Resolution to Retain State Authority over Coal Ash as Non-Hazardous Waste Exposed

The Resolution to Retain State Authority over Coal Ash as Non-Hazardous Waste was adopted by ALEC's Natural Resources Task Force at the Spring Task Force Meeting on April 23, 2010, approved by the ALEC Board of Directors June 3, 2010.

CMD's Bill Summary

This resolution opposes federal regulation of coal combustion waste, known as "coal ash," as hazardous. Coal ash contains large quantities of toxic metals, including mercury, arsenic, beryllium, cadmium, chromium, nickel, and selenium. Indeed, a recent report suggested that coal ash may be a contributing source of hexavalent chromium that has been found in drinking water. National rules governing the use and disposal of coal ash as a hazardous substance could help better protect human health. Having a patch-work of state agencies regulate these hazards does not adequately protect Americans' health. Additionally, state-level public health agencies generally do not have the staff to regulate and manage coal ash waste output, and not having uniform federal regulations would create a race to the bottom amongst state rules. It could also lead the way for more accidents like what happened in Tennessee in 2008, when millions of cubic yards of coal ash sludge broke through a retention wall and tests showed elevated levels of lead and thallium in the water.

ALEC Resolution Text

WHEREAS, the U.S. Environmental Protection Agency (EPA) intends to propose federal regulations to govern the disposal of coal combustion byproducts (CCB) under the Resource Conservation and Recovery Act (RCRA);

WHEREAS, the EPA is considering changing the current regulatory status of CCBs from a non-hazardous waste under the RCRA Subtitle D to a hazardous waste under RCRA Subtitle C;

WHEREAS, the EPA is prohibited by Federal Law from declaring CCB to be hazardous until it “conduct[s] a detailed and comprehensive study and submit[s] a report” to Congress on the “adverse effects on human health and the environment, if any, of the disposal and utilization” of CCB;

WHEREAS, the EPA conducted the required studies and on two separate occasions reported to Congress that it is unwarranted to regulate CCB as hazardous waste since CCB can be safely regulated as non-hazardous waste;

WHEREAS, the EPA issued final regulatory determinations in 1993 and 2000 that concluded that CCBs do not warrant regulation as hazardous waste under RCRA Subtitle C;

WHEREAS, the U.S. Department of Energy, the Federal Highway Administration, the Department of Agriculture, the Electric Power Research Institute, state agencies, members of academia have spent nearly three decades studying CCBs and have found that the toxicity levels in CCB are far below criteria that would require a hazardous designation;

WHEREAS, in EPA’s 2000 determination, the agency concluded that hazardous waste regulation of CCB would be environmentally counterproductive because it would unnecessarily stigmatize coal ash and impede its beneficial use in sustainable construction practices, as well as raise concerns over legal exposure and product liability;

WHEREAS, CCB disposal has remained a state regulatory responsibility and states have an effective regulatory structure in place that is best positioned to continue to develop and implement programs that safely and effectively manage CCBs;

WHEREAS, the regulation of the CCBs as hazardous waste would drastically undercut states’ regulatory authority and would result in unnecessary compliance costs that require duplicative regulatory programs – adding more costs to already strained state budgets;

WHEREAS, regulating CCBs as hazardous waste would increase the cost of electricity for residential and industrial consumers, burdening them with unnecessarily high energy costs in order to accommodate an imprudent program;

THEREFORE BE IT RESOLVED,that the American Legislative Exchange Council agrees with the U.S. EPA’s 2000 final regulatory determination that CCB does not warrant federal regulation as hazardous waste, and that the states are best positioned to continue as the principal regulatory authority of CCB as non-hazardous waste.

Adopted by the Natural Resources Task Force at the Spring Task Force Meeting on April 23, 2010.

Approved by the ALEC Board of Directors on June 3, 2010.