Fayette Power Project in Fayette County, Texas, United States.
Photo Attribution: Andy Keels
Introduction
Coal ash, generated from burning coal in power plants, is one of the largest industrial waste types in the United States. Coal ash contains toxic chemicals such as arsenic, mercury, chromium, and lead, posing severe public health risks, particularly for children. These harmful chemicals can both contaminate nearby water sources, groundwater, and air. In addition to polluting the environment, piles of coal ash pose the risk of spilling into the surrounding areas, jeopardizing nearby towns and ecosystems. One of the worst coal ash stockpile disasters in U.S. history occurred in Tennessee in 2008. The Kingston Plant spill unleashed a billion gallons of coal ash that inundated 300 acres of property, destroyed homes, and flooded the Dan River. More than a decade later, we're still feeling the effects, with numerous workers tasked with cleaning the spill dying from exposure.
In 2015, the United States federal government established the first regulations surrounding coal ash. In the past couple of years, the Trump administration initiated changes dealing with coal ash regulation that removed protections regarding tonnage limits, established alternate performance standards for specific states, and extended deadlines for closure and compliance. Currently, the U.S. Environmental Protection Agency regulates both the disposal and recycling of coal ash. On December 8, 2020, the EPA proposed a partial approval of the Texas Coal Combustion Residuals (CCR) permit program under the Resource Conservation and Recovery Act (RCRA). If the proposed rule is adopted, the Texas Permit Plan will operate in place of federal regulation. Shifting the authority to Texas is concerning since it may make future federal laws harder to implement in the state.
Comment Letter
February 8, 2021
Michelle Long
Office of Resource Conservation and Recovery Materials
Recovery and Waste Management Division
U.S. Environmental Protection Agency
1200 Pennsylvania Avenue NW Washington, DC 20460
Re: Texas: Approval of State Coal Combustion Residuals Permit Program, Proposed Rule
Dear Ms. Long:
Environmental Review, Inc. has reviewed the proposed Coal Combustion Residuals (CCR) Permit Application (U.S. EPA, Texas, Comments Due February 8th, 2021) and has the following comments:
- Duration of the permit program
Page 15 of the CCR program description states that “A registration may be issued for the life of the facility without a requirement for a renewal application.” Since under the Resource Conservation and Recovery Act (RCRA), similar permits are issued for 3 to 10-year terms, it would be expected that renewal of state permits would also be subject to a term-limitation. That way, the CCR units would be more likely to adhere to closure requirements and allow the regulatory oversight agency to monitor assessments and inform the legislative process. If this proposed rulemaking authorized Texas state to approve permits for the life of CCR units, the effectiveness of regulating these activities in the short and long term will be questionable. Therefore, additional renewal requirements (e.g. annual, biannual, 5-year, 10-year) would enable the proposed rule to be as protective as the federal statute.
2. Definitions
Title 30 of the Texas Administrative Code (TAC) outlines the legislation regulating coal ash and permit registrations in Texas. Section 352.3 describes definitions of key terms concerning coal ash regulations. Under this section, subsection B states that: (b) The terms used in this chapter that are not defined under this section are not given the definitions found under RCRA. Discrepancies in definitions need to be clarified and justified. This section does not justify the change in definition. For the purpose of public knowledge and implementation, the justification for new and different definitions are necessary. Otherwise, these important definitions become esoteric and may lead to misrepresentation and misuse of the law. Including additional explanations to illustrate the justification would enable this part of the legislation to be easier to understand and more accessible to the public.
3. Decrease in Possibility of Public Participation
Page 18 of the CCR program description, under section F titled Judicial Review, it states that registration applications are not subject to a contested case or administrative evidentiary hearing. That suggests that during the approval process of a specific CCR permit, the public will not be allowed to present evidence of harm and malpractice as a reason or basis for advocating for rejection of a permit application. This absence will severely restrict the ability for public participation in the permit application process since it will not offer any opportunity for citizens to share testimony and proof to support the need for more stringent requirements for permit applications. The provision found under the Judicial Review in the CCR program description appears to sidestep or limit the community involvement process. Although there is an opportunity for the public to comment and participate in public meetings on CCR registration applications, there does not appear to be a mechanism for meaningful community involvement (e.g. periodic reviews comment periods, or citizen suits). Rulemaking to establish public participation in the application permit should ensure that the voices of the community are heard and that their concerns are considered. Furthermore, making registration applications that are not subject to a contested case or evidentiary administrative hearing conflicts with the General Notice Provisions found at TAC RULE §352.461, which outlines the requirements for public notices such as mailing lists, established deadlines for public comments, and the process for contested case hearings.
4. Environmental Justice
The Texas CCR permit does not appear to be adequately protective of communities that are mostly affected by the coal ash’s pollution. Around the country, and in Texas, most fence-line and first-line communities who suffer from contamination of groundwater and air pollution from the disposal of CCR are minority and low-income communities. The decrease in public participation opportunities discussed above will limit the ability of community members to ensure protectiveness in their communities. According to the Texas CCR Tribal Consultation Closeout Letter, no request for a consultation was received, and the consultation period has closed for the application. The consultation timeline was less than two months and offered no way to change dates and times. Given the seriousness of this proposed rulemaking, it does not appear that an adequate amount of effort was put into the public outreach effort in seeking the consultation of Indigenous and Native communities. Executive Order 13563 encourages agencies to seek the views of those likely to be affected by a proposed rulemaking before issuing a notice of proposed rules. This appears not to be observed in this case, which suggests the need for additional public outreach. Therefore, prior to approval of this proposed rulemaking, additional public outreach of minority, low-income, and Indigenous communities should be conducted by both the EPA and the Texas Council on Environmental Quality (TCEQ).
5. Liner Design Criteria for Existing Coal Combustion Residuals Surface Impoundments
The federal CCR regulations have provisions, requiring the owners of existing CCR surface impoundments to document the construction specifications of liners by a specific deadline. The proposed state rule does not have a requirement for that. The proposed rule should discuss the status of unlined CCR units across the state with associated deadlines currently in effect. Although the USWAG decision vacated the provision that allowed unlined surface impoundments to continue to operate, which resulted in the mandated closure of many facilities with unlined impoundments, a comprehensive approach should be implemented along with a schedule for compliance.
6. Unless the comments above are adequately addressed, this proposed rulemaking should not be approved.
When responses to these comments are available, please send those to me at This email address is being protected from spambots. You need JavaScript enabled to view it. or let me know where they can be viewed if posted online.
Sincerely yours,
Josefina Artigas, B.S.
Environmental Reviewer (Associate in Texas)
Environmental Review, Inc.
1792 Rogers Ave San Jose, CA 95112
Melaine Kolimedje, Ph.D.
Sr. Reviewer (Associate in West Virginia)
Environmental Review, Inc.
1792 Rogers Ave San Jose, CA 95112
www.envreview.org, a 501(c)(3) Nonprofit Public Benefit Corporation
Sources
“Kingston coal ash disaster still reverberates 10 years later.” Southern Environmental Law Center, 4 Mar. 2019, www.southeastcoalash.org/about-coal-ash/coal-ash-disasters/the-kingston-disaster/.
"The Kingston Disaster" Southeast Coal Ash, Nov 7. 2012, http://www.southeastcoalash.org/about-coal-ash/coal-ash-disasters/the-kingston-disaster/