EPA rule could force clean-up of toxic coal ash in landfills, power plant ponds

The Biden administration on Wednesday proposed expanding the number of coal waste dumps that would be subject to environmental oversight, a decade after a string of toxic disasters from such landfills flooded valleys and polluted rivers in southern states.

Federal regulators have struggled for decades with how to address coal ash, the waste that remains when coal is burned in power plants and which often contains a toxic mix of chemicals associated with cancer. Such waste can pollute waterways, poison wildlife and cause respiratory illness among those living near massive storage pits, and major spills in Tennessee and North Carolina led to research that suggests leaks are common at these sites.

In 2019, a report published jointly by the Environmental Integrity Project and Earthjustice found that at coal waste sites at 250 power plants nationwide, the vast majority have leaked toxic chemicals into nearby groundwater. More than 90 percent of the nation’s coal-fired power plants reported elevated levels of contaminants such as arsenic, lithium, chromium and other pollutants in nearby groundwater.

Power plants are a major industrial source of toxic wastewater pollution around the country. Most of their coal ash sites are concentrated in the East, between the mid-Atlantic seaboard and the Midwest. More than a third of them are in five states, Indiana, Illinois, Ohio, Pennsylvania and Kentucky, according to data compiled by Earthjustice.

When the Trump administration eased the regulations in 2020, the EPA said it would save the coal industry $140 million a year. But it also estimated the rule change would still reduce pollution by 1 million pounds annually compared to the 2015 rule because some plants would voluntarily adopt stricter controls than what the agency requires.

The Environmental Protection Agency now wants to end exemptions that left about a quarter of the roughly 1,000 coal ash dumps nationwide exempt from federal regulation. It would apply similar regulations that now cover only active disposal units to inactive units, which the agency says are more prone to leaks because they often lack protective lining and monitoring systems.

The proposal comes in part to resolve a federal court order and litigation, some of it filed by the environmental firm Earthjustice in two cases where it represented national organizations such as the Sierra Club and regional groups such as Hoosier Environmental Council, the EPA and Earthjustice said. Coal ash contains toxic substances such as mercury, cadmium, chromium and arsenic, and its pollution often hurts poor and minority communities near dump sites that the EPA says is already “overburdened by pollution.”

“Many of these communities have been disproportionately impacted by pollution for far too long,” agency administrator Michael Regan said. “This proposal will better protect their health and our environment, and it will reflect our broader commitment to reduce pollution from the power sector in a way that ensures a reliable, affordable supply of electricity.”

Earthjustice said the proposal is a major step forward but doesn’t go far enough. To protect communities from the toxic waste, a new rule must extend federal regulation to all dump sites, the group said. The proposal would leave about 40 to 60 landfills still exempted from federal regulation, according to Earthjustice estimates.

“The EPA is taking significant steps to address a massive loophole that let many coal plant owners off the hook from cleaning up the toxic mess they created,” Lisa Evans, the group’s senior counsel said in a statement. “The EPA must close the loophole tightly, so utilities cannot avoid cleaning up any toxic waste.”

The proposal would close loopholes that come from a 2015 rule that exempted inactive impoundments at active facilities. Expanding federal regulation to those dumps would include requirements for properly closing them and remediating groundwater contamination, the EPA said.

In all the proposal would expand federal regulation to 261 dumps at 141 different facilities that are now exempt from federal oversight, according to the EPA. Another 29 landfills that are currently regulated would also face tougher regulations, the proposal says.

A coalition of energy companies, known as the Utility Water Act Group, has fought coal ash regulation, saying it would impose heavy costs. In the first weeks of the Trump administration it prodded the EPA to for leniency, leading the agency to delay and then in 2020 weaken a rule that the Obama administration had put into place in 2015.

Several industry groups did not immediately respond to requests for comment about the new proposal.

The Biden administration has said it is trying to provide the industry with more stability by issuing a raft of new standards at once, including new coal ash rules. The EPA faces requirements under the law or legal settlements to update various power plant rules periodically, and its new plan is to do many of them concurrently.

Regan has spearheaded that strategy. He has said evolving science is suggesting more protective rules are required under the law, and that rolling out stronger standards for air pollution, water discharges and solid waste will help address climate change and a legacy of air and water pollution in poor and minority communities.

Before he joined the EPA, coal ash had been a signature issue for Regan in his home state, North Carolina, where he led the state Department of Environmental Quality. There in the late 2010s he established an environmental justice advisory board and forged a multibillion-dollar settlement with Duke Energy over coal ash disasters, prompting the company to undertake an estimated $4 billion to $8 billion cleanup.

The state had called it the largest such cleanup in history, caused by two major incidents past decade. In February 2014, a coal ash pond at Duke’s Dan River Steam Station spilled as much as 82,000 tons of waste over roughly 70 miles of the Dan River. Floodwaters in 2018 washed through toxic coal ash alongside Duke Energy’s L.V. Sutton power plant, sending polluted waters pouring into a man-made lake and then into the Cape Fear River.

Such toxic events highlighted the looming threat from these dumps, often semisolid impoundments held back by decades-old earthen dams. In 2008, a dike failed at the Tennessee Valley Authority’s Kingston Fossil Plant, allowing 5.4 million cubic yards of ash to flow into nearby rivers, inundating hundreds of homes, sometimes burying them or pushing them off their foundations.