Proposed Coal Combustion Residual (CCR) Regulations Strengthen Protections

A recent article about a closed ash pond at the E.W. Brown Power Station near Danville and its effect on Herrington Lake suggested that the state’s proposed Coal Combustion Residual (CCR) regulations developed by U.S. Environmental Protection Agency (EPA) and being adopted by the Kentucky Energy and Environment Cabinet (EEC) would lead to more instances of pollutants being discharged into waterways.

A more accurate and objective look at the proposed CCR regulations shows that the facts do not support that reporting. Some of these facts include:

  • The regulations now before the Administrative Regulations and Review Subcommittee (ARRS) strengthen the oversight on coal ash ponds to the extent that these ash pond impoundments are likely to all be shut down by the industry.
  • These same regulations will provide substantially more technical requirements of ash impoundments as compared to the existing state ash impoundment regulations.
  • Agency authority to conduct inspections and oversight of both CCR impoundments and landfills will not decrease as a result of the proposed new CCR regulations.  As the recent story only briefly discussed, the Cabinet has and will exercise its authority to inspect these facilities to ensure compliance, investigate citizen complaints, and take enforcement action as necessary.

The article was the product of Cabinet records made available through open records requests, interviews with environmentalists and the industry. The Cabinet, after declining to do an interview, was given a list of questions and asked to answer them.

The reporter’s questions and the Cabinet’s responses, including ones that were not used by the reporter, are provided below to provide additional context and transparency to the public:

  • Are there limits for selenium in the E.W. Brown KPDES permits?

The KPDES permit contains a requirement that the facility monitor for selenium and report those results to the Cabinet.

  • KU’s own sampling shows problems with high levels of aresenic,  selenium, antimony, thallium and boron going back to 2011. Why did the Kentucky Department for Environmental Protection (DEP) wait until 2014 to issue a notice of violation (NOV)?

DEP did take action prior to 2014 to address groundwater contamination.  In 2011, DEP required the facility to monitor groundwater as part of the process of closing the impoundment.  When groundwater contamination was identified during this process, DWM required submission of a groundwater assessment plan.

In 2014, additional sampling resulted in the requirement for a groundwater remedial action plan.  The facility is currently implementing remedial measures as specified in that DWM-approved plan.  The pond is now closed (capped) and no longer is in operation.

The NOV the Division of Water issued in 2014 was not for a violation of the KPDES permitted discharge.  The facility was in compliance with its discharge limits.  The NOV was for violations originating from groundwater seeps that were affecting a surface water.  The Cabinet immediately acted on those violations and the facility took steps in addition to what is described above to address the seeps and to ensure that the contaminated seeps were contained and properly treated before discharging into a surface water.

  • The most recent NOV is in response to water sampling that was conducted more than a year ago, and fish tissue sampling that was conducted eight months ago. Why did the Kentucky DEP wait so long to issue an NOV?

In 2015, there was not an enforceable fish tissue standard for selenium.  As such, there was not a Clean Water Act violation.  Additional fish tissue sampling occurred in 2016 that was subject to the Kentucky fish tissue standard that EPA had recently approved.  In this round of sampling, DOW used a dry weight analysis of whole body fish tissue.  This was necessary to determine compliance with the water quality standard.  After quality assurance was completed for these sample analyses, an NOV was issued for degradation of Waters of the Commonwealth.

  • Is the state planning any subsequent testing of fish fertility or analysis of deformities to determine the impact on the population in Herrington Lake?

Yes, additional sampling and analysis will occur.  The facility is required, as a component of the agreed order issued in response to the water quality violations, to prepare and implement a corrective action plan to investigate sediments, surface water quality, and biological receptors in Herrington Lake.  The Cabinet will be reviewing this corrective action plan prior to its implementation to ensure that the proposed actions will be adequate to address the water quality concerns.

  • The most recent testing shows the groundwater at the toe drain sump still contains 22 times the MCL for arsenic. Is this a concern for the KYDEP?

The facility is subject to an agreed order that was executed on January 30, 2017, and requires the facility to manage groundwater concerns and assess any impacts that may have occurred.  As an interim step, the seeps in question have been contained and are no longer discharging into Herrington Lake.

It should be noted that the MCL referenced in this question is not applicable. The Water Quality Criteria for Human Health for a Domestic Water Supply Source is 10 ug/L and enforced as a standard at the drinking water intake.  The arsenic Water Quality Criteria for Warm Water Aquatic Habitat is 340 ug/L for acute exposure and 150 ug/L for chronic exposure – significantly higher than the MCL of 10 ug/L.

  • Do Kentucky’s proposed new coal ash regulations mandate spring survey inspections of coal ash facilities, like the one that first noted a high volume of orange water discharging from an outfall near the Brown plant in February 2014?

The regulations that Kentucky is the process of adopting would have likely prevented these violations from occurring.  Currently, there are not any Kentucky standards for the siting, operation, and monitoring of CCR impoundments.

Under the proposed regulations, new surface impoundments will be required to comply with much more stringent standards.  Examples of these standards include: the pond must be sited in a manner that keeps the bottom of the pond above the water table, the pond must have a liner installed that is the structural equivalent to what Kentucky requires in solid waste landfills, the facility must conduct frequent inspections, and the facility must install and operate a groundwater monitoring system.

Likewise, the proposed regulations would mean that existing CCR impoundments must meet specific standards. These include: demonstrating groundwater table separation, providing an equivalent protection to groundwater that a liner would provide, and installing and operating a groundwater monitoring system.  If the facility cannot meet these standards or if it is determined that groundwater has been adversely effected, then the facility must retrofit or close the pond.

  • How many coal ash ponds are still operating in Kentucky? Is it accurate that all are planning to close in the near future?

Currently there are 46 surface impoundments – or ash ponds – used for disposal and treatment of CCR and ash sluice water in Kentucky.  There are no state or federal standards that mandate that all ash ponds be closed.  However, it is the Cabinet’s understanding that the cost to operate and, if needed, upgrade ash ponds in response to the federal CCR regulations that DEP is in the process of adopting, will result in the closing of most, if not all, surface impoundments in Kentucky.  In addition, new effluent limit guidelines that will be applied at coal-fired power plants during the KPDES permitting process will result in additional costs that will also encourage the closing of existing CCR impoundments.

  • With evidence of this kind of widescale contamination, even after a pond’s closure, how can the KYDEP justify letting utilities plan the closure of their coal ash units without state oversight or approval?

The Cabinet does not currently have data that would indicate that there is widespread contamination.

The Cabinet certainly agrees that it is essential for the state to be involved in the oversight of operation, closure, and corrective actions implemented at CCR impoundments.  This is a key reason why Kentucky is proposing to adopt the federal CCR rules to ensure that it is involved in these key actions.

  • Has KYDEP fined KU at all for any of these violations?

Yes.  A $25,000 civil penalty was assessed.  In addition, the Cabinet’s Agreed Order addressing the violations also imposed stipulated penalties that can be assessed if conditions of the agreed order are not completed in the specified timeframes.