The stories of massive spills of sludge and fly ash from processing or burning coal in West Virginia and other parts of Appalachia are legion – and frightening.
Unquestionably the worst case dates back to February 26, 1972. That’s when three dams containing coal slurry and water in Logan County, West Virginia failed in rapid succession. Some 125 people were killed, 1,121 others were injured, 17 communities were wiped out, and more than 4,000 people were left homeless.
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Then in 2008, a massive coal ash spill dumped millions of cubic yards of highly toxic slurry into Tennessee’s Emory and Clinch rivers – the worst coal ash spill in the nation’s history. The Tennessee Valley Authority spent $1.2 billion on the cleanup and was fined $11.5 million for negligence.
It was that disaster that finally sparked federal action. The Obama administration in 2014 unveiled new Environmental Protection Agency regulations for the way utilities and other coal-burning facilities dispose of the fly ash released during combustion. Although the regulations could have been a lot tougher, they represented the first national effort to address the problem.
Yet remarkably, the Senate on Thursday intends to vote to dismantle those regulation as part of a massive new Water Resources Development Act to address the nation’s water infrastructure and containment needs. The Senate voted 94 to 3 on Wednesday afternoon to end debate, and the final vote on the bill is expected to come today.
If the House ultimately goes along with the Senate and the bill is signed into law, Congress will be allowing many companies and utilities to return to dangerous old practices of simply dumping the highly toxic ash in huge, unlined ditches and covering it with water and chemicals to keep it from flying off. Many of those sites were prone to breaching and amounted to disasters waiting to happen.
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The new federal rule required owners and operators of coal ash disposal sites to meet certain design, operating and notification requirements to minimize the risks to surrounding communities downstream. State officials were also mandated to be more aggressive in overseeing these facilities after decades of turning a blind eye or giving the operators wide latitude to pollute streams.
But the new EPA regulations could be swept away by the pending water resources legislation.
The bill includes $10 billion of new spending on 29 projects in 18 states including flood control, dredging, runoff containment and other activities supervised by the U.S. Army Corps of Engineers. These projects are highly popular with lawmakers in both parties.
Of special interest to many lawmakers and the Obama administration are the $220 million allocated to address the ongoing crisis of lead poisoning in the Flint, Mich., municipal water system, and similar problems in other cities across the country.
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However, virtually lost in the shuffle is an amendment drafted by Senate Environment and Public Works Committee Chair Jim Inhofe (R-OK) that does the bidding of the American Coal Ash Association, power plants and the coal mining industry by ridding them of the pesky new coal ash disposal regulations.
Inhofe’s amendment would allow states to substitute their own programs for the federal requirements, provided they are “as protective” as the EPA regulations. While on the surface that may sound reasonable, critics note that determining whether a program is as protective as the very specific EPA standards will be subject to broad interpretations on a state-by-state basis.
That will almost certainly produce protracted legal disputes between the states and the EPA – provided there isn’t a dramatic change in policy at the agency after the presidential election.
“We do not understand why this last-minute legislation is preferable to a rule requiring power companies to clean up groundwater they have contaminated until it meets federal drinking water standards and to close leaking or unsafe ponds,” Eric Schaeffer of the Environmental Integrity Project and Peter Harrison of Waterkeeper Alliance said in a letter to Inhofe this week.
“In contrast to the very public process used to develop EPA standards, no hearings have been scheduled that would allow for at least some discussion of the purpose of this specific legislation or how it might change critical requirements and deadlines of the EPA rule,” they said.
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Under this new approach, they added, the EPA’s rules would be supplanted by a patchwork of regulatory requirements that vary from state to state. Coal ash impoundment operators would end up with broad leeway and little federal or state oversight – or public review.
Inhofe, a conservative Republican who has long been a nemesis of environmentalist, has opposed federal regulation of fly ash from the beginning, arguing that it is a responsibility that should be left to the states.
Inhofe drew strong support for his amendment from the American Public Power Association, an industry group that vigorously lobbies for less stringent environmental rules. “The WRDA language would give states primary enforcement authority and doesn’t take away the authority of civil litigation,” Desmarie Waterhouse, senior government relations director and counsel with the group, told Bloomberg BNA.
Sen. Barbara Boxer of California, the ranking Democrat on the environment and public works committee, opposed Inhofe’s provisions, but was outgunned by the Republicans.
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“Coal ash is dangerous because it contains many toxins, such as mercury, arsenic, and lead, which are known to cause cancer and harm children’s development,” Boxer said earlier this year. “Coal ash is often stored in impoundments that are unlined and located adjacent to rivers and lakes, where toxic substance leach into groundwater and surface waters.”
It is noteworthy that environmental groups are not unanimous in their opposition to Inhofe’s amendment. While the Environmental Integrity Project and Waterkeeper Alliance, among other groups, were adamant in their opposition, the Southern Environmental Law Center, told ThinkProgress that the center doesn’t oppose the bill. The advocacy group represented various organizations in coal ash lawsuits in Virginia, North Carolina, and Tennessee.
“We don’t think [the bill] makes things worse, but we would far prefer that Congress take action on coal ash to better protect public health and the environment,” according to the statement.
Abel Russ, an attorney with the Environmental Integrity Project, told ThinkProgress that his group’s biggest fear is that Inhofe’s measure “will just leave us where we were before the rule.”
He said that assuming the legislation clears Congress and is signed into law, “The best we can hope for is [that] EPA will hold the states accountable to the language . . . That will be the next front that we’ll work on.”
