As the Environmental Protection Agency continues to review and revise the rules governing power plant coal ash management, it should remain focused on implementing a fact-based, flexible rule that can be implemented and enforced through federal and state permits.
In 2015, President Barack Obama’s EPA proposed the initial coal ash management rule and determined that the byproducts of using coal to generate electricity were nonhazardous. The EPA encouraged the continued safe reuse of this residue in products such as concrete and wallboard.
This was the right approach.
However, statutory limitations on federal jurisdiction over non-hazardous waste meant EPA’s 2015 rule would become a self-implementing, one-size-fits-all regulation. And it was enforceable only through citizen lawsuits. Unlike programs that regulate air emissions, water discharges, and even hazardous waste management, it provided no opportunity to tailor the requirements to site-specific conditions or actual risk. And there was no opportunity for a power plant owner to work with the regulator to best apply the rule’s requirements at a specific site.
Recognizing this shortcoming, Congress in 2016 gave EPA the authority to manage coal ash through federal or state permits. EPA also was granted the flexibility to tailor the rule’s requirements to reflect the conditions and tangible risks present at the site, so long as the site-specific measures were as protective as the original rule. Since then, EPA has proposed appropriate risk-based changes to the 2015 rule and continues work towards federal permitting options.
Electric cooperatives support EPA’s proposed changes to the 2015 rule to encourage continued beneficial use of coal ash and provide a risk-based management program that is implemented by federal or state regulators. This will allow electric co-ops and states to make decisions regarding the continued use and eventual closure of coal ash management facilities based on the actual environmental risk posed by the facility.
This approach recognizes the imperative of protecting human health and the environment, along with the need for affordable and reliable electricity.
To achieve these goals, EPA should do three things: first, finalize the new rules to incorporate the new authority and flexibility provided by Congress; second, establish a federal permitting program to issue specific permits based on actual risk; and third, review and approve state permitting programs.
Electric co-ops are committed to complying with all environmental laws and regulations. In doing so, they are seeking regulatory certainty and a commonsense approach that includes taking site-specific factors into consideration in permitting each site. These steps will provide the best environmental protection.
Jim Matheson is CEO of the National Rural Electric Cooperative Association, the national trade association representing more than 900 local electric cooperatives. He previously served seven terms as a U.S. representative from Utah.
