(Read the full text of the Surface Transportation Extension Act of 2012 HERE.)

Manuel Quinones, Environment & Energy Daily

June 28, 2012

Promoters of a provision limiting U.S. EPA regulation of coal ash kept the issue alive in the transportation bill negotiations until the eleventh hour, but they fell short in the face of a counterattack by environmentalists.

“I’m very disappointed,” Rep. David McKinley (R-W.Va.), author of the House coal ash bill, said in an interview yesterday evening. “They’re saying they used it to trade to get other expedited things on transportation, which would help.”

McKinley’s bill would prohibit EPA from treating coal ash as hazardous. He is vowing to look for other vehicles for its passage. He smiled when asked if it could become a rider on the Interior and Environment spending bill.

“We have to educate people that this is a solution,” McKinley said. “It’s not ideologically driven.”

Supporters of McKinley’s H.R. 2273, which passed in the House last year with bipartisan support, call it a compromise that creates minimum national standards for disposal of the power plant waste while protecting the ash recycling industry from the stigma of a hazardous designation.

“Regulatory uncertainty is damaging coal ash recycling today, and we’re hopeful that Congress will act quickly to find another path to enact this substantive, bipartisan legislation,” said John Ward, head of the industry group Citizens for Recycling First.

Environmentalists call the recycling argument a red herring. They say electric utilities do not want to bear the cost of properly disposing of the material, including phasing out all wet dumps.

As lawmakers and staff were finalizing transportation negotiations, Earthjustice and the Environmental Integrity Project released a new tally of coal ash waste sites obtained from EPA through a Freedom of Information Act request.

“The public health threat from toxic coal ash continues to grow,” Earthjustice attorney Lisa Evans said. “The data today reveal that coal ash is being disposed in hundreds of units that are not fit to contain hazardous chemicals.

“Congressional attempts to cater to the polluters and deny the EPA the authority to protect millions of Americans living near these sites are dangerous and misguided,” she added about the transportation bill negotiations.

The groups said there are more than 1,100 coal ash ponds, 451 more than previously known. Almost half of those dumps lack liners that would keep toxins from leaching into groundwater. The groups also reported at least 393 active, planned or retired ash landfills. Many of those also lack liners, they said.

“Unlined ponds and landfills leach the toxic pollutants in coal ash, including known carcinogens like arsenic, into drinking water supplies and waterways, placing communities and the environment at risk,” said Lisa Widawsky Hallowell, an attorney for the Environmental Integrity Project.

Earlier this month, the American Coal Ash Association released a report saying that coal ash is often not more dangerous than soil. As EPA delays finalizing its regulations, McKinley said, his legislation provided a framework for regulation.

“If people think they’ve had problems with water quality, they’re going to continue with water quality [problems],” McKinley said. “This amendment was intended to give them a pathway forward. So we’re back to where we were.”

Prospects of the Senate moving forward with its version of McKinley’s bill, S. 1751, are uncertain. While the measure enjoys bipartisan support in that chamber, a Senate co-sponsor, Sen. Jay Rockefeller (D-W.Va.), has expressed concerns about the language.

“Now I see him changing his direction,” McKinley said. “Maybe he’s lost his willingness to work with us.”

Kirk Benson, CEO of ash recycling firm Headwaters Inc., which lobbied hard for inclusion of the coal ash measure in the transportation bill, said, “We will continue to seek other opportunities to pass this vital provision.”

There is also a court fight over coal ash. Environmentalists sued EPA in April to press the agency into releasing new standards.

U.S. District Court Judge Reggie Walton for the District of Columbia recently consolidated that case with complaints by Headwaters and other recyclers. The Utility Solid Waste Activities Group and the National Mining Association, both major players in the debate, have won the right to intervene in the litigation.

Industry groups, however, are hoping Congress puts an end to the debate once and for all.

“Mr. McKinley never stops,” House Transportation and Infrastructure Chairman John Mica said with a smile in a recent exchange with reporters.

Walking back to the House floor yesterday evening, McKinley said, “We’re not finished. I can say that. We’re not finished.”