Environmental groups unhappy with the U.S. Environmental Protection Agency’s first-ever federal regulations on coal ash could challenge the final rule, saying it is much weaker than an earlier proposed version, gives too much leeway to the energy industry and puts an unreasonable enforcement burden on citizens.
The EPA said it would regulate coal ash as solid waste under the Resource Conservation and Recovery Act (RCRA), rather than as more strictly controlled hazardous waste, a victory for the power industry that frequently recycles the byproduct for building and agricultural uses. Environmentalists, however, have long contended that coal ash is toxic and that its use and disposal should be highly regulated.
One of the biggest disappointments with the final rule for environmental groups was that it failed to include a provision — present in the earlier version — that wet coal ash ponds, which present a high risk of water pollution, would be phased out within a five- to seven-year period. The EPA does require the capping and closure of some older coal ash sites, like the one that was revealed in February by Duke Energy Corp. to have spilled 82,000 tons of coal ash into North Carolina’s Dan River. Moreover, the new rule does not extend to sites that are no longer active. As a result, there are now a large number of ponds on inactive sites free from any federal oversight.
Others have also noted that in the earlier proposed rule, compliance certifications were to be conducted by an independent professional engineer, but under the new rule, the engineer is not required to be independent — potentially allowing a company’s own staff to certify a site. Furthermore, the new rule places an increased enforcement burden for communities and citizens who now must monitor facilities’ websites, keeping their eyes out for violations where the EPA doesn’t have enforcement authority. Environmentalists have pointed out that these are the kinds of things an agency with expert staff is more qualified to do and places the public at a disadvantage.
Another point of issue with environmentalists is the EPA’s decision to allow existing, unlined ash ponds to remain in service so long as they meet location and safety requirements, and there has been no adverse impact to groundwater. Environmental groups had pushed very hard for the closure of all surface impoundments, asking the agency for a move to a dry ash system. At a minimum, environmentalists wanted all coal ponds lined.
While environmental groups seem like the most likely to mount a challenge to the rule, the EPA is also facing scrutiny from U.S. lawmakers. Rep. Fred Upton, R-Mich., the chairman of the U.S. House of Representatives’ Energy and Commerce Committee; Rep. John Shimkus, R-Ill., the chairman of the Energy and Commerce Committee’s Environment and Economy Subcommittee; and Rep. David McKinley, R-W.Va., said in a joint statement that legislation is needed to correct parts of the EPA’s rule. Rep. McKinley said in a statement:
The EPA falls short of offering a functional regulatory system, fails to address key issues, and still leaves uncertainty for both industry and environmental groups. A legislative answer is still necessary to close many of the open-ended questions and provide greater certainty a future EPA won’t change this decision.
It will be interesting to see how successful the groups will be. Hopefully, with help from members of Congress, significant and needed changes will come about.
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