quoted Evans saying that a basic deficiency of the bill is
that, while rules written with the expertise of a rulemaking
agency define all key terms, this bill does not do that. Without a
definition for the term "structure," for example, a term that
appears throughout the bill, a state-defined program consistent
with the requirements of the bill could exempt categories of
structures — say, older surface impoundments.
Forbes responded that that interpretation of the bill ignores the
fact that facilities that contaminate ground water will enter into
corrective action, which will trigger implementation of ‘interim
measures necessary to ensure the protection of human health and
the environment' … and implementation of a corrective remedy …"
But that assumes all such facilities, or structures, would be
included in a state's program and does not respond, in Evans'
view, "to the potential for states to define the universe of
structures to exclude dangerous units …" Without a definition for
the word "structure," there is no assurance that every storage and
disposal unit that contains and/or receives CCRs will be subject
to ground water monitoring and corrective action.
What happens if there's no hard and fast deadline by which all
structures have to operate under permit?
Their emailed responses also delve into an area that I mentioned
in my July 24 story in advance of the House vote. Evans has called
into question aspects of the bill that she said appear to provide
indefinite leeway for facilities that have leaking structures
where there is not space available on-site for alternative
"The language of the bill does not relieve an owner/operator of
facilities of the obligation to develop alternative disposal
capacity regardless of whether they have space available on-site,"
Evans referenced in response a section of the bill that seems
clearly to say "that a state has the discretion to extend the
deadline for meeting a groundwater protection standard if there is
a ‘lack of available alternative management capacity for the CCRs
and related materials managed in the impoundment at the facility
at which the impoundment is located …'"
On the same point, she wrote, for unlined impoundments that are
found to be contaminating groundwater more than 10 years after the
enactment of the bill, "Section 4011(c)(4)(E) does not require
such leaking impoundments to close until ‘alternative management
capacity at the facility is available for the CCRs and related
materials managed in the impoundment.' … This, again, may be an
There are other points in their e-mails, too numerous to detail.
I'm happy to provide any documents reference here, including their
e-mails: contact me.
I have sent Forbes a list of follow-up questions.
None of the objections of McKinley's office addresses the
fundamental point in my July 26 story: that this way of going
about establishing the framework for a state-run permitting
program is unprecedented. It does not take advantage of the
expertise of the usual writers of rules so that, while it relies
on existing EPA rules for part of what's needed, it patches the
rest of the program together piecemeal and doesn't achieve the
high level of specificity that is required to set a framework for
the smooth establishment and functioning of state permitting
Whether deliberately, to reserve power to the states but perhaps
with unforeseen consequences, or inadvertently, because it is
written by those inexperienced in the craft of rulemaking, the
bill fails to set minimum standards and to cover the rulemaking
Scott Slesinger, legislative director for the Natural Resources
Defense Council and a waste disposal industry veteran, backed up
the view that the bill does not set a federal baseline or minimum
"Despite some of the terminology that looks like it has a strong
baseline, it really allows the states to choose which part of the
minimum requirements they want," Slesinger said. "That's backwards
from the usual way of setting minimum standards that states can
then meet or exceed."
The Congressional Research Service said in a June 4 letter to the
House Energy and Commerce Committee that the approach is, indeed,
"… the CCR permit program proposed in the draft bill would be
created in a way that is unique within RCRA," the CRS wrote,
referencing its own March 2013 report.