A silver lining in EPA’s Coal Ash Rule

It took six years, two costly spills, and a lawsuit, but last month, the Environmental Protection Agency finally issued the first-ever federal standards for the disposal of coal ash. It didn’t wow us, there were no ticker tape parades, and the status quo of corporate sway over rulemaking left us with a rule that lacks brawn and relies on industry “self-implementing,” without action from any federal or state agency.

But the Disposal of Coal Combustion Residuals from Electric Utilities Rule does have a little brain, and it gave us something solid to work with going forward with, which is better than the nothing we had before. The journey of a 1,000 miles starts with a single step, someone once said. The new rule is just that, a first step. It didn’t resolve the issues, but it did move us one step forward, technically speaking, this is progress.

Here’s what the new federal coal ash rule does:

• Defines coal ash as non-hazardous, as was expected, rather than hazardous waste . Coal ash will now be treated at least as stringently as household and commercial waste. Before this rule, your household garbage of coffee grinds, paper, and banana peels were better regulated;
• Sets location restrictions for new, existing, and expanding coal ash impoundments and landfills, such as outside of wetlands, above the uppermost aquifer, and unstable areas such as seismic zones. Coal ash disposal units that don’t meet these restrictions must demonstrate they can still meet water quality standards through engineering, or be closed;
• Requires new or expanding impoundments to be lined, and new or expanding landfills to have liners and leachate collection systems;
• Requires a monitoring and control plan for fugitive dust for each site;
• Establishes criteria for ensuring structural integrity of disposal units, and requires routine structural assessments. If a unit cannot meet the minimum safety standards, it must close;
• Defines filling in surface mines (clay, coal, sand, etc.) with coal ash as solid waste disposal, not as a “beneficial use” of coal ash. This distinction means any mine-fill site must meet the new landfill standards, including having a liner and leachate collection system;
• Requires groundwater monitoring systems to be installed within 30 months at all coal ash disposal locations. This will begin the process of obtaining data to assess where contamination has occurred;
• Requires closure of unlined units where monitoring shows significant exceedance of groundwater standards. Since many clean water advocates, academics, and citizens have already obtained a wealth of data from independent testing showing contamination at many sites, it seems only a matter of time before we can prove how many currently unlined sites should be either closed or lined;
• Requires that coal ash unit owners–mostly electric utilities like Duke Energy and Dominion Power — make all monitoring data and reports publicly available and maintained on a public website. This is perhaps the “silvery-est” lining, giving citizens the information they need to make sure sites are implementing requirements (monitor your local site from the comfort of your living room!); and
• Provides an avenue for citizens to bring a federal lawsuit against companies that don’t meet the minimal federal standards.

Now, let’s take a look at what the federal coal ash rule most notably does not do:

• Require states to adopt or implement these standards;
• Require federal enforcement of the rule;
• Guarantee regulatory oversight by requiring a state or federal permit program;
• Call for an end to the use of surface impoundments for coal ash disposal;
• Require existing impoundments to be retrofitted with liners (unless groundwater contamination is proven); and
• Define closure such that de-watering and “cap-in-place” –methods that fail to fully protect public health and the environment — are prohibited.

In North Carolina, the Coal Ash Management Act, passed last year, meets and in some way exceeds the new federal rule, including limiting the cap-in-place option only to sites deemed low-priority, instead of being an option at all facilities. It also prohibits any new surface impoundments. As long as the incoming N.C. General Assembly does not propose changes to weaken the current law, North Carolinians will have a few extra protections not available to residents of other states — with the exception of South Carolina, where all electric utilities there are currently in the process of removing coal ash from their unlined pits and moving it to safe lined, storage.

For non-Carolinian states, there is a much harder row to plow in getting meaningful clean-up of coal ash waste sites. But the good news is the new groundwater monitoring and public disclosure requirements should result in data proving contamination at a plethora of sites–provided, of course, that companies are honest and report accurately, and assuming they “self implement” the requirements in the first place. Surface or groundwater contamination has already been documented in North Carolina, Georgia, Tennessee, Wisconsin, and Delaware, to name a few states. We know, therefore, that contamination is very likely happening at more sites, we just have to obtain the proof.

If facilities fail to “self-implement” the rule, states do have the ability to bring a federal lawsuit against them. It would seem that even the EPA finds this action unlikely, however, humorously mentioning such state action as a parenthetical side note in its discussion of rule implementation. However, the EPA repeatedly notes that citizens provide a “crucial role in the implementation and enforcement” of this kind of environmental law, and that part of the agency’s requirement to make the data and reports available on a public website was to assist citizens. The EPA will also be offering outreach and education to citizens and groups so they understand their role in compliance.

We must rise to the EPA’s challenge to help implement and enforce the rule. The EPA basically said, “Here’s the rule, you folks enforce it.”

Thanks, EPA, we most certainly will!

Protecting the Central and Southern Appalachian Mountain Region