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Kentucky Regulators, Industry Reps Privately Rewrote Coal Ash Rules


By Erica Peterson

https://i2.wp.com/wfpl.org/wp-content/uploads/2014/12/Mill_Creek2.jpg

Kentucky’s Energy and Environment Cabinet has finalized a controversial plan to let the state’s utilities virtually self-regulate the storing of hazardous coal ash near power plants.

As details about the plan emerged over the past few weeks, Cabinet Secretary Charles Snavely defended the rules and the process, saying it included “full public participation.”

But documents obtained by WFPL News show the process was far from public and instead included more than a year of backroom meetings — under both former Gov. Steve Beshear and Gov. Matt Bevin — with representatives of the utility industry. During that time, documents show the regulations were significantly revised and weakened.

When regulators began meeting with representatives of the utility industry in September 2015, the regulations they had drafted (left) were extensive. By the time they submitted the drafts to the Legislative Research Commission in October 2016 (right), the regulations were weakened.

Environmental attorney Tom FitzGerald of the Kentucky Resources Council, who has spent more than 44 years working in the state, and oftentimes on workgroups with members of industry and regulators to craft regulations, said to his knowledge, such one-sided input from industry is unprecedented in recent years.

“I think it’s unconscionable, and I think it does not reflect well on how little value [the regulators] place on public involvement in the development of regulations that are intended to protect the public,” FitzGerald said.

Representatives from the Energy and Environment Cabinet declined an interview request. In response to emailed questions, spokesman John Mura defended the cabinet’s regulatory process.

“As a part of the pre-KRS 13A deliberative process of regulation development, it is common for the state to informally discuss regulatory matters with the regulated sector that are directly impacted by those regulations,” Mura wrote.

He also pointed to a public comment period and a public hearing held in November 2016. After public comments were received, the agency made minor changes to the rule.

Dangers of Coal Ash

Coal ash — also called “coal combustion residuals,” or CCR — is the byproduct of burning coal for electricity. It’s often stored in dry landfills or wet ponds, or recycled into products like concrete or wall boards.

But it also contains contaminants like mercury, cadmium and arsenic. And environmental advocates say that’s why it’s so important there’s adequate state and federal oversight over coal ash disposal.

“Coal ash is a toxic substance that if handled incorrectly can take human lives, can make people sick, can ruin the environment, lakes, rivers, streams, permanently,” said Earthjustice attorney Lisa Evans.

In the past decade, there have been two high-profile instances — in Kingston, Tennesee and Eden, North Carolina — where large-scale coal ash spills have contaminated miles of rivers and land. But there have also been numerous other cases where there have been smaller amounts of pollution, where coal ash has caused air problems or has leached chemicals into groundwater.

Kentucky Division of Waste Management geologist Todd Hendricks mentioned a few of those instances in public comments he made about the cabinet’s proposed coal ash rule:

“Analysis of groundwater and leachate from CCR units in Kentucky has shown elevated levels of heavy metals, sulfate, boron, and other contaminants. One facility is conducting groundwater corrective action for contamination of karst springs with arsenic leaching from an inactive surface impoundment. Hundreds of thousands of gallons of arsenic-contaminated groundwater per day are captured and pumped to the active surface impoundment for dilution and discharge through a permitted outfall. At another facility, state laboratory analysis of one recent sample of fluid (presumably leachate) flowing from the toe of a closed CCR landfill showed 9.81 mg/L of arsenic, which is 981 times the maximum contaminant level (MCL).”

Coal ash wasn’t regulated by the federal Environmental Protection Agency until 2015. But with the publication of the first-ever federal coal ash rules in the Federal Register, the EPA set out new standards designed to be incorporated into states’ existing regulatory framework.

And that’s when the Kentucky Energy and Environment Cabinet began working on the state’s version of the regulations.

Emails Show Industry-State Meetings

By its own admission, the Kentucky Division of Waste Management spent more than 1,600 hours working on the regulation in 2015, under former governor Steve Beshear.

On Sept. 3, 2015, regulators sat down with representatives from Kentucky’s utility industry. They screened a PowerPoint presentation on the current draft version of the rules. And on the 12th slide, regulators told the utility representatives that their facilities would no longer be able to qualify for a program called a “permit-by-rule” for coal ash sites. Instead, they would have to stop accepting coal ash into their landfills and ponds by Oct. 19, 2015, or get a permit for disposal.

That wasn’t the last meeting between regulators and industry representatives to discuss the coal ash rules. Emails obtained through an open records request show they met in person at least three more times — in October 2015, and April and June 2016.

State regulators shared drafts of the regulations with Tom Shaw, the environmental director of Big Rivers Electric Corporation, and Jack Bender, the attorney representing the Utility Information Exchange of Kentucky, an industry group. And both men sent regulators UIEK’s comments on the proposals multiple times, months before the agency took comments from the public.

Bender declined a request for additional comment, and Shaw didn’t respond to a voicemail message.

When regulators went into that meeting on Sept. 3, 2015, the draft CCR rules were extensive. They covered groundwater monitoring, inspections, technical specifications for recycling coal ash and plans for closing facilities.

But by the time the draft regulations were released to the public in October 2016, they didn’t contain any of those specifics. And the regulations proposed regulating the electric utilities with a “permit-by-rule” — the very mechanism that the state declared it would not use during that September meeting.

Oversight Steps for Coal Ash Removed

In the proposal released to the public in October, electric utilities wouldn’t have to apply with the state for a permit to build a landfill or pond for coal ash. Instead, the state determined the utilities would have a “permit-by-rule” and could begin constructing coal ash units without prior permitting or review by state regulators.

Right now, utilities building coal ash units need a permit from the Kentucky Division of Waste Management. The process sometimes takes years and involves professional engineers, geologists and environmental technicians. Often permits are also needed from the Kentucky Division of Water.

Under the new proposal, those wouldn’t be necessary.

The state’s approach has been modified somewhat in the final version to a “registered permit-by-rule.” This means utilities will have to register before they begin construction of landfills or ponds, but there will still not be a rigorous permitting process.

“It’s the Wild West, basically,” FitzGerald said. “You get to characterize [the project] on your own, if you do at all, you get to manage it at the location you decide, you get to control the design, the construction, the operation, the closure, the post-closure. And the only time the state is going to become involved is after you screw up. If they find out about it.”

FitzGerald said skipping a rigorous permit review process — where the utility and regulators work together to design the project — could pose myriad problems.

If groundwater monitors aren’t put in the correct locations, they might not detect water pollution. Sensitive ecological or historical sites — like Wentworth Cave on Louisville Gas and Electric’s Trimble County property — could be buried under coal ash forever.

Or, in the most extreme cases, an engineering error could lead to structural flaws in a project and result in a catastrophic coal ash spill.

Cabinet spokesman Mura wrote in an email that the state’s end product is an attempt to comply with the federal rules.

“It was the Obama EPA, after a lengthy regulation development process, that promulgated an industry self-implementing program with no permitting program and with the public/state involvement process done via posting of information on industry website(s),” Mura said.

The EPA’s rules were self-implementing but intended to be incorporated into a state’s existing framework. More recently, Congress approved the Water Infrastructure Improvements for the Nation (WIIN) Act, which directs states to work the new federal standards into existing permitting programs.

Legal Challenges Possible

It’s not illegal for regulators to consult with industry representatives before a draft regulation is released for public comment.

Instead, the Kentucky Energy and Environment Cabinet routinely seeks input from so-called stakeholders early in the process. But usually that input includes people on different sides of the issue — not just industry representatives but also people from environmental groups, landowners and others with a stake in how the regulations play out,

FitzGerald said that kind of approach — where all sides are engaged early on in the process — ensures that when the regulations are released for public comment, multiple perspectives have been taken into account.

“It is far preferable and I think much more productive and you get a much more responsible work product when you have input from all of the stakeholders,” he said. “And yet in this case, the input came solely from the regulated industry. And the result was a serial weakening of a responsible approach into one that I think is the most irresponsible approach I have seen in my 44 years of working on these issues on behalf of the public.”

Before the rule is finalized, it will need approval from two legislative committees. FitzGerald said if it wins approval, he might consider seeking judicial review.

CONTINUE READING AND TO AUDIO!

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CoalSwarm: A Clearinghouse for Shared Information on King Coal


by PRW Staff — January 6, 2013 – 11:13am

  • Topics: Energy, Environment

    The article below was written by Ted Nace, who founded CoalSwarm. Since 2008, the Center for Media and Democracy has been hosting the CoalSwarm wiki project on CMD’s SourceWatch.org website. SourceWatch is a sister site of this site, PRWatch.org, and other sites of CMD, which include ALECexposed.org and the FoodRightsNetwork.org.

    NASA climatologist James Hansen is sometimes called “the godfather of climate science” for his pioneering efforts to warn the world about the threat of global warming. Hansen could also be called the godfather of Earth Island Institute-sponsored project CoalSwarm. It was Hansen who, in 2007, called for a moratorium on new coal-fired power plants after U.S. power companies revealed plans to build more than 150 such plants in the country. His proposal became a rallying cry for hundreds of grassroots citizens’ groups across the country. CoalSwarm was created to help that effort, giving environmental activists, local residents, and policymakers the information they need to challenge the muscle of the coal industry and advocate for a renewable energy economy.

    Coal-fired power plant in Utah

    Coal-fired power plant in UtahIn the waning years of the Bush administration, the scattered activists committed to stopping “King Coal” faced long odds. The companies proposing coal plants generally enjoyed the support of local and state officials. Federal officials were greasing the way for more coal mining. Despite the difficult political terrain, environmental and public health advocates went to work, deploying tactics ranging from regulatory interventions to direct-action protests. Power plant opponents joined forces with anti-mining groups in Appalachia, the Southwest, and the Northern Plains, which had already spent decades fighting destructive mining practices such as mountaintop removal.

    For this geographically dispersed movement, social media such as listserves, blogs, online publications, and other communication tools proved invaluable in bringing activists together and allowing a diverse array of groups to coordinate their efforts.

    CoalSwarm added another tool to the mix — an informational website known as a wiki. CoalSwarm’s initial goal was to empower activists with up-to-date information on the status of each known coal plant proposal. CoalSwarm developed its information on the Center for Media and Democracy’s Sourcewatch.org website, a collaborative online reference that provides portals on topics ranging from the tobacco industry to the financial crisis to the PR industry and corporate front groups.

    The anti-coal movement decided to focus on stopping individual coal projects. This proved to be a winning strategy: By October 2012, more than 170 proposed coal plants had been cancelled. For the climate movement, these successes provide a measure of hope at a time when efforts to pass a comprehensive climate change policy at the national level or an overarching climate framework at the global level have failed.

    Over time, the scope of the anti-coal movement steadily broadened beyond the issue of new coal plants. In Appalachia, activists struggled against mountaintop removal with marches, blockades, and tree-sits at mine sites; nationwide, banks financing mining operations faced public pressure to give up their stake in dirty coal. CoalSwarm likewise broadened its contents with hundreds of new wiki pages on mines, mining companies, protests, and on the political underpinnings of Big Coal. A major coal-waste spill in Tennessee added the issue of coal waste to the activist agenda, and again CoalSwarm expanded its coverage.

    By 2011, having succeeded in stopping most new coal plants, activists launched a nationwide campaign to retire the existing fleet of 500 aging coal plants that then provided the U.S. with about half of its power. The effort was boosted by a $50 million grant from the Bloomberg Foundation to the Sierra Club in July 2011. The initial results were encouraging. In Chicago, for instance, local citizens teamed up with the Little Village Environmental Justice Organization and Pilsen Environmental Rights and Reform Organization, and, with assistance from the Sierra Club and Greenpeace, finally won a long struggle to shut down a pair of aging power plants.

    Students at universities and colleges across the country, too, organized campaigns to shut down coal-fired plants. Once many of those campaigns succeeded, campus environmentalists upped their demands with campaigns aimed at convincing college endowment funds to divest from coal-related stocks. CoalSwarm assisted this effort with profiles of campus coal plants and fact sheets on the “Filthy Fifteen” power and mining companies that students selected as divestment targets.

    With the struggle shifting from proposed coal plants to existing coal plants, CoalSwarm’s data on existing coal plants became its most frequently accessed pages. The wiki page “Existing U.S. Coal Plants” had been viewed more than 373,000 times as of October 2012. A rapidly growing table on CoalSwarm’s page “Coal Plant Retirements” showed the success of the plant-retirement campaign: By late 2012, 124 plants were scheduled for retirement. Meanwhile, coal’s share of US power generation was falling rapidly: from 50 percent in 2005 to 38 percent in the 12 months ending in July 2012.

    Overseas, however, the picture is not as pretty. Worldwide coal use grew by 61 percent from 2001 to 2011, with nearly all of the increase happening in Asia, especially China.

    In 2011 and 2012, CoalSwarm began a concerted effort to broaden the scope of the wiki internationally, beginning with Australia, the world’s leading coal exporter. In a joint effort with the Australian group, Environment Victoria, CoalSwarm created the “Coal Watch” project. In 2011, CoalSwarm worked closely with Greenpeace Australia-Pacific to organize the first convergence of anti-coal activists from across Australia. In 2012, CoalSwarm worked with New Zealand’s Coal Action Network Aotearoa, to create a comprehensive reference on that country’s existing and proposed coal projects.

    CoalSwarm turned its attention to India after a 2011 study by Prayas Energy Group reported that hundreds of new coal plants were set to receive environmental permits. In the spring of 2012, CoalSwarm posted an India coal-plant tracker that showed, for the first time, the location and status of 549 proposed coal plants. CoalSwarm also completed the first countrywide survey of grassroots organizing against coal projects in India, describing 32 locations of community opposition, many involving large demonstrations and numerous incidents of anti-coal protesters being killed by police.

    For Southeast Asia, another hot spot for coal mining, CoalSwarm teamed up with the Southeast Asia Renewable Energy People’s Assembly to create a map-based tracker linked to wiki pages on coal plants, mines, and terminals in the region, as well as on proposed clean energy projects.

    Meanwhile, back in the United States, coal exports have become another troubling issue. Declining domestic need for coal-fired power (in large part due to rock-bottom natural gas prices) has led to a new push by coal mining companies to build export facilities, especially in the Pacific Northwest. In 2012, CoalSwarm developed wiki pages on existing and proposed coal terminals, knitting the information together with the first global coal-terminal tracking map.

    The project also began developing information on an issue closely related to coal: fracking for natural gas. While environmentalists debate whether the switch to natural gas is beneficial from a climate perspective, there is no denying that at the local level fracking operations have huge environmental and public health impacts. In addition to providing state-by-state overviews on fracking operations and protests, CoalSwarm provides lists of coal plants being converted to natural gas, information on fracking’s impacts on water and air, and natural-gas-transmission leakage rates.

    By the fall of 2012, the CoalSwarm wiki had attracted more than 19 million page views and had grown to some 6,000 pages of information, including profiles of thousands of plants, mines, terminals, and companies; energy overviews of more than 50 countries, as well as of every U.S., Australian, and Indian state; and numerous articles on the impacts of coal and cleaner energy alternatives.

    To make all this information more easily accessible, CoalSwarm revamped its website, which now has a clickable globe and topical directory. The aim is to improve accessibility and live up to the description of the project by environmental pioneer Lester Brown, who wrote: “CoalSwarm is the central nervous system that this movement needed. It is invaluable.”

    CONTINUE READING….

    HERE IS THE LINK TO THE COALSWARM.ORG WEBSITE…