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E&E: EPA, Dems Open to Bill that Would Pre-Empt Agency's Forthcoming Rule

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Even though EPA has been working for years on national regulations to police coal ash disposal, EPA Solid Waste Assistant Administrator Mathy Stanislaus said the agency doesn't necessarily oppose a draft bill up for discussion that would effectively pre-empt EPA's ongoing efforts.

"We do not have an official position," Stanislaus testified during a sometimes-contentious hearing of the Energy and Commerce Subcommittee on Environment and the Economy. Rep. Joe Barton (R-Texas) asked, "Could you characterize the EPA's position as wishing to cooperate with the committee on this bill or wanting to be confrontational?" Stanislaus responded, "We are absolutely willing to cooperate." EPA has not offered a timeline for completing the regulation.

Environmental groups and coal ash recycling firms are in litigation hoping a U.S. District Court judge gives the agency a deadline. Stanislaus said EPA would soon release more information for public comment. "We will have some idea in about six months based [on scheduling] on our ability to get public input on this data," he said. Lawmakers and regulators have been mulling new standards since a 2008 Tennessee coal ash spill from an old dump maintained by the Tennessee Valley Authority flooded waterways and nearby properties.

At the crux of the debate is whether EPA should regulate coal ash under a hazardous substance designation, and whether congressional efforts at preventing that in order to protect recycling of the material are strong enough to protect public health and the environment. Stanislaus said in prepared testimony that the GOP legislation "does not clearly address timelines for the development and implementation of state programs, criteria for EPA to use to determine when a state program is deficient [and] criteria for [coal combustion residual] unit structural integrity."

He added that the legislation doesn't clearly state "deadlines for closure of unlined or leaking impoundments, including inactive or abandoned impoundments, and the universe of CCR disposal units subject to a permit program including impoundments, landfills, waste piles, pits and quarries, and other disposal scenarios." Rep. Paul Tonko (D-N.Y.), the subpanel's new ranking member, likewise said he's open to legislation but has some reservations. "Working together, I am convinced that we can move a bill forward," he said. But he also expressed worries about pre-empting EPA: "I have serious concerns about that approach." Rep. John Dingell (D-Mich.) openly opposed the draft bill.

"The situation stinks, and quite honestly the legislation is not good." Frustrated at Stanislaus for not directly answering questions about the legislation, Dingell said, "You are not being helpful, sir." Environmental advocates also have opposed the bill, saying it needs to do more in terms of monitoring, phasing out old dumps and giving the federal government the unquestioned ability to oversee state regulators. Earthjustice attorney Lisa Evans, one of the toughest critics of the draft bill, said it's better to wait for EPA's rulemaking than to give states the responsibility to develop new rules. "I think states have the ability to deal with this, but they don't always have the will," she said. "It really scares me what the states have not done." But Robert Martineau, Tennessee Department of Environment and Conservation commissioner, testified, "The key is not to judge a state program by whether or not it operates a regulatory program as EPA would, but whether the state regulatory program effectively meets the CCR standards set by federal statute using the regulations the state has promulgated."

Tense exchanges Republicans expressed frustration at what they believe to be activists and other skeptics mischaracterizing their bill. Rep. Bob Latta (R-Ohio) was one of several lawmakers to press Stanislaus about specifics in the legislation. He asked, for example, "Do you agree that the legislation contains a provision for requiring liners [for new coal ash ponds]?" Stanislaus responded, "My understanding is that the bill does require a provision for liners." He said that "additional clarity as to how that would be implemented would be helpful."

Rep. David McKinley (R-W.Va.), a strong advocate of a legislative option, sparred with Jack Spadaro, an outspoken critic of the way mines dump wastewater. Spadaro helped write federal regulation for mine slurry impoundments and also wants stronger coal ash dumping rules. McKinley asked him, "You're a licensed engineer?" Spadaro responded, "No. I worked with the federal government for 30 years." McKinley went on, "You said that the Robinson Run mine was utilized as a disposal for coal ash. You know that's false?" He was referring to a partial dam collapse at a Consol Energy Inc. slurry impoundment in West Virginia in late November that killed one worker and injured two others (Greenwire, Dec. 7, 2012). Spadaro responded, "No. That is not false. I am sorry, sir, it was used for disposal from both the power plant and coal preparation plant."

But McKinley stressed, "It was not used for coal ash." Spadaro retorted, "I'm sorry, but it was a coal ash --" before subcommittee Chairman John Shimkus (R-Ill.) cut him off. Consol spokeswoman Lynn Seay said, "The Robinson Run mine Nolan Run slurry impoundment does not take coal ash from the power plant." Spadaro mentioned another slurry pond failure, West Virginia's Buffalo Creek slurry flood in the 1970s, as evidence of the need to strengthen all disposal standards. "I shall never forget the bodies wrapped in black toxic sludge or the faces and voices of the survivors who had lost all that was precious to them forever," he said.

The House passed coal ash legislation during the last Congress after several drafts and months of negotiation, but it stalled in the upper chamber. Backers are hoping for better luck in the Senate this time around. "We're pretty close," said Shimkus. Noting possible improvements to the legislation, he said lawmakers just needed to "clean up some stuff."

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