Statement Opposing Energy & Environment Cabinet Utility Coal Waste Rules Posted: February 9, 2017
STATEMENT IN OPPOSITION TO PROPOSED ELECTRIC UTILITY COAL COMBUSTION RESIDUAL REGULATIONS
The Kentucky Resources Council respectfully calls on the Administrative Regulations Review Subcommittee to reject the proposed coal combustion residual regulations of the Energy and Environment Cabinet is being inconsistent with the letter and spirit of KRS Chapters 224 and 350.
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. The regulations comprise the most reckless and ill-considered regulatory proposal that the Council Director has evaluated in over 38 years of environmental protection work.
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 “registered 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 technical review by the agency and public opportunity to comment on or seek administrative 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 time that the Cabinet or public would become 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.
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, given that 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. 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. 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. 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.
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.
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 legal issues with respect to the regulations include:
1. Inconsistency with KRS 224.40-305, which requires the obtaining of a permit from the Cabinet prior to establishing a waste site or facility. Categorical grants of registered permits by rule, formerly limited to minor activities, do not constitute permits, since without any technical review and approval by the agency, attaining the goals of the chapter cannot be demonstrated.
2. The Federal Mandate analysis is incorrect in stating 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:
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.
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.
3. 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.
4. The proposal in 401 KAR 45:060 to allow under a permit by rule the disposal of coal combustion wastes as backfill in surface and underground mines, is particularly reckless given the fractured nature of the mined areas and close proximity to groundwater systems and often to groundwater users. The agency fails to reference KRS 350.270, and perhaps fails to understand that co-disposal at surface coal mines is a matter of particular concern to the General Assembly and was intended to be subject to greater rather than lesser scrutiny under KRS Chapter 350 and Chapter 224.
In 1994, the General Assembly adopted KRS 350.270, requiring a permit pursuant to KRS Chapter 350 for disposal of CCWs at mine sites, and imposing numerous analyses and tests prior to allowing disposal of CCWs at mine sites. The statute contemplates the maintenance of a permitting requirement for disposal of coal combustion wastes, and adds requirements specific to co-disposal at coal mines.
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.
KRC calls on the Committee to reject the proposed regulations, and that the Cabinet 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.