Some members of the House Subcommittee on Environment and the Economy on Jan. 22, following a hearing that same day, expressed concern about a final rule issued in December by the U.S. Environmental Protection Agency on coal ash disposal.
The final rule did not classify coal ash as toxic waste, which is a possibility that EPA toyed with and the power industry feared. But it did, among other things, set up some possible clashes between federal and state regulatory authority. The subcommittee is part of the House Energy and Commerce Committee, where a Republican majority in recent years has pushed a more industry-friendly coal ash bill that would supercede the EPA effort.
The subcommittee, chaired by Rep. John Shimkus, R-Ill., on Jan. 22 examined the final coal ash rule and discussed the continued need for legislation to provide regulatory certainty and protect jobs. Members of the subcommittee expressed concern that EPA’s rule does not provide clarity for job-creators, and it could lead to increased litigation, uncertainty, and expense, said a Jan. 22 statement from the panel’s Republican majority.
Shimkus said: “The final rule lays out an entirely self-implementing program that will be enforced through citizen suits and will unavoidably lead to an unpredictable array of regulatory interpretations, as judges throughout the country are forced to make extremely technical compliance decisions that would be better left to a regulatory agency.”
Rep. David McKinley, R-W.Va., author of legislation in the 112th and 113th Congresses to address coal ash management, said: “Job-creators detest uncertainty, and one thing is clear: this regulation does not provide certainty.” McKinley expressed particular concern over language in the rule that leaves the door open to an anti-recycling hazardous waste designation in the future. “How many times must there be a final determination that coal ash is not hazardous?”
“While we acknowledge the amount of time and effort EPA put into drafting the final rule, because of the significant limitations of the rule we still believe that a legislative solution that sets out minimum federal requirements and allows the states to develop enforceable permit programs to implement the standards, is the best approach to dealing with the regulation of coal ash,” said Shimkus.
Thomas Easterly, Commissioner of the Indiana Department of Environment Management, testified on behalf of the Environmental Council of the States (ECOS) and voiced the group’s continued support for the subcommittee’s legislative approach establishing a federal-state partnership. “ECOS is concerned citizen suits will become the primary enforcement vehicle for CCRs under the final rule. As a result, the role of the state regulation, oversight, and enforcement would be significantly marginalized…. ECOS testified before this committee in April 2013 in support of the bipartisan efforts in the House and Senate to create a federal program that allows states to regulate coal ash management and disposal under a set of federal standards created directly by Congress and implemented by the states. Legislation could still be beneficial in several ways to achieving this goal,” said Easterly.
Michael Forbeck, testifying for the Association of State and Territorial Solid Waste Management Officials (ASTSWMO), stated that legislation was still necessary to eliminate dueling state and federal regulations. “Legislation would provide for the certainty of state primacy in implementation through state permit programs for CCR enforceable by the state, and provide a clearer and consistent understanding of the permitting and enforcement roles of the states,” said Forbeck.
Seminole Electric Cooperative CEO Lisa Johnson said: “For Seminole and other affected facilities, we are seeking regulatory certainty, especially related to this rule, so we can continue to provide safe, reliable and affordable electricity, while fully complying with all applicable rules, regulations and laws.”
Full committee Chairman Fred Upton, R-Mich., concluded: “Our goal is to get the job done right, and we are willing to discuss further changes to the legislation to ensure we have a workable solution in place. We want to continue working with members in both bodies and both parties to achieve the best overall outcome.”
The full committee’s ranking member, Frank Pallone Jr., D-N.J., said in his opening statement for the hearing that this rule addresses many of the concerns that this subcommittee has heard in past hearings. “By proceeding under Subtitle D, EPA addressed concerns about stigma raised by industry,” he added. “By laying out a framework for states to incorporate the regulations into existing programs, EPA addressed state concerns. And by requiring public reporting of monitoring data and addressing some legacy sites, EPA addressed many concerns raised by environmental advocates.”
Subtitle C, by the way, is the toxic waste designation.
“Certainly, many in the environmental community argued that only a subtitle C rule could protect human health,” Pallone said. “And it is possible that the self-implementing nature of the rule could lead to inconsistent compliance. But as a whole, the rule is an important step forward. The rule will offer important protections for human health and the environment, including many important protections that were not part of past legislative proposals. As we look ahead in this Subcommittee, I think the publication of this final rule changes our role. We are no longer called upon to set national criteria in statute, because those criteria have been set through a robust, transparent process. Instead, we will have to monitor compliance and conduct oversight of the rule’s novel implementation structure. I hope we can conduct that oversight in a bipartisan manner.”