McKinley coal ash bill’s circumvention of EPA “unprecedented” - Business, Government Legal News from throughout WV

McKinley coal ash bill’s circumvention of EPA “unprecedented”

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In a vote of 265 to 155, the Coal Residuals Reuse and Management Act of 2013, introduced by Rep. David B. McKinley, R-W.Va., passed the House of Representatives on July 25.

H.R. 2218, which received 39 votes from Democrats, would create a state-implemented permit program for the management and disposal of coal combustion residuals, or CCRs, commonly known as coal ash.

The emphasis, there, is on "state." The process is being conducted in a way specifically designed to cut out the usual environmental rulemaking body, the Environmental Protection Agency.

The bill is a version of McKinley's bill that the House passed in 2011, revised with feedback from the Senate and from others.

"This bill is a classic manifestation of compromise," McKinley said after the vote. "We listened to so many people."

In creating a state-run program, the bill would pre-empt a rulemaking currently under way at the EPA. The agency has found that the unlined landfills and slurry ponds that power plants dispose of CCRs in West Virginia and across the U.S. can leach contaminants into surface and groundwater.  It aims to set federal standards for the disposal of coal ash, either under the hazardous waste subtitle of the Resource Conservation and Recovery Act or in the same manner as household garbage.

McKinley and others fear that any EPA regulation of CCR disposal will stigmatize beneficial re-uses such as in wallboard and concrete block. The agency encourages re-use and only aims to make disposal safe.

Among changes to McKinley's 2011 bill that appear in the new version are requirements that all coal ash management and disposal facilities be subject to permit, that facilities be engineered and inspected, that they have groundwater monitoring and that surface impoundments that fail to meet standards are closed within a given time period.

"If they detect a leak, they will have to correct that leak. And if they don't, it's very simple — they have to shut that facility down," McKinley said. "There's no exception to that."

In addition, he said, the EPA would have "backstop authority" in the event of a state that didn't enforce that.

Lisa Evans, who serves as senior administrative counsel with the public interest law firm Earthjustice and was formerly with the EPA and who has followed the agency rulemaking and this legislation closely, sees it differently.

"The bill only lets the EPA evaluate a state program based on what the state says it's going to do in the first place," she said.

"A state could, for example, exempt older surface impoundments," she said — a possibility that arises in part from the fact that the bill never takes the fundamental rulemaking step of defining the word "structure" in order to establish firmly which structures must be regulated.

"This is not a hypothetical that's crazy, particularly in light of the fact that some states have always exempted coal ash dumps from regulation," she said. "The exemption of these large, dangerous dump sites is not something EPA could complain about — because it's not in the bill."

But her larger concern has to do with the fact that the very form and intent of the bill circumvents, in an unprecedented way, the established method for creating permitting programs.

Typically, Congress creates a broad framework in environmental law — the Clean Water Act, for example, or the Clean Air Act. That's almost written in stone, as hard to change as any law. It hands that over to the regulatory body, say, the EPA, which has long experience in creating workable and flexible detailed rules for implementing the law. States then create permitting programs that comply with those rules.

A key point is that the rules themselves, unlike law, are flexible.

"I don't know how many petitions (the EPA gets) a year for delisting of waste streams, for updating XYZ when management practices change or the chemical basis for something becomes less or more hazardous — rules are meant to be an organic, workable framework." Evans said.

In this instance, the House, which does not have long experience at rulemaking — showing up, for example, in the lack of a definition for the word "structure" and other key terms — is writing rules that would be set in stone.

Asked whether the nature of this bill is unprecedented -- whether there is another state-run permitting program that was created in this way by Congress -- Evans said she thought not, and she followed up with further e-mail response.

"I checked with a professor of environmental law and an ex-EPA senior official and they both agreed that Congress has never attempted to create a regulatory program in a statute and entirely cut the agency out of the process," she wrote. "This is consistent with (the Congressional Research Service's) description of the bill as well. So I think one is on firm ground to assert this."

A companion Senate bill has a prospective sponsor, McKinley said, who has asked not to be revealed. Alternatively, he said, it might be attached to upcoming water or other legislation.

In the event that Congress does not prevent the EPA from acting, the agency has been said recently to be on a timeline for a 2014 rulemaking. 

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