Today, Sens. Hoeven (R-SD), Conrad (D-SD) and Baucus (D-MT) introduced a new coal ash bill, the “Coal Ash Recycling and Oversight Act”  This is an amended version of the disastrous vehicle  filed last October by Conrad and Hoeven. The improvements, however, are marginal, and most are nothing more than window dressing.  The 43-page bill contains some of the right words, but nothing in the bill will provide genuine protection for communities whose health and safety is threatened by coal ash. Clearly, the coal industry has largely gotten what they asked for.

Rampant lack of health and environmental protections in the bill include: 

1.     No legal standard to protect health and the environment for many critical safeguards. 

For structural stability, closure of dangerous dumps, control of fugitive dust and the overall implementation of state programs, there is no legal standard to protect human health and the environment. Such standards are fundamental components of our federal environmental statutes, including the Clean Water Act, Clean Air Act and Safe Drinking Water Act.  Without such a standard, the status quo of inadequate state programs will persist.

 2.     Permanent prohibition on EPA’s coal ash rulemaking

 The bill prevents all future EPA rulemaking to control pollution from coal ash.  Such permanent and complete removal of the EPA’s authority to respond to health and environmental threats from a major industrial waste is unprecedented, unwarranted and exceedingly dangerous, given the predicted increase in volume and toxicity of coal ash.  

 3.     The EPA prohibited from enforcing coal ash standards 

The bill prevents the EPA from enforcing any standards contained in the bill under state permit programs. If states are unable or unwilling to enforce the bill’s requirements, the EPA is simply powerless to act to enforce the standards.

4.     Legacy (retired) sites are not addressed

The bill does not address any coal ash dumps, no matter how large or dangerous, if coal ash is not disposed in the pond or landfill after the date of enactment. Such dump sites, however, may continue to present grave hazards through leaching of toxic contaminants or catastrophic collapse.

5.     No deadlines for states to issues permits 

The bill establishes no dates by which states must issue permits — thus states have no deadlines whatsoever for implementing the entire permit system on which the bill’s requirements are based. The absence of a deadline renders the bill nearly meaningless. Since almost all the bill’s requirements are effective only through state permits, compliance with needed safeguards can be delayed indefinitely. Further, without a deadline for states to actually issue permits, EPA oversight is meaningless and citizen enforcement of standards is legally impossible.

6.     Grossly inadequate structural stability standards for ash ponds 

The bill fails to require dangerous coal ash ponds to comply with federal safety standards established by the Mine Health and Safety Administration (MHSA) to prevent the catastrophic collapse of impoundments.  The bill only directs state programs to require, at some uncertain date, annual inspections by an engineer hired by the owner of the pond. Further, the bill does not require deficiencies found during such inspections to be remedied or even to be reported to the state or made publically available.  In fact, the bill does not require the state or EPA to ever inspect coal ash ponds, even if such impoundments are found to be deficient or are categorized ashigh or significant hazard.

In sum, the bill provides no meaningful regulation of the nation’s thousands of coal ash landfills and ponds, fails to address the circumstances that lead to the major environmental and human health disaster in Kingston, Tennessee in 2008, and prevents any future remedy of the continuing and increasing threats from coal ash by the EPA.  The bill fails to prevent the inundation of communities with fugitive dust and wholly ignores the threats from inactive coal ash sites. In addition, by providing no meaningful phase-out of wet impoundments, the bill will hurt the recycling of coal ash.  Finally, the absence of a legal standard ensuring protection of health and the environment, as well as the absence of federal enforcement authority, guarantees that the status quo of inadequate, unequal and generally poor state programs will persist indefinitely.

This bill is clearly worse than no action at all.  The EPA has clear authority now to establish protective safeguards, and it must do so immediately.  More inaction by the EPA will mean Congress will indeed make the problem go away, and the losers will be communities polluted by toxic coal ash..