Legal & Regulatory

EPA Rampaging on Coal Ash Rule Despite Groundwater Concerns

Despite pleas by environmental groups for more time to review recent dumps of groundwater monitoring data from power companies, the Environmental Protection Agency (EPA) is forging ahead to finalize a proposed overhaul of the Obama administration’s 2015 final Coal Combustion Residuals (CCR) rule.

The EPA’s 45-day comment period for the agency’s March 1 proposed rule, which includes more than a dozen significant changes to the 2015 action, is slated to end on April 30. Most of the rule’s changes focus on providing more regulatory flexibility to owners of coal ash landfills or surface impoundments, and they explicitly give states the authority to operate CCR permit programs “in lieu of federal regulations,” as long as they are agency-approved. According to the EPA, those changes are expected to save industry between $32 million and $100 million per year.

However, the proposal also seeks to address four provisions that a federal court remanded to the agency in June 2016. Those changes, for example, propose a clarification of the type and magnitude of non-groundwater releases that would require a coal plant to comply with corrective action procedure, and it adds boron to a list of constituents that may trigger corrective action. (For an in-depth look at the proposed rule and history of the federal coal ash rule, see “EPA Proposes Overhaul of 2015 Final Coal Ash Rule.”)

Troubled Waters

To date, docket EPA-HQ-OLEM-2017-0286, which closes in four days, has received a little more than 500 comments, most from anonymous submitters. And most argue that the rule rolls back successful aspects of the 2015 rule or significantly weakens environmental protections.

One aspect of the proposed rule that has caused consternation for environmental and citizen groups, for example, allows states to suspend groundwater monitoring requirements under the 2015 final CCR rule if there is evidence that no potential migration of hazardous constituents has occurred to the uppermost aquifer during the active life of the unit.

In a letter from 104 public interest groups beseeching the EPA to extend the public comment period by “a minimum” of 45 additional days, and to hold more than a single dedicated public hearing, the groups noted that pursuant to the 2015 rule, power companies and utilities made groundwater monitoring data available for every existing coal ash landfill and surface impoundment on their publicly accessible compliance websites.

That data, the groups noted, contain “information for many ash dumps that have never been monitored and contain information on the presence of certain hazardous chemicals, such as radium, cobalt, and lithium, that have never before been collected.” Those threats have “great bearing on the technical adequacy and legal sufficiency of the proposed rule,” they said.

However, the data set is vast and convoluted. As POWER verified, the groundwater monitoring data and planned corrective actions for the nation’s 922 coal ash landfills and surface impoundments from at least 414 coal-fired power plants isn’t accessible as one collected resource. Each company’s data may also be extensive. Duke Energy’s data, for example, is about 25,000 pages. Alabama Power’s exceeds 1,000 pages, as the Southern Environmental Law Center (SELC) told POWER.

Those and other concerns by residents living close to coal ash ponds made up the bulk of discussion at the EPA’s only public hearing on April 24 in Crystal City, Virginia, said Avner Vengosh, an expert on the environmental impacts of coal ash at Duke University’s Nicholas School of the Environment, who provided expert testimony at the hearing and a subsequent briefing to Congressional staffers on April 25.

Vengosh, who is a professor of geochemistry and water quality at Duke University, testified that, from a scientific point of view, the reduction of environmental protection and safeguards established as part of the 2015 CCR would “severely exacerbate the already identified environmental effects associated with coal ash storage and disposal.”

Ten years of research on the environmental impacts of coal ash, including from the Kingston, Tennessee, spill in December 2008, discharge of effluents to waterways in North Carolina, leaking coal ash ponds in the southeastern U.S., and radioactivity of coal ash, has yielded diverse results—including some that vindicates coal ash pond owners—but it pointed to a critical need to continue groundwater quality monitoring.

In 2016, for example, Vengosh and his colleagues evaluated seeps of surface water from seven sites and shallow groundwater from 15 sites in five states (Tennessee, Kentucky, Georgia, Virginia, and North Carolina) and found that contamination levels above drinking water and ecological standards were observed in 10 of 24 samples of impacted surface water. Out of 165 monitoring wells, 65 were contaminated. The study, which used distinct isotope fingerprints, provided “strong” evidence that the investigated coal ash ponds were leaking to surface water and shallow groundwater.

These findings and the recent data set from owners and operators of CCR units required by the 2015 rule “clearly indicate large-scale contamination of groundwater in the vicinity of coal ash ponds,” he said. Vengosh also noted that modifications in the proposed rule could give utilities the discretion not to publicize the data, “meaning that the data would not become transparent,” and it could remain hidden from public view. But one issue is that if, as proposed, the EPA modifies the required monitoring program, the risks for the further spread of contaminants in groundwater could increase and impact thousands of drinking water wells located downstream from these disposal sites.

For Vengosh, the 2015 rule was already a major compromise. “The ruling that the EPA made in 2015 was supposed to define coal ash as hazardous material. They did not do that because of a major pushback by the industry. So now we’re going to compromise an already compromised ruling,” he told POWER on April 26. “It kind of doesn’t make sense.”

EPA and States Respond

Though they may pose public relations headaches for industry, release of the groundwater monitoring reports constitutes an important first step of complying with the 2015 CCR rule. However, “It is important to remember that company reports contain initial data, and it is premature to use these results to predict any impacts to drinking water or public safety,” noted Edison Electric Institute Vice President for Environment Quin Shea in March. “These initial data now must be analyzed and assessed further, and the CCR rule establishes a schedule and process companies must follow.”

Meanwhile, the EPA is pushing forward with the proposed rule, which EPA Administrator in March noted is the first of two it will issue to regulate coal ash. On April 20, it said in a letter to the 104 public interest groups calling for more time to review the record that the proposal “reflects elements of the 2014 final coal ash rule that were remanded back to the Agency in 2016 as well as provisions similar to those in long-standing municipal solid waste regulations implemented by states.” The agency also said that it believed the 45-day public comment period was adequate for interested parties to provide comments on the “widely known” issues in the proposed action. It added: “Scheduling additional hearings at the suggested locations would add significantly delay to EPA’s progress toward a final action.”

At the same time, U.S. states are furthering their own efforts. Alabama on April 20 became the third state after Oklahoma and Georgia to approve a state-level program to manage coal ash. Approved unanimously by the Alabama Environmental Management Commission, the program is a modified version of a proposal that the Alabama Department of Environmental Management (ADEM) offered earlier this year.

Alabama has nine active and inactive coal-fired power plants with 20 active and inactive surface pits and landfills that store coal ash.

In March, ADEM announced Alabama Power would face a $1.25 million fine for alleged violations of groundwater pollution after testing data showed contamination of groundwater with pollutants such as arsenic, lead, selenium, radium, and beryllium.

However, in a statement on Friday, SELC noted that ADEM’s CCR program gave utilities the discretion to suspend groundwater monitoring requirements, to determine that a CCR owner does not need to clean up groundwater contamination, and to shorten the length of the post-closure care period. “In the rules, the agency also failed to require utilities to close coal ash ponds and excavate the ash to dry, lined landfills at sites where coal ash is saturated in groundwater,” the environmental group said, adding that the omission is “particularly alarming,” given that ADEM issued fines for alleged groundwater contamination just last month.


—Sonal Patel is a POWER associate editor (@sonalcpatel, @POWERmagazine)

Updated (April 27): Adds detail to Vengosh’s comments.

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