UPDATE: The passing of the federal Water Infrastructure Improvements for the Nation (WINN) Act on Dec. 10 includes language that was meant to clarify coal ash rules for states but may complicate the process for Kentucky, as reported by the Courier-Journal.
Pending President Obama's signature, the bill will give states the option to participate by creating their own permitting programs for coal ash disposal or change their regulations to follow federal guidelines with approval from the Environmental Protection Agency. Those that don't participate with their own programs will be subject to direct enforcement from the EPA. Citizen lawsuits will still be allowed in either case.
Kentucky's proposed "permit by rule" plan would essentially allow utility companies to regulate themselves and then the state would issue any violations as needed after the fact. Multiple attorneys and environmental advocates say this would count as not participating because the state wouldn't be enforcing any type of permitting program prior to the work being done.
The state's Energy and Environment Cabinet has said it is still reviewing public comments and hasn't made a final decision on the permitting system.
- Kentucky's Energy and Environment Cabinet is pushing regulations that would limit state and public oversight of coal ash disposal. While Governor Matt Bevin's administration says this is in line with recent EPA rules, others say it would put the environment at risk, as reported by the Courier-Journal.
- According to the Kentucky Resources Council, the proposal would exempt coal wastes from "special waste" regulations and make it easier for utility companies to build landfills without public notice or agency review. Utility companies say this would streamline the process by better aligning with federal requirements.
- One of the state cabinet's geologists spoke against the proposal, as a private citizen, at a recent hearing. He raised concerns about the potential hazards to Kentucky's water supply and also noted the state would have to return $48.4 million in bond assurances provided by utility companies as collateral for proper cleanup in the event of bankruptcy.
The EPA's 2014 rule that classifies coal ash as solid waste rather than hazardous waste was a notable step in an ongoing debate about safe disposal. Yet state agencies have been slow to develop their own plans for managing the material and regulatory enforcement relies on citizen lawsuits. Some progress has been made in states such as Indiana and waste management companies have seen new opportunities to handle the material.
Plans to site coal ash landfills or bring the material to other landfills have been unpopular with local communities. As seen when coal ash from a Duke Energy plant in North Carolina leaked into a river after Hurricane Matthew, the potential for environmental damage is high. Much larger spills in North Carolina and Tennessee caused widespread damage and have made environmental advocates even more wary.
Language that would give state agencies the authority to enforce EPA rules through permits was included in a major water resources bill passed by the House on Dec. 8. Whether the bill will pass the Senate remains unclear as some members are opposed to an unrelated last-minute rider and Congress is set to take its holiday vacation soon.