How Proposed Changes To Coal Ash Rules Could Weaken Oversight In Kentucky

Originally published on March 6, 2017 3:24 pm

Over the past few years, there have been numerous documented instances of contaminated water leaching from a coal ash pond in Central Kentucky into groundwater and directly into Herrington Lake. Now, state regulators are investigating high levels of selenium in the lake’s fish, and they have fined utility Louisville Gas & Electric and Kentucky Utilities $25,000.

These are the facts outlined in a story WFPL News published last week. The story also looks at the pollution through the lens of a current regulatory proposal that experts say would significantly weaken the state’s oversight of coal ash at power plants.

The Kentucky Department for Environmental Protection, which is part of the Energy and Environment Cabinet, declined an interview request for the story, instead asking for emailed questions. But in a blog post last week, the state took issue with the story, misrepresenting the thesis and implying the reporting was inaccurate.

It was not.

The overall message in the post is the same one cabinet officials have been repeating for the past few months, as the new coal ash regulations and their drafting process have come under scrutiny. That message is simple: The state’s new regulation is actually stricter than the current one.

So, which is it? Do the new regulations strengthen the requirements for new coal ash sites, as the department keeps insisting? Or do they weaken them, as critics argue?

It’s a complicated issue, and the DEP declined an interview request for this story, too. So, hang onto your hats — this is going to get kinda wonky.

Federal Rules

This all started when the federal Environmental Protection Agency decided to regulate coal ash for the first time. After years of work, the new regulations were finalized in 2015.

But the federal coal ash regulations are different than a lot of other environmental regulations. They’re a bit more like technical standards — think, a list of specifications for constructing new coal ash ponds and landfills and monitoring pollution from existing ones. And they’re self-implementing, which means the federal government won’t be inspecting coal ash sites to make sure they’re complying with the law.

Instead, the EPA is requiring utilities to post a lot of pertinent information about the projects online, and the agency allows citizens (and states) to sue if the standards aren’t met.

Kentucky isn’t required to incorporate the new EPA rules into the state’s regulations — the state’s utilities would have to follow them either way — but the EPA strongly encourages it. And as Energy and Environment Cabinet Deputy Secretary Bruce Scott said at a recent legislative hearing, the state believes adopting the federal rules is the most responsible way to go.

“We needed to be at the table to be able to have enforcement obligations and responsibilities to be able to implement,” he said. “Otherwise, we’re not involved in dealing with the federal rule at all, which we don’t believe is responsible.”

That’s true: Without adopting the federal rules, the state would be in the same position as citizens, forced to sue to enforce the law. But adopting them makes them state obligations the state can enforce.

But the issue at hand is the way the state is incorporating the federal rules — and the other aspects of the law that are being rewritten simultaneously.

A Tale of Two Chapters

Right now, coal ash (or coal combustion residuals, as it’s technically called) is regulated under Kentucky Administrative Regulations Chapter 45. What the state is trying to do is move coal ash regulation for utilities from Chapter 45 to Chapter 46.

So, what?

Chapter 46, as it’s written in the state’s new regulations, does two things. It incorporates the new EPA regulations into state law. And it sets out a new way to permit these sites. That new permitting program is what critics are seizing on as an example of the way the state’s proposal is flawed.

Under Chapter 45, there are a number of specific technical requirements for coal ash landfill permits. The state is required to review a laundry list of factors, from groundwater monitoring plans to the landfill’s location. Unlike the standards set forth in the EPA’s rules, these are conditions that have to be met before construction even begins.

When regulators began meeting with representatives of the utility industry in September 2015, the regulations they had drafted (left) were extensive. By the time they submitted the drafts to the Legislative Research Commission in October 2016 (right), the regulations were weakened.

When drafting the new regulations, Kentucky could have incorporated the EPA’s rule into Chapter 46, and also carried over many of those stringent landfill permitting requirements from Chapter 45. That’s what state regulators initially did in a previous version of the regulation, before a year’s worth of meetings with the utility industry.

But the final version of the rule strips all of those permitting requirements, replacing them instead with a registered permit-by-rule. This would allow utilities to go ahead and design and construct the landfill without state oversight, after getting a simple document that gives them the go-ahead.

WFPL broke the story about the process by which the Cabinet and the utility industry rewrote the regulations, which began with a meeting in September 2015:

When regulators went into that meeting on Sept. 3, 2015, the draft CCR rules were extensive. They covered groundwater monitoring, inspections, technical specifications for recycling coal ash and plans for closing facilities.

But by the time the draft regulations were released to the public in October 2016, they didn’t contain any of those specifics. And the regulations proposed regulating the electric utilities with a “permit-by-rule” — the very mechanism that the state declared it would not use during that September meeting.

In terms of permitting, the new regulations would mean the biggest change for coal ash landfills. But that’s only one of the ways coal ash is stored. Let’s talk about coal ash ponds.

Ponds

The Kentucky Department for Environmental Protection has focused a lot on coal ash ponds rather than landfills, and the way they would be affected by the new rule.

In the blog post about our story on coal ash contamination in Herrington Lake, the Kentucky DEP focuses on several “facts” not included in the story. Two of the three focus on coal ash ponds or impoundments.

The agency wrote:

  • The regulations now before the Administrative Regulations and Review Subcommittee (ARRS) strengthen the oversight on coal ash ponds to the extent that these ash pond impoundments are likely to all be shut down by the industry.
  • These same regulations will provide substantially more technical requirements of ash impoundments as compared to the existing state ash impoundment regulations.

It’s a bit disingenuous for the DEP to take credit for strengthening rules to the point that the state’s coal ash ponds are likely to close. That’s happening because of the federal EPA rules.

But this focus on ponds has been a constant for the Kentucky DEP. In his testimony before the Administrative Regulations and Review Subcommittee last month, Scott doubled down on the issue.

“Our intention with this rule, particularly on the ash ponds, and the ash ponds is the primary genesis of why this rule came to be into fruition, is, this gives us technical requirements, technical abilities, and frankly it gives us a permitting mechanism that we don’t currently have to deal with ash ponds in Kentucky,” he said.

It’s correct that the permitting of ash ponds in Kentucky has never been particularly rigorous. Under current law, they’re subject to the same sort of permit-by-rule that the cabinet is now proposing using to oversee all sorts of coal ash sites, including landfills.

And there are a few aspects in which the new federal regulations will be more stringent than the current state regulations, though that’s not due to any steps the Kentucky Department for Environmental Protection has taken.

But this focus on stricter requirements on pond permitting is a red herring. The ponds in Kentucky are closing because of the new federal requirements. It’s unlikely any more will be built.

So, while the federal requirements — which the state is adopting — do place more restrictions on where the ponds can be built and how they’re monitored, it’s irrelevant at this point.

Specific vs. General Authority

State regulators made a third point in discussing these regulations in their blog post: The agency is not losing any authority to inspect and oversee coal ash sites in Kentucky.

Specifically, the post said:

  • Agency authority to conduct inspections and oversight of both CCR impoundments and landfills will not decrease as a result of the proposed new CCR regulations. As the recent story only briefly discussed, the Cabinet has and will exercise its authority to inspect these facilities to ensure compliance, investigate citizen complaints, and take enforcement action as necessary.

Is this true? It’s up to interpretation and some guessing about what will happen in the future.

The Cabinet could very well choose to interpret the new regulations in a certain way, and take it upon itself to “ensure compliance, investigate citizen complaints, and take enforcement action as necessary.”

Even if this is the case, the cabinet’s new permitting structure — granting a permit-by-rule for coal ash landfills rather than a comprehensive, individual permit — takes away from regulators’ ability to review a project upfront and minimize problems. If monitoring wells aren’t placed in the right locations, for example, it will be hard to detect pollution later down the line.

Moreover, the new regulations lack the specificity contained in the current Chapter 45. They also lack a key section (401 KAR 45:140) that gives regulators the authority to even regulate and tells permit holders they have a duty to comply in the first place.

Ultimately, the cabinet’s new proposed coal ash regulations lack a lot of details. Regulations aren’t just for the regulated industry — they’re for the regulators, too. The current KAR Chapter 45 specifically delineates the Cabinet’s responsibilities when it comes to coal ash.

And now, if the new regulation becomes law, there are fewer specifics about what the Cabinet will be required to do about coal ash sites in Kentucky.

The new regulations will be before the Administrative Regulations and Review Subcommittee Monday. If they’re approved, they’ll have to clear one more legislative committee before going to Gov. Matt Bevin for his signature.

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