States Get More Leeway Under EPAs Coal Ash Guidance

Newswire—States now have details on how to develop EPA-approved coal ash disposal programs, but environmental groups worry that the agency's flexibility will allow utilities to dictate disposal. 

By Slyvia Carignan, Bloomberg BNA 

States had long been aware that their coal ash disposal programs must be at least as protective as federal standards, but they had received few additional details until the Environmental Protection Agency released guidance Aug. 10. The EPA had announced in May it was developing a framework for those programs.

The guidance allows state directors to certify individual state coal ash disposal facilities instead of only accepting certification from a professional engineer. State directors would also be able to determine that cleaning up a released chemical is unnecessary under certain conditions, and could determine how long cleanup remedies take to complete.

The flexibility may result in more protective programs, said John Ward, spokesperson for the American Coal Ash Association, which represents companies including Duke Energy, Waste Management, CH2M Hill, and LafargeHolcim.

“The current EPA regulation is a one-size-fits-all set of standards that ignores regional differences in geology, weather, disposal practices, and more,” he told Bloomberg BNA.

Frank Holleman, senior attorney at the Southern Environmental Law Center, told Bloomberg BNA he's concerned that “flexibility,” which is part of existing waste regulations but applied to coal ash in the guidance, will allow utilities to influence states' programs.

A spokesman for Duke Energy, an electric, renewable, and natural gas utility, told Bloomberg BNA it welcomes the agency's guidance

“It seeks to provide much needed clarity for states working to implement the federal standards and establish programs that facilitate the safe closure of ash basins,” said Sean Walsh.

According to Walsh, Duke Energy is closing ash basins across their system and building permanent ash storage facilities.

Benefits and Drawbacks

Jim Roewer, director of the Utility Solid Waste Activities Group, said the group is pleased to see flexibility in the guidance. The industry association represents energy and utility companies and other associations, including the American Gas Association and National Rural Electric Cooperative Association.

“This really takes that judgment away from the qualified professional engineer, and invests in the state director of the program the responsibility or the ability to dictate what the standards will be in the permit,” he told Bloomberg BNA.

Holleman, who handles coal ash cases, said he worries the influence utilities wield in state legislatures could convince states to make coal ash disposal programs too lenient, and not protective of human health or the environment.

“The influence of the utilities with state agencies is very, very powerful,” he told Bloomberg BNA.

States' Duties

States will be responsible for showing the EPA that their programs are at least as protective as the federal benchmark.

Bill Hayden, spokesman for Virginia's Department of Environmental Quality, said it was too early to say how or if the non-binding guidance document would affect state programs.

“We do expect that it will be helpful as guidance,” he told Bloomberg BNA.

To gain federal approval, states must be able to show they can determine whether coal ash storage owners and operators are complying with state requirements. States also must show they can monitor or test them for compliance, and can enter sites for inspections, sampling or to review operation records.

According to the interim guidance, the EPA generally expects states to develop permit programs before seeking federal approval, but has not set deadlines for any of those actions. The agency expects to update the guidance document as its receives feedback from states.

The 2016 Water Infrastructure Improvement for the Nation Act delegates coal ash disposal permits to states. EPA has 180 days to act on a state's application for approval and must provide an opportunity for public comment.

Roewer and Ward said the state permit programs are an improvement on previous coal ash disposal enforcement, which was carried out through citizen suits.

In May, the EPA promised states a “swift” review of states' applications. 

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