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Oklahoma breaks new ground as EPA examines coal ash program

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Oklahoma breaks new ground as EPA examines coal ash program

The U.S. Environmental Protection Agency is proposing to approve the first state plan for the clean up of coal ash, one submitted by Administrator Scott Pruitt's home state of Oklahoma.

The proposal was published in the Federal Register on Jan. 16 without much fanfare, just five-and-a-half months after Oklahoma submitted it for consideration. However, the plan has been under development for some time and the subject of numerous state agency public meetings.

Oklahoma environmental groups have concerns about whether the EPA is giving the proposed plan enough scrutiny given that it is the first state coal ash plan to be considered by the federal agency.

"The state has done, as far as we can see, nothing to treat coal ash as a serious concern," Johnson Bridgwater, director of the Oklahoma chapter of the Sierra Club. "So if [the EPA is] going to give oversight of coal ash ... to the state of Oklahoma, that raises some big questions for us."

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But officials in the Sooner State say the plan has been under development since 2015, and the EPA's notice was just the latest step in finalizing a made-in-Oklahoma plan to address coal ash. Along the way, plenty of public meetings were held to collect feedback on the plan, and yet those opportunities were rarely attended by the public.

Oklahoma's plan is the first to be considered by the federal agency under the Water Infrastructure Improvements for the Nation Act, or WIIN Act, which gives states more leeway to establish their own coal ash mitigation plans so long as they are approved by the EPA and are at least as stringent as the agency's own 2015 coal ash rule.

More specifically, the 2015 rule is self-implementing, meaning a facility must comply but the EPA has no enforcement authority. Instead, the rule requires the publication of certain data, and is enforced by citizens and states through lawsuits. Environmental law firm Steptoe & Johnson explained in an October 2017 brief that the coal ash rule was the first time the EPA had "published a rule and then publicly invited citizens and public interest groups to take the lead in policing the regulated industry."

Utilities complained when the coal ash rule was issued that legislation allowing state permitting programs to be established would be a better approach and could avoid costly litigation. The WIIN Act filled that gap by providing a pathway for states to request exclusive oversight of their own coal ash management programs.

Oklahoma's plan

Oklahoma is the first state program that the EPA has proposed to approve. The plan does not address each of the state's six facilities subject to coal ash regulation but rather establishes a set of overarching rules consistent with the EPA's federal guidelines.

Oklahoma has long had its own rules for coal ash under the state's solid waste regulations, according to Patrick Riley, solid waste and sustainability manager for the Oklahoma Department of Environmental Quality, or ODEQ. But when the EPA issued its coal ash rule in 2015, utilities found themselves double regulated. Riley said the state then sought to harmonize its rules with the federal ones while maintaining details that are specific to Oklahoma's needs.

Along the way, Congress passed the WIIN Act, and the decision to submit Oklahoma's program for EPA review was a no-brainer, according to Riley.

"Oklahoma has seen the benefit of having our own rules in place and being the regulatory authority in our state. We think it's better for citizens. If they have concerns they can reach out to us," Riley said, noting that the state has a robust complaint process to investigate citizen concerns.

The regulated community also prefers a state program, he continued, because ODEQ is accessible and utilities know they will be submitted to regular inspections. "They know where they stand as to whether or not they're complying," Riley said.

So what does Oklahoma's coal ash plan mean for utilities? Riley says not much will change once the EPA finalizes its approval because many utilities moved to comply with the federal rules once they were promulgated.

Bokoshe

Thus, Oklahoma's plan essentially maintains the status quo, and for Bridgwater, that is problematic. He sees a long history of Oklahoma environmental officials ignoring public complaints and delaying action, specifically in the community of Bokoshe, which is home to the state's largest coal ash repository.

"For ... a decade the trucks would run through the town without even covers on them, so they were just littering the town in coal ash," Bridgwater said.

The Bokoshe coal ash facility is a former coal mine now used to store coal ash, the remnants of coal burned for power generation. Because it is a mine, Bridgwater said it is regulated by the Oklahoma Department of Mines rather than ODEQ. So while the Bokoshe facility is not subject to ODEQ's new coal ash program, Bridgwater said the repository points to serious gaps in Oklahoma's regulation of coal ash. He worries that the EPA did not properly examine Oklahoma's program before proposing to approve it.

But Riley insisted that Oklahomans had ample opportunity to share concerns about the state plan since it was made public in September 2015. "We've had at least a half a dozen open meetings in which we invited the public to come and didn't receive any comments," Riley said.

Records of ODEQ's Solid Waste Management Advisory Council public meetings seem to back up Riley's assertion. At one September 2017 meeting, Riley joked to Council Chairman Jeff Shepherd that the coal ash issue should be added as a standing item to the agenda, because "we talk about it a lot." The transcript shows that on the agenda that day was ODEQ's application to the EPA under the WIIN Act, and Riley notes that he had previously briefed the council on that legislation.

Riley also said the EPA was still working out the kinks of the application process considering ODEQ was the first to submit a program.

"We're one of the first — and we may be the first state in the nation to apply for program approval, so they haven't quite figured out how to conduct a review or what they want to look at or what they have issues with," Riley told the council. "So it's taken them a little longer than they anticipated."

After Riley's statement, Shepherd gave an opportunity for public comment, asking "Any questions from the public?" There was no response.

Moreover, The EPA plans to hold a hearing on the proposal at ODEQ headquarters on Feb. 13, and the publication of the proposed approval in the Federal Register triggered a public comment period that remains open. Just two comments have been received on the matter as of Feb. 8 — including a joint one from the Sierra Club, Earthjustice and Waterkeeper Alliance asking for more time to comment.

But Riley said the speed with which the EPA reviewed and tentatively approved the plan is not a sign that it is insufficient but rather that Oklahoma was able to check off all the requirements because its plan so closely traced the federal coal ash rules.

In an email, an EPA spokesperson noted that Georgia has also submitted a state coal ash program for review. Riley said Oklahoma has been sharing its experience with other states and fielding questions on the process.

Meanwhile, the coal ash rule is among the regulations that the Trump administration is reviewing. The EPA recently singled out a handful of provisions that will be mulled over for possible changes amid lawsuits and petitions from industry, as well as environmental groups, challenging the 2015 regulation. Riley said if the rule changes Oklahoma will simply revise its program.

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