Senate Coal Ash Bill Reopens Loopholes, Amounts to “Do-Over” for Power Companies
The U.S. Senate is preparing to vote as early as next week on a bill, The Water Resources Development Act of 2016, that may include a coal ash amendment that would significantly undercut the Environmental Protection Agency’s federal coal ash rule.
The Environmental Integrity Project and Waterkeepers Alliance sent a letter to the sponsors, Senator Barbara Boxer of California and James Inhofe of Oklahoma, objecting to the potential weakening of the coal ash regulations, which could threaten public health.
If adopted, this amendment to the Water Resources Development Act could essentially give polluters a “do-over” on coal ash regulation—replacing the clear, uniform requirements that apply to every coal ash operator covered by EPA’s rule with uncertainty.
Prior to EPA’s rule, coal ash disposal was subject to a patchwork of state regulations that left communities vulnerable to hundreds of cases of damage or catastrophic spills. EPA’s rule establishes clear requirements for monitoring, cleanup, closure, and public notification that keep the public safe and informed, but these bright-line requirements of the rule are now in jeopardy, as this bill could allow polluters to have EPA’s clear standards swapped for site-specific standards that “differ” from EPA’s standards. For example, EPA’s rule requires that, for every applicable site, health-based drinking water standards established under the Safe Drinking Water Act will trigger cleanup, clear deadlines will apply for closure of leaking or unstable ponds, and public disclosure and participation will be assured; all of these protections are vulnerable to being muddied by the system established by the Senate Amendment.
The Senate Amendment could create dangerous loopholes for polluters from the requirements of EPA’s coal ash rule.
For example:
The Amendment could replace health-based drinking water standards as the trigger for cleanup with unclear, site-specific standards. The EPA rule requires power companies to clean up groundwater they have contaminated until they meet specific Safe Drinking Water Act standards. The rule authorizes power companies to bypass these requirements in favor of state programs. Under the bill, the state alternatives must be “as protective” as the federal requirements, but that is poorly defined and will require state by state, site by site decision-making that will be tangled up in debates over how to assess risk, what level of uncertainty to accept, and more. In essence, the bill is a “do-over” designed to allow power companies to rehash issues that have already been evaluated over seven years of EPA rulemaking.
The Amendment could swap hard deadlines for closure of leaky or unstable ponds with long, drawn-out closures. The rule sets deadlines for closing leaking ponds that have polluted groundwater above federal drinking water standards or that are structurally unsound. The Senate bill could allow polluters to do less – or do nothing at all – by claiming other timelines or methods would be “as protective” as meeting the cleanup and closure requirements of the rule.
The Amendment could jeopardize the ability of the public to access information or weigh in about coal ash sties. One of the key advantages of the EPA rule over the status quo was that it would make coal ash polluters’ data easily available and allow for robust citizen enforcement of its provisions. Public participation opportunities could be significantly curtailed if the Amendment is adopted.
The Senate Amendment at a glance:
It could effectively remove the EPA rule’s federal minimum standards. The bill requires EPA to approve a State program if the program is “at least as protective” as EPA’s rule, even if the standards are not equivalent. This effectively removes the bright line requirements that the rule imposes on every disposal site operator, leaving the door open for big utilities to instead be subject to programs that exclude or dramatically alter certain EPA requirements (such as the rule’s notification provisions that are critical for citizen enforcement) that can pass muster as “as protective.” This also deprives the public of consistent national standards, meaning citizens may again be left with a patchwork of state regulations like those that led to well over 150 EPA-confirmed cases of leaks, spills, and other damage from coal ash sites prior to EPA’s final rule.
It allows utilities to operate disposal sites without being subject to either EPA’s self-implementing standards or State-issued permits. Under this bill, power companies are not required to obtain permits for disposal sites – States can instead have a “system of prior approval and conditions,” which is not defined. Since EPA’s approval of a State program exempts sites from EPA’s self-implementing requirements, companies with sites in States without permit programs would be allowed to operate without a permit setting forth compliance requirements and without having to comply with EPA’s requirements.
It fails to include public participation for EPA approval of State programs. The bill fails to include a process for the public to weigh in when EPA is considering approval of a State program, meaning the public could be deprived of the opportunity to provide input at the critical juncture when a State claims its differing technical standards are “as protective” as EPA’s rule.
It may weaken citizens’ ability to bring enforcement actions. While the bill expressly authorizes federal enforcement by EPA, it is silent regarding whether citizens—who have primary enforcement authority under EPA’s rule—can sue coal ash polluters violating State program requirements through federal citizen suits. Since EPA is denied site-specific authority to enforce State regulations under the bill, citizen suits must be unequivocally authorized in order to ensure the State is not the only entity that can enforce site standards.
It fails to require EPA or public review of the standards that will apply to an individual site. Once a State program is approved under the Amendment, EPA cannot review a coal company’s permit or applicable standards. The bill also only requires opportunity for a public hearing for a deficient program, failing to require a public process for each coal company’s site and failing to require compliance with the public participation and permitting requirements of 40 C.F.R. Pt. 256. The result is that a State program could be approved under this bill even if it does not allow for EPA—or the public—to comment on the permit or standards applicable to each site.
The bill is unnecessary and premature. EPA’s requirements—which were modest, industry-preferred Subtitle D requirements in the first place—were established to be minimum standards to prevent the kinds of adverse effects to health and the environment that occurred at these damage cases. Their efficacy is still being tested as the rule’s requirements have only just begun to take effect. Congress’s approval of a bill with all the deficiencies highlighted above would strip away the chance EPA’s rule had of protecting Americans from the dangers of coal ash disposal.
The bill is another handout to big utilities, who already got their wish of a Subtitle D rule. Industry wanted a Subtitle D (nonhazardous) coal ash rule from EPA, and that is exactly what they got. Industry is now seeking to undermine the key safeguards of the rule—at the expense of public health and the environment.
Coal ash communities have suffered enough. Communities that host coal ash sites have already borne the health, environmental, and financial burdens associated with State-regulated coal ash sites. Passage of the Amendment would reverse course and bring us back to a time before federal minimum standards, where the safety of a coal ash community was not assured through federal minimum standards that EPA’s rule has now established.
Legislators should be increasing, not decreasing, federal protections. EPA’s final rule left much room for improvement and many opportunities for Congress to step in to afford greater protections for the millions of nearby and downstream residents at coal ash sites. Our elected officials should work to ensure that transparency and protections increase, not decrease, for their constituents.
