The federal rule hasn’t even come into full effect.
A $9.4 billion senate spending bill for the nation’s water infrastructure is likely to be approved this week, authorizing millions of dollars to cope with the lead-contaminated water crisis in Flint, Michigan, the California drought, and the algae bloom that prompted a state of emergency in two Florida counties. But an amendment lurking within the Water Resources Development Act (WRDA) could also weaken newly-established rules on coal ash, the toxic byproduct of burning coal for power, advocates say.
Federal coal ash regulations were unveiled in late 2014, more than half a decade after the massive Tennessee coal ash spill in 2008 that inspired the rules, put millions of cubic yards of the slurry substance into the Emory and Clinch rivers. It was the nation’s largest coal ash spill. The cleanup cost the Tennessee Valley Authority $1.2 billion, and $11.5 million in fines.
“Our big fear is that this [bill] will just leave us where we were before the rule, which is a patchwork of regulations that don’t adequately protect the environment from the coal ash,” Abel Russ, attorney at the Environmental Integrity Project, told ThinkProgress.
The Senate voted 90–1 on Monday night to end debate on WRDA, signaling easy passage, though House leadership has not indicated whether the bill will be a priority in the coming weeks.
Coal ash, which contains toxic chemicals like arsenic, lead, and mercury. It’s the second-largest form of waste generated in the United States and for the past couple of years it’s been regulated similarly to household garbage.
For decades energy companies dumped coal ash into usually unlined ditches before filling these holes with water, which is the most economic way to store ash while keeping it from blowing away. But following the federal Coal Combustion Residuals rules, new coal ash pits must now be lined, while hundreds of old, unlined pits must be cleaned up if they are found to be polluting groundwater, or if they are attached to an active power plant.
Rules also require companies to regularly inspect their coal ash ponds, monitor groundwater, and share inspection results publicly, though some of these provisions are yet to come into effect. Rules don’t call for any federal enforcement, however, and often take state and citizen lawsuits to ensure company compliance. Caveats are plentiful in coal ash rules, environmentalists have long said, but some rules were better than no rules at all.
And yet all that could change, advocates say, as an amendment introduced by Sen. Jim Inhofe (R-OK) gives states the authority to implement individual coal ash regulations that may let polluters follow lengthy timelines or inefficient methods that states might deem “protective” for cleanup or closures. That comes as the amendment directs the Environmental Protection Agency to approve a coal ash state program if it is “at least as protective” as federal rules.
Peter Harrison, attorney at the Waterkeeper Alliance said this language is problematic because it is too vague. “You can find yourself in arguments about what is ‘at least as protective,’” said Harrison in an interview with ThinkProgress. The concern is that vague language will let states cut corners when regulating coal ash and the utilities that have over the past several months scrambled to close sites.
“It would open the door to state programs that don’t necessarily mirror all of the federal requirements,” he continued. “And there are some important things like requirements for groundwater monitoring, public notices, public participation, those sorts of things we see room for state interpretation … and we really see losing some those requirements.”
The amendment also requires a public hearing only for a deficient coal ash program, while it fails to require a public process for each coal company’s site. In theory, advocates say, a state program could be approved under this bill even if it does not allow for the EPA or the public to comment on permits.
“It would essentially replace the current rule with whatever the states want to do if EPA approves,” said Russ. “Given the wide range of possible EPA administrations we might get in the future, and given the fact that EPA already has a hard time managing 50 states’ regulatory programs under different statutes, I don’t expect that EPA would put up much of a fuss.”
Environmental organizations also note the amendment is unnecessary and premature, because coal ash rules were already modest, and some rules are yet to take full effect. For instance, groundwater data disclosure, inspections reports on dams and closure plans, as well as dust mitigation plans, are expected to be operational in 2018, Russ said.
“If states were well-funded and had the political will to regulate these guidelines adequately, that might be one thing, but it’s never been that way and it won’t be that way in the future as far as we can tell,” he said.
But not all environmental groups are as adamant about the bill or the amendment. The Southern Environmental Law Center, which has represented various organizations in coal ash lawsuits in Virginia, North Carolina, and Tennessee, said in a statement to ThinkProgress that they don’t oppose the bill.
“We don’t think it (bill) makes things worse, but we would far prefer that Congress take action on coal ash to better protect public health and the environment,” the statement reads.
Other environmental organizations like the Coalition for the Delaware River Watershed, a group made up of numerous organizations working throughout the four-state Delaware River Watershed, even pushed for the act.
This comes as the act doesn’t just authorize billions into drinking and clean water infrastructure over five years, it also authorizes the Delaware River Basin Restoration Program, which addresses pollution affecting a river that serves some 50 million people.
“We are really excited with this movement. Our leadership in the Senate and the House, we have really phenomenal bipartisan support for this bill and we feel lucky to have such a great group of champions [for] our watershed serving in Congress,” said Madeline Urbish, director of the Coalition for the Delaware River Watershed, in an interview with ThinkProgress.
The Inhofe amendment also has the backing of the American Public Power Association, an industry that consistently pushes for less stringent rules. “The WRDA language would give states primary enforcement authority and doesn’t take away the authority of civil litigation,” Desmarie Waterhouse, senior government relations director and counsel with the group, told Bloomberg BNA.
Given the support the act enjoys, critics expect it to pass, they said. “The best we can hope for is [that] EPA will hold the states accountable to the language,” Russ said. “That will be the next front that we’ll work on.”