State regulation of coal ash - A good thing?

By Jodi Delapaz

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WASHINGTON, Sept. 22, 2016 - The water resources bill that the Senate recently passed on a near-unanimous vote of 95-3 also includes a states-first approach for regulating the disposal and recycling of coal ash, a measure strongly opposed by environmental groups. Coal ash, also known as coal combustion residuals (CCRs), is the particulate residue that remains from burning coal.

Sen. Joe Manchin, D-W.Va., introduced the original legislation with Sen. John Hoeven, R-N.D., in January. It authorizes states to create permit programs to enforce coal ash disposal standards and requires states to set up their permit program through a traditional EPA application process.

EPA's current coal ash rule isn't an effective enforcement mechanism for the disposal of coal ash because it relies on citizen-suit litigation to enforce coal ash disposal standards, says Manchin, who secured the inclusion of the Coal Combustion Residuals Regulatory Improvement Act in the Water Resources Development Act (WRDA), S.2848, along with Shelley Moore Capito, R-W.Va. 

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By giving states the ability to set up their own permitting programs to make sure coal ash is safely recycled and reused under existing EPA health and environment regulations, Manchin says the measure counters EPA overregulation that threatens vital industries and jobs.

Capito says that, while ensuring the health and safety of families and communities, the measure provides needed certainty to industry and businesses. “States, not the EPA, know how to best regulate within their own borders,” Capito said.

The National Rural Electric Cooperative Association (NRECA), which applauded the Senate action, says the provisions provide clear enforcement authority and also limit litigation, which is “important to safe management and continued beneficial use.”

“We thank Sens. Hoeven and Manchin-as well as (Environment and Public Works Committee) Chairman Inhofe (R-Okla.), Ranking Member Boxer (D-Calif.), and Sens. Blunt (R-Mo.) and Capito (R-W.Va.). - for their leadership on this issue and for guiding this bipartisan legislative solution to passage,” says NRECA CEO Jim Matheson.

However, environmental groups, such as the Sierra Club, the Environmental Integrity Project (EIP) and the Waterkeeper Alliance, aren't pleased with the proposed measure.

The Sierra Club called the legislation “a patchwork of requirements” that are different from state to state, “with the apparent intent of reducing utilities' exposure to liability.”

The legislation dilutes protections previously established by federal regulations, EIP and the Waterkeeper Alliance say, and will lead to “endless disputes over how risks are assessed, how much uncertainty to tolerate, how much monitoring is adequate, whether alternate parameters for measuring cleanup and risk are valid, etc.” Fewer cleanups will result and leaking ponds will continue to operate much longer than the current rule allows, the groups say.

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The measure essentially gives polluters a “do-over” on coal ash regulation, EIP says, which replaces the “clear, uniform requirements that apply to every coal ash operator” under EPA's current rule.

EIP and Waterkeeper Alliance also note that the legislation does not require the online posting of groundwater monitoring data “that must now be purchased from state agencies through payment of fees that few citizens can afford.”

The groups say the amendment would remove the “health-based drinking water standards” from the current EPA rule, which would allow coal ash disposal sites to pollute to a larger degree without having to meet a clean drinking water threshold for contamination.

“We do not understand why this last-minute legislation is preferable to a rule requiring power companies to clean up groundwater they have contaminated until it meets federal drinking water standards and to close leaking or unsafe ponds,” the EIP and the alliance said in a letter protesting the inclusion of CCRs in WRDA.

The groups also said that “in contrast to the very public process used to develop EPA standards,” no hearings were held “that would allow for at least some discussion of the purpose of this specific legislation or how it might change critical requirements and deadlines of the EPA rule.”

For more information on the CCR provision, click here.

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