Federal Water Tap, August 27: EPA Coal Ash Rule Is Too Weak, D.C. Circuit Court Concludes

The Rundown

The EPA must revise sections of its rule guiding coal ash disposal, a federal appeals court says. A Senate hearing investigates response to potential Great Lakes oil spill in the Straits of Mackinac. The Trump administration aims to send more water to Central Valley farmers. The Bureau of Reclamation leases Colorado River basin water for a drying Rio Grande. A Michigan senator introduces two PFAS bills while the Senate’s Defense Department budget includes $45 million to reimburse local PFAS cleanup. The USGS updates a groundwater contamination data dashboard and sees a long-term phosphorus problem for Wisconsin lakes. The EPA announced another PFAS community meeting, in Kansas this time. And lastly, a Senate committee will hold a hearing on algal toxins in U.S. waters.

“Here in Michigan, as you heard from the audience, the Great Lakes is a way of life for us, it’s really part of our DNA, and next to our people, without question, the most important and precious resource we have.” — Sen. Garry Peters (D-MI) speaking at a Senate hearing in Traverse City, Michigan, on the risks of an oil pipeline spill in the Great Lakes. In April, a ship’s anchor struck the Line 5 pipeline, damaging it. Line 5 crosses the turbulent Straits of Mackinac, which university researchers deem the worst possible spot for a spill in the Great Lakes. Witnesses at the hearing discussed the damage Line 5 suffered in April — gouging of the pipeline — and the assessments and responses that followed.

By the Numbers

$45 million: Money in the Senate’s 2019 Defense Department budget to reimburse local communities for the cost of removing PFAS chemicals from water near military bases. (Sen. Kirsten Gillibrand)

1,625: Participants a federal health research agency hopes to enroll in an initial study of the health effects of drinking water with PFAS chemicals. The “test drive” study will be directed at individuals connected to Pease Air Force Base, in New Hampshire, and then expanded to at least seven other bases. (Agency for Toxic Substances and Disease Registry)

$2 million: Federal funds to lease water that will keep the Rio Grande flowing through Albuquerque. The leased water will come from the San Juan-Chama project, which sends Colorado River water across the Continental Divide and into the Rio Grande basin, which is seeing some of its lowest flows on record this summer. (Bureau of Reclamation)

News Briefs

Coal Ash Setback for EPA
The U.S. Environmental Protection Agency must strengthen its regulations governing the disposal of solid waste byproducts from burning coal, according to a ruling from the D.C. Circuit Court of Appeals.

The regulations were written in 2015 by the Obama administration. Trump officials sought to further weaken the federal government’s oversight requirements for coal ash impoundments.

“This decision caps off a run of adverse rulings by courts rejecting the positions of the Trump administration,” says Dan Farber, a law professor at the University of California, Berkeley. “It’s going to make life more difficult for utilities using coal, and indirectly the coal industry, which Trump isn’t going to like.”

Farber points to two key parts of the ruling. First, it requires the EPA to regulate legacy impoundments — those that are not still receiving waste. Second, the judges said that health benefits, not the cost to industry, should guide the regulations.

“We hold that the EPA acted arbitrarily and capriciously and contrary to [the Resource Conservation and Recovery Act] in failing to require the closure of unlined surface impoundments, in classifying so-called ‘clay-lined’ impoundments as lined, and in exempting inactive surface impoundments at inactive power plants from regulation,” the three-judge panel concluded.

Coal waste is often stored in massive impoundments that can hold millions of tons of slurry. Waste from unlined impoundments leaches toxic metals into groundwater, which can then flow into rivers and lakes. The impoundments can also fail spectacularly, as happened in Kingston, Tennessee, in December 2008.

In context: U.S. Courts Issue Contradictory Rulings on Groundwater and the Clean Water Act

Trump Administration Thrusts Itself Into California Water Politics
The Interior Department signaled that it would sue the state of California if water officials there go forward with a plan to keep more water in the San Joaquin River, the Sacramento Bee reports, citing a memo from the Interior secretary.

In addition, the Interior Department is aiming to deliver more water to farmers in the southern Central Valley, a core constituency, by renegotiating an agreement that guides the operation of state and federal water projects.

Michigan Senator Introduces Pair of PFAS Bills
The two bills from Sen. Debbie Stabenow (D-MI) and bipartisan cosponsors provide cleanup aid and more monitoring of PFAS in the environment.

The PFAS Accountability Act encourages states to seek cleanup agreements with Defense Department agencies that hold those agencies to state water quality standards and reimburse states for cleanup costs.

The PFAS Detection Act provides the U.S. Geological Survey with $45 million over five years to monitor the natural environment for the chemicals.

Water Infrastructure Financing Bill
Once again, Sen. Bob Menendez (D-NJ) introduced a bill to remove the limit on issuing private activity bonds for water and sewer systems. Private activity bonds extend tax-free status to the interest on bonds that private entities issue to fund infrastructure with a public benefit.

Menendez has introduced this bill every session of Congress since 2010.

Studies and Reports

USGS Updates Groundwater Pollution Trends Data
The U.S. Geological Survey updated a data dashboard that shows long-term trends in groundwater contamination.

The USGS samples networks of wells in urban and agricultural setting across the country for pesticides, nitrates, metals, and other contaminants roughly every decade.

USGS Investigates Phosphorus in Wisconsin Lake System
Overloading nutrients in watersheds, like carbon in the atmosphere, is a problem that will extend to future generations. The U.S. Geological Survey assessed phosphorus flows in four Wisconsin lakes that are in watersheds surrounded by farms.

Reducing phosphorus pollution today will take 50 to 75 years to be reflected in improved water quality because of the slow release of phosphorus attached to lake sediments, the report states.

On the Radar

Toxic Algae Senate Hearing
On August 28, the Senate Committee on Commerce, Science, and Transportation will discuss toxic algae.

These algae — cyanobacteria in many cases — are thriving in warm, nutrient-rich waters. A bloom in Oregon earlier this summer disrupted drinking water supplies for weeks, while Florida contends with coastal red tides this summer that have killed fish and turtles and put off tourists.

In context: Regulators Will Soon Know a lot More about Algal Toxins in U.S. Drinking Water

PFAS Meeting in Kansas
On September 5, the EPA will hold another community meeting to discuss PFAS chemicals. This meeting is in Leavenworth, Kansas. Previous editions have been in Colorado, New Hampshire, North Carolina, and Pennsylvania.

Sen. Kirsten Gillibrand of New York asked the EPA to hold a meeting in her state.

Trash Data
As part of its effort to write new pollution rules for the Anacostia River, the EPA is looking for data on garbage deposits in the river and their effect on swimming, fishing, and boating. A tributary of the Potomac, the Anacostia flows through Maryland and Washington, D.C.

Send data by October 23 to adair.jillian@epa.gov.

Federal Water Tap is a weekly digest spotting trends in U.S. government water policy. To get more water news, follow Circle of Blue on Twitter and sign up for our newsletter.

Brett Walton

Brett writes about agriculture, energy, infrastructure, and the politics and economics of water in the United States. He also writes the Federal Water Tap, Circle of Blue’s weekly digest of U.S. government water news. He is the winner of two Society of Environmental Journalists reporting awards, one of the top honors in American environmental journalism: first place for explanatory reporting for a series on septic system pollution in the United States(2016) and third place for beat reporting in a small market (2014). He received the Sierra Club’s Distinguished Service Award in 2018. Brett lives in Seattle, where he hikes the mountains and bakes pies. Contact Brett Walton