A House Energy and Commerce subcommittee debated Wednesday whether to undercut the federal Environmental Protection Agency’s rule on disposing of coal ash, a toxic byproduct of burning coal. The debate came just a day before the Sierra Club announced a new lawsuit against Dominion Power over coal ash pits leaking into the Elizabeth River, 25 miles outside Virginia Beach.
The House bill, titled the “Improving Coal Combustion Residuals Regulation Act,” would create a guideline for states to implement and enforce the EPA rule, which in large part governs the disposal of coal ash. One of the most common ways companies dispose of coal ash is by storing it in man-made ponds or lagoons, of which there are hundreds across the country.
The EPA’s first-ever coal ash rule, which requires all new coal ash pits to be lined and calls for some of the hundreds of old, unlined pits to be cleaned up, was criticized by environmentalists for not reaching far enough when it was released in December.
States are not currently required to enforce the EPA rule, which means civilian lawsuits could be the primary means to ensure polluters are in compliance with the federal standards. Rep. David McKinley (R-WV) sponsored the bill. He said the EPA’s rules create uncertainty for regulators, are subject to change, and put coal ash jobs at risk.
“The EPA’s regulations offer more confusion and no reassurances that President Obama won’t change his mind later. We can finally solve this problem and protect 316,000 jobs that rely on coal ash by passing this legislation,” McKinley said in a statement.
An environmental regulator from Virginia also testified at the hearing, stressing that the House bill allowed more flexibility for state regulators. David Paylor, Virginia’s Department of Environmental Quality director, said some of the EPA’s rule was overly broad and would be applied to sites that were otherwise safe.
However, the bill allows for changes of several key definitions in the EPA rule. Those changes could end up removing coal ash regulations, particularly for storage locations. For example, leaking storage areas might not be covered. The bill also reduces regulation for wetlands and seismic zones, and in some cases pushes compliance deadlines from months to years, said Lisa Evans, a lawyer with EarthJustice who testified at the House hearing Wednesday.
“The important considerations are almost too numerous to name,” Evans said.
The bill also eliminates the requirement for coal ash producers to make groundwater data public, which could limit the public’s ability to monitor water safety, and changes what could be considered illegal pollution. In recent years, civilian lawsuits have been a key mechanism to force coal ash clean up. These changes would make it more difficult for the public to bring lawsuits against polluters.
“By eliminating standards, not requiring public information, and weakening requirements, the bill leaves citizens with much less to enforce and with much less ability to determine when enforcement is needed,” Frank Holleman, an attorney with the Southern Environmental Law Center, told ThinkProgress. “It thereby undercuts the citizens’ right to protect themselves and their communities from dangerous disposal of coal ash waste.”
The new lawsuit, brought on behalf of the Sierra Club by the Southern Environmental Law Center, alleges that coal ash storage at a Dominion-owned, coal-powered plant has been leaking into the Elizabeth River and nearby Deep Creek, just eight miles south of Norfolk, Va., for more than a decade. Concentrations of arsenic in groundwater near the site have been found to be more than 30 times the state standard, according to the center.