Environmental and conservation groups have submitted comments to the EPA against its proposed approval of Oklahoma's coal ash program application calling it "ill-advised."
MIAMI - Members representing national and local environmental and conservation groups, including LEAD Agency, Inc. based in Miami, have submitted critical opposition to the U.S. Environmental Protection Agency (EPA) concerning the proposed approval of an Oklahoma Department of Environmental Quality (ODEQ) program changing permit issuance and oversight for coal ash dumps in the state.
The EPA is proposing to approve an application submitted by ODEQ to allow an Oklahoma Coal Combustion Residuals (CCR) state permit program to replace the federal CCR program. An approval would allow ODEQ the ability to let state coal ash dumps operate indefinitely under an issued permit instead of the limited-term permits currently in place.
According to the EPA, coal ash is one of the largest types of industrial waste generated in the United States and created when coal is burned by power plants to produce electricity.
In 2014 the EPA approved the Disposal of Coal Combustion Residuals from Electric Utilities final rule which finalized national regulations implementing a set of requirements for the safe disposal of CCRs.
In its rule summary, EPA explains that the federal rule establishes technical requirements for CCR landfills and surface impoundments under subtitle D of the Resource Conservation and Recovery Act (RCRA). This set the RCRA as the nation's primary law for regulating coal ash as a solid waste to address the risks from disposal such as leaking of contaminants into groundwater, blowing of contaminants into the air as dust, and the catastrophic failure of coal ash surface impoundments.
The EPA CCR summary further outlines the finalized rule sets out recordkeeping and reporting requirements as well as requiring facilities to establish and post specific information to a publicly-accessible website.
According to a joint press release from Earthjustice, LEAD Agency, the Oklahoma Chapter of the Sierra Club, and the Waterkeeper Alliance issued Friday, the groups have submitted comments to the EPA against its proposed approval of Oklahoma’s coal ash program application calling it "ill-advised."
Citing high levels of toxic heavy metals and other contaminants found in coal ash waste and the proximity of most Oklahoma coal ash dumps near waterways, the groups are asserting that under the Oklahoma program, the status of coal ash dumps would no longer be reported, "depriving the public of critical information on the safety of their operations and potential groundwater pollution."
The groups also note that approval of the program would remove the option to challenge permit renewals for sites "found to be dangerous." This is of particular significance under the current oversight and permitting change request by ODEQ as the EPA CCR rule only sets standards in place that utilities are compelled to comply with but are not directly enforced by the federal government. That means compliance is under the auspice of utilities in meeting the minimum requirements laid out in the EPA's CCR rule. Under that system, federal CCR compliance is primarily maintained by self-regulation while violations are often penalized through legal actions by the state and the public.
Among the environmental and public health concerns presented by the groups, is an objection to the approval of ODEQ's application because it would replace the layer of public reporting in place under the federal CCR rule and allow permits to facilities that last "for life," ending mandatory public disclosure requirements and impeding the potential for legal action by citizens for non-compliant coal ash facilities in the state.
However, ODEQ has positioned through representatives during a public hearing in February and comments submitted to the EPA that the requested shift would help protect the utility industry from costly and time-consuming lawsuits, ultimately benefiting both citizens and the industry.
In its comments, the groups also noted potential hazards to public health and safety based on what it says are historic incidents of pollution by state coal ash dump sites stating in part:
"DEQ’s failure to protect Oklahoma communities against coal ash pollution is demonstrated by historic, documented contamination of groundwater and air quality at sites that include: American Electric Power’s Northeastern coal plant in Oologah, Grand River Dam Authority’s Grand River Energy Center coal plant near Choteau, Western Farmers’ Electric Cooperative’s Hugo coal plant in Choctaw County, Big Fork Ranch coal ash landfill in Noble County, and the large coal ash dump in Bokoshe filled with ash waste generated by AES’s Shady Point plant."
The group's submitted comments ask the EPA not to provide oversight of state coal ash dumps to ODEQ saying such a step should not be considered until the state is willing to provide "real, substantive evidence that it will hold polluters accountable, ensures that appropriate protections are put in place at coal ash dumps, and offers meaningful opportunity to the public to weigh in on whether the state’s ash dumps are complying with the required standards."
They also specify that an approval of ODEQ's request would establish a precedent that other states would be likely to follow.
"Because Oklahoma is the first state seeking approval of its coal ash regulatory program under EPA's CCR Rule, it is reasonable to expect that other states will take cues from EPA's response to Oklahoma's proposal," explained Larissa Liebmann, Staff Attorney at Waterkeeper Alliance. "This makes it vitally important that EPA gets this right, and we are gravely concerned with several aspects of Oklahoma's proposal that EPA must correct before the program is approved and serves as a template for other states.”
Those speaking on behalf of their respective environmental and conservation agencies were strong in their objections to the EPA's proposed approval of ODEQ's application in their comments, making clear their opinion that handing over oversight and permitting to ODEQ was not in the best interest of Oklahomans or the environment.
Earl Hatley with LEAD Agency and Grand Riverkeeper commented, “Nearly all of these companies have already violated the state's coal ash rule by failing to report results from groundwater monitoring or failing to test groundwater for all the required pollutants. The state has shown its favoritism for industry by letting these lapses go unchecked and giving industry all the cheating tools they need.”
“The Department isn’t even trying to hide the fact that this is a gift to industry and a slap in the face to the people of Oklahoma,” said Johnson Bridgwater, Executive Director of the Oklahoma Sierra Club Chapter. “At the Environmental Quality Board meeting when the CCR rule was approved, DEQ shamelessly stated that it intended the rule to protect industry from citizen suits.”
“DEQ plans to regulate new and existing coal ash dumps, which are already known to be polluting groundwater, behind closed doors,” said Jennifer Cassel, Earthjustice Coal Ash Project Attorney who helped prepare the comments, “This is a clear violation of the Resource Conservation and Recovery Act.”
Dorothy Ballard is the managing news editor of the Miami News-Record. Contact her at firstname.lastname@example.org and follow her on Twitter @dm_ballard.