Dear Cindy,

Thank you for contacting me regarding ash and other types of coal combustion waste (CCW).  I always enjoy hearing from a fellow West Virginian, and I welcome the opportunity to be in touch on this important issue.

In 2008 the American Coal Ash Association estimated that coal fired power plants generated upwards of 136 million tons of CCW, making it the second largest source of waste in the United States, behind only household garbage. On December 22, 2008, a breach occurred at a coal waste impoundment pond located at the Tennessee Valley Authority's Kingston plant, releasing 1.1 billion gallons of coal ash into the surrounding community. The discharge ended up covering more than 300 acres of homes and property resulting in significant damage. This tragedy has raised serious questions about the health and safety impacts of coal storage to the surrounding communities. 

Waste management is regulated under provisions of the Resource Conservation and Recovery Act (RCRA) of 1976.  Subtitle C of RCRA created a hazardous waste management program that required the Environmental Protection Agency (EPA) to develop criteria for identifying the characteristics of hazardous waste and to develop waste management criteria applicable to such waste. Subtitle D established state and local governments as the primary planning, regulating, and implementing entities for the management of non-hazardous solid waste. In 1980, in response to proposed amendments to RCRA, the EPA excluded the regulation of fossil fuel combustion waste, such as CCW, from its final hazardous waste regulations, deferring that responsibility to state and local governments.

In May 2000, the EPA reaffirmed that CCW did not warrant regulation under federal hazardous waste requirements but rather that national regulations for solid waste management requirements should be implemented for CCW when disposed in landfills or surface impoundments. In the wake of the Kingston disaster, the EPA announced its intent to move forward with new CCW regulations addressing the management of coal combustion residuals and surface impoundments in 2010. 

In May 2010, the EPA released a study outlining national rules to ensure the safe disposal of coal ash from coal-fired power plants.  The agency proposal would allow state and federal officials to enforce coal ash, phase out the use of new surface impoundments, and promote legal action should citizens be exposed to the contents of coal impoundments.  The proposal would also require companies to place liners beneath all coal ash impoundments to reduce the risk of soil and ground water contamination. 

On June 21, 2010, the EPA proposed two regulatory rule options applicable to the management of CCW.  Under the first option, EPA would draw on its existing authority to identify a waste as hazardous and regulate it under the hazardous waste management standards established under Subtitle C of the RCRA.  The second option would establish criteria applicable to landfills and surface impoundments accepting CCW under RCRA's Subtitle D solid waste management requirements.  Under Subtitle D, the EPA does not have the authority to enforce its proposed requirements and, instead, would rely solely on states or citizen suits to enforce the standards. 

On July 29, 2010, I sent a letter to the EPA regarding the agency's efforts to establish national criteria to improve the protection of public health and the environment under RCRA.  I have included a copy of that letter for your review.  I believe that the best approach for doing this is under Subtitle D and that the EPA should work closely with state regulators in addressing the enforcement of new regulations.  The EPA should work with the states and seek coal ash disposal practices under RCRA's Subtitle D that address structural stability of impoundments, protects public health, and promotes the recycling and beneficial reuse of coal ash. 

I will continue to carefully monitor this issue as the EPA moves forward in its rule-making process and will continue to support efforts designed both improve the safety of coal ash impoundments and protect West Virginia jobs. 

As always, I wish you the best.