A WIIN for Western Governors: States to be Primary Regulators of Coal Ash

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surfaceimpoundments 3On Dec. 16, 2016, President Barack Obama signed the Water Infrastructure Improvements for the Nation Act (WIIN Act) into law. This comprehensive legislation addresses water infrastructure needs critical for America’s economic growth, health and competitiveness.

In addition to providing vital help for the nation’s harbors, dams and flood protection system, the bipartisan WIIN Act contains an amendment that establishes western states as the primary regulatory authority for coal combustion residuals, or “coal ash.”

Western Governors have long advocated for coal ash regulation to be handled at the state level. That position was affirmed via passage of WGA Policy Resolution 2017-07: The Regulation of Coal Combustion Residuals.

The Governors and the U.S. Environmental Protection Agency have maintained since 1988 that coal ash is best regulated as a solid, non-hazardous waste, and under the purview of states. However, language in the governing Resource Conservation and Recovery Act only allowed for coal ash regulation via citizen lawsuits – at best an inconsistent and unreliable source. That language was fixed by Subtitle C of the WIIN Act, which:

  • Allows both states and EPA to establish permitting programs for coal ash;
  • Provides flexibility for states to (a) use 2015 EPA standards for coal ash regulation, or to (b) develop their own state-specific criteria that is at least as protective as the EPA rule; and
  • Requires EPA to approve state permitting programs within 180 days of a state’s request for program approval.

The term coal ash includes a variety of byproducts left after coal is burned for heat and energy. While coal ash can be environmentally harmful if stored or handled improperly, many western states and utilities have demonstrated beneficial and safe uses, including as additives in road and building products. Coal ash has even been shown useful as a soil amendment.

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