Kentucky Regulators Agreed Coal Ash Rules Were Bad — In 2010

The Kentucky Department for Environmental Protection is moving forward with new regulations that weaken the state’s prior review of coal ash landfills. If they are enacted, there will be no comprehensive permitting process for the large-scale landfills that hold coal combustion waste near power plants.

Instead, utilities will apply for registered permits-by-rule — essentially simple documents that allow companies to construct landfills without consulting the state. Kentucky regulators could issue citations for any violations after the fact.

The proposal has drawn outrage from environmental groups and citizens, who are concerned about leaving complicated engineering projects in the hands of utility companies, with no prior state oversight.

Turns out, the Kentucky Department for Environmental Protection, circa 2010, thinks it’s a bad idea, too.

Here's a line from a 2010 document state regulators sent to the federal Environmental Protection Agency commenting on proposed federal coal ash regulations:

The 51-page document was signed by then-DEP Commissioner Bruce Scott and dated Nov. 16, 2010. It provides detailed comments on the EPA’s proposal, and it offers insight into how Kentucky wished to see the federal government regulate coal ash.

Scott has since been promoted to Energy and Environment Cabinet Deputy Secretary and has been spearheading the new regulations under Gov. Matt Bevin. The changes began under former Gov. Steve Beshear.

It is common for state agencies and stakeholders to submit highly-technical documents commenting on the content of proposed regulations.

In the document, the Kentucky DEP tells the EPA it would prefer the feds regulate coal ash as a special waste, rather than a hazardous waste. That’s ultimately the path the EPA chose. But in advocating for this approach, state regulators also stressed the suitability of Kentucky’s existing permitting program for coal ash landfills — the same permitting program the DEP’s new regulations dismantle.

In fact, the EPA’s proposal lays out a situation much like what Kentucky is currently contemplating.

There's also this:

The version of the regulations the EPA finalized leaves the permitting program up to the state. They’re a bit more like technical standards, setting out guidelines for constructing new coal ash ponds and landfills and monitoring pollution from existing ones.

In 2015, Kentucky regulators began working on new state regulations to incorporate the EPA’s new rules. They came up with one version, but after more than a year of private meetings with the utility industry, the regulations were significantly weakened.

Those weakened regulations are the ones with which the state is currently moving — and they contain the very scenarios that seemed to concern regulators seven years ago.

Coal ash is an unavoidable byproduct of burning coal for electricity. But when it’s not handled correctly, it can have devastating consequences for the public and the environment.

In the past decade, there have been two highly-visible coal ash spills in the Southeast. And there are numerous document instances of pollution near coal ash sites, including some in Kentucky.

In response to a question about what changed between 2010 and 2017 to make the Kentucky Department for Environmental Protection reverse its position, spokesman John Mura declined an interview request. He emailed the following statement:
“When the agency commented on the proposed Federal [Coal Combustion Residual, or CCR] rules on November 16, 2010, the EPA was soliciting input on regulatory options, rather than on one regulatory approach. The agency noted in a cover letter to EPA that this made it difficult to provide focused comments. When the EPA finalized its rule in April of 2015, it did so as [a] self-implementing program, without state oversight. Since the final rule provided specificity regarding landfill and impoundment siting, design, monitoring, and operational requirements, this addressed concerns raised previously by the Cabinet. The Agency then reached beyond the federal requirements by establishing a registered permit-by-rule process, financial assurance requirements, and a public notice standard for CCR units. The agency also maintained its ability to inspect CCR units in order ensure that they are properly constructed and operated. The agency believes that these regulations set forth prescriptive and protective standards for managing CCR moving forward as well as requirements that will very likely phase out the continued use of unlined CCR surface impoundments and would require the closure or retrofitting of certain CCR landfills.”
But the issues of specific federal standards and a comprehensive permitting program are different. Tom FitzGerald of the Kentucky Resources Council said the state is comparing apples and oranges.

“They recognize that regardless of whether you have technical standards — because the proposed rule had technical standards — that self-certification is a recipe for disaster," he said. "Rather than having geologists and engineers self-certifying compliance with those technical standards, a detailed permit review is needed. That’s what they said. And they’re trying to walk away from it now because it’s embarrassing. And they should be embarrassed; what they came out with as a final rule is a travesty.”

Although the DEP’s 2010 letter was sent under the previous administration — that of Democratic Gov. Beshear — and the proposal is in the process of being finalized under current Republican Gov. Bevin, most of the players in the DEP have remained the same over the two administrations.

The process of rewriting the new regulations was also begun under the Beshear administration. The Department for Environmental Protection initially wrote one version of the regulation that maintained a permitting program. But the regulations that emerged after more than a year of meetings with utility industry representatives were less stringent.