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US Senate passes water projects bill, allows states to run their own coal ash landfill programs

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(Photo: Tim Quijano, Creative Commons)

Buried on Page 427 of the 644-page federal Water Resources Development Act — S 2848 — is a section devoted to states and their control over coal ash disposal. If the bill becomes law,  North Carolina could establish its own approval and permitting protocol for coal ash landfills in lieu of a federal program.

The measure passed 95-3; both North Carolina senators Thom Tillis and Richard Burr voted yes.

Under the proposal, states could run their own programs as long as the standards were “at least as protective” as the federal coal combustion rules. Those final rules go into effect on Oct. 4.

States could establish their own technical standards, even if they deviate from federal ones, as long as protections were ultimately the same or better. These protections could apply to structural landfills and the use of fly ash, for example, in producing concrete.

Sen. Roy Blunt, a Missouri Republican, seemed to indicate that the state programs would have more latitude, raising questions of how the law would be interpreted. “I have heard from rural electric utilities that the rules handed down by the EPA are too harsh. The language here will help address those concerns in a bipartisan way.”

However, the EPA rules aren’t as rigorous as they could be. For example, coal ash is considered solid waste, instead of hazardous waste, and is subject to less stringent disposal requirements. (These are known as Subtitle D rules; hazardous waste is under Subtitle C.)

Nor does the EPA have enforcement power under its current coal combustion rules. They prohibit the federal government from bringing an enforcement action against utilities for alleged violations of the standards.

However, the Senate bill would give the EPA enforcement authority over utilities in states that choose not to establish their own permit programs. The EPA administrator could also revoke a state permit if it fails to protect human health and the environment.

The utilities would benefit from the law because they would comply with just one set of rules. An article in Utility Dive, an industry newsletter, quotes Duke Energy as saying compliance with federal rules and state requirements — such as NC’s Coal Ash Management Act — is “difficult and costly.”

And arguably, utilities have more political leverage in state government, where they have easy access to lawmakers and environmental officials, than at the federal level.

The $10 billion measure also contains key funding for the replacement of lead-contaminated pipes in Flint, Michigan, and other at-risk communities, plus money for testing. Additional appropriations would help pay for flood-control projects undertaken by the US Army Corps of Engineers.

The bill now goes to the House, which could take it up next week.

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