A major environmental provision in the Water Infrastructure Improvements for the Nation (WIIN) Act (S. 612) would give states the authority to establish, implement, and enforce their own permitting programs for the management and disposal of coal combustion residuals (CCRs) from electric power plants. Lawmakers from both the House and the Senate recently reached a deal on the full legislation, which generally addresses the needs of America’s harbors, locks, dams, flood protection, and other critical water infrastructure. The WINN act also includes provisions to educate vulnerable populations about the dangers of lead in drinking water and establish programs to test for lead in drinking water in schools.
The CCR provision follows EPA’s issuance in December 2014 of a final rule designating CCRs as a nonhazardous waste under Resource Conservation and Recovery Act (RCRA) Subtitle D. As specified by RCRA, EPA’s rule is self-implementing; that is, the CCR facility itself must comply with the rule’s management standards without any action by a regulatory agency, including imposition of a permitting program either by the EPA or any state. Enforcement occurs through citizen suits; states may act as citizens.
The WIIN Act would provide either states or the EPA the authority to establish permitting programs. Subject to EPA’s approval and oversight, a state program would need to set technical standards that are at least as protective as those in EPA’s rule. Should a state decline to establish a permitting program or should the EPA disapprove of the state program, the EPA would step in and take over permitting.