Coal Tattoo

Petra Wood, right, of Casswille, WV., holds a protest sign outside the Morgantown, W.Va., office of U.S. Rep. David McKinley on June 23, 2011. Wood and other members of the West Virginia Sierra Club want McKinley to withdraw a bill they say would strip the Environmental Protection Agency of its power to protect people from toxic coal ash. (AP Photo/Vicki Smith)

As mentioned earlier this week, Rep. David McKinley is at it again. The latest version of the West Virginia Republican’s coal-ash legislation cleared a House subcommittee yesterday. And while his efforts on this issue have gone nowhere in the Senate, Rep. McKinley is hopeful it will go differently this time. Vicky Smith over at the AP has a story out about it this morning:

McKinley says this year is different: The latest version of the Coal Residuals Reuse and Management Act (H.R. 2218) was crafted with input from the U.S. Environmental Protection Agency, which McKinley said is “not opposing” the draft that cleared a House subcommittee Thursday.

“We’ve listened and reacted,” he said, “and we’ve listened again.”

David Beard at the Morgantown Dominion Post focused on EPA’s stance, too, in a story he did in yesterday’s newspaper (subscription required), noting that during a telephone press conference on Wednesday, McKinley:

… told reporters … [that] at this point the EPA doesn’t appear to oppose the bill … “I hope, they’ll continue to stay with us.”

But of course, EPA — in a dance that is becoming all too familiar from this agency under the Obama administration — won’t answer questions about its thoughts on the current version of the coal-ash legislation.

When I contacted EPA’s press office this week to inquire if the agency was now supporting Rep. McKinley’s bill, press secretary Alisha Johnson pulled this on me:

We don’t comment on pending legislation.

Well, that’s simply not true. EPA does comment on pending legislation. Not two weeks ago, when Sen. Joe Manchin helped to broker the Lautenberg-Vitter agreement on a bipartisan chemical safety bill, EPA spokeswoman Molly Hooven gave me this quote, instructing me to attribute it to Johnson, the agency press secretary:

EPA is pleased that Senators Lautenberg and Vitter are working together to update the Toxic Substances Control Act (TSCA) — chemical safety is a bipartisan issue. EPA continues to support and advocate for a strengthened chemicals management law in accordance with the Administration’s principles.  We look forward to working with Congress, stakeholders, and the public as we move forward on this effort to ensure that EPA has the tools necessary to make certain that chemicals manufactured and used every day in this country are safe.

And, as Vicki noted in her AP dispatch, EPA assistant administrator Mathy Stanislaus commented on an earlier version of the bill during a House committee hearing back in April. In his prepared testimony, Stanislaus had this to say:

The Discussion Draft of the Coal Ash Recycling and Oversight Act addresses some of the principles discussed above for effective CCR management. Although the Discussion draft contains key provisions that require states to implement CCR programs that address specific contaminants, address leaking surface impoundments and, require the establishment of groundwater monitoring, we note that it 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, criteria for CCR unit structural integrity, deadlines for closure of unlined or leaking impoundments/units, including inactive or abandoned impoundments/units, and the universe of CCR disposal units subject to a permit program including impoundments, landfills, waste piles, pits and quarries, and other disposal scenarios.

And Greenwire noted additional comments EPA made at the hearing:

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.

Interestingly, some of the changes made to Rep. McKinley’s bill do appear aimed at addressing concerns raised by EPA, such as timelines for determining if state programs are sufficient and guidelines by which EPA would make those determinations. But if you read this report from The Hill, — headlined House GOP bill would cut EPA out of coal ash regulation, it’s clear there are also reasons to wonder why EPA would support this particular legislation:

Legislation from a Republican lawmaker would almost entirely cut the Environmental Protection Agency (EPA) out of regulating the ash produced from power plants that burn coal.

A bill introduced by Rep. David McKinley (R-W.Va.) this week seeks to override the EPA’s proposal to regulate the ash, which Republicans say could threaten more than 300,000 jobs.

Instead, McKinley’s legislation, the Coal Residuals Reuse and Management Act, would set up a regulatory process that largely bypasses the EPA. It sets minimum federal standards for coal ash, but hands over responsibility for permitting and other regulation to the states.

Yesterday, Rep. McKinley said this about this new bill, its movement in the House and the potential EPA support:

Two months ago, this subcommittee held a hearing on this issue to listen to EPA and other stakeholders regarding the coal ash legislation. EPA then indicated they would not oppose the draft legislation. We held meetings and discussions with other stakeholders to further strengthen the bill. The bill has incorporated the feedback we received and today’s unanimous vote without any changes shows we’ve addressed many concerns.

Given that there is a consensus about the beneficial re-use of the 40 percent portion that is recycled, the argument has been on how to handle and dispose of the remaining 60 percent. Thanks to the negotiations held with the states and stakeholders, we’ve done a thorough job of addressing that issue under this legislation.

Still, environmental groups are convinced. Earthjustice put out a statement that lists a variety of concerns about the latest legislation. They argue that the bill:

— Prevents the EPA from finalizing federal regulations for the safe disposal of toxic coal ash;

— Lacks a nationwide protective standard and minimum enforceable standards applicable to coal ash dumps in all states;

— Fails to establish adequate dam stability and toxic dust protections.

 Lisa Evans, a coal ash expert with Earthjustice, said:

The bill still fails to correct the fatal deficiencies in public health protection identified so clearly by the Congressional Research Service. The bill cannot and will not ensure that the health and safety of thousands of communities are protected from toxic ash.

It sure would be nice if the public could find out where EPA really stands …