Improving Coal Combustion Residuals Regulation Act of 2015

Floor Speech

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Mr. PALLONE. Mr. Chairman, I yield myself such time as I may consume.

Mr. Chairman, I oppose this legislation.

H.R. 1734, the Improving Coal Combustion Residuals Regulation Act of 2015 is both unnecessary and dangerous legislation. The administration opposes the bill; and, if it somehow passes Congress, it will be vetoed.

The bill is also opposed by over 180 environmental, public health, and civil rights groups, including the Sierra Club, the League of Conservation Voters, NAACP, NRDC, and Earthjustice.

They oppose this legislation because it would block EPA's final coal ash rule and roll back important protections for human health and the environment. EPA's rule has put these protections in place after years of hard work and public process.

Transparency requirements, groundwater protection standards, cleanup requirements, location restrictions, and liner requirements all will protect human health and the environment. These requirements are long overdue.

Mr. Chairman, we have known for years that unsafe coal ash disposal threatens groundwater, drinking water, and air quality. Contaminants can leach into groundwater and drinking water supplies or become airborne as toxic dust. Aging or deficient impoundments can fail structurally, resulting in catastrophic floods of toxic sludge entering neighboring communities.

Contamination can pose serious and widespread health risks. Just last year, a coal ash spill in North Carolina affected drinking water systems in Virginia. In 2005, a smaller spill in Pennsylvania affected drinking water systems in my home State of New Jersey.

Unfortunately, these incidents are not uncommon. EPA has now identified 157 damage cases from coal ash contamination. If EPA's rule is delayed or undermined, that number will likely continue to grow.

At the same time, Mr. Chairman, that EPA's rule includes many important protections, it is also balanced and responsive to industry concerns. When EPA solicited comments on their proposed rule, they heard from coal ash recyclers that they wanted a subtitle D, nonhazardous rule. That is what EPA finalized.

Those in the electric utility industry wanted a subtitle D rule that would not require them to retrofit their existing impoundments with liners. Again, that is what EPA finalized. States wanted a mechanism to set up their own programs to implement Federal standards and to have EPA approve them. EPA provided that in the final rule as well.

EPA's balanced rule has eliminated past justifications for coal ash legislation. Past concerns that EPA would not be able to finalize a coal ash rule no longer have merit because EPA has done so, and past concerns that EPA might regulate coal ash as hazardous no longer have merit because EPA finalized a nonhazardous rule and has no plans to reverse direction.

Past contentions that EPA needed legislation to effectively protect public health no longer have merit because EPA has confidence that the rule will be effective and protective. Past concerns over enforcement of a subtitle D rule have been addressed because EPA has established mechanisms to review and approve State programs enforcing the rule.

The bottom line, Mr. Chairman, is that legislation is not warranted. Even if it were, this bill would not be the vehicle because it dangerously eliminates or undermines necessary protections.

A number of amendments were to be filed to preserve some of the important requirements in EPA's final rule, and I understand that some of these may be accepted, but I want to stress that these amendments highlight only a subset of the problems with this bill. Even if all the amendments were adopted, the bill would still be unnecessary and a dangerous precedent for public health.

I urge everyone to oppose the bill, Mr. Chairman, and I reserve the balance of my time.

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Mr. PALLONE. Mr. Chairman, I yield myself such time as I may consume.

The gentleman from West Virginia seems to suggest that this legislation will improve enforcement of EPA's important coal ash standards.

If that were true, the public interest groups that have fought for strong standards for years would support it.

Democratic Members that have conducted strong oversight of coal ash disasters in the rulemaking process would also support it.

And the EPA, which has worked for decades to establish effective protective requirements, would support it.

Those environmental groups and public health groups strongly oppose this bill, I strongly oppose this bill, and the administration strongly opposes the bill.

That is because this bill is not needed to ensure effective enforcement of the EPA's coal ash rule, and it won't have that effect.

You may hear that EPA's rule will only be enforced through citizen suits, and that is simply not true. While citizen suits have been and will continue to be an important component of all environmental enforcement, States will play an important part in enforcing EPA's final coal ash rule.

They will do so either by bringing citizen suits themselves or by incorporating the requirements of EPA's rule into their State programs.

States want to take on this role. They told the EPA as much in comments on the coal ash proposed rule.

In response to those requests, EPA established in the rule a mechanism to review and approve State programs implementing these requirements.

EPA expects the States to make use of this mechanism and implement the rules requirements through approved programs. So the claim that enforcement will depend exclusively on citizen suits should not be believed.

You have heard also from the chairman of the subcommittee that EPA's rule will be plagued by dual enforcement.

This is the opposite of the claim that enforcement will happen only through citizen suits, but is often made by the same parties. This claim is also untrue.

The mechanism EPA set up in the rule will allow for States to get approval for their programs, meaning EPA will make clear that they have reviewed the State program and found that it is at least as stringent as the Federal requirements.

In other words, EPA will make clear that a facility complying with the State program is, without question, also complying with the Federal requirements.

Citizens groups are unlikely to bring suit against facilities in compliance. If they were to do so, such suits would not go very far.

So, Mr. Chairman, contrary to the claim that judges would be interpreting the requirements differently left and right, Federal judges would defer to EPA's expert evaluations of the sufficiency of State programs.

These enforcement concerns are not the real motivation for this bill. As I said, if this is about improving compliance and enforcement, it would have widespread support.

Instead, this bill is about undermining important health and environmental protections, and that is why it faces widespread opposition.

I reserve the balance of my time.

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Mr. PALLONE. Mr. Chairman, I yield myself such time as I may consume.

Under the proven model of environmental regulation, Congress sets the standard of protection the State programs must meet. EPA interprets that standard through rules or guidance so States know what they must do to achieve that level of protection.

States can demonstrate to EPA that they have in place programs adequate to provide the minimum level of protection required, and EPA retains backstop enforcement authority to ensure that State programs are enforced. This bill, Mr. Chairman, fails on each of these points.

Unlike EPA's rule, it does not contain any minimum Federal requirement to protect health and the environment. It undermines the minimum national safeguards in EPA's rule by introducing significant discretion. It fails to establish Federal backstop authority. Finally, it fails to define what facilities the bill covers instead giving States discretion to define the scope of their programs.

So this proposal will not ensure the safe disposal of coal ash, protect groundwater, or prevent dangerous air pollution, and it certainly isn't going to prevent another catastrophic failure like the one we saw in Kingston, Tennessee.

I continue to oppose the legislation, just as the administration does and just as environmental groups and public health groups do. I urge all of my colleagues to do the same.

I reserve the balance of my time.

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Mr. PALLONE. Mr. Chairman, I yield myself such time as I may consume.

As someone who cares about beneficial reuse and wants to see the beneficial reuse flourish, I am listening to this debate.

And one might think that we are facing a stark choice, either vote for this bill or coal ash recycling will stop, but that is not the choice that we face.

When EPA issued its final coal ash rule, they finalized a nonhazardous regulation, exactly what the coal ash recycling industry sought, and the rule explicitly protects beneficial reuse.

Many Members of Congress sent letters and submitted comments to EPA during the comment period on the proposed rule in support of the subtitle, the option they ultimately chose.

In this bill, on the other hand, the decision between hazardous and nonhazardous would be moved to the State level, meaning that these materials could be regulated as hazardous in some States, but not others.

Now, how will that avoid the stigma so many in the industry have spoken of and how will it create the certainty they crave?

Even worse, this bill would eliminate important protections in EPA's final rule, meaning the number of damage cases is likely to continue to grow, and that will really create a stigma around these materials.

So, if we leave these ash ponds in place and another one fails, what will happen to the beneficial reuse industry?

The way to ensure a strong beneficial reuse industry is to ensure consistent regulation and safe disposal of CCR by allowing the EPA rule to be implemented.

Again, that is why I urge my colleagues to oppose this rule if they really want to see the beneficial reuse industry flourish.

I reserve the balance of my time.

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Mr. PALLONE. Mr. Chairman, I yield myself such time as I may consume.

Mr. Chairman, again, a major reason why so many Members on my side of the aisle oppose this bill is because of our concern that coal ash is, in fact, toxic. I just want to focus for a few moments on the reasons this issue is so important to many Members, i.e., the significant health risks posed by the toxic constituents in coal ash.

Coal ash contains arsenic, antimony, barium, beryllium, cadmium, lead, mercury, hexavalent chromium, nickel, selenium, and thallium. Those metals are toxic and pose both acute and chronic threats to human health and the environment. We have heard several claims today that coal ash is not toxic, but the risks posed by these materials, if not properly handled, are real and significant.

EPA finalized the rule for coal ash under subtitle via RCRA, the nonhazardous title, but even in that rule the Agency recognized the serious threats to public health, saying repeatedly that ash can leach toxic metals at levels of concern.

We now know of more than 150 documented damage cases from coal ash pollution. We saw what happened in Kingston, Tennessee. We saw what happened in the Dan River. We saw what happened in Martins Creek, Pennsylvania. The list goes on.

Some may try to dispute the empirical evidence, citing an old laboratory test for leaching that EPA used in 2000, but that test is not the state of the art and has not been for some time. In fact, in 1999, the Science Advisory Board criticized EPA's use of that test for coal ash, suggesting that a new test was necessary. In 2006, the National Academies criticized the leaching test as well, saying that it was not representative of real-world conditions and may greatly underestimate the leaching that occurs. EPA recognized this in their final rule.

I would caution my colleagues against relying too heavily on that outdated test or even on EPA's decision to regulate as nonhazardous. Coal ash is dangerous, and if it ends up in drinking water, groundwater, or air, it is toxic. That is why EPA's rule is so important and why this bill is so dangerous.

I urge my colleagues to vote ``no.''

I reserve the balance of my time.

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Mr. PALLONE. Mr. Chairman, I yield myself such time as I may consume.

In response to the chairman of the subcommittee, I just want to stress again that I don't think that you should rely on EPA's decision to regulate as nonhazardous, meaning that coal ash is considered nontoxic.

The fact of the matter is that the EPA has never said that it is not a toxic material, and they continue to say that it is dangerous. If it ends up in drinking water, groundwater, or air, it is toxic.

That is why I will take the time now, Mr. Chairman, to read from the SAP, or the Statement of Administration Policy, from the Executive Office of the President. Their main concern in issuing this Statement of Administration Policy is the impact on public health and the environment.

I just would like to read it. It says: ``The Administration strongly opposes H.R. 1734, because it would undermine the protection of public health and the environment provided by the Environmental Protection Agency's (EPA's) December 2014 final rule addressing the risks posed by mismanaged impoundments of coal ash and other coal combustion residuals (CCR). The 2008 failure of a coal ash impoundment in Kingston, Tennessee, and the 2014 coal ash spill into the Dan River in Eden, North Carolina, serve as stark reminders of the need for safe disposal and management of coal ash.

``EPA's rule articulates clear and consistent national standards to protect public health and the environment, prevent contamination of drinking water, and minimize the risk of catastrophic failure at coal ash surface impoundments. H.R. 1734 would, however, substantially weaken these protections. For example, the bill would eliminate restrictions on how close coal ash impoundments can be to drinking water sources. It would also undermine EPA's requirement that unlined impoundments must close or be retrofitted with protective liners if they are leaking and contaminating drinking water. Further, the bill would delay requirements in EPA's final CCR rule, including structural integrity and closure requirements, for which tailored extensions are already available through EPA's rule and through approved Solid Waste Management Plans.

``While the Administration supports appropriate State program flexibility, H.R. 1734 would allow States to modify or waive critical protective requirements found in EPA's final CCR rule. Specifically, H.R. 1734 authorizes States to implement permit programs that would not meet a national minimum standard of protection and fails to provide EPA with an opportunity to review and approve State permit programs prior to implementation, departing from the long-standing precedent of previously enacted Federal environmental statutes.

``Because it would undercut important national programs provided by EPA's 2014 CCR management and disposal rule, the Administration strongly opposes H.R. 1734. If the President were presented with H.R. 1734''--as before the House today--``his senior advisers would recommend that he veto the bill.''

That is the end of the SAP. The administration's opposition is primarily based on the concerns over public health and the environment that would undermine their rules.

Again, I think it is quite clear that the President, the White House, and the EPA are very concerned that this legislation would make it very possible for coal ash and toxic residue to get into the environment, whether it is through drinking water, air, groundwater, whatever. That is our primary concern, Mr. Chairman.

I reserve the balance of my time.

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Mr. PALLONE. Mr. Chairman, I yield myself the balance of my time.

Mr. Chairman, what is coal ash and what risk does it pose? Basically, it is the waste from burning coal and power plants or industrial facilities; and it contains high concentrations of toxic chemicals, as I said, including arsenic, lead, and mercury.

The unsafe disposal of coal ash presents serious risks to human health and the environment. Contaminants can leach into groundwater and drinking water supplies or become airborne as toxic dust. Aging or deficient coal ash impoundments can fail structurally, resulting in catastrophic floods of toxic sludge entering neighboring communities. Examples of these harms are numerous and well documented.

The EPA addressed these risks and published a final rule governing coal ash disposal in the Federal Register in April after decades of work, a robust public process, and consideration of over 450,000 public comments.

The rule sets out minimum national criteria for the disposal of coal ash carefully designed to ensure that no reasonable probability of adverse effects occur on the health or the environment, and the rule explicitly protects beneficial reuse or recycling of coal ash.

The GOP is saying that their bill, H.R. 1734, would merely codify EPA's rule; but that is simply not true. This bill would endanger human health and the environment by eliminating or changing crucial requirements in EPA's rule.

Some examples of protective requirements in the rule that would be eliminated by the bill are liner requirements for existing surface impoundments, closure requirements for deficient structures, location restrictions, groundwater protection standards, cleanup requirements, and transparency.

The bill undermines transparency requirements in EPA's rule, including specific requirements to make information publicly available online; and it introduces new exceptions to publication requirements.

Clearly, this bill would delay important health protections. The EPA rule requires coal ash disposal sites to quickly come into compliance with the rules requirements, with many requirements effective this October.

This bill establishes much longer timeframes for some requirements, with full compliance not required until 6 or 7 years after enactment. Even where the timeframes in the bill are close to those in the rule, they would be counted from the bill's date of enactment, leading to significant delays, compared to the rule.

There is no need for this legislation, Mr. Chairman. In the past, some argued that legislation was needed to prevent EPA from regulating coal ash as hazardous waste and to protect beneficial reuse, but EPA's final rule regulates coal ash as nonhazardous and specifically protects the beneficial reuse.

Some have also suggested that legislation is needed to prevent dual enforcement of State and Federal requirements, but the final rule includes a mechanism for EPA approval of State requirements specifically to address this concern.

Who opposes H.R. 1734? Well, again, the administration--I read the SAP--environment, public health and civil rights groups, Sierra Club, and NAACP; the list goes on. In North Carolina, where a recent spill devastated the Dan River, 25 State legislators have signed a letter of opposition to this legislation.

Again, Mr. Chairman, if you care about human health, if you care about the environment, if you want to make sure that coal ash disposal is not going to contaminate your groundwater, your air, or your drinking water, you should vehemently oppose this legislation.

I urge all of my colleagues to do so, and I yield back the balance of my time.

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Mr. PALLONE. Mr. Chairman, I yield myself such time as I may consume in support of my amendment.

Mr. Chairman, this bill is dangerous for human health and the environment, in part, because it deletes or undermines important protections in EPA's final coal ash rule. The deleted requirements include location restrictions, like a bar on disposing of coal ash directly in contact with natural aquifers. The undermined requirements include groundwater protection standards and monitoring requirements, which States would be able to change as they see fit. And all of the requirements, including design, maintenance, and operation requirements, would be delayed.

My amendment, however, focuses on just one of these dangerous shortcomings, which I think is very important, and illustrates the fundamental issues with this bill. EPA's rule establishes a strong national floor for public disclosure of information. The rule specifies what information will be made available to the public and how it must be posted. Utilities will have to maintain pages on their Web sites that document their compliance with a wide range of criteria in the rule, including inspections and groundwater monitoring data.

These requirements will inform and empower communities and hold utilities accountable. Concerned citizens won't have to navigate an array of State agencies and offices to find out if the coal ash impoundment in their neighborhood is contaminating groundwater. Instead, they will able to go directly to the utility Web site and see all monitoring results.

Mr. Chairman, EPA testified before the Energy and Commerce Committee that these transparency requirements will be strong drivers of compliance, just as disclosure requirements have been under other environmental statutes. The Toxics Release Inventory is a great example. But this bill would eliminate these requirements.

Under this bill, there would be no national requirement to maintain a public Web site and to post all of this important data. So my amendment would simply restore these important requirements in EPA's final rule.

Mr. Chairman, I urge my colleagues to ask why this bill does away with this important compliance tool when its proponents suggest that the bill will improve compliance and enforcement. I think the answer is that this bill is not intended to increase compliance with the important standards EPA developed, but to allow the unsafe disposal of coal ash to continue. But it has already gone on for far too long.

I urge my colleagues to support this amendment to address one of the many shortcomings in the bill. I don't expect this amendment to pass, but I want to be clear that even if it does, the underlying bill will still be unnecessary and problematic. I will be urging a ``no'' vote when the question comes on final passage.

Mr. Chairman, I yield back the balance of my time.

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Mr. PALLONE. Mr. Chairman, I support this amendment which would improve protection for human health and the environment nationwide, and I would like to thank my colleague from North Carolina for her hard work on this important issue and for offering this amendment.

The citizens and government of North Carolina recognize the seriousness of the risks posed by coal ash. They have experienced the devastation coal ash can cause, and that is why even Republicans in the State government have supported strengthening regulation of coal ash.

Representative Adams speaks from personal experience that many of us have been spared, but we should not wait for more coal ash disasters to adopt strong, preventive measures.

Mr. Chairman, I urge my colleagues to support the amendment and vote ``yes,'' but I do want to caution that, like my colleague, I will urge a ``no'' vote on final passage even if this amendment passes.

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Mr. PALLONE. Mr. Chairman, I rise to support this amendment. It raises an important point that should be part of our dialogue on all environmental issues, and I thank my colleague for offering it.

The unsafe disposal of coal ash poses serious risk to human health and the environment. Those dangers are particularly acute for the minority and low-income communities that often live near coal ash disposal sites.

Unfortunately, this dangerous bill would diminish protections for those communities most at risk. Important safeguards would be eliminated, and significant discretion would be given to States to choose whether or not other safeguards will apply.

This discretion will hurt hotspot communities for the same reason that they host these dangerous communities; it is because they do not have the political clout and voice that other communities have. We must recognize the disproportionate risks faced by vulnerable populations and ensure that those risks are addressed, and that is what this amendment does.

While I don't support the bill overall, Mr. Chairman, I do urge my colleagues to support this amendment and vote ``yes.''

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