House panel holds hearing on legislative fix for EPA’s coal ash rule

The House Subcommittee on Environment and the Economy, chaired by John Shimkus, R-Ill., held a March 18 hearing to review a draft of the “Improving Coal Combustion Residuals Regulation Act of 2015,” which is designed to build on a final coal ash rule that the U.S. Environmental Protection Agency issued last December.

Rep. David McKinley, R-W.Va., put forward the discussion draft, which builds on the parent House Energy and Commerce Committee’s work from the 112th and 113th Congresses and incorporates EPA’s final coal ash rule issued in December. The legislation would eliminate the implementation issues associated with the final rule and give states the necessary enforcement authority to implement the standards set by EPA. Mathy Stanislaus, EPA Assistant Administrator for Solid Waste and Emergency Response, will testify on the draft legislation on March 24.

Shimkus said in a March 18 statement: “Since our last hearing, we have been working to develop a legislative solution that does two things – takes into account all of the hard work EPA put into developing sound technical standards protective of human health and the environment and second, utilizes the framework developed in previous legislation requiring states to develop enforceable permit programs that will contain minimum federal standards.”

“The EPA regulation provides no certainty to those 316,000 hard-working Americans who recycle coal ash. That is simply not acceptable. This legislation, crafted with the help of state environmental and solid waste officials, committee staff, and with input from the EPA, provides closure and certainty,” added McKinley.

The subcommittee’s GOP majority in the March 18 statement summarized hearing testimony this way:

  • David Paylor, Director of the Virginia Department of Environmental Quality, testifying on behalf of the Environmental Council of the States (ECOS), praised the draft bill for addressing the concerns with EPA’s rule while maintaining strong environmental protections. “The draft bill leverages and codifies the extensive technical work in EPA’s final rule, which will enhance impoundment structural integrity provisions, promote transparency, and close environmentally degrading facilities,” said Paylor. 
  • “In giving states authority to implement the technical requirements in EPA’s final rule through a CCR permit program, the draft legislation eliminates the situation of dual state and federal regulatory authority,” said Michael Forbeck, testifying on behalf of the Association of State and Territorial Solid Waste Management Officials (ASTSWMO). Forbeck also applauded the draft for allowing “flexibility for states to have regionally appropriate state standards for groundwater monitoring and corrective action.”
  • James Roewer, Executive Director of the Utilities Solid Waste Activities Group (USWAG), said the draft bill would provide much-needed certainty for utilities and other job creators. “The utility industry will be investing huge capital resources to comply with the rule. The bill will provide regulatory certainty for those investment decisions since compliance will be specified by a regulatory body and spelled out in a permit,” said Roewer.

Full committee Chairman Fred Upton, R-Mich., said: “This bill is good for states like Michigan that rely on coal for electricity. This bill is good for jobs. Let’s continue the momentum and get this bill moving through committee and the House, and through the Senate, so that the president can sign it into law and the issue will be settled once and for all.”

Democrats take issue with bill details so far

As would be expected, House Democrats are not on board with this. Said a March 17 pre-hearing memo from the Democrats: “The majority memorandum states that the minimum requirements for permit programs will be ‘based on’ EPA’s Final Rule. However, the requirements laid out in the bill fall short of the requirements in the Final Rule in significant ways.”

For example, it said the following protective requirements in the Final Rule are not included in the discussion draft of McKinley’s bill:

  • Location Restrictions – The EPA rule prohibits or restricts coal ash disposal structures: less than five feet above the upper limit of the uppermost aquifer; in wetlands; in fault areas; in seismic impact zones; and unstable areas. The bill would place restrictions on only one of these five dangerous locations: unstable areas.
  • Liner Requirements for Existing Surface Impoundments – The EPA rule requires existing wet surface impoundments to be lined, and lays out design criteria for acceptable liners. The bill would let individual states disregard this requirement, and allow unlined or insufficiently lined surface impoundments to continue to receive waste.
  • Closure Requirements for Deficient Structures – For surface impoundments that fail to meet EPA’s standards, the rule requires that they cease receiving waste within six months and close. This includes, for example, those that: are unlined and violate groundwater protection standards; fail to meet location restrictions; or fail to meet minimum structural stability requirements. The bill lacks such closure requirements for deficient structures, and would permit continued operations for years or even indefinitely.
About Barry Cassell 20414 Articles
Barry Cassell is Chief Analyst for GenerationHub covering coal and emission controls issues, projects and policy. He has covered the coal and power generation industry for more than 24 years, beginning in November 2011 at GenerationHub and prior to that as editor of SNL Energy’s Coal Report. He was formerly with Coal Outlook for 15 years as the publication’s editor and contributing writer, and prior to that he was editor of Coal & Synfuels Technology and associate editor of The Energy Report. He has a bachelor’s degree from Central Michigan University.