Virginia Needs a New Department of Environmental Quality Director. Immediately.

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    You know how, at least in theory, the Department of Environmental Quality (DEQ) is supposed to protect the quality of the environment? Well, in the case of Virginia, theory does not apparently translate into reality, at least not in the case of Virginia DEQ Director David K. Paylor (originally appointed by Tim Kaine in 2006, reappointed by Bob McDonnell and Terry McAuliffe). On the “flip” of this post, see the testimony he’s delivering today to Congress on coal ash. But first, here’s a bit of background on the draft bill Paylor is testifying about.

    The bill, “Improving Coal Combustion Residuals Regulation Act of 2015,” is authored by Rep. David McKinley (R-WV), a diehard defender of the coal industry, who says that “attacks on coal from Washington must be stopped.” He adds that  [e]xploration and aggressive drilling” for coal and other fossil fuels “should be permitted without further delay.” He has a pathetic 8% lifetime environmental rating from the LCV, and in 2014, he actually received a “Champion of Coal Ash Award” “for his work in Congress to protect and promote the use of coal ash and stop the EPA from labeling it as a hazardous material.” Seriously. I’m not joking. There’s actually such a thing as a “Champion of Coal Ash Award,” and this fossil fuel shill received it! Now, he’s put in a bill to weaken coal ash regulations, no doubt in the hopes of winning another one of those shiny Champion of Coal Ash awards! LOL

    Seriously, though, this is almost beyond parody of how our government is “captured” by corporate interests, in this case polluters, who have their puppet politicians spewing their propaganda for them in the halls of Congress. So what would this particular bill do? According to a letter sent yesterday by 126 public interest groups, private and concerned citizens, it would:

    *DELAY the rule’s new health and safety protections- potentially for up to 10 years”

    *WEAKEN the rule’s mandate to close inactive (contaminated and abandoned) ponds by

    extending the deadline for closure, allowing these legacy ponds to operate without safeguards for at least 6 years;  ELIMINATE the rule’s guarantee of public access to information and public participation;

    *ELIMINATE the rule’s ban on storing and dumping coal ash in drinking water;

    *REMOVE the rule’s national standard for drinking water protection and cleanup of coal ash-contaminated sites;

    *REMOVE the rule’s national minimum standard for protection of health and the environment and allow state programs to eliminate critical safety requirements;

    *PROHIBIT effective federal oversight of state programs; and

    *PROHIBIT EPA enforcement of state program requirements unless invited by a state.

    Yeah, it’s that bad.

    Oh, and here’s what environmental group Appalachian Voices had to say about Paylor’s testimony today, in support of this “Champion of Coal Ash” award winner’s bill (see the “flip”).

    In no way is this bill an “improvement” of the new federal rule for coal ash disposal. In fact, it completely strips away health standards and public access to information, leaving citizens in the dark and vulnerable to ongoing health hazards.

    It’s beyond belief that the head of the agency charged with protecting Virginia’s environment and public welfare is up there in D.C. supporting it.

    There are people whose health is already compromised likely due to decades of coal ash pollution, yet David Paylor is supporting this bill that would shelter industry interests from accountability. As a former agency regulator myself, I can tell you this goes completely against the grain of what a public servant should do.

    In sum, David K.Paylor – theoretically in charge of protecting our state’s environment – is putting Virginia on record, officially, as supporting a Republican bill to weaken the EPA’s new coal ash standards, which the environmental community already considers too weak. As the headline of this post states, Virginia needs a new DEQ Director. Immediately.

    Testimony

    “EPA’s 2014 Final Rule: Disposal of Coal Combustion Residuals from Electric Utilities”

    Subcommittee on Environment and the Economy

    Committee on Energy and Commerce

    Wednesday, March 18, 2015

    by David K. Paylor, Director

    Virginia Department of Environmental Quality and Past President, Environmental Council of the States

    Main Points

    1. The draft bill promotes the beneficial reuse of coal combustion residuals (CCR) as nonhazardous waste, consistent with ECOS’ longstanding resolution on this subject.

    2. The draft bill amends Subtitle D of the Resource Conservation and Recovery Act (RCRA) to allow states to regulate coal ash management and disposal under a set of federal standards created directly by Congress and implemented by the states. This

    recognizes that states are in the best position to regulate CCR units, but also properly empowers the Environmental Protection Agency (EPA) to serve as a backstop and run programs for states in certain circumstances.

    3. The draft bill includes important provisions for multi-state coordination, provides reasonable timeframes for state program amendment to include new requirements, and closes enforcement gaps left by EPA’s final rule while clearly preserving citizen suits.

    Chairman Shimkus, Raking Member Tonko, and Members of the Subcommittee, good morning. My name is David Paylor, and I am Director of the Virginia Department of Environmental Quality. I appreciate the opportunity to share with you Virginia’s views on the draft bill. I am also representing the Environmental Council of the States (ECOS), whose members are the leaders of the state and territorial environmental protection agencies. I am a Past President of ECOS and serve as President of ECOS’ research division, the Environmental Research Institute of the States.

    ECOS’ CCR History. Many state regulators like me have first-hand experience with the devastating results of CCR impoundment engineering failures. Breaches and releases devastate people’s lives, destroy property, and contaminate natural resources in often irreparable ways.

    For this reason, ECOS has worked on the CCR issue for many years. ECOS’ resolution on CCR regulation was first passed in 2008 and reaffirmed in 2013. ECOS testified in April 2013 before the Subcommittee on Environment and the Economy in support legislation to amend RCRA to create a defensible and strong CCR program that could be run by states. After EPA signed a final CCR rule in December 2014, ECOS testified before this Subcommittee in January, supporting the final rule’s technical requirements but stating that legislation to amend RCRA was still needed to address limitations and weaknesses in the final rule that are result from the statute’s current structure. These limitations were that:

     the final rule creates a dual federal and state regulatory system that will be confusing and resource intensive, because EPA is unable under RCRA Subtitle D to delegate the CCR program directly to the states in lieu of the federal program;

     the final rule’s schedules would require states to achieve final Solid Waste Management Plan (SWMP) amendment on an aggressive schedule which could not be met by many states; furthermore, it is unlikely that EPA has the resources to conduct a timely review and approval of state plans; and

     the final rule’s self-implementing approach would make RCRA citizen suits the primary enforcement vehicle for CCRs under the final rule,  marginalizing the role of state regulation, oversight, and enforcement; thus creating uncertainty for the regulated community and state regulators with respect to how compliance and enforcement activities will be managed.

    ECOS has reviewed the draft bill, and find that it positively addresses the concerns identified by ECOS in our January testimony. The draft bill leverages and codifies the extensive technical work in EPA’s final rule, which will enhance impoundment structural integrity provisions, promote transparency, and close environmentally degrading facilities.

    State CCR Programs. The draft bill provides that states may adopt, implement, and enforce CCR programs, and provides that Governors shall notify EPA of the state’s intentions to do so within six months of the bill’s enactment. The draft bill would give state environmental agencies like mine 24 months to certify to EPA that our CCR program meets the bill’s requirements, with a 12 month extension if needed. This would provide most states with existing CCR programs ample time to pursue the necessary state legislative and rulemaking processes to conform our programs to the new requirements. In Virginia, for example, our regulatory process can take up to 2 – 3 years, thus it is important to build in flexible certification deadlines. This is especially true in Virginia, as may be the case in other states, because there are dual authorities and agencies responsible for the operation of surface impoundments. Dam 4 safety requirements fall under the authority of Virginia’s Department of Conservation and Recreation. Therefore Virginia would likely have two concurrent regulatory actions proceeding to enact the new requirements.

    The draft bill provides that in their requests for certification to EPA, states would describe their programs for inspection, enforcement, public participation, groundwater monitoring, stability assessment, emergency plans, dust control, closure notifications, and corrective action. The state would also have to describe any definitional differences, demonstrate sufficient statutes and regulations are in place, and maintain appropriate approved RCRA hazardous waste programs.

    The draft bill importantly provides that state program can be more stringent or broader in scope, which is important. For example, Virginia already has the authority under the Waste Management Act to require a solid waste permit for the operation of a coal ash management facility, including activities related to post closure and corrective action.

    Preapproval of Existing State CCR Programs. The draft bill contains an important provision that allows states that already have an existing program to begin using it right away. This is important because many states already have existing programs, and EPA modeled its final rule on the best of those programs. A recent survey of states by the Association of State and Territorial Solid Waste Management Officials (ASTSWMO) indicated that 36 states, including Virginia, have permitting programs for disposal activities with 94% of those requiring groundwater monitoring.

    Impacts Beyond State Lines. The draft bill contains an important requirement for states to submit as part of their certifications a plan for coordination among states in the event of a release that crosses state lines. This type of upfront planning is relevant – and would be helpful 5 in Virginia particularly – where the recent Dan River release in North Carolina impacted nearly 50 miles of Virginia waterways.

    Federal Backstop. The draft bill provides that EPA will operate the CCR program for a state that cannot demonstrate a sufficient program or for a state that chooses not to run such a program itself – as well as a process for a state to assume these functions after remedying a deficient program or choosing to begin a program. These provisions should give assurances to the public that states and the federal EPA are both empowered to act Industry Requirements. The draft bill includes robust requirements for the industry permit applications, provides for public information availability, and state access to facilities.

    The bill incorporates the new robust technical, siting, financial assurance, run-on and run-off controls, recordkeeping, and structural integrity requirements published by EPA in the final CCR rule, which will be codified at 40 CFR Part 257. EPA did a very good job developing the technical requirements of the final CCR rule, modeling many of the final requirements on existing effective and stringent state programs. At the same time, we value the flexibility the draft bill adds that will allow states to identify alternative points of compliance for monitoring, alternative groundwater protection standards, remediation flexibility, and to allow unlined impoundments to operate for a period of time providing there are no groundwater threats and the structural integrity of impoundment berms is maintained.

    We recognize that the final EPA regulations were “self-implementing,” meaning that industry would be expected to move ahead with implementation regardless of any state or federal agency action. The only way the self-implementing rule would be enforced would be through citizen suits, state action, or federal action. The draft bill sets out a three to four year process for compliance by the facilities. While this may seem like unnecessary delay, it recognizes implementation realities and still allows action in any emergency situations and provides a process for expedited facility closure where necessary.

    Coal Ash is Non-Hazardous. The legislation supports beneficial uses of coal ash, such as in concrete, road bed fill, wallboard, and other uses. Beneficial reuse of coal ash is consistent with ECOS’ longstanding resolution, appended to my testimony.

    Conclusion. Mr. Chairman, Mr. Ranking Member, and Members of the Subcommittee, I thank you for the opportunity to present my views, and those of ECOS, to you today. I am happy to answer any questions.