Behind the curtain in the fight over coal ash disposal - Beckley, Bluefield & Lewisburg News, Weather, Sports

Behind the curtain in the fight over coal ash disposal

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My July 26 story on the passage of West Virginia Republican Cong. David McKinley's coal ash bill in the House last week and on the bill's circumvention of the standard rulemaking process for state environmental permitting programs prompted strong response from McKinley's office.

I ran those responses by Lisa Evans, the environmental lawyer whose interpretation I relied on in that story, for her reactions.

It's a peek behind the curtain in this complex process and I thought I'd share some of it for interested readers.

For background, I'll reiterate here that McKinley has been working since he entered office in 2011 to oppose an Environmental Protection Agency rulemaking effort on the disposal of coal combustion residuals, or CCRs, commonly known as coal ash. The agency has proposed to affirm its support for the safe re-purposing of CCRs — in wallboard, for example — but to regulate coal ash that is disposed of in one of two ways: as a hazardous waste, in recognition of concerns about health effects from toxics that leach into ground water from unlined dry landfills and wet impoundments, or, alternatively, in the same manner as household waste.

Re-purposing of CCR's reduces power plants' disposal costs and so helps to keep the cost of coal-fired power down and to maintain that market for coal. McKinley is concerned that designation of CCRs as a hazardous waste will stigmatize re-use, although there is precedent: for example, used motor oil, which is handled as a hazardous waste in its disposal but also is widely re-used.

He aims with this bill, which would add a new section 4011 to the Resource Conservation and Recovery Act, or RCRA, and which passed in the House on July 25, to prevent a hazardous waste designation by establishing in federal law the framework for a state-run permitting program for CCR disposal that is modeled on the EPA's rules for municipal solid waste, or household garbage. It would not go to the agency for rulemaking, as is typically done for RCRA and for other permitting programs. The next step would be for states to define their own programs and to self-certify, to the EPA, that their programs comply with the federal framework.

This issue is complex. CCRs are one of the nation's largest waste streams, and have been shown to contain arsenic, selenium and other toxics and to leach them into the environment when disposed of in unlined structures — of which there are more than a few in West Virginia. The way this struggle is resolved between federal and state control of disposal standards could have implications for human health and for the economy.

But fully understanding this bill and its implications seems to require detailed knowledge of how rulemaking works: the fact that effective rules always include definitions of fundamental terms, for example, and that avenues for public participation are prescribed. For those of us who don't read a lot of rules from beginning to end, and that includes me, those kinds of omissions are impossible to spot. For that reason, rather than interpret all of this, I provide McKinley's and Evans' responses, organized by questions they raise:

Is incorporating the EPA's rules for municipal solid waste enough to make this a comprehensive and effective rule for coal ash disposal?

I wrote last week that this process is being conducted in a way specifically designed to cut out the usual environmental rulemaking body, the EPA.

McKinley's Communications Director Jim Forbes responded that existing EPA rules are specifically included. "Instead of granting broad discretion to the EPA to write new regulations, the bill applies an existing program for municipal solid waste landfills to a new waste, coal ash," he wrote. "Unlike EPA's proposed regulations, the bill gives states primary authority to craft a coal ash program that best fits the state. The bill sets a federal baseline for regulation of coal ash, but allows states to take the lead with developing, implementing and enforcing it."

Remember that reference to a federal baseline, or minimum standards — that subject comes up again below.

Forbes also quoted the EPA from its own proposed 2010 rule, saying that its municipal solid waste criteria represent a reasonable balance between, on the one hand, protecting human and health and the environment and, on the other, facilities' ability to implement the criteria.

Evans responded: "The quotation is absolutely accurate—but it tells only half the story."

Coal ash, remember, is disposed of in both dry landfills and wet slurry impoundments.

The agency goes on in its proposed rule, Evans said, to describe additional requirements that are needed to ensure safety from the disposal of liquid waste.

With regard to wet disposal, McKinley's bill could rely on the Mine Safety and Health Administration's requirements for coal ash dams and impoundments as it does on the EPA's requirements for dry landfills, she said, but instead it creates requirements piecemeal. And it requires, for example, emergency action plans, but doesn't specify what they must include, she pointed out — the kind of detail that would be specified by experienced rule writers.

 

Is there a minimum federal standard in the bill?

I wrote that the EPA has found that unlined landfills and slurry ponds can leach contaminants into surface and ground water and, in a related point, quoted Evans saying that "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."

Forbes responded with a list of specific sections of the bill that he said would protect groundwater and surface water as well as a list of sections that he said not only protect human health and the environment but provide the EPA with authority.

Evans responded that, even with requirements for water monitoring and some authority granted to the EPA, the bill does not include the fundamental requirement to protect human health and the environment — a basic characteristic of environmental rules, the "minimum standard" that must be met, and a point that the Congressional Research Service has made more than once. States would define their own programs and the EPA would only be able to hold them to the programs they define. "Since the failure to protect human health and the environment is not listed as one of the specific criteria, it will be legally impossible (or at least very difficult) for the EPA to use this as a basis for finding a program ‘deficient,'" she wrote.

 

Are definitions necessary?

I quoted Evans saying that a basic deficiency of the bill is that, while rules written with the expertise of a rulemaking agency define all key terms, this bill does not do that. Without a definition for the term "structure," for example, a term that appears throughout the bill, a state-defined program consistent with the requirements of the bill could exempt categories of structures — say, older surface impoundments.

Forbes responded that that interpretation of the bill ignores the fact that facilities that contaminate ground water will enter into corrective action, which will trigger implementation of ‘interim measures necessary to ensure the protection of human health and the environment' … and implementation of a corrective remedy …"

But that assumes all such facilities, or structures, would be included in a state's program and does not respond, in Evans' view, "to the potential for states to define the universe of structures to exclude dangerous units …" Without a definition for the word "structure," there is no assurance that every storage and disposal unit that contains and/or receives CCRs will be subject to ground water monitoring and corrective action.

 

What happens if there's no hard and fast deadline by which all structures have to operate under permit? 

Their emailed responses also delve into an area that I mentioned in my July 24 story in advance of the House vote. Evans has called into question aspects of the bill that she said appear to provide indefinite leeway for facilities that have leaking structures where there is not space available on-site for alternative disposal capacity.

"The language of the bill does not relieve an owner/operator of facilities of the obligation to develop alternative disposal capacity regardless of whether they have space available on-site," Forbes wrote.

Evans referenced in response a section of the bill that seems clearly to say "that a state has the discretion to extend the deadline for meeting a groundwater protection standard if there is a ‘lack of available alternative management capacity for the CCRs and related materials managed in the impoundment at the facility at which the impoundment is located …'" 

On the same point, she wrote, for unlined impoundments that are found to be contaminating groundwater more than 10 years after the enactment of the bill, "Section 4011(c)(4)(E) does not require such leaking impoundments to close until ‘alternative management capacity at the facility is available for the CCRs and related materials managed in the impoundment.' … This, again, may be an indefinite delay."

There are other points in their e-mails, too numerous to detail. I'm happy to provide any documents reference here, including their e-mails: contact me.

I have sent Forbes a list of follow-up questions.

None of the objections of McKinley's office addresses the fundamental point in my July 26 story: that this way of going about establishing the framework for a state-run permitting program is unprecedented. It does not take advantage of the expertise of the usual writers of rules so that, while it relies on existing EPA rules for part of what's needed, it patches the rest of the program together piecemeal and doesn't achieve the high level of specificity that is required to set a framework for the smooth establishment and functioning of state permitting programs.

Whether deliberately, to reserve power to the states but perhaps with unforeseen consequences, or inadvertently, because it is written by those inexperienced in the craft of rulemaking, the bill fails to set minimum standards and to cover the rulemaking bases.

Scott Slesinger, legislative director for the Natural Resources Defense Council and a waste disposal industry veteran, backed up the view that the bill does not set a federal baseline or minimum standard.

"Despite some of the terminology that looks like it has a strong baseline, it really allows the states to choose which part of the minimum requirements they want," Slesinger said. "That's backwards from the usual way of setting minimum standards that states can then meet or exceed."

The Congressional Research Service said in a June 4 letter to the House Energy and Commerce Committee that the approach is, indeed, unprecedented.

"… the CCR permit program proposed in the draft bill would be created in a way that is unique within RCRA," the CRS wrote, referencing its own March 2013 report