ALEC’s Vision of Pre-Empting EPA Coal Ash Regs Passes the House

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The U.S. House of Representatives passed an amendment on April 18 to the Surface Transportation Extension Act of 2012 (HR 4348) that would effectively pre-empt the Environmental Protection Agency (EPA) from regulating coal ash, the waste from coal burning plants, as a hazardous waste. About 140 million tons of coal ash are produced by power plants in the United States each year. There are about 1,000 active coal ash storage sites across the country.

According to the EPA, the ash contains concentrations of arsenic, boron, cadmium, chromium, lead, mercury and other metals, but the coal industry has claimed there is less mercury in the ash than in a fluorescent light bulb. However, the EPA found in 2010 that the cancer risk from arsenic near some unlined coal ash ponds was one in 50 -- 2,000 times the agency's regulatory goal. Additionally, researchers from the Environmental Integrity Project, Earthjustice, and Sierra Club have documented water contamination from coal ash sites in 186 locations. The new bill would strip the EPA's authority to regulate the ash and hand it over to the states.

The coal industry and its allies have been pushing several levers to stop the EPA from regulating coal ash, including passing resolutions through the American Legislative Exchange Council (ALEC).

Along with its coal ash provisions, the transportation bill, which is intended to extend highway and transit funding through September, includes measures that would advance the controversial trans-Canada Keystone XL pipeline.

Devastating Coal Ash Spill Raises Alarm

Attention to the hazards of coal ash has grown since a devastating spill in eastern Tennessee in 2008, where a Tennessee Valley Authority storage pond poured more than 1.1 billion gallons of ash onto some 300 acres of nearby land, contaminating rivers, destroying homes and accumulating up to six feet of liquid-ash sludge in some areas. The disaster was five times larger, by some measures, than the BP oil spill and more than 100 times the size of the Exxon Valdez spill.

Since then, the EPA affirmed that toxins in the ash can seep into the ground and reach drinking water sources. The Environmental Integrity Project (EIP) recently found that groundwater at 33 coal ash waste sites across the country were contaminated with levels of toxins that may violate a federal dumping ban. Beyond groundwater, residents living near plants complain that coal ash pollutes the air they and their children breath and coats their cars and homes.

According to a CNN in-depth report, which documents the health impacts experienced by a community that lives near a coal plant, over the past 30 years, several studies have found coal ash more radioactive than the waste from nuclear power plants.

The EPA Slow to Regulate

The EPA has been evaluating over the past two years whether to regulate this material as hazardous waste but has yet to make a ruling. In hopes of hastening the regulatory process, a coalition of environmental groups filed a federal lawsuit on April 5, urging a judge to compel the EPA to make a ruling on the substance. Coal ash is currently considered a municipal solid waste, in the same ranking as household trash, despite its documented hazards.

"As we clean up the smokestacks of power plants, we can't just shift the pollution from air to water and think the problem is solved. The EPA must set strong, federally enforceable safeguards against this toxic menace," Lisa Evans, a lawyer with Earthjustice, said in a statement.

The agency received some 450,000 public comments in response to its 2010 hearings and public comment period on the issue.

The House bill's provision to turn the issue of coal ash over to the states was introduced by West Virginia Republican Representative David McKinley. According to Open Secrets, McKinley's top campaign donors are from the coal industry.

ALEC's Resolution on Coal Ash Echoes McKinley's Bill in Thwarting the EPA

ALEC, a controversial group that brings together corporate lobbyists and elected officials to vote behind closed doors to approve "model" legislation, has been advocating against federal efforts to address coal ash. As described in ALEC's EPA "Train Wreck" publication, ALEC passed a resolution -- available through CMD's ALECexposed.org -- in early 2010 that supports a decade-old "EPA determination that coal combustion residuals do not warrant federal regulation as hazardous waste and concludes that states are best positioned to serve as the principal regulatory authority for CCRs as non-hazardous waste."

As reported by the Center for Media and Democracy (CMD) as part of its ALECexposed project, House Majority Leader and ALEC alumnus Eric Cantor has pushed ALEC's federal agenda, including opposition to coal ash regulation, as part of an effort to weaken the EPA. CMD has also reported on the heavy funding of ALEC alumni like Cantor and Speaker of the House John Boehner by corporate members of ALEC. (And, Common Cause also noted that Cantor recently received ALEC's highest award, but failed to report the value of this gift from ALEC in his ethics filings.)

Opposition to EPA regulation of coal ash has also been on the agenda of several ALEC meetings. This resolution is among a host of ALEC initiatives aimed at environmental deregulation, which also includes efforts to prevent the EPA from regulating CO2 emissions under the Clean Air Act.

One of ALEC's major corporate underwriters is Peabody Energy, the largest private-sector coal company in the world. In 2010, the company sold 246 million tons of coal and had total revenue of $6.9 billion. Peabody Coal has a seat on ALEC's corporate board (its "Private Enterprise Board"). Peabody also received ALEC's Private Sector Member of the Year Award in 2011. In addition, Peabody served as a "Chairman" level sponsor of ALEC's 2011 Annual Conference, which in 2010, equated to $50,000. Peabody has not only bankrolled ALEC's operations, but it has also contributed to ALEC's so-called "scholarship" funds in the past, which pays for the travel expenses of legislators to attend ALEC conferences, where they rub elbows with Peabody execs and vote behind closed doors with corporate lobbyists.

ALEC, and McKinley, claim that federal regulation of coal ash as a hazardous waste would impede job growth. The industry wants carte blanche to dispose of contaminated coal ash in consumer products like kitchen materials, cement, and bowling balls. These claims do not account for the potential job creation accompanied with exploration into green alternatives.

Opponents to the House bill, and implicitly to the ALEC resolution, call it one of the biggest giveaways to the coal industry in decades:

"[It's] an outrageous giveaway to the utilities that treat a toxic waste with the same environmental requirements that we treat household garbage," said Scott Slesinger, legislative director for the Natural Resources Defense Council.