Utilities seek regulatory certainty in management of coal ash
As coal power producers comply with federal Obama-era groundwater monitoring rules at coal ash disposal sites, the Trump administration has announced plans to let states regulate these facilities much like municipal trash landfills.
The U.S. Environmental Protection Agency recently announced a series of proposals it said would save the utility industry up to $100 million annually in compliance costs.
“Today’s coal ash proposal embodies EPA’s commitment to our state partners by providing them with the ability to incorporate flexibilities into their coal ash permit programs based on the needs of their states,” said EPA Administrator Scott Pruitt in a written statement on March 1.
The rules would apply to ash sites at more than 400 coal-fired power plants across the nation. The proposed rules involve the material that remains after power plants burn coal to create steam and drive turbine electric generators. The ash is called coal combustion residual, or CCR, in regulatory parlance.
The EPA made the announcement as coal power producers have started posting the results of groundwater monitoring across the nation, which is required by the EPA to determine the extent to which coal ash sites are contaminating groundwater.
Environmentalists say the contamination is extensive. Utility industry experts say the results are just the first step in a regulatory process and the public needs to allow time for regulations adopted in 2015 to serve their purpose.
Brent Fewell, an environmental lawyer who has consulted energy clients on coal ash, recently published an op-ed article in trade publication Utility Dive urging patience.
“The CCR rule sets forth a clear and orderly process (with defined deadlines) for utilities to assess groundwater conditions and potential human risks, to provide the public with timely data and information regarding those risks and to make informed decisions regarding corrective measures where necessary to eliminate unacceptable risks,” Fewell said.
“Unfortunately, for certain groups to draw premature conclusions regarding health risks based on initial groundwater data is not only wrong, it is irresponsible, said Fewell, former principal deputy assistant administrator for the EPA’s Office of Water during the George W. Bush administration. “It is important we let the regulatory process play out without needlessly playing on the public’s fears.”
The EPA’s recent proposal marks the latest step in a process the government began almost a decade ago after a massive coal ash spill at the Tennessee Valley Authority’s Kingston plant in Roane County, Tennessee.
In December 2008, more than a billion gallons of coal ash sludge flooded more than 300 acres and contaminated the Emory and Clinch Rivers, the largest coal ash spill in U.S. history. The EPA launched an effort to more closely regulate coal ash disposal, inspecting sites across the nation and, in 2010, proposing regulations.
The EPA’s rules went into effect in 2015 and were challenged by coal power producers and environmentalists. The parties await a decision from the U.S. Court of Appeals for the D.C. Circuit.
In the meantime, the Trump administration has proposed these latest regulations to implement a December 2016 law signed by President Barack Obama that allows states to regulate coal ash disposal as long as the permitting programs meet EPA standards.
The Water Infrastructure for Improvements to the Nation (WIIN) Act allows states to regulate coal ash disposal similar to the way they regulated trash disposal. And in states that don’t regulate the activity, the EPA will serve as the regulatory agency.
Prior to the WIIN Act, enforcement depended on citizens bringing lawsuits against facilities for violating the rules. The electric industry, however, agrees with giving the states permitting authority, arguing that the self-implementing nature of the prior rules exposed utilities to the possibility of conflicting court decisions, inconsistent enforcement and increased risk.
“The outcome we want to see is one where the federal rule is being implemented by the state agencies through enforceable permits, which will provide regulatory certainty and environmental protection,” said Jim Roewer executive director of the Utility Solid Waste Activities Group, a trade association that supports the electric power industry and challenged the 2015 regulations in court.
Roewer said the EPA’s most-recent proposed amendments will give state environmental regulators the ability to issue permits and rely on the technical expertise of their local staffs. They will be able to consider the unique hydrology and geology of each site, along with the nature of the ash. A consistent, yet flexible, permitting process will give utilities greater regulatory certainty.
“Regulatory certainty allows us to make informed business decisions regarding the management of coal ash, the operation and closure of our disposal facilities and the management of costs to our customers as we transition to a cleaner energy future,” Roewer added.
“What is problematic with the current situation under the self-implementing rule is that we lack the regulatory certainty that a permit provides,” he said. “The one-size-fits-all approach is what this is trying to modify.”
Power producers will spend hundreds of millions of dollars managing coal ash disposal sites. They want to make sure they spend it properly, he said. “Once we spend that, we can’t get that money back.”
The EPA’s proposal coincides with Trump administration efforts to support the struggling domestic coal industry.
Faced with dire predictions about climate change and the role of carbon emissions from coal-fired power plants, environmentalists have increasingly been pushing for costly restrictions.
