Jacqueline Mietus
Associate Editor
Loyola University Chicago School of Law, J.D. 2019

Power plants generate a residue after burning coal called coal ash, more formally known as coal combustion residuals (CCRs). In October 2015, the Environmental Protection Agency (EPA) established national guidelines to address the environmental dangers and health risks of coal ash. In May, nearly two years after the rule regulating the disposal of CCRs from electric utilities came into effect, industry officials petitioned the EPA to reconsider the rule, claiming adverse effects.

Background

Coal-fired power plants produce coal ash, one of the leading generated waste products in the United States. Power plants dispose of coal ash through surface impoundments, landfills, or waterways. Coal ash contains numerous harmful contaminants, such as mercury and arsenic. To prevent environmental pollution and public health hazards, the EPA established national regulations regulating their disposal.

In October 2015, the final rule (Rule) for “The Disposal of Coal Combustion Residuals (CCR) from Electric Utilities” took effect. The Rule resulted from an in-depth study on the environmental and health consequences of coal ash. The Rule applies to all coal ash produced by electric utilities and independent power producers within the North American Industry Classification System. However, the Rule fell short by failing to give the EPA and the states the authority to directly regulate coal ash disposal. Consequently, citizen lawsuits became the principal means of enforcement under section 7002 of the Resourced Conservation and Recovery Act (RCRA). In December 2016, Congress passed the Water Infrastructure for Improvements to the Nation Act (WIIN Act). Section 2301 of the WIIN Act authorizes states to regulate coal ash through EPA-approved state permit programs. The EPA encourages cooperation between the EPA and states through these programs. The EPA considers each state permit program in relation to the federal standards set out by the Rule. Some states exceed the Rule’s minimum requirements whereas others fail to meet the threshold. In cases where state permit programs are inadequate or non-existent, the Rule empowers the EPA to regulate coal ash in the respective state. Today, the EPA, states, and citizens all play a role in enforcing the Rule.

Current Coal Ash Regulations

The rule was created in response to accidents at the Tennessee Valley Authority’s Kingston Fossil Plant and the Duke Energy facility in North Carolina. In 2008, a dike failure at the Tennessee Valley Authority’s Kingston Fossil Plant released approximately 5.4 million cubic yards of coal ash into surrounding waterways. The spill flooded 300 acres of land and destroyed homes, prompting an evacuation of nearby neighborhoods. In 2014, Duke Energy facility released 39,000 tons of coal ash into a nearby river. The river is home to endangered animal species and is a water source for residents, livestock, and crops in North Carolina and Virginia. Both of these incidents placed the public’s health and the environment in jeopardy.

The Rule protects groundwater and surface water from contamination and communities from surface impoundment failure and fugitive dust. Under the Rule, surface impoundments and landfills must meet engineering and structural standards. Surface impoundments and landfills cannot be built in the uppermost aquifer, fault areas, wetlands, seismic impact zones, or in any other unstable areas. The Rule designates liner criteria to prevent possible coal ash leaks. The liner must be a composite liner with a geomembrane and a two-foot deposit of compacted soil (or an equivalent alternative). Water surrounding these areas should be monitored and any contamination must be corrected. Surface impoundment and landfill operators must have a fugitive dust plan to ensure dust control. Facilities are conditioned to periodic safety inspections, and those that do not meet the Rule’s requirements may be subject to closure. The Rule requires facilities to keep records and release reports. In addition, facilities must post compliance data and other information required by the Rule on a public website. The EPA created their own page categorizing each of these websites by state.

Reconsideration

In May 2017, industry officials, specifically Utility Solid Waste Activities Group and AES Puerto Rico LLP (Officials), petitioned the EPA to reconsider the Rule. Officials claimed that the current Rule “affects both the utility and coal industries and also affects the large and small businesses that support and rely upon those industries. It is causing significant adverse impacts on coal-fired generation in this country due to the excessive costs of compliance – even EPA acknowledges the costs of the rule outweigh its benefits.” The EPA emphasized it is in no position to change the Rule at this time. However, Scott Pruitt, the administrator of the EPA, stated in response, “It is important that we give the existing rule a hard look and consider improvements that may help states tailor their permit programs to the needs of their states.”

It is unclear which provisions the EPA would change, or even whether the EPA will choose to do so. The Trump administration’s more lax approach to environmental issues may signal that a potential rollback is coming. To modify the Rule, the EPA must follow the regular lawmaking procedure, a process that could potentially take years. In the event of a rollback, the industry could see a decrease in compliance costs leading to increased profits and a greater reliance on coal while potentially heightening the risks of the very dangers the Rule seeks to address.