Next week, members of Congress from both chambers will meet to negotiate a comprehensive federal transportation bill. They will have to hash out the differences between two disparate extension bills and address controversial, anti-environment policy riders in the House version. The House bill would force the approval of the full Keystone XL pipeline and includes an industry-backed amendment that would prevent the federal government from issuing uniform safeguards for potentially toxic coal ash waste. Environmental groups call the coal ash amendment a gift to Big Coal and are urging Senate conferees and the Obama administration to ensure that it is not included in the final transportation bill.

The transportation conference committee is expected to meet May 8, where 14 senators and 33 representatives will negotiate new, "must-pass" transportation legislation. After failing to pass a five-year transportation authorization bill, the House approved on Apr. 18 a 90-day surface transportation extension bill, H.R. 4348, that maintains current programs and funding through September 2012. The inclusion of controversial environmental provisions may complicate the committee’s ability to reconcile H.R. 4348 with the Senate bill, S. 1813, a two-year extension passed in March.

The coal ash amendment, sponsored by Rep. David McKinley (R-WV), mirrors the Coal Residuals Reuse and Management Act (H.R. 2273) passed by the House in October. That bill, also sponsored by McKinley, would require the U.S. Environmental Protection Agency (EPA) to defer to state regulation of coal ash, thus limiting federal oversight. EPA has been slow to regulate coal ash, and the amendment would effectively prevent the agency from finally issuing a rule.

New calls for the regulation of coal ash began in 2008 after an embankment holding wet coal ash ruptured at the Tennessee Valley Authority's Kingston plant, releasing 5.4 million cubic yards of coal ash sludge that buried a community and severely contaminated a nearby river. Coal ash can contain arsenic, lead, chromium, and other heavy metals, all of which poison humans. Coal ash is disposed of in almost every state, and those living near disposal sites can face increased risks of cancer and other diseases caused by drinking contaminated water and by exposure to toxins.

In 2010, EPA proposed two options for regulating coal ash:

• The first option would designate coal ash as a hazardous waste, requiring special handling, transportation, and disposal, and would closely monitor any potential reuse. This option would be far more protective of Americans' health and the environment.
• The second would regulate coal ash in a way used to control less toxic wastes like household garbage – an option that would limit EPA's responsibility and authority over coal ash management.

In April, environmental and public health groups filed a lawsuit to compel the EPA to regulate coal ash and set a deadline to adopt federal coal ash protections. That suit is pending.

The Industry Campaign to Kill Federal Coal Ash Protections

Industry has wanted to block EPA from regulating coal ash for some time. In 2010, the American Legislative Exchange Council (ALEC), a corporate funded group that brings together corporate lobbyists and elected officials to approve "model" legislation, passed a resolution agreeing with a decade-old EPA determination that coal ash does not warrant federal regulation as a hazardous waste. "ALEC Exposed", a project of the Center for Media and Democracy (CMD), uncovered ALEC's legislative strategy guide. An ALEC report, the EPA’s Regulatory Train Wreck, criticizes the proposed EPA regulation of coal ash as a hazardous waste. According to CMD, members of the House have pushed ALEC’s federal agenda in an effort to weaken the EPA. CMD also reported that McKinley's top campaign donors are from the coal industry.

ALEC received national attention after the ALEC Exposed project revealed the extent of the group’s influence over controversial legislation like the "Stand Your Ground" law in Florida. Several major companies have cut ties with ALEC, and Common Cause alleges that the group has abused its nonprofit tax status. Still, the lobbying efforts of the coal industry could prove successful. If the measure passes with the transportation bill, "it may be the most effective protection of Big Coal ever enacted by Congress," said Lisa Evans, a coal ash expert with Earthjustice.

Although the White House criticized McKinley’s coal ash bill when it came through the House in October, the administration stopped short of issuing a veto threat. Environmental and public interest groups are now appealing to Senate conferees to reject the coal ash amendment.

The inclusion of contested environmental measures is likely to complicate the committee’s negotiations, but some leaders are imploring the conference committee to maintain focus on creating jobs and supporting infrastructure. "Controversy should not be part of the conference . . . we should come together for the good of the country," said Sen. Barbara Boxer (D-CA), a conferee and chair of the Senate Environment and Public Works Committee. President Obama also condemned bringing partisan politics into the transportation debate. "Congress needs to do the right thing. It shouldn't be hard. Not everything should be subject to thinking about the next election instead of thinking about the next generation. Not everything should be subject to thinking about politics," he said.