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New Federal Bill Could Complicate Kentucky's Coal Ash Plans

A bill heading to President Obama’s desk would change the way federal coal ash rules are implemented. The Kentucky Energy and Environment Cabinet is still moving ahead with its own regulations for coal ash, but one of the state’s top environmental attorneys says the state’s plan flies in direct opposition to the new federal law.

The Senate passed the Water Infrastructure Improvements for the Nation (WINN) Act on Saturday. Along with providing for maintenance of aging dams and flood protection infrastructure, it provides clarity for how states and the federal government will regulate coal combustion residuals, or coal ash.

Coal ash is the byproduct of burning coal for electricity. It’s usually stored in dry landfills or in ponds, and is typically high in contaminants like mercury, cadmium and arsenic. When it’s not disposed of properly, the ash can pollute groundwater or waterways, or can pose a massive safety hazard — like the impoundment breach in Kingston, Tennessee in 2008.

The Environmental Protection Agency finalized the nation’s first federal coal ash disposal rules in 2015, but the rules didn’t include any direct mechanism to implement or enforce the rules. Now, Congress has provided the mechanism in the WINN Act, which was passed with bipartisan support. Senate Majority Leader Mitch McConnell also sent out a news release touting his approval of several of the bill’s provisions, including the coal ash language.

Basically, the bill gives states two options: participate, or not. If states create a coal ash permitting program, or amend their current programs to incorporate federal standards and get EPA approval, they’ll be able to implement the rules themselves. If they don’t, the EPA will either put into place a federal permitting system for that state (pending appropriations), or have the authority to directly enforce the requirement.

'Drive-by Permitting'

Kentucky is already in the process of working on regulations governing coal ash disposal. The state’s proposal would modify the concept of “permit-by-rule,” and allow utilities to build their own coal ash landfills or ponds without prior permitting or review by regulators. The utilities could be fined by regulators or sued by individuals after the fact for any violations. Energy and Environment Cabinet spokesman John Mura said the cabinet believes this would qualify as a “permitting program” as required by the WINN Act.

“We are proposing a permitting process,” he said. “It’s one choice that we are proposing, but it is a permitting process in our view.”

But Tom FitzGerald, who has been practicing environmental law in Kentucky for decades, disagrees. He called the cabinet’s plan “drive-by permitting,” noting that a permitting system connotes some sort of advanced notice and review, unlike the plan the cabinet has proposed.

“This regulation is the most reckless I’ve seen in 36 years of doing this kind of work,” he said. “If they think that’s going to fly, good luck.”

FitzGerald said the WINN Act clearly requires either an individual permit or prior approval, rather than the “permit-by-rule” approach the state is pursuing.

“What will happen is if Kentucky continues along its path and adopts the proposed regulation, is that they will be out of the business of permitting and EPA will directly enforce these proposed requirements,” he said. “If it were me, if I were a coal-fired utility, I would want the predictability of a permitting process."

That was echoed by Kentucky Association of Electric Cooperatives CEO Chris Perry, in the news release sent from McConnell’s office.

“By asserting state oversight of coal ash use and disposal, this legislation helps protect Kentucky energy users.  Without it, the lack of regulatory clarity exposed utilities to potential litigation which would threaten their ability to cost effectively serve the people at the end of line.”

A spokesman for the Kentucky Association of Electric Cooperatives didn’t return a call for further comment.

The bill won’t become law until it’s signed by President Obama. And FitzGerald noted that because it’s a law passed by Congress, the EPA will have little discretion in how or whether to enforce it, even if it’s not inclined to do so under future administrations.


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