Coal ash is removed from the Dan River Steam Station in Eden, N.C., to be transported by rail to a permanent site in Virginia. Credit: AP Photo / Gerry Broome

On Dec. 16, and without fanfare, President Obama signed the Water Infrastructure Improvements for the Nation (WIIN) Act of 2016. Though he didn’t mention it in his official statement, the bill contains an amendment that alters how coal ash will be regulated, with more oversight afforded to the states.

The WIIN Act is an infrastructure bill designed to fund dams, control floods, aid California farmers and provide clean water for residents in Flint, Michigan. Cost estimates for the bill range between $10 billion and $12 billion.

The bill also establishes a state permit program for coal ash impoundments to be supervised by the U.S. Environmental Protection Agency. That amendment is a win for the U.S. House of Representatives, which has, since 2011, seven times – including the WIIN Act –passed legislation aimed at altering the EPA’s efforts to regulate coal ash.

“This is an issue that we’ve worked on since coming to Congress six years ago, and I am pleased that we are finally able to reach an agreement between the House and Senate,” said Rep. David McKinley (R-WV) in a statement about the passage of WIIN Act earlier this month. “This legislation will help protect 316,000 jobs while empowering individual states to ensure the proper management and disposal of coal ash,” he said.

It’s McKinley’s abbreviated coal ash bill that became an amendment to the WIIN Act.

The Water and Waste Act of 2016 is also included in the bill. The purpose of that Act is that “Congress should provide robust funding of capitalization grants to States to fund those States’ drinking water treatment revolving loan funds,” with emphasis on underserved communities. That Act could benefit the citizens of North Carolina with contaminated well water.

Summary of the coal ash amendment

The bill amends the Resource Conservation and Recovery Act (RCRA), changing the EPA’s self-implementing coal ash rule into an EPA-authorized state permit program. The EPA will only approve of the state programs if they incorporate already-established federal requirements.

The states, however, do not have to participate. If they don’t, the federal coal ash rule remains in effect.

Lisa Evans, Senior Administrative Counsel for Earthjustice, explains: “When a state does not submit a program for approval, the requirements of the EPA’s [coal ash] rule remain in effect in that state. ”For states that have no approved program, the EPA must implement a permit program in that state, but only if Congress provides funding for the EPA to do so.”

Until the EPA approves a state permit program, the federal rule remains in effect for all states. Once a state plan is submitted, the EPA has 180 days to make a decision and may approve a permit program in whole or in part, or not at all. The public will be asked to comment on state plans.

Under RCRA, the public retains citizen enforcement authority, or the right to sue over violations of the federal rule or permit violations once the state programs are in force.

The state permit programs will be reviewed by the EPA every 12 years. They will also be reviewed en masse should the agency update its rule, though states will have three years to comply with any changes. The EPA can also review the permit program following a significant, unauthorized release from a coal ash impoundment or when one state is adversely impacted by incidents in another state.

North Carolina well-suited for permit program

With its Coal Ash Management Act of 2014 and the North Carolina Environmental Management Commission currently at work on a coal-ash rule that closely mirrors the EPA’s existing coal ash rule, North Carolina seems well-suited to be a successful participant in the federal government’s new state-controlled permit program.

The state’s Environmental Management Commission began the process of merging the state’s coal ash laws with the EPA’s rule earlier this year and is expected to vote on one or more versions of its rule during its Jan. 12, 2017, meeting. That vote was delayed in November following a dispute over which groundwater standards to include in the rule, the EPA’s, the more stringent state-specific standards or none at all. The vote will be followed by a public comment period.

Regarding the WIIN Act, Mike Rusher, Communication Director for the N.C. Department of Environmental Quality says, “I don’t believe there are any required changes to N.C.’s already planned implementation of the federal [coal ash] rule.” He did not say if the state plans to submit its rule and regulation to the EPA for approval as a permit program.

Environmental advocates wary

“Prior to the recently enacted federal legislation, North Carolina had taken steps towards adopting the federal rule, more or less verbatim,” says Peter Harrison, an attorney with the Waterkeeper Alliance. “Regulators balked once Congress took up the bill, which affords states latitude to interpret, and potentially weaken, the requirements in the federal rule. I would expect to see a new proposal for a state permit program soon, with amendments to the federal language tailored to accommodate Duke Energy.”

“North Carolina is in a good position for a state program,” says Amy Adams, a N.C. Campaign Coordinator for Appalachian Voices. “The question is: Do they want to work with the EPA?”

North Carolina’s Department of Environmental Quality is one of 24 states currently suing the U.S. EPA over its Clean Power Plan. DEQ has also repeatedly butted heads with the federal agency over coal ash issues since the 2014 Dan River coal ash spill in Eden, N.C.

Award-winning independent journalist, filmmaker and author. Rhiannon's film "Coal Ash Chronicles" is in post-production. And, yes, she was named after a Fleetwood Mac song.