On Oct. 17th, utilities submitted their compliance plans for the EPA’s 2014 Coal Combustion Residual (CCR) rule, the first national standard for the safe handling of coal ash waste. But there’s an amendment in the works that could change how industry is handling the issue.
Submission of compliance plans is an event, long awaited by environmental groups and communities, that signifies is a step forward in regulation on coal ash waste disposal. But many advocates worry that the rules, enforced by citizen suits and not the EPA, could allow for irresponsible coal ash disposal.
Utility CEOs want to be proactive, turn misfortune into opportunity
“The CEO community is really concerned about this issue,” Shea said at a press roundtable in Washington. “We’ve had the TVA and we’ve had the Duke spill, so we are trying to handle this judiciously, in the most-effective manner, and in the best way for our customers.”
“If you go through a year down the road and there is a spill, it is not going to be relegated down to the engineers; the CEOs are going to be hands on with this, and there’s going to be a lot of outreach and proactivity.”
Duke Energy, for instance, is now shelling out $6 million dollars in fines for its Dan River spill in 2014, which involved a pipe bursting at the Eden plant and a subsequent release of 30,000 tons of sludge that violated federal clean water laws, reports CBS News.
In the press roundtable, Shea, who spoke on behalf of the CEOs within utility industry, explained that such misfortunes are influencing CEOs to get ahead of the issue.
“What CEOs are also talking about is that they are building their company specific toolkits, what are you doing in terms of your open houses, your outreach, what are you doing to alert local media and the local population,” said Shea. “Misfortunate has turned into an opportunity for everyone to surf off of.”
Even if utilities are trying to be proactive, there are still many difficulties in regulating coal ash due to gaps in the CCR rule, said Jim Roewer, executive director of the Utility Solid Waste Activities Group.
“For us the question has always been not whether to regulate coal ash, but how to regulate coal ash,” he said. “The rule’s biggest flaw is that it is a self-implementing rule.”
“We don't have a permit guide that establishes our performance standards that takes those regulations and says this is what you need to do that or face enforcement,” he added. “A self-implementing rule to deal with this issue just isn’t a sensible approach.”
In its current form, the utilities can be subject to citizen suits if they do not comply with the CCR rule, but the EPA does not have enforcement authority itself. They also may not be able to continue using certain impoundments, said Lisa Evans, a senior Earthjustice attorney.
“If a utility can’t demonstrate that it has met the federal factor of safety, then in six months they will have to cease putting ash into the impoundment,” said Evans. “So the ramification is that they can no longer use the impoundment to dispose of the waste, and they will have to file a plan to close down that impoundment.”
“The EPA to my knowledge has not indicated its plans to assess compliance they do not have authority to enforce the rule, and it’s unclear what role they are going to play,” said Evans.
Amendment seeks to fill the CCR gaps
Under current federal standards, states do not have enforcement authority over the CCR rule. They can issue their own state plans that run parallel to the federal standard, but utilities must comply with both — as is the case with North Carolina, where Duke Energy must meet the standards of the North Carolina Coal Ash Management Act and the national CCR rule.
Bart Seitz, an environmental partner at Baker Botts, explains that the citizen suit enforcement aspect of the rule means that utilities, while they are submitting their compliance plans, are still unsure of whether they could be subject to a lawsuit. The amendment, he says, would hopefully mitigate the likelihood, since states would be given enforcement authority.
“It would help clarify the enforcement provisions of the CCR requirements, so that the state would have the option to provide for enforcement of the various technical standards of the CCR rule through some sort of permitting standard, as opposed to just citizen suits” said Seitz.
The amendment is attached to the Senate version of the Water Resources Development Act, another iteration of U.S. Army Corps of Engineers legislation from 2014 to fund critical water infrastructure projects and give states the resources and authorization to take action on issues of drinking water contamination.
Utilities have welcomed the amendment, which authorizes states to develop their own coal ash management programs that are at least as stringent as the EPA’s 2014 CCR rule.
Several environmental groups, however, have expressed concerns that the amendment would take away any opportunity for citizen groups to sue utilities. Abel Russ, attorney at the Environmental Integrity Project, explained this worry to ThinkProgress.
“Our big fear is that this [bill] will just leave us where we were before the rule, which is a patchwork of regulations that don’t adequately protect the environment from the coal ash,” he said.
Seitz stressed that citizens would maintain the right of suing utilities under the amendment, but that hopefully the necessity would go away.
“The amendment wouldn’t displace the right of citizen suits just take away the necessity. Citizen suits could still be a backstop for a lack of state enforcement.”
The state role and need for certainty
The industry says that the amendment would give utilities greater certainty over how they can effectively comply with federal standards, especially since utilities have become increasingly scrutinized, both through a series of lengthy and costly litigation battles and media attention to community concerns about the health effects of ash exposure.
Frank Holleman, a senior attorney at the Environmental Law Center, one of the citizen advocacy groups that have been involved in suits against Duke Energy over violations of the Clean Water Act, says that utilities have been moving toward the conclusion that they need to excavate ash, rather than cap existing facilities in place. But there’s still a ways to go before he thinks that coal ash doesn’t continue to negatively affect surrounding communities.
“This is clearly the way the industry is moving and where communities insist their public utilities move and it’s happening across the south east. Unfortunately, some utilities are still fighting.”
The EPA rule is still just a federal minimal standard, he said. Utilities will have to go above and beyond the rules pillars to really ensure that they are addressing clean water regulations as well.
“It’s important to recognize that the CCR rule is neither an industry standard or the total legal requirement, it is only a minimal floor. Utilities must also consider the clean water act, the state antipollution laws and local zoning ordinances,” Holleman said. “The state and EPA should pay close attention to make sure they comply with other more stringent environmental requirement as well.”
Holleman says the solution is easy. “If utilities just stand up to this and clean up the mess they made all these years we wouldn’t have to worry about the criminal and legal lawsuits. Just clean up the ash.”
But in reality, simply cleaning up the ash is not that easy, Roewer said. The process is costly and nearly impossible to complete under a tight timeframe.
“The costs of removal are ten times that of closure in place,” said Roewer. “If I’m achieving the same amount of environmental protections, potential exposure, safety issues, and the same level of environmental protection under federal standards, why would I do something that takes so much longer and less affordably?”
The lack of certainty over the best way to avoid costly litigation and demands from environmental groups for quick and costly removal is moving utilities in the direction of state permitting plans, which would be achieved through the amendment. Currently, utilities determine their own risk classifications, barring those in North Carolina, which are subject to different standards under CAMA.
Seitz says that utilities would be able to better manage their coal ash with guidance from states.
“I think utilities are used to dealing with their state regulators and typically have a very good relationship with their state regulators. They feel is the state is given primary enforcement authority through some sort of permitting mechanism that they would have more certainty, timeframes, deadlines, reporting would all be outlined in a permit, and if they are complying with that permit they would have some comfort,” said Seitz.
“Whereas now, these plans will be completed and posted, and utilities will hope they don’t face citizen suit enforcement action, but there is still risk that some particular group will allege violations or failure to adhere to standards.”
Even Martin Castro, the chair of the U.S. Commission on Civil Rights, who has been following the effects of coal ash on communities, says that states will have to have a role in coal ash management for progress to occur even if an amendment doesn’t pass.
“States play an important role in this. It’s not just a federal issue,” Castro told Utility Dive last month. “In many instances, the EPA is delegating its authority in providing financial resources to the state agencies to do the work of regulation.”
“States are the first responders in many instances,” he added, “and they have an important obligation to insure that the communities that are to be protected by the EPA’s regulations and the local regulations are in fact being protected.”