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PO Box 1070, Frankfort, KY 40602  Phone 502.875.2428, Fax 502.875.2845

KRC Opposes "Reckless" Proposal To Allow Coal Combustion Ash Generators To Self-Regulate  Posted: December 8, 2016

Ms. Louanna Aldridge
Environmental Control Supervisor
Energy and Environment Cabinet
300 Sower Boulevard
Frankfort, Kentucky 40601
By email only Louanna.Aldridge@ky.gov

Ms. Carole J. Catalfo
Internal Policy Analyst, RPPS
Division of Water
300 Sower Boulevard, 3rd Floor
Frankfort, Kentucky 40601
By email only water@ky.gov (“CCR Surface Impoundments”)

Re: Proposed Regulations 401 KAR 4:070
401 KAR 46:101; 401 KAR 46:110; 401 KAR 46:120

To Whom It May Concern:

These comments are submitted on behalf of the Board and membership of the Kentucky Resources Council, Inc., a non-profit membership organization incorporated under the laws of the Commonwealth of Kentucky and in its 33rd year of providing legal and technical assistance to individuals, communities, and local governments without charge, including numerous individuals whose quality of life have been adversely affected by the mismanagement of coal combustion wastes (termed “coal combustion residuals” or “CCRs” in the proposed regulations.)

The Council is gravely concerned with the proposed set of administrative regulations and the laissez faire approach to management of coal combustion wastes evinced in the regulations. Under the current regulatory program contained in 401 KAR Chapter 45, the siting, construction, operation, environmental monitoring, reporting, closure, and post-closure of landfills constructed for disposal of “special wastes,” including coal-combustion wastes, occurs under an individual permit that is subject to technical review by the Energy and Environment Cabinet, and is also subject to public notice, public comment, and opportunity for those affected to test the sufficiency of the application and review process against the applicable statutes and regulations. In stark contrast, the proposed regulations would grant a “permit by rule” to coal combustion waste landfills and coal combustion waste ponds, allowing the siting, construction, operation, environmental monitoring, self-inspection, closure and post-closure of coal combustion waste landfills and ash ponds, with no advance notice to the Cabinet or public, and no agency or public review of the sufficiency of the siting, design, construction, environmental and groundwater monitoring, operation, closure, and post-closure care of the constructed landfill cells or pond.

The first indication that the Cabinet or the public would have that a proposed facility would be sited and constructed, would be when the construction began. The first time that the Cabinet or public would be made aware that the design, siting, construction or operation was being undertaken in a manner that caused environmental harm would be when the environmental harm, groundwater damage, pond impoundment failure, or other indicia of a failure to comply with the EPA standards, became manifest.

The proposal eviscerates the permitting process for coal combustion waste landfills and ponds, and exposes those communities near proposed facilities, and those living near currently-permitted facilities that choose to transition to the “permit by rule” and to terminate current permits, to elevated levels of risk to public health and environmental damage associated with coal combustion wastes and the numerous pollutants that are entrained in such wastes.

While some of the referenced EPA standards are more stringent than those in current state regulations, particularly with respect to ash ponds, the regulatory proposal to eliminate all advance individual agency permitting and public review of proposed facilities and of compliance with the EPA standards prior to siting, design, construction, and operation, is ill-advised at best, and at worst, dangerous.

Prior to addressing the specific flaws in the proposed regulatory approach, it is instructive to review why regulatory scrutiny of the management, storage, and disposal of coal combustion wastes such as is provided under the current regulatory structure of 401 KAR Chapter 45, is both appropriate and justified.

The combustion of coal produces large amounts of fly ash, bottom ash, boiler slag and flue gas desulfurization sludge that are collectively called coal combustion wastes or CCR under the proposed regulation. Today CCW is the second largest industrial waste stream in America, surpassed only by mining waste. As efforts to control pollutants in emissions from coal combustion increase, so have both the volume and potential toxicity of CCW. The volume of CCW produced nationally increased by 30 - 40% to approximately 130 million tons annually in 2004 largely due to use of flue gas desulfurization devices in order to meet the requirements of the Clean Air Act Amendments of 1990. Burning coal today produces over 131 million tons annually.

Additional initiatives for controlling power plant emissions, including proposed controls on mercury are likely to increase total CCW generation further with estimates of as much as 170 million tons being generated annually by 2015.

The disposal of CCW has caused a well-documented variety of environmental problems particularly to soils and waters, due to extremes of pH and high concentrations of soluble salts, trace metals and other pollutants that leach from different CCWs. The National Academies of Science has acknowledged the particular environmental threat posed by disposal of coal ash in mines, landfills and surface impoundments.

According to the GAO, between 2000 and 2006, utilities reported depositing into impoundments and landfills, 124 million pounds of arsenic, chromium, lead, nickel, selenium and thallium as components of the coal combustion wastes.

The 1988 US Environmental Protection Agency Report to Congress concerning coal combustion wastes acknowledged the existence of potential for causing groundwater contamination among and within the categories of coal combustion waste. According to the Wastes from the Combustion of Coal by Electric Utility Power Plants, EPA/530-SW-88-002:

"The primary concern regarding the disposal of wastes from coal-fired power plants is the potential for waste leachate to cause ground-water contamination. Although most of the materials found in these wastes do not cause much concern (for example, over 95 percent of ash is composed of oxides of silicon, aluminum, iron and calcium), small quantities of other constituents that could potentially damage human health and the environment may also be present. These constituents include arsenic, barium, cadmium, chromium, lead, mercury and selenium. At certain concentrations these elements have toxic effects."

Id., at ES-4.

While the findings of the EPA Report and review of industry-generated studies indicated generally that metals did not leach out of coal combustion waste at levels 100x the primary drinking water standard (i.e. characteristically hazardous by TCLP toxicity), hazardous levels of cadmium and arsenic were found in ash and sludge samples, and boiler cleaning wastes sometimes contained hazardous levels of chromium and lead. Id.

The literature suggests that, among other things, that:

• Neither EP nor TCLP tests provide a good indication of leachability of CCW in natural disposal settings. Long-term leaching tests conducted until equilibrium has been achieved for each element of concern, using a leaching solution that approximated percolating groundwater, would give a more accurate depiction of ground-water contamination potential at a disposal site.

• 17 potentially toxic elements are commonly present in CCW: aluminum, antimony, arsenic, barium, beryllium, boron, cadmium, chromium, copper, lead, manganese, mercury, molybdenum, nickel, selenium, vanadium, and zinc.

• Fluidized bed combustion (FBC) wastes retain volatile and semi-volatile elements in the bottom ash to a greater extent than conventional pulverized coal combustion, thus enhancing the leachability of FBC waste elements.

• Leachates from coal power plant ash and flue gas desulfurization wastes typically exceed drinking water standards. The major leaching studies on CCW indicate that drinking water standards are typically exceeded by CCW ash leachate at a factor of 1.1 to 10, and often by a factor greater than 10 for one or more elements. New data from the LEAF test demonstrates that coal ash and FGD sludge can leach many heavy metals at levels above hazardous waste levels. Attached to these comments is a paper authored by Lisa Evans summarizing the data from the U.S. Environmental Protection Agency, Office of Research and Development report Characterization of Coal Combustion Residues from Electric Utilities—Leaching and Characterization Data (EPA/600/R-09/151) December 2009.

Other reports indicate a concern with enhanced levels of radionuclides in coal combustion fly ash, including radium-226 and other daughters of the uranium and thorium series that pose significant long-term management challenges.

As improvements continue to be achieved in both pre- and post-combustion scrubbing and capture of particulates and metals, we will of necessity change the composition and increase the potential toxicity of the wastes and leachate. As noted by the GAO, in September of 2009 EPA noted a need to revise the current effluent guidelines for discharges to surface waters because of the high level of toxic-weighted pollutant discharges from coal-fired power plants and the expectation that these discharges will increase significantly in the next few years due to new air pollution control requirements.

The proper management of CCW is essential for protection of human health and the environment. Yet the regulatory proposal – one that is not required to be adopted by either state statute or federal mandate and one that is in fact contrary to the language and the intent of Kentucky’s waste management statutes, all but assures that improper or inadequate management of coal combustion wastes will become more common due to lack of regulatory or public oversight. The proposal will likely result in groundwater contamination becoming more widespread and problematic due to lack of oversight of liner design and construction and lack of review of groundwater monitoring systems, and promises that more coal combustion waste landfills and ponds will be left without proper closure and post-closure care due to the elimination of any bonded responsibility for closure and post-closure. By leaving the companies and their engineers in full control of compliance with no agency or public oversight, the proposed regulations invite increased litigation by the public against not only the utilities and other generators, managers, and disposers of coal combustion wastes, but also the engineers involved in the design and construction oversight of coal combustion waste facilities. Finally, in addition to the heightened potential for inadequate siting, design, construction, and operation of coal combustion waste disposal facilities due to the elimination of agency and public review of such activities, the proposal will likely raise electricity rates for regulated and municipal utility customers due to the passing through remediation costs associated with environmental damage and public health and safety harm associated with failures of the disposal facilities occasioned due to siting, design, construction, or operational flaws due to the complete absence of regulatory oversight of the siting, permitting, construction, and operation of such facilities.

Specific comments follow, referenced by proposed regulation or topic.

401 KAR 46:101

KRC incorporates by reference the comments set forth above concerning the ill-considered proposal to allow management, disposal, or beneficial use of coal combustion wastes under a permit-by-rule, allowing those activities to occur “without the submission of an application to the Cabinet[.]”

KRC further notes that the proposed definitions reference a “CCR unit” but do not define what constitutes a “CCR unit.” Key terms should not be undefined, and the wholesale exemption of “CCR Units” without defining what such units are, threatens to completely deregulate classes of such facilities in direct violation of KRS 224.40-305 and KRS 224.50-760.

A cursory review of 40 C.F.R 257.50 reflects that the regulations of 40 Part 257 do not apply to:

• wastes, including fly ash, bottom ash, boiler slag, and flue gas desulfurization materials generated at facilities that are not part of an electric utility or independent power producer, such as manufacturing facilities, universities, and hospitals;

• fly ash, bottom ash, boiler slag, and flue gas desulfurization materials, generated primarily from the combustion of fuels (including other fossil fuels) other than coal, for the purpose of generating electricity unless the fuel burned consists of more than fifty percent (50%) coal on a total heat input or mass input basis, whichever results in the greater mass feed rate of coal;

• practices that meet the definition of a beneficial use of CCR;

• CCR placement at active or abandoned underground or surface coal mines;

• municipal solid waste landfills that receive CCR.

Unless CCR Units are defined in a manner that limits those facilities eligible for transitioning to federal standards to those to whom the federal standard apply (i.e. coal-fired utilities), the regulation would allow the unpermitted and unregulated management of fly ash, bottom ash, and scrubber sludge from all of these sources, since they would be exempted from 401 KAR Chapter 45 but would not be subject to any of the requirements of proposed new 401 KAR Chapter 46.

With respect to compliance with KRS Chapter 224, KRC believes that allowance of a permit by rule without advance notice to or review by the agency, is flatly inconsistent with the requirements of KRS 224.40-305, which is noted in the “Necessity, Function, and Conformity” section of current 401 KAR 45:010 to be applicable to special wastes.

KRS 224.40-305 provides that “No person shall establish, construct, operate, maintain, or permit the use of a waste site or facility without first having obtained a permit from the cabinet pursuant to this chapter and administrative regulations adopted by the cabinet.” The grant of a general authorization to a category of waste sites or facilities engaged in the “management, disposal, or beneficial use of CCR…without the submission of an application to the cabinet” cannot be squared with the legislative language or intent to require that a permit be obtained from the cabinet.

KRC also disagrees vigorously with the Federal Mandate Analysis Comparison, which erroneously states that 40 C.F.R. 257.53 is a “Federal statute or regulation constituting the federal mandate.” There is no federal mandate that the state weaken its permitting procedures for coal combustion waste disposal facilities. Rather, the federal standards under Part 257 are intended to supplement existing state requirements, as is made clear in §257.52 Applicability of other regulations which provides that:

(a) Compliance with the requirements of this subpart does not affect the need for the owner or operator of a CCR landfill, CCR surface impoundment, or lateral expansion of a CCR unit to comply with all other applicable federal, state, tribal, or local laws or other requirements.

The federal regulation cited as the basis for the “federal mandate,” 40 C.F.R. 257.53, is actually the definition section of Part 257, and contains no federal mandate.

By defaulting to the federal regulations and granting a “drive-by-permit” to facilities to site, design, construct, operate, and close without agency or public advance scrutiny, the cabinet proposal creates a “cycle of neglect” in which the owner and operator of the CCR unit is allowed to self-regulate rather than being subject to a reasonable demonstration of compliance with the existing state permitting and technical standards and the supplemental federal standards.

The responsible approach to incorporation of the federal standards into the existing regulatory scheme is to compare and modify the individual design and performance standards of the federal regulations with those of the Commonwealth, and to modify such standards as deemed appropriate or necessary. Wholesale abdication of permitting and oversight functions is neither requirement or contemplated by 40 CFR Part 257, nor is it a responsible path consistent with the announced purposes and language of KRS Chapter 224.

401 KAR 4:070

The proposed regulation would authorize siting, construction, and operation of both incised and impounded ponds without any agency review of the siting, design, construction, or operation of such facilities. Having lost a client to a coal waste dam that was not reviewed by two regulatory agencies and which was poorly designed and improperly constructed, and which crushed her to death when it catastrophically collapsed, KRC views the proposal to allow siting, design, construction, and operation of ponds containing embankment structures without agency oversight to be nothing short of reckless. Compliance with the structural integrity requirements of 40 C.F.R. 257.73 and 257.74, as applicable, and hydrologic and hydraulic capacity requirements of 40 C.F.R. 257.82, should be reviewed and approved by the Cabinet rather than left to the discretion of the formerly-regulated owner/operator. The downstream public and water resources should not be required to accept that the owner/operator has complied with all of the requirements of the federal regulations despite no external accountability or review, nor to live beneath a damoclean sword waiting until the structure fails or breaches to learn that the design, siting, or construction was inadequate.

401 KAR 46:110

KRC incorporates the comments provided above as to why the demonstration of compliance by CCR units should not be assumed, but rather should be demonstrated through an individual permit obtained in accordance with 401 KAR Chapter 45 and subject to full public and interagency review.

Defaulting to federal standards, rather than more rigorously identifying which federal standards are more protective than existing state regulation and should be incorporated into the state regulatory framework, will create a number of problems due to aspects of the federal regulations that are less clear, less protective, and less rigorous than current state regulations. For example, the performance standards for the closure standards of 40 C.F.R. 257.102 are unclear, and without oversight utilities are going to leave legacy dumpsites that will leak and become legacy burdens on those living nearby and downstream.

Without agency oversight of the design and implementation of groundwater monitoring systems, owners of CCR units may design systems that fail to properly understand and thus to characterize the hydrologic systems, and which may be located in areas that fail to detect pollution, all the while claiming to meet the general performance standards under 40 C.F.R. 257.91. In a Commonwealth where numerous regions have hydrologic systems dominated by fracture and karstic flow, particular attention to the design and location of groundwater monitoring systems is key to determining compliance with the environmental performance standards, and the lack of agency review of proposed systems is unconscionable. Additionally, without agency review, compliance with the applicable requirements of 40 C.F.R. 257.93 with respect to statistical exceedances of groundwater will be difficult to assure.

Given Kentucky’s experiences with catastrophic failure of impoundments compromising life and property, the proposal to delegate the evaluation of structural stability of high hazard dams impounding CCR ponds is less than responsible. Kentucky has some of the largest and most dangerous CCR impoundments, according to reports. The federal requirements for annual inspection requirements, even for high hazard dams, are so poorly-written that utilities in other states have been able to submit one-page "reports" that amount to simply checking boxes. See 257.83(b). Further, the structural stability assessments (257.73(d) and (d)) should be overseen by a state dam safety expert, particularly since the requirements for bonding closure and post-closure of such facilities would be eliminated under the proposed regulation. Additionally, the emergency action plans should be reviewed by the state to assure compliance with FEMA standards. 40 C.F.R. 257.73(a)(3)

Under the proposed regulations, the owners of CCR units would be left to determine, with no input from the agency or public, they meet the siting criteria. The state should not delegate such governmental authority to the formerly-regulated entities to make such determinations. 40 C.F.R. 257.60-64.

Dust control and fugitive dust emissions have been a significant problem for CCR waste piles and impoundments in Jefferson County and elsewhere in the Commonwealth. The Divisions for Air Quality and Waste Management should retain authority to review the adequacy of fugitive dust control plans, and not the utility or landfill owner. 40 C.F.R. 257.80.

Under 40 C.F.R. 257.70(c), the owners and operators under the CCR rule can use an "alternative composite liner" for landfill liners. It is the height of folly to wait until the failure of such liners to discover that the alternative design was flawed, and instead the design and construction of all CCR landfill liners, and pond liners, should be approved by the state, rather than self-approved by the formerly-regulated.

Once of the more troubling aspects of the proposed regulation is that it would appear to allow facilities that are currently under Agreed Orders for violations of the Environmental Performance Standards, to transition to a permit-by-rule environment, since pursuant to Agreed Orders the parties concede that there is no violation of the environmental performance standards.

401 KAR 46:120

It is ironic, and of great concern that 401 KAR 46:120 Section 1 imposes a number of performance requirements on beneficial uses of CCR that are not required for disposal facilities:

- Beneficial uses are required to avoid violation of 401 KAR 30:031, yet disposal of CCR is not similarly required to meet those environmental performance standards;

- Beneficial use is required to avoid presenting a threat or potential threat to human health and the environment, yet there appears to be no similar obligation for permit-by-rule landfills or ponds;

- Beneficial uses are required to avoid creation of a nuisance from fugitive emissions, yet there is no similar requirement for CCR disposal facilities;

- The beneficial user is required to characterize the waste pursuant to 401 KAR 31:030 (i.e. whether it is a “hazardous” waste), yet there is no characterization requirement for disposal facilities;

- An annual report is required for beneficial use, but no reporting of data, including monitoring data, is required of disposal facilities.

The failure to extend these obligations, as well as the clear obligation to meet and demonstrate the compliance with the siting and environmental performance standards prior to permit issuance, is a recipe for disaster.

Bonding And Financial Assurance

401 KAR Chapter 45 requires performance bonds assuring the implementation of the closure and post-closure responsibilities of CCR landfills, and a bond for corrective action. According to one estimate, the Kentucky Division of Waste Management holds roughly 50 million dollars in financial assurance to ensure proper closure of special waste landfills used for the disposal of CCR.

If the proposed regulations become effective and allow existing facilities to transition from regulation under 401 KAR Chapter 45 to Chapter 46, all of permit requirements and all of the requirements of 401 KAR Chapter 45 will be terminated for CCR units regulated under Chapter 46, including the financial assurance required under 401 KAR Chapter 45, since the federal regulations did not impose supplemental financial assurance requirements above those currently in place. It is assumed that as written, the regulation would require that all financial assurance will be returned to the utilities, thus leaving the Commonwealth and host communities to bear the risks of non-performance of closure and post-closure care obligations in the event of owner/operator default.

As a result, in the event of the bankruptcy or abandonment by an owner of a CCR unit, the relevant unit or units will have to be closed, if at all, under state superfund provisions, which are grossly inadequate to fund existing legacy site obligations, let alone to take on the burden of these formerly-funded obligations. Financial Assurance should not be retained for CCR landfills, and should be extended to include closure of all surface ponds and impoundments.

Conclusion

The approach proposed by the regulatory package referenced above, delegates to facilities formerly subject to advance review of siting, design, construction, environmental monitoring, closure, and post-closure, by the Energy and Environment Cabinet and the public, carte blanche to disregard regulatory requirements established by the EPA and intended to supplement rather than to supplant state permitting, environmental monitoring, inspection, and compliance assistance processes. The proposed regulations are a significant step backwards in the management of a category of wastes that are increasingly of public health and environmental concern. The proposed regulations will cost both those affected by the risks posed from the lack of advance regulation of siting, design, construction, operation, environmental monitoring, and closure of CCR units, and those who own, engineer, and operate such units. Hamstringing the Cabinet by eliminating involvement in oversight until after the harm has become manifest, will impose far greater social and economic costs on all parties, and will spawn hostility, distrust, suspicion, alienation by the public towards both the CCR unit owners and the Commonwealth, and will heighten the potential for harm to those persons and natural resources that the regulations are intended to protect.

The Cabinet should withdraw the proposed regulations, and empanel a multi-stakeholder group representing regulated and municipal utilities, waste management companies, communities and individuals affected by current waste management of coal combustion wastes, and other stakeholders to develop a consensus path forward that respects the proper balance between engineering judgment and public accountability, and between the regulated community, regulators, and the affected public.

Cordially,

Tom FitzGerald
Director

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