CRS Publishes Report Critical of Pending Coal Ash Legislation

On December 5, 2012, the Congressional Research Service ("CRS") published a report critical of pending legislation in the House and Senate meant to pre-empt EPA's authority to regulate coal ash. These bills would create federal standards intended to provide a required level of protection, and a state-implemented permit program. The report states that the bills each lack detail with regard to how, when, or to which facilities the permit program would apply. This would leave interpretation of the program up to each state that chooses to implement it. The CRS report states that the level of uncertainty associated with the permitting program proposed in these bills defeats the purpose of the permit program and is inconsistent with other permit programs created under RCRA. Further, the CRS report asserts that this uncertainty would likely prompt litigation in which courts would have to weigh in on the standards.

Both pending bills would regulate coal ash under the less-stringent RCRA subtitle D. Coal ash recyclers argue that putting a permitting program in place through legislation is preferable to awaiting EPA's final coal ash rules. EPA has made parallel proposals to regulate coal ash under either RCRA subtitle C or subtitle D, and has said it is unlikely to issue a final rule until 2014.