Jacqueline Mietus
Associate Editor
Loyola University Chicago School of Law, JD 2019

Power plants generate a residue after burning coal called coal ash. In October 2015, the Environmental Protection Agency (EPA) established standards to address the environmental dangers and health risks of coal ash. In May 2017, industry officials petitioned the EPA to reconsider the rule, claiming adverse effects due to high compliance costs. The EPA agreed to review the coal ash regulations and announced one of two proposals to amend regulations in March 2018. The new proposal provides facilities more flexibility in coal ash disposal based on their needs.

Coal Ash

Coal ash, also known as coal combustion residuals, is one of the leading generated waste products in the United States. Burning coal creates various coal ash by-products, such as fly ash, bottom ash, boiler slag, and flue gas desulfurization material. Coal-fired power plants dispose of coal ash through surface impoundments, landfills, or waterways. Coal ash contains several contaminants, such as mercury, arsenic, and cadmium. The EPA has established national regulations regulating the coal ash disposal in order to avert environmental pollution and public health hazards.

Regulation

“The Disposal of Coal Combustion Residuals (CCR) from Electric Utilities” (“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, the Tennessee Valley Authority’s Kingston Fossil Plant had a dike failure that resulted in roughly 5.4 million cubic yards of coal ash being released into surrounding waterways. In 2014, 39,000 tons of coal ash spilled from Duke Energy’s Dan River Steam Station into a nearby river.

As a result of these disasters and an in-depth studies of environmental and health consequences of coal ash, the final Rule took effect in October 2015 under the Obama administration. The EPA asserted it created the Rule with industry concerns in mind. The Rule applies to electric utilities and independent power producers within the North American Industry Classification System. Under the Rule, these facilities are subject to periodic safety inspections. Furthermore, the Rule requires facilities to keep records, release reports, post compliance data and other required information on a public website. Facilities that do not meet the Rule’s standards may be subject to closure.

However, the Rule does not authorize the EPA to directly regulate coal ash disposal. Instead, the EPA and states cooperate through the Resourced Conservation and Recovery Act (RCRA) and the Water Infrastructure for Improvements to the Nation Act (WIIN Act), which authorize states to regulate coal ash through EPA-approved state permit programs. State permit programs are considered in relation to the Rule’s standards. The EPA has the right to regulate coal ash within states where state permit programs are inadequate or nonexistent.

The EPA did not classify coal ash as a hazardous waste, thus a stricter regulation was not triggered. Peter Harrison, an attorney with Earthjustice, asserted, “The rule was very weak.” Harrison explained that the coal industry “was so far above the law that there were no federal regulations at all before 2014. It was left to states, and many of them went out of their way to exempt coal ash from their rules. In that sense, it was an improvement.” Harrison held, “Utilities are the most powerful political force in the state capitals, so state enforcement agencies are always very reluctant to require them to do anything.”

Proposal

In May 2017, industry officials petitioned the EPA to reconsider the Rule, citing significant adverse impacts on coal-fired power plants due to high compliance costs. In September 2017, the EPA agreed to review the Rule. Scott Pruitt, the EPA Administrator, explained it was appropriate and in the best interest of the public do so. In March 2018, the EPA announced one of two proposals to the Rule. The proposal includes over a dozen amendments to the Rule and alternative performance standards for state and federally permitted facilities. By allowing more flexibility in coal ash disposal, the EPA estimates the proposed changes could potentially save electric utility facilities up to $100 million annually in compliance costs.

The proposal includes “a change to allow a state regulatory program to establish alternative risk-based groundwater protection standards for constituents that do not have an established maximum contaminant level (MCL), rather than the use of background levels that are currently required.” The proposal would permit states to create alternative requirements regarding a facility’s responses and remedial measures when landfills and surface impoundments leak. Another change would authorize the continual use of coal ash and non-coal ash waste disposal during the closure process of a facility. The proposal also modifies the performance standard for vegetative slope protection, adds streamline administrative procedures for facilities to use within 180 days of a non-groundwater release, and requires facilities to perform assessment monitoring on boron.

The proposal requests public comment regarding whether a facility may use a professional engineer or other means to create alternative risk-based standards with EPA oversight. The public is also asked to comment on whether current deadlines remain appropriate following new legal authorities and possible regulatory changes. The proposal also poses key questions to the public regarding whether location restrictions and deadlines regarding construction and operation of landfills and impoundment areas should be modified and whether states should be allowed to determine when a leaking, unlined surface impoundment should undertake corrective action or close.

“Today’s coal ash proposal embodies EPA’s commitment to our state partners by providing them with the ability to incorporate flexibilities into their coal ash permit programs based on the needs of their states,” said Scott Pruitt.

Industry companies, like Edison Electric Institute praised the EPA for revisiting coal ash regulations. Quin Shea, Edison Electric’s Vice President for Environment, emphasized the revision will give the industry and states “greater certainty as they work to close ash basins safely and responsibly and continue to manage other ash management facilities, such as landfills.”

In contrast, environmentalists are not so enthusiastic about the revisions. According to Frank Holleman, a senior lawyer at the Southern Environmental Law Center, “The proposed revisions amount to a series of loopholes that would allow state agencies or utilities to determine what level of groundwater pollution triggers a cleanup and the kind of cleanup that would be conducted.”

Holleman further asserted, “Coal ash is polluting rivers, lakes and wells across America, but President Trump’s EPA is trying to weaken the standards that are supposed to protect Americans from this toxic threat.” He claimed, “These proposals will weaken rules that protect our groundwater from arsenic and mercury and continue to extend the use of unlined, leaking coal ash pits next to our waterways. America’s families and clean water deserve better.”

In addition, environmentalists claim there is no coincidence between the release of the EPA’s proposal and the release of groundwater monitoring data online the following day. According to Lisa Evans, an attorney with Earthjustice, the results confirmed that coal ash was polluting groundwater. Lisa Evans asserted, “Pruitt is rushing to finalize this (amended) rule at a time when EPA should be rushing to protect communities.”

The EPA plans to release another proposal later this year. In the meantime, it will be accepting public comments regarding the proposal for 45 days and will hold a public hearing.