Public power group wants federal action on coal rail, coal ash issues

The American Public Power Association said March 10 that its Legislative & Resolutions Committee has approved six new resolutions, including one on coal transportation via rail, and one on coal ash disposal.

The association noted that 39% of the nation’s electricity is generated from coal, most of which is transported by rail. Many coal-burning electric utilities receive coal shipments from a single carrier. Transportation costs are often unreasonably high and utilities are unable to negotiate transportation terms in an open and competitive market, the association said. It is calling on the Federal Energy Regulatory Commission, the U.S. Surface Transportation Board, and Congress to fully examine service-related coal shortages at public power utilities.

“Over the past several years, rail customers also have experienced numerous service and reliability problems, with no relief,” said the resolution. “These problems are by no means restricted to coal shippers. A variety of shippers, from farmers to chemical manufacturers to defense contractors, have experienced rail service issues. Utilities, including public power utilities, have experienced significant impacts such as curtailed generation due to delayed coal shipments, leading to concerns about the potential electric reliability impacts from dwindling coal inventories. The American Public Power Association (APPA) and its members have become increasingly concerned that service problems affecting utility coal shipments could lead to electric reliability issues.

“Members of Congress, the Federal Energy Regulatory Commission (FERC or Commission), and the Surface Transportation Board (STB) have all acted within the last year to address rail service issues causing coal shortfalls. After holding a hearing where several shippers expressed their concerns about rail service issues, the Senate Commerce, Science, & Transportation Committee approved S. 2777, the Surface Transportation Reauthorization Act of 2014. This bill would have made several changes to the STB, including improving several STB processes and increasing the STB’s investigative authority. It was not passed by the full Senate before the end of the 113th Congress, but Senate Commerce Committee Chairman John Thune (R-SD) indicated he will bring up a similar bill again in the 114th Congress.

“The STB has also been active on rail service issues and ordered the Burlington Northern Santa Fe (BNSF) Railroad to file a coal service recovery plan to ensure BNSF’s plans to address possible coal shortages were sufficient. Unfortunately, that plan is a non-binding document, and BNSF chose not to fully comply with the STB’s order. Finally, FERC held a meeting where utility representatives shared their stories about poor rail service resulting in disruptions of electric service. The Commission will continue to monitor the issue.”

APPA concerned about EPA’s new coal waste disposal rule

Said the resolution on coal waste: “On December 19, 2014, the Environmental Protection Agency (EPA) released its final rule to regulate coal combustion residuals (CCR or coal ash) generated from coal-fired electric utility plants as non-hazardous waste under Subtitle D of the Resource Conservation and Recovery Act (RCRA). The new rule will take effect in the summer of 2015, with various requirements within it taking effect at a specified time period after the effective date. The final rule distinguishes between CCR disposal facilities that qualify as sanitary landfills and CCR disposal facilities classified as open dumps. CCR landfills and surface impoundments that are found to be in non-compliance will be deemed open dumps and have to rectify any regulatory deficiencies or cease receiving CCR and shut down.

“While EPA correctly classified coal ash as non-hazardous waste, implementation of the rule will be flawed due to the self-implementing nature of Subtitle D of RCRA. Affected CCR facilities must comply with EPA’s new rule irrespective of whether the states they are located in adopt the federal rule at the state level. And even if states adopt the EPA rule and incorporate it into their solid waste management programs, the EPA rule remains in place as an independent set of federal criteria that must be complied with. Because the rule is promulgated under Subtitle D, regulated CCR facilities do not need to obtain permits, states are not required to adopt and implement the new rule, and the new rule cannot be enforced by EPA. Rather, the only means of enforcement is through citizen suits in federal district court under Section 7002 of RCRA against any facility that is alleged to be in non-compliance with the new requirements. This is problematic because legal disputes regarding compliance with any aspect of the rule will be determined on a case-by-case basis by different federal district courts across the country. This will result in federal judges making complex technical decisions on how to comply with the rule rather than technical experts at regulatory agencies. Further, by overriding existing state risk-based regulatory programs, the rule subjects billions of dollars of electric generating assets to a “comply or shutdown” enforcement regimen without opportunity for remediation or appeal.

“For example, the rule applies to inactive CCR surface impoundments (i.e., those not receiving CCR on or after the effective date of the rule and which still contain CCR and liquid) at active electric utilities regardless of fuel currently used at the facility to produce the electricity. Should the inactive impoundment not close within three years of the effective date of the rule, it is regulated in the same manner as existing CCR surface impoundments and is subject to the rule’s full array of requirements, including location restrictions and groundwater monitoring. EPA does not appear to have the authority to regulate inactive surface impoundments in this manner under Subtitle D of RCRA.  It is not clear why EPA chose this approach for inactive impoundments given it can regulate them under the Comprehensive Environmental Response, Compensation, and Liability Act or the imminent and substantial endangerment provision of RCRA.”

APPA said its supports the new rule, but wants Congress to pass legislation to fix these problems with it.

About Barry Cassell 20414 Articles
Barry Cassell is Chief Analyst for GenerationHub covering coal and emission controls issues, projects and policy. He has covered the coal and power generation industry for more than 24 years, beginning in November 2011 at GenerationHub and prior to that as editor of SNL Energy’s Coal Report. He was formerly with Coal Outlook for 15 years as the publication’s editor and contributing writer, and prior to that he was editor of Coal & Synfuels Technology and associate editor of The Energy Report. He has a bachelor’s degree from Central Michigan University.