Yesterday Policy Watch published the final story in a series about groundwater contamination near Duke Energy coal ash basins and landfills. That piece included an explanation of the EPA’s proposed changes to federal coal ash rules that would weaken current regulations in the name of giving flexibility to the states. This story explains how the EPA’s action could affect North Carolina’s draft coal ash rules, also open for public comment.
When EPA Administrator Scott Pruitt recently proposed empowering states to establish regulations over coal ash ponds and landfills, he didn’t fully unveil his true intentions: That such a change actually would favor the powerful utility industry, not just financially, but politically.
A provision in the WIIN Act, which Congress passed in late 2016, allows states to petition the EPA to establish their own coal ash regulations. But the EPA’s new draft rules strongly encourage states to do so — although they’re still not required — effectively offloading responsibility for regulation, monitoring, enforcement and other duties down the food chain. State programs, Pruitt argued, would save utilities millions of dollars annually.
Duke Energy spokeswoman Erin Culbert said the utility hasn’t conducted any cost estimates on savings from the proposed federal changes. However, Duke does “support the alignment” between state and federal rules.
Much of the utilities’ savings could come from weaker federal rules, which states can adopt. In fact, DEQ has said that its proposed rules would align with and incorporate existing federal regulations. Whether state rules could be strengthened as federal ones are diluted would largely be up to the legislature.
But already, the proposed state rules have loopholes that would not be closed by the EPA.
- Coal ash landfills can be expanded. The landfill owner does have to apply for a permit amendment if the tons of waste increase by greater than 10 percent; if the landfill boundaries expand from the original site plan (which could mean the landfill could be built higher but not wider); and if the landfill has a new owner.
- The landfill permittee shall “take all reasonable steps to minimize releases to the environment,” the draft reads, “and shall carry out such measures as are reasonable to prevent adverse impacts on human health or the environment.”
However, “reasonable” is not defined and subject to interpretation.
- There is no requirement for an environmental justice analysis to determine if communities of color or low-income neighborhoods would be disproportionately affected. In addition, the rules require new or expanded landfills (in width, not height) to establish only a 300-foot buffer between the facilities and property lines for monitoring purposes. That is equivalent to the length of a football field.
New landfills require only a 500-foot buffer between it and existing homes and wells. A 100-foot minimum is required between these landfills and surface waters.
- Landfill permit holders aren’t required to get approval from local governments to place a facility. Presumably, though, a landfill would have to comply with zoning regulations.
Frank Holleman, senior attorney with the Southern Environmental Law Center, said that nationwide, many state agencies are “coopted, politically influenced or outgunned” by utilities. “Most state agencies aren’t going to make the utilities do something they don’t want to. The irony is, the whole reason there is a federal rule is because the state agencies” — in North Carolina and Tennessee, in particular — “failed us.”
SELC has sued Duke Energy several times over its coal ash disposal practices, often settling out of federal court. SELC has three cases pending, including one over alleged violations of the Clean Water Act.
Years of weak oversight and enforcement of coal ash impoundments during Democratic administrations and legislative leadership, as well as inaction during McCrory’s first year in office, contributed to the Duke Energy’s Dan River spill in 2014.
Holleman said existing federal rules “aren’t the strongest, but it did set some minimum standards and pretty clear triggers if utilities exceeded standards in polluting groundwater, they have stop and clean it up. That’s what Pruitt’s trying to attack and soften and weaken. His technique is to grant DEQ and the utilities ‘flexibility’ in determining when and what action must be taken.”
For example, states could set “risk-based standards,” which can vary by location, for coal ash ponds and landfills. Maximum contaminant levels are a brighter line, founded in science and less vulnerable to interpretation.
Utilities have advantages when states run their own programs. Although they have federal lobbyists and their political action committees donate to congressional campaigns, utilities arguably wield even more influence on the state level. They have unfettered access not only to lawmakers, but DEQ and the governor. This access came to light during the administration of Gov. Pat McCrory — a former Duke Energy employee — when he and state agencies were crafting conflicting health advisory letters for neighbors of coal ash ponds.
Even under Gov. Cooper. Dominion Energy, which, with Duke, is building the Atlantic Coast Pipeline, struck a $57.8 million deal to mitigate economic and environmental damage from the project. (The legislature intervened via a bill, scuttling the agreement.)
States’ coal ash rules must be as stringent as the EPA’s. However, some states, such as North Carolina, are hamstrung by their legislatures from enacting stronger rules. And as state budgets are slashed, many environmental agencies don’t have the budgets to adequately ride herd on their own rules.
Holleman said he supports strengthening coal ash rules under the state’s permitting program; those rules are also up for public comment. But Holleman said he does not believe DEQ has the staff to adequately oversee another permitting process. In public forums about GenX and at legislative meetings, DEQ has emphasized its extensive backlog of permits, as well as the toll funding cuts have taken on staffing levels at the agency.
But DEQ spokesman Jamie Kritzer said that state does have the people to carry out the permitting program. There are already staff that work on the coal ash issue. “Regardless of federal regulations, we’ve been and will continue to enforce state regulations and solid waste landfill regulations.”
Currently, citizens and DEQ can take their case directly to federal court, which rules on the federal rules; SELC has done this repeatedly in its suits against Duke Energy.
But if DEQ assumes responsibility, then all legal challenges, such as those regarding permits and enforcement, would be heard by the Office of Administrative Hearings and the state court system. Only if those avenues are exhausted could citizens proceed to the federal level.
The state’s public comment process on these draft rules has been rocky. DEQ held its first public hearing, in Roxboro, only four days after publishing the 89-page document. Fewer than 10 residents attended, a sharp contrast to the hundreds of people who attended previous meetings in Roxboro about coal ash.
DEQ held two more sessions, but in response to the criticism, the agency held an additional hearing in Gastonia this week and extended the public comment period for two weeks, until next Friday.