Sometimes It Isn't The Perfect Versus The Good -- A TSCA Lesson For Coal Ash

This isn’t the first time an environmental bill was written to sound like it would be effective to protect public health and the environment but in fact it had more holes than Swiss cheese. In 1976, the White House had a conflict between the Department of Commerce and the Council on Environmental Quality on what should be in legislation regulating toxics in everyday use.  The White House had an attorney from Commerce and a scientist from CEQ to “work it out.” The compromise sounded good, but the lawyer was able to put so much process and seemingly reasonable procedural requirements into the bill, that TSCA has been all but a dead letter.  For instance, the bill required the “the least costly alternative” which sounds reasonable but the courts interpreted it that whatever EPA was going to do, there was always a less burdensome alternative to consider (even if that alternative would be less effective).  This provision and many others have subjected Americans to toxic products from China that are banned in Europe --- and China.

This similar scenario is going on, again, with legislation dealing with coal ash.  Generally, Congress passes laws with concepts and general standards, and then leaves it to scientists and the regulatory process to establish science based on engineers and other professionals input, not politicians.  For coal ash, the utilities want Congress to set the standards and essentially leave it up to the states to implement a program at a level that is essentially the status quo; the inadequate state level of regulation that led to the dam failure in Tennessee in December, 2008.  On that day, a retention pond wall collapsed at the Tennessee Valley Authority's (TVA) Kingston Plant in Harriman, Tennessee, releasing a combination of water and coal ash that flooded 300 acres or river and shoreline with over a billion gallons of toxic sludge. The dam failure destroyed 12 homes, contaminated the Emory River, and upended untold lives. Instead of spending $25 million to properly handle the toxic waste, the Tennessee Valley Authority thought it would be wise to depend on a dangerous earthen dam. Cleaning up the mess is costing TVA ratepayers over a billion dollars, not millions.

During the last Congress, using nice sounding environmental phrases but not tying them to requirements, made the McKinley coal ash bill and the Hoeven bill seem protective, but they were not. The environmental community immediately called the Congress on these failures, but real traction was gained when the Congressional Research Service (CRS) agreed with our community’s concerns.  The sponsors then tried to intimidate the highly regarded CRS, and CRS agreed to review the report. But, as Politico Pro reported:

“CRS doubled down on its critique in the updated report, which is double the length of the first. It says the legislation’s deadlines and authorities are unclear and its standards are questionable, and that it doesn’t require that states do much of anything new to regulate coal ash.”

As we learned last year, these disconnected terms and loopholes were not the product of in artful drafting, but of clever drafting to sound as if they were protecting the environment but, in reality, were intending to give utilities what they want – a free hand to dump toxic ash into surface impoundments and landfills threatening drinking water sources and downstream communities. This year’s bill, H.R. 2218, is no different in style.  For instance, one of the key standards in environmental law is that the regulations protect “public health and the environment.”  The new McKinley bill mentions public health and the environment in its description, but it doesn’t require it in the bill.

H.R. 2218’s language is different from last year’s bill, but again it essentially leaves the concerns of the public, CRS and the environmental community unaddressed.  For instance, the bill ties almost all its teeth to “permits.”  But the “deadline” to issue a permit is a long seven years, and this can be easily sidestepped by state agencies, because the seven-year “deadline” is only applicable if a permit application is submitted within that timeframe and there is no deadline for permit applications.  There are also no penalties or restrictions for operating without a permit.  Thus if a permit application is submitted after seven years, there is no deadline by which to issue the permit.  Many of the dam safety provisions only apply to sites that have been issued permits.

Sometimes the issue isn’t whether the perfect is the enemy of the good but whether an inadequate bill that sacrifices minimal levels of protection is deemed acceptable as the price of saying “we addressed that issue in this difficult congress.”  As we learned in TSCA, written in 1976 and essentially a dead letter for decades, accepting something can be worse than doing nothing.