Dive Brief:

• Rules covering coal ash disposal in Kentucky still need to be to be approved by a pair of legislative committees, but WPFL News reports the changes could face a legal challenge from environmental groups who say they were shut out of the rulemaking process.
• According to the news station, utility representatives began meeting in late 2015 with regulators to craft new rules. By the time draft rules were submitted to the Legislative Research Commission a few months ago, they had been significantly cut down.
• Among the major changes: Utilities would not need to apply for permit to construct a landfill to store coal ash, moving to a “permit-by-rule” system that would allow construction to begin without review. State officials told WPFL that the new rules would comply with changes to federal regulations passed by the Obama administration in 2014. 

Dive Insight:

Local media reports the Kentucky Resources Council will consider legal action if new coal ash rules move forward, highlighting both scrutiny of the combustion waste and the backroom way in which regulations are sometimes formed. While Kentucky law does not prohibit regulators and industry from working together privately, there is concern the process went too far in this instance.

In comments last year, the group told state regulators it is "gravely concerned with the proposed set of administrative regulations and the laissez faire approach to management of coal combustion wastes," according to the Kentucky Resources Council. Under the new proposal, the first time the public would have notice of a new coal ash reservoir "would be when the construction began," the group said.

"The proposal eviscerates the permitting process for coal combustion waste landfills and ponds," potentially exposing nearby residents "to elevated levels of risk to public health and environmental damage associated with coal combustion wastes and the numerous pollutants that are entrained in such wastes."

Kentucky officials told WPFL that the proposed rules simply comply with regulations from the Obama administration's U.S. Environmental Protection agency, which allow for an "industry self-implementing program with no permitting program."

New rules issued in 2014 created requirement and standards for the management of coal combustion residuals. Importantly, the regulation concluded coal ash was a "solid waste" as opposed to "hazardous," requiring additional regulation. The rule encouraged, but does not require, states to develop solid waste management plans to include and voluntarily exceed federal minimum standards. However, they must also be approved by the EPA, operate parallel to the regulation, and be subject to dual enforcement in respective state and federal courts.