Over the last few weeks several Southeastern states introduced coal ash-related legislation. Presumably these actions are in response to the ongoing delay of the Obama Administration to direct the Environmental Protection Agency (EPA) to finalize national coal ash rules. The lack of guidance from EPA actually led North Carolina Representative Pricey Harrison (D-Greensboro) to testify to a federal Senate Subcommittee on Environment and the Economy at a hearing entitled “The Role of States in Protecting the Environment Under Current Law” on February 15, 2013. While other witnesses reported on how their state or agency performs its regulatory duties, Rep. Harrison took the opportunity to emphasize the need for federal regulation on coal ash.
Coal ash, the waste left over after coal is burned to generate power, contains concentrated amounts of heavy metals, such as lead, mercury, arsenic, chromium and selenium, which are hazardous to human health and wildlife. Despite this danger, coal ash is subject to less stringent rules than everyday household garbage, is largely stored in unlined impoundments near major waterways, and has been found to pollute water sources relied on for drinking, agriculture, fishing and recreation. Rep. Harrsion admonished the subcommittee on efforts by Congress that strive to put states wholly in charge of the regulation of the ash waste. These efforts have not yet succeeded, but EPA’s inaction on finalizing a coal ash rule, pending for over four years now, has resulted in many states taking the matter in to their own hands. Facing pressure from citizens, environmental groups, and industry, legislators in some Southeast states are proposing regulations at the state level.
“The state’s can’t do it alone…” stated Pricey Harrison. “One only has to think back to the Cuyahoga River on fire and cities cloaked in smog as evidence of the inability for some states to protect the public health and environment of their citizens.”
She reminded us, “pollution does not observe state lines, we are all down wind or down stream”; minimum standards protect everyone and avoid a patchwork of regulations and enforcement. She urged Congress to “let the EPA do its job”, providing a federal backstop of regulations to guide states. She went on to say that federal leadership is especially important in instances where states are “incapable, unable or unwilling to protect public and environmental health because of budget constraints, changes in leadership or industry pressure to not regulate. “[States] are more vulnerable to those pressures and less equipped to deal with that pressure [than the federal government].”
Coal ash is as big an environmental problem as the air and water pollution that prompted establishment of the EPA and landmark federal environmental regulation such as the Clean Water Act. Considering the scale and complexity of the problem, it’s not surprising that so far states have failed to adequately protect the public from coal ash pollution. Illustrating how her home state is unable to properly address coal ash, Harrison stated:
“In North Carolina our lax regulation of coal ash has resulted in seepages and exceedances of a variety of toxins: arsenic, boron and selenium and the list goes on.”
State lawmakers are now feeling the pressure to settle the issue of coal ash from two camps.
Some state legislators, like the environmental groups and concerned citizens demanding a coal ash rule, understand that every day without federal regulation is another day they are vulnerable to pollution or a life-threatening spill like the Kingston disaster. These state lawmakers are proposing bills meant to “fill the gap” left by EPA’s inaction, to give some protection to human health and the environment. Georgia Representative Mary Margaret Oliver (D-Decatur) introduced H.B. 136 this session which aims to require all coal ash impoundments to obtain a permit from the Environmental Protection Division (EPD). To receive an EPD permit, impoundments would need to have an adequate ground water monitoring system for both dry and wet coal ash storage facilities. The bill also hopes to require all coal ash ponds constructed after January 1, 2014, to include liners preventing environmental contamination. Kentucky representatives Joni L. Jenkins (D-Jefferson) and Mary Lou Marzian (D-Jefferson) have introduced H.B. 223; balancing beneficial reuse of coal combustion residuals (CCRs), including coal ash, with the need for adequate regulation of their disposal. This bill plans to require disposal of CCRs in permitted impoundments with liners, groundwater and toxic substance monitoring. The bill would also require emergency action plans for impoundments with an EPA high hazard potential rating.
Contrasting these efforts are those who want to lock in lenient regulation of coal ash, settling the issue in a way that puts the least amount of responsibility and cost on industry. Identical Florida bills, H.B. 0659/ S.B. 0682; sponsored by Tom Goodson (R-District 50) and Wilton Simpson (R-District 18), are industry passes disguised as pro-environment bills. They hope to exempt coal ash disposal facilities from hazardous landfill regulations such as requirements for liners, monitoring, and restrictions on siting. H.B 0659/S.B. 0682 would also exempt coal ash destined for “beneficial reuse” from regulations designed to protect human health and the environment. Exempting beneficial reuse from regulatory oversight is especially disconcerting considering the increasing concentration of heavy metals in ash thanks to modern air pollution controls. Other bills in Tennessee and Kentucky do not seek to comprehensively regulate coal ash, but address it in some way.
These efforts are likely the first of many, as states try to address coal ash with out federal guidance. The citizens of all states deserve better than this patchwork approach, and shouldn’t have to hope that their representatives show leadership rather than caving to industry pressure. States have an important role to play in implementing federal regulations, but shouldn’t be left to choose if, and to what degree, to regulate such a toxic waste product as coal ash. All states need a consistent approach that safely addresses all impoundments: New, old, or the dozens at retiring power plants being left to pollute in perpetuity. The current model of environmental law, with EPA setting minimum standards, has been successful in cleaning up air and water pollution for decades, and it can work for coal ash if we let it. The EPA has been dragging its feet for four years since Kingston, delaying the establishment of a coal ash rule. EPA needs to act now and do whatever it takes to properly regulate coal ash. States are sending a clear message; if the federal government doesn’t give them guidance they will act.