Fischer Urges Gov. Bevin To Veto Solid Waste Bill Friday, Mar 17 2017 

Louisville Mayor Greg Fischer is asking Gov. Matt Bevin to veto a bill that would remake the city’s solid waste management district.

Fischer, a Democrat, sent the Republican governor a letter on Wednesday.

“This bill effectively ends decades of consistent county-wide policies for managing and reducing solid waste in Louisville,” Fischer said in a news release. “We are asking Gov. Bevin to veto HB 246 and protect our current, more efficient approach to solid waste management.”

House Bill 246 passed the Republican-controlled General Assembly earlier this week. It would change the membership and powers of a little-known board called the 109 Board that oversees the county’s solid waste management.

The bill’s proponents — including bill sponsor Rep. Jerry Miller and Jeffersontown Mayor Bill Dieruf — say the measure will increase the 109 Board’s transparency. It will also give small cities (of which there are more than 80 in Jefferson County) representation on the board.

But the bill would also require the governing bodies of those small cities to sign off on any of the 109 Board’s rules before they go into effect in those areas. It would also block the 109 Board from charging any fees based on the composition of waste that complies with federal laws. Together, the bill’s opponents say that language would mean 109 Board rules like a ban on plastic bags for yard waste could be rendered moot.

They also say the bill would result in a patchwork of solid waste regulations across Jefferson County. All of the county’s garbage goes to one landfill, which is expected to be full in about 50 years.

In the letter, Fischer argues the bill is unconstitutional, and flies in the face of logic.

“The only justification articulated for the disparate treatment of the Louisville Metro Solid Waste Management District is that we are a consolidated government. This distinction makes no difference. Our 109 Board has been governing all municipalities within Jefferson County since its creation 25 years ago. It has always managed the combined city and county functions of solid waste management. Whether the district operates within a single county containing a merged government or in a district of combined counties (the Northern Kentucky Solid Waste Management Area is comprised of three counties which include multiple municipalities) makes no difference in the fulfillment of its stated statutory purpose.”

This bill is one of several considered by this year’s General Assembly that target Louisville-specific issues. One, awaiting Bevin’s signature, gives more power to Louisville’s Metro Council. Another to upend busing in Jefferson County Public Schools is likely dead.

Trump’s Budget Shifts Environmental Authority Back To States But Cuts Grant Funding Thursday, Mar 16 2017 

President Donald Trump released a summary of his proposed budget early Thursday morning, and as expected, it includes deep cuts to the Environmental Protection Agency.

Trump’s proposal includes cutting the agency’s overall funding by 31 percent. Instead, the budget invests heavily in national security and defense, changes Trump said are necessary.

On the chopping block are initiatives the president campaigned against, like funding for the Clean Power Plan and climate change programs. But also included are steep cuts to the Superfund program that cleans up hazardous waste sites, environmental enforcement and grants to states.

As is the case with any president, Trump’s budget proposal is unlikely to be enacted exactly as it’s written. It has to go through Congress first. But nevertheless, the proposal was greeted with alarm by environmental groups.

“I think there’s also a theme that runs through this whole budget process for this administration that sees devolving a lot of responsibility and authority back to states and local governments,” said environmental justice advocate Vernice Miller-Travis on a conference call hosted by environmental groups.

But the problem with this, she added, is the budget is simultaneously cutting federal funding that would normally be passed on to aid state environmental efforts.

“So, if EPA’s budget is being cut dramatically by 31 percent, then the amount of money they can then transfer in grants and loans and revolving loans to states to be able to implement those environmental programs is also going to be cut by at least 31 percent, if not more,” she said.

That goes for grants that do things like clean up Brownfields and help states implement water pollution reduction programs, but also extends to environmental enforcement. The budget cuts the EPA’s Office of Enforcement and Compliance Assistance to $419 million, which is a $129 million cut from 2017 levels.

“Essentially they’re saying they’re going to turn more authority over to the states and then cut the amount of money for the states to do it,” said Scott Slesinger of the Natural Resources Defense Council.

According to the EPA’s website, Kentucky agencies including the Energy and Environment Cabinet, the Department of Agriculture and the Cabinet for Health and Family Services have raked in more than $617 million since 2004 in EPA grants. Another $73 million has gone directly to Kentucky counties and municipalities.

About $700,000 in grant money went to the Louisville Air Pollution Control District last year to help support permitting and air monitoring programs.

“Basically, the EPA is like, ‘this is a federal program that you’re going to administer, so we’re going to help you do it,” said APCD spokesman Tom Nord.

Nord said the agency was remaining cautiously optimistic that the funding would remain intact, but they’re in communication with Metro budget employees.

“This money is important, but we feel like we can continue to do our job,” he said.

Now, President Trump’s proposal will go to Congress. Funding for the current fiscal year will run out at the end of April, and the 2018 budget needs to be approved by October.

Eastern Kentucky Community Hopes Trump Infrastructure Plan Will Fix Water System Monday, Mar 13 2017 

As President Trump promises major investment in infrastructure, people across the country are hoping that includes spending on water pipes for drinking.

Flint, Mich., was a high-profile example of the many communities — like one in Eastern Kentucky — where people just can’t trust their water.

In Martin County, Ky., the water intake pulls from a river heavily contaminated by sewage and years of coal and gas extraction.

Josie Delong, a resident of the county, says she used to drink tap water until a doctor told her it could be the cause of her health issues.

“I had really, really bad bleeding ulcers to the point where I was actually blacking out,” she says. “So I go to my doctor. The first thing he tells me is, ‘Contaminated water. How’s your drinking water?’ “

Now, she says she does all she can to avoid drinking from the tap. She even puts bottled water in her children’s bathroom when they brush their teeth.


The county water treatment plant needs serious upgrades, and the distribution pipes are so leaky that they lose more water than they deliver.

On cold winter nights, when customers leave their taps running to keep their pipes from freezing, the water district would cut the water off. If not, the tanks wouldn’t refill, and there wouldn’t be enough water to flush toilets.

But when cut off, there’s no pressure in the pipes, and filth can seep through the cracks. When the system is once again turned on, the water can be brown or black and very smelly.

At a public meeting last year, Joe Hammond of the county water district faced a crowd that was angry about the lack of warning before the cut-offs.

The Martin County water district is under state investigation for the third time since 2002. When they find a leaky pipe, Hammond says all they can do is patch it up.

“You’ve got a little hole there already — it’s going to get bigger,” he says. “We just don’t have the money to replace it with right now.”

Though the county has produced millions of dollars in coal and gas, little of the wealth has been invested in the water system. As the local coal industry has continued to decline, it’s only become more difficult to find money for infrastructure investments.

Scott Pruitt, the new head of the Environmental Protection Agency, says water infrastructure is a priority. But Gail Brion of the University of Kentucky, who has worked on water treatment issues for decades, is skeptical.

She says she worries water pipes can’t compete with more visible projects like roads and bridges.

“What you’re seeing is a long history of non-investment that’s now starting to cause long-term problems, but it’s not flashy,” she says. “That’s one of the problems with drinking water is that it’s underground — it’s hidden.”

State and local officials say they’ll be looking out for any federal spending that could help rebuild trust in the county’s tap water. The cost of rebuilding the system is estimated at $13.5 million.

Copyright 2017 WMMT-FM. To see more, visit WMMT-FM.

Louisvillians: You Can Now Get Paid For Your ‘Cool Roof’ Monday, Mar 13 2017 

Louisville Metro government is offering new rebates for property owners who install so-called cool roofs, which use lighter-colored or reflective materials and stay significantly cooler than dark roofs.

Along with other strategies like tree planting, they’re one way to help combat Louisville’s urban heat island effect.

The urban heat island is the temperature difference between urban areas and nearby countryside. It’s exacerbated by large, dark areas — like asphalt parking lots or dark roofs.

Using lighter roofing materials has been shown to reduce a roof’s temperature by more than 50 degrees Fahrenheit. A study released last year on Louisville’s urban heat island found that if both surface paving and city roofs were lightened, it would reduce the average daily temperature across the city by one to three degrees.

The new rebate — funded through the city’s budget — will incentivize homeowners to convert their roofs to lighter materials.

“Cool roofs are one of the key strategies that were identified in the heat management study that we released last year,” Metro Sustainability Director Maria Koetter said. “So this is our first dedicated program that citizens can take advantage of to install cool roofs on their properties.”

The funding is meant to help cover the difference in cost from using lighter Energy Star shingles rather than traditional roofing material. Property owners can apply for $1 for every square foot of their roof, up to $2,000 for a new residential roof.

Commercial building owners can receive up to $5,000 for a flat or low-sloped roof and up to $10,000 for a steep-sloped roof. At least 60 percent of the funding will go to council districts that are disproportionately affected by the urban heat island. Those include districts 1, 3, 4, 5, 6, 12, 14 and 15.

Koetter said the funding would be first-come-first-served, and if the program is a success, another cycle could be funded next year. For more information or to apply, click here.

AG Recommends $142 Million Cut In LG&E Rate Proposal Friday, Mar 10 2017 

Kentucky Attorney General Andy Beshear is recommending the state Public Service Commission grant only part of a rate increase requested by Louisville Gas & Electric and Kentucky Utilities.

The utilities are requesting a $210 million increase in annual revenues. For LG&E customers, this will show up in an increase in the basic service charge. Right now, that charge is $24.25 for customers that use both electric and gas.

If the PSC approves the rate increase as-is, that charge would raise to $46 a month.

Attorney General Beshear is intervening in the case, along with other parties including Louisville Metro government, the Louisville Metropolitan Housing Authority and Kroger. On Thursday, Beshear’s Office of Rate Intervention recommended the PSC grant only about a third of the proposed rate increase: $68 million.

LG&E and KU argue the rate increase is necessary. In an email, spokeswoman Natasha Collins said the company respects Beshear’s right to provide the PSC with his recommendation.

“We believe the investments we are making are necessary in order to maintain our electric and natural gas systems and continue providing the safe, reliable service our customers have come to depend on,” she wrote. “The investments will allow us to enhance system reliability, restore power to our customers more quickly, and provide them with information that will enable them to make more informed decisions regarding their energy use; while the proposed changes to the basic service charge will help reduce bill volatility and assist customers in better managing their energy bills.”

Part of those investments includes deploying smart meters to all ratepayers. These meters will track energy usage for customers, and will also send information about outages back to the company. Beshear’s recommendation includes rejecting the widespread use of those smart meters.

“My office clearly understands the need for utility companies to maintain their infrastructure to better serve ratepayers,” Beshear said in a press release. “In this instance, we view the requested increase by the utility companies to be excessive and are asking the PSC to take the appropriate action so that any cost passed to consumers isn’t crippling.”

Beshear is also recommending the basic service charge remain the same. The proposal to raise that charge — rather than increasing the charge based on usage — has been criticized by some who say it discourages energy efficiency and will disproportionately affect low-income consumers.

The LG&E and KU rate case is scheduled for a public hearing at the Public Service Commission on May 2.

Are Kentucky Lawmakers About To Overturn Louisville’s Plastic Bag Ban? Wednesday, Mar 8 2017 

A bill that would change the way Louisville’s Waste Management district is structured is scheduled to go before a Senate committee Wednesday.

House Bill 246 — which the House approved last month — deals with a low-profile board called the 109 Board, which oversees waste in the city. The 109 Board is made up of five representatives, all appointed by the mayor.

The bill’s opponents — which include Louisville Mayor Greg Fischer — say its point is to overturn the city’s ban on plastic bags for yard waste. But supporters — among them the Jefferson County League of Cities — say the bag ban isn’t the force behind the legislation, and the measure is simply meant to increase transparency.

“What has taken up a lot of ink, unfortunately, has been a fixation among some people who think that this is all designed to throw out the plastic bag ban,” said bill sponsor Rep. Jerry Miller of Louisville. “That couldn’t be farther from the truth. The leader of the Jefferson County League of Cities is [Jeffersontown] Mayor [Bill] Dieruf. J-town was the first one to ban plastic bags.”

So, which is it? What does House Bill 246 actually do?

More Transparency

One thing everyone agrees on — the fact, not necessarily the merit of the action — is that HB 246 will change the makeup of the 109 Board.

The board currently has five members, all appointed by the Louisville mayor. If this bill is signed into law, it would abolish the current board and create a new seven-member board. That board would include a representative from the Jefferson County League of Cities and the waste haulers’ association.

The bill also sets term limits for the board. Attorney Schuyler Olt, who represents four small cities, said it is meant to increase transparency.

“I don’t understand why the 109 Board has so long operated in the dark to where you can’t easily find out even who is on that board. And given the amount of power that it has, it’s not a good situation,” he said. “I think for what the 109 Board is charged to do, which is obviously very important to our well-being, our public health, we just have to have a more transparent, more involved, more engaged solid waste management board.”

‘The Politicians Want Power’

But longtime 109 Board member Joyce St. Clair had a different take.

“What it’s about is power,” she said. “It’s simple. You can write paragraph after paragraph, but basically, the politicians want power.”

Even after remaking the 109 Board to include greater representation from small cities and waste haulers, the bill gives small cities another way out from following any of the board’s regulations.

It says the board has the power to adopt rules and regulations, but then adds: “These rules and regulations shall not be enforceable within the boundaries of the city until approved by the legislative body of the city or, if outside of an incorporated municipality, the legislative body of the consolidated local government, where the rule or regulation is intended to apply.”

Which would mean a regulation like the oft-mentioned plastic leaf bag ban, for example, couldn’t be enforced in Beuchel or Shively or Jeffersontown unless their city councils signed off on it, too.

Haulers’ Fee

There’s another part of the bill that has the potential to wreck havoc in the way Jefferson County handles its waste, according to Sarah Lynn Cunningham. She serves on the county’s solid waste advisory board and is campaigning against the bill.

A provision would block Metro government and the 109 Board from charging a small city “any fee that is based, directly or indirectly, on the composition of the solid waste stream of that city if the solid waste stream is in conformity with state and federal law for the use of the solid waste management facility receiving the waste.”

Cunningham said this could throw a wrench in a 5 percent fee landfills charge for waste — a charge that’s not levied on yard waste in paper bags, which is compostable. That money helps fund other waste programs, like the Haz Bin, where residents can dispose of hazardous materials for free.

If HB 246 becomes law, her worry is the small cities will argue they don’t have to pay that fee.

“I would say my biggest concern is they would get services for which they haven’t contributed any funding, and that’s just wrong,” she said.

And that could inflict another hit on that plastic bag ban bill: If landfill operators can’t charge haulers more for garbage than compostable material, there’s no financial incentive to keep yard waste out of the landfill. And that could end up having ramifications for the lifespan of Louisville’s landfill, which right now is only projected to last for another 50 years.

HB 246 is scheduled to go before the Senate State and Local Government committee on Wednesday.

Legislation To Lift Nuclear Power Moratorium Nears Final Passage Tuesday, Mar 7 2017 

A bill that would lift the moratorium on nuclear power plants in Kentucky passed a legislative committee Tuesday and awaits final passage by the state House of Representatives.

The legislation would change a state law that requires plants to have a way to permanently dispose of nuclear waste, allowing facilities to temporarily store the waste on site.

Sen. Danny Carroll, a Republican from Paducah and the bill’s sponsor, said nuclear power would complement the state’s use of energy derived from coal.

“It is crucial that we have a balanced portfolio in our state to allow the purchase of inexpensive energy,” Caroll said. “To provide a better quality of life for our people and to help us recruit business and industry into our state.”

State lawmakers from Paducah have long tried to lift the moratorium, which was first put in place in the 1980s. The city is home to the Paducah Gaseous Diffusion Plant, which enriched uranium for use in nuclear power plants and weapons.

Carroll said lifting the moratorium could help bring jobs that have been lost at the plant, though he said it would be years before a nuclear project could move forward in the area.

“We believe that the market will dictate when it’s time to build a nuclear power facility in the state of Kentucky,” he said.

A representative from the Tennessee Valley Authority said that construction of a nuclear power plant could employ 3,500 people and a plant would employ between 400 and 700 people once it opened.

The Tennessee Valley Authority recently brought the country’s first nuclear power plant online since 1996 in Southeastern Tennessee.

Tom FitzGerald, director of the Kentucky Resources Council, called nuclear power a “Faustian bargain”

“We get the cheap energy and we saddle future generations for a millennia with the responsibility to be mature enough to properly manage the waste that we’re generating,” FitzGerald said.

The bill has already passed the state Senate and is awaiting a hearing in the full House of Representatives.

Weakened Rules For Coal Ash Disposal In Kentucky Move Forward Monday, Mar 6 2017 

A state legislative committee has approved a controversial proposal to change the way Kentucky regulates coal ash. The Administrative Regulation Review Subcommittee passed the proposal at its meeting Monday, after delaying a decision from last month.

The Energy and Environment Cabinet’s proposed rule would incorporate the federal government’s coal ash regulations, and it would also significantly weaken the permitting process for new coal ash landfills in the state.

Coal ash is one of the nation’s largest waste streams; it’s produced at power plants that burn coal for electricity and stored in ponds or dry landfills. It also contains a laundry list of elements, which can migrate into ground and surface water near coal ash sites.

The new proposal would change the way landfills are permitted. At present, the regulations stipulate a number of factors that go into permitting the sites — everything from where the landfills can be located to how and where the utility is required to monitor groundwater.

In some cases, like at Louisville Gas & Electric’s Trimble County power plant, the permitting process can take years. The new regulations would change that to a simple registered permit-by-rule, where state regulators wouldn’t sign off on a landfill before it’s permitted. The state or citizens could cite or sue after the fact if problems are discovered.

The cabinet released the proposed regulations last year. In January, WFPL News broke the story that the state had drafted the regulations after more than a year’s worth of meetings exclusively with representatives of electric utilities.

The version state regulators drafted before the meetings began was comprehensive and incorporated the new federal standards while maintaining the state’s current comprehensive permitting program for coal ash landfills.

At the legislative meeting on Monday, Deputy Secretary Bruce Scott told lawmakers that regulators would continue scrutinizing coal ash sites under the proposed regulations.

“Our enforcement and oversight responsibility in the field of what’s going on will continue,” he said. “We’re not going to abdicate our responsibility to go inspect, watch construction, installation, etc., so all that stuff is going to continue the way it always has under the current rules, much less the ones we’re proposing today.”

But the new regulations don’t lay out the cabinet’s duties when it comes to regulating coal ash landfills to the degree of specificity in the current regulations.

At the meeting, Tom FitzGerald of the Kentucky Resources Council spoke against the proposal, calling it one of the most irresponsible that he’s seen in his decades of working in the state. He said the cabinet’s recent approval of a landfill for LG&E’s Trimble County plant would be drastically different under the new regulations.

While speaking, FitzGerald held up the one-page registered permit-by-rule the utility would have to fill out.

“If they elect to be regulated by this, to the extent we can call this regulation, there’s no inspection that will occur, there’s no notice to the cabinet, there no necessity they get a second operating permit once they’ve completed the construction,” he said. “What’s lost is the critical oversight that people … in that area rely on the cabinet to provide.”

The proposal next goes before the Interim Joint Committee on Natural Resources and Environment. If that committee approves the regulations, they become law.

How Proposed Changes To Coal Ash Rules Could Weaken Oversight In Kentucky Monday, Mar 6 2017 

Over the past few years, there have been numerous documented instances of contaminated water leaching from a coal ash pond in Central Kentucky into groundwater and directly into Herrington Lake. Now, state regulators are investigating high levels of selenium in the lake’s fish, and they have fined utility Louisville Gas & Electric and Kentucky Utilities $25,000.

These are the facts outlined in a story WFPL News published last week. The story also looks at the pollution through the lens of a current regulatory proposal that experts say would significantly weaken the state’s oversight of coal ash at power plants.

The Kentucky Department for Environmental Protection, which is part of the Energy and Environment Cabinet, declined an interview request for the story, instead asking for emailed questions. But in a blog post last week, the state took issue with the story, misrepresenting the thesis and implying the reporting was inaccurate.

It was not.

The overall message in the post is the same one cabinet officials have been repeating for the past few months, as the new coal ash regulations and their drafting process have come under scrutiny. That message is simple: The state’s new regulation is actually stricter than the current one.

So, which is it? Do the new regulations strengthen the requirements for new coal ash sites, as the department keeps insisting? Or do they weaken them, as critics argue?

It’s a complicated issue, and the DEP declined an interview request for this story, too. So, hang onto your hats — this is going to get kinda wonky.

Federal Rules

This all started when the federal Environmental Protection Agency decided to regulate coal ash for the first time. After years of work, the new regulations were finalized in 2015.

But the federal coal ash regulations are different than a lot of other environmental regulations. They’re a bit more like technical standards — think, a list of specifications for constructing new coal ash ponds and landfills and monitoring pollution from existing ones. And they’re self-implementing, which means the federal government won’t be inspecting coal ash sites to make sure they’re complying with the law.

Instead, the EPA is requiring utilities to post a lot of pertinent information about the projects online, and the agency allows citizens (and states) to sue if the standards aren’t met.

Kentucky isn’t required to incorporate the new EPA rules into the state’s regulations — the state’s utilities would have to follow them either way — but the EPA strongly encourages it. And as Energy and Environment Cabinet Deputy Secretary Bruce Scott said at a recent legislative hearing, the state believes adopting the federal rules is the most responsible way to go.

“We needed to be at the table to be able to have enforcement obligations and responsibilities to be able to implement,” he said. “Otherwise, we’re not involved in dealing with the federal rule at all, which we don’t believe is responsible.”

That’s true: Without adopting the federal rules, the state would be in the same position as citizens, forced to sue to enforce the law. But adopting them makes them state obligations the state can enforce.

But the issue at hand is the way the state is incorporating the federal rules — and the other aspects of the law that are being rewritten simultaneously.

A Tale of Two Chapters

Right now, coal ash (or coal combustion residuals, as it’s technically called) is regulated under Kentucky Administrative Regulations Chapter 45. What the state is trying to do is move coal ash regulation for utilities from Chapter 45 to Chapter 46.

So, what?

Chapter 46, as it’s written in the state’s new regulations, does two things. It incorporates the new EPA regulations into state law. And it sets out a new way to permit these sites. That new permitting program is what critics are seizing on as an example of the way the state’s proposal is flawed.

Under Chapter 45, there are a number of specific technical requirements for coal ash landfill permits. The state is required to review a laundry list of factors, from groundwater monitoring plans to the landfill’s location. Unlike the standards set forth in the EPA’s rules, these are conditions that have to be met before construction even begins.

When regulators began meeting with representatives of the utility industry in September 2015, the regulations they had drafted (left) were extensive. By the time they submitted the drafts to the Legislative Research Commission in October 2016 (right), the regulations were weakened.

When drafting the new regulations, Kentucky could have incorporated the EPA’s rule into Chapter 46, and also carried over many of those stringent landfill permitting requirements from Chapter 45. That’s what state regulators initially did in a previous version of the regulation, before a year’s worth of meetings with the utility industry.

But the final version of the rule strips all of those permitting requirements, replacing them instead with a registered permit-by-rule. This would allow utilities to go ahead and design and construct the landfill without state oversight, after getting a simple document that gives them the go-ahead.

WFPL broke the story about the process by which the Cabinet and the utility industry rewrote the regulations, which began with a meeting in September 2015:

When regulators went into that meeting on Sept. 3, 2015, the draft CCR rules were extensive. They covered groundwater monitoring, inspections, technical specifications for recycling coal ash and plans for closing facilities.

But by the time the draft regulations were released to the public in October 2016, they didn’t contain any of those specifics. And the regulations proposed regulating the electric utilities with a “permit-by-rule” — the very mechanism that the state declared it would not use during that September meeting.

In terms of permitting, the new regulations would mean the biggest change for coal ash landfills. But that’s only one of the ways coal ash is stored. Let’s talk about coal ash ponds.

Ponds

The Kentucky Department for Environmental Protection has focused a lot on coal ash ponds rather than landfills, and the way they would be affected by the new rule.

In the blog post about our story on coal ash contamination in Herrington Lake, the Kentucky DEP focuses on several “facts” not included in the story. Two of the three focus on coal ash ponds or impoundments.

The agency wrote:

  • 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.

It’s a bit disingenuous for the DEP to take credit for strengthening rules to the point that the state’s coal ash ponds are likely to close. That’s happening because of the federal EPA rules.

But this focus on ponds has been a constant for the Kentucky DEP. In his testimony before the Administrative Regulations and Review Subcommittee last month, Scott doubled down on the issue.

“Our intention with this rule, particularly on the ash ponds, and the ash ponds is the primary genesis of why this rule came to be into fruition, is, this gives us technical requirements, technical abilities, and frankly it gives us a permitting mechanism that we don’t currently have to deal with ash ponds in Kentucky,” he said.

It’s correct that the permitting of ash ponds in Kentucky has never been particularly rigorous. Under current law, they’re subject to the same sort of permit-by-rule that the cabinet is now proposing using to oversee all sorts of coal ash sites, including landfills.

And there are a few aspects in which the new federal regulations will be more stringent than the current state regulations, though that’s not due to any steps the Kentucky Department for Environmental Protection has taken.

But this focus on stricter requirements on pond permitting is a red herring. The ponds in Kentucky are closing because of the new federal requirements. It’s unlikely any more will be built.

So, while the federal requirements — which the state is adopting — do place more restrictions on where the ponds can be built and how they’re monitored, it’s irrelevant at this point.

Specific vs. General Authority

State regulators made a third point in discussing these regulations in their blog post: The agency is not losing any authority to inspect and oversee coal ash sites in Kentucky.

Specifically, the post said:

  • 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.

Is this true? It’s up to interpretation and some guessing about what will happen in the future.

The Cabinet could very well choose to interpret the new regulations in a certain way, and take it upon itself to “ensure compliance, investigate citizen complaints, and take enforcement action as necessary.”

Even if this is the case, the cabinet’s new permitting structure — granting a permit-by-rule for coal ash landfills rather than a comprehensive, individual permit — takes away from regulators’ ability to review a project upfront and minimize problems. If monitoring wells aren’t placed in the right locations, for example, it will be hard to detect pollution later down the line.

Moreover, the new regulations lack the specificity contained in the current Chapter 45. They also lack a key section (401 KAR 45:140) that gives regulators the authority to even regulate and tells permit holders they have a duty to comply in the first place.

Ultimately, the cabinet’s new proposed coal ash regulations lack a lot of details. Regulations aren’t just for the regulated industry — they’re for the regulators, too. The current KAR Chapter 45 specifically delineates the Cabinet’s responsibilities when it comes to coal ash.

And now, if the new regulation becomes law, there are fewer specifics about what the Cabinet will be required to do about coal ash sites in Kentucky.

The new regulations will be before the Administrative Regulations and Review Subcommittee Monday. If they’re approved, they’ll have to clear one more legislative committee before going to Gov. Matt Bevin for his signature.

Despite Report, No Changes To Coal Reclamation Funding For Now Thursday, Mar 2 2017 

The commission that oversees Kentucky’s Reclamation Guaranty Fund is waiting to take any major actions after receiving an actuarial analysis of the fund’s first two years.

In the analysis, performed by Pinnacle Actuarial Resources, actuaries recommended several adjustments to ensure the fund’s future viability. But in an interview last month, the fund’s director said the KRGF Commission would adopt a wait-and-see approach on several of the recommendations.

To receive a permit for coal mining, a company has to post a bond. If the mining and reclamation are completed successfully, the company gets its bond back. But if the company isn’t able to reclaim the land like it’s required to under the law, they forfeit the bond and the money is used for reclamation.

But in 2012, the federal Office of Surface Mining and Reclamation raised concerns about inadequate bonding of Kentucky coal mines. The worry was that the bonds weren’t large enough to actually cover the costs of reclamation if they were needed. So in response, state lawmakers formed the Kentucky Reclamation Guaranty Fund.

The fund is meant to provide a backup for reclamation bonding. Coal companies pay a few cents per ton of coal mined or a fee for each permitted acre, and the money goes into the fund. Money also comes in from a few other sources, like penalty fees and interest.

The actuarial study that was completed in November analyzed the first two years of the fund’s performance and made recommendations to keep the fund solvent over the next 20 years.

One of those recommendations was significantly increasing the tonnage fee coal companies pay for each ton of coal mined. The report recommended an increase from 7.57 cents to 24.79 cents on surface mined coal, and 3.57 cents to 11.69 cents on coal from underground mines.

But for now, the commission won’t act on that recommendation. KRGF executive director Danny Hall said there were questions about whether the 20-year time frame is appropriate.

He said in the next actuarial analysis, which will be out later this year, they’ve asked for a more short-term outlook to reflect reality.

“To make the assumption that we’re not going to do anything for 20 years is just wrong,” he said. “If there was a dramatic downturn again, we’re going to adjust rates. We’re going to do something to protect the fund.”

Hall said the estimation of the number of forfeitures — companies that default on their bonds and require the KRGF to step in to pay for reclaiming the land — is also higher than the state is experiencing in reality.

“Well, so what happened was the forfeitures were a lot lower than anybody expected, so the fund grew faster,” he said. “So the rates that were set in 2013, they’re probably a little higher than they could have been, had we known the future.”

‘Insurance for insurance’

Any decision to raise the tonnage fees would have to go through the state legislature, and could be seen as placing additional burdens on the struggling industry. But in July of last year, before the final version of the study was released, members of the Kentucky Reclamation Guaranty Fund Commission indicated they were willing to raise the rates coal companies pay into the fund.

The minutes from the July 26, 2016 meeting relate a conversation between commissioner Bill Adams of Cumberland Surety Company, a bonding company, and chairman Charles Snavely, the secretary of the Energy and Environment Cabinet:

“Commissioner Adams asked whether a rate increase for the KRGF Fund would hurt the coal industry from the perspective of would an increase possibly cause more of the harm that the KRGF is trying to prevent.

Chairman Snavely indicated that potentially rate increases could have an impact on companies and their operations, however, if the actuary states that the KRGF needs to increase rates to sustain the Fund, then it is their job to present that regardless of how people feel. Chairman Snavely stipulated that it is the KRGF Commission’s job to be the messenger and go before the legislature and say the Fund needs a rate increase, if that is what the actuary finds. Commissioner Adams indicated that he agreed with Secretary Snavely’s assessment of the KRGF Commission’s job.”

The actuarial study also recommended the KRGF explore getting reinsurance, which director Danny Hall described as “insurance for insurance.” It would kick in after the fund paid out a certain amount of money in losses.

The KRGF is currently getting quotes on reinsurance to determine whether it would be affordable and prudent.

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