Policy-wise, a water projects authorization bill might seem an odd vehicle for tackling coal ash disposal.
Politically, it’s likely the last chance that industry advocates have this year of breaking a deadlock over enforcement responsibility.
"How else can it be done?" Sen. Jim Inhofe (R-Okla.) asked rhetorically in a brief interview yesterday.
Inhofe, chairman of the Senate Environment and Public Works Committee, is the sponsor of S. 2848, the Water Resources Development Act (WRDA) of 2016, a $9 billion measure that could pass the Senate as early as next week.
A recently unveiled manager’s amendment contains a new section that would allow states to set up permitting programs to regulate the handling of coal ash, the waste produced in vast quantities by coal-fired power plants, subject to U.S. EPA oversight.
Under EPA regulations adopted last year, citizen lawsuits are currently the only enforcement mechanism. Without the language in the bill, utilities face "runaway" litigation over coal ash disposal, Inhofe said earlier this week on the Senate floor.
"This is something we have to stop," he said.
But stand-alone legislation, S. 2446, to allow state permitting stalled in the EPW panel early this year after ranking member Barbara Boxer (D-Calif.) objected that it would undercut some safeguards in the EPA regulations (Greenwire, March 2).
The provision in the water resources bill is narrower in scope; while Boxer could not be reached for comment yesterday, she has voiced support for the broader WRDA legislation.
Jim Roewer, a lobbyist and executive director of the Utility Solid Waste Activities Group, also could not be reached.
The American Coal Ash Association, which represents businesses that recycle coal ash in construction materials and other products, does not have a specific position on the bill but backs efforts to foster more "regulatory certainty" around coal ash disposal, said John Ward, who leads the group’s government relations committee.
"This is actually an expansion of EPA authority," Ward said. Not only would the measure compel states to create permitting programs, he said, "it would give EPA the authority to step in if states aren’t doing the job."
Environmental groups that lined up against S. 2446, the bill sponsored by Sens. John Hoeven (R-N.D.) and Joe Manchin (D-W.Va.), are divided in this round.
Neither Earthjustice nor the Southern Environmental Law Center, for example, takes a position pro or con.
Earthjustice is not opposing the WRDA provision because it locks in "core gains," including EPA’s fundamental authority to regulate "toxic" coal ash, Lisa Evans, an attorney with the organization, said in an email. Even so, Earthjustice cannot support the bill, Evans said, "because it is a missed opportunity to strengthen coal ash protections nationwide."
But other organizations are renewing their objections. Although the WRDA language would nominally allow states to substitute their own coal ash programs as long as they are as protective as the EPA regulations, that will lead to "endless disputes" over how risks are assessed and other issues, the Environmental Integrity Project and Waterkeeper Alliance wrote in a joint letter to Inhofe and Boxer yesterday.
"The proposed legislation is unnecessary, and it would perpetuate the nation’s struggle with coal ash pollution," they said.
Assuming that the water projects bill wins Senate approval with the coal ash provisions intact, it would presumably have to be reconciled with H.R. 5303, a House counterpart that doesn’t attempt to deal with the disposal issue. Adding to the pressure: Relatively little time remains on this year’s legislative calendar before the 114th Congress goes out of business.
Given the options of action and inertia, "I would generally bet on inertia," said Steve Ellis, vice president of Taxpayers for Common Sense, a watchdog group that is closely following the bill.
That said, its fate may also hinge on the duration of the stopgap spending measure lawmakers must pass to keep most federal programs in operation past the October start of the new fiscal year (see related story).
If, as Senate Majority Leader Mitch McConnell (R-Ky.) wants, the stopgap measure runs only until early December, Congress would have to return before then to decide what to do next, Ellis said. Once lawmakers are back in session, he added, "there’s more likelihood that something will happen" on the water bill.