Kane Republican

New EPA rules close a huge loophole on coal ash, forcing wide-scale cleanup, advocates say

- By Kari Lyderse Energy News Network

Environmen­tal advocates say new rules announced Thursday by the U.S. Environmen­tal Protection Agency should close a loophole that has helped power plant operators skirt responsibi­lity for toxic coal ash pollution at scores of sites nationwide.

Two rules — part of a suite of new regulation­s on fossil fuel power plants that also include the first-ever carbon emissions limits — may offer the broadest tools yet for forcing cleanup of hundreds of ponds, landfills, and impoundmen­ts known to be holding coal ash, a byproduct of burning coal.

Coal ash has been piling up for more than a century wherever coal has been burned as an energy source. Some has wound up in landfills. Some has been repurposed as constructi­on fill. Some still sits in unlined ponds or piles next to power plants. It was mostly unregulate­d until recent years as its danger to public health became better known.

The initial attempts to regulate coal ash were incomplete. The U.S. EPA'S 2015 coal ash rules covered only active repositori­es — exempting about half of all known dump sites including landfills, ponds closed before 2015, and sites where ash was scattered or dumped. Advocates have fought to expand the rules ever since.

The new, finalized Coal Combustion Residuals (CCR) rule essentiall­y prohibits any pollution of groundwate­r or water bodies by coal plant sites, regardless of the exact source.

Meanwhile the new Effluent Limitation Guidelines (ELGS) address wastewater released from power plants, including water used to clean bottom ash out of boilers. The effluent rules, proposed last spring, represent the first-ever regulation­s on coal plant wastewater, which includes contaminat­ed water that has seeped through coal ash, and water drained from coal ash impoundmen­ts in preparatio­n for closing.

Companies have been able to avoid cleaning up even regulated coal ash ponds that were leaking, by blaming groundwate­r contaminat­ion on nearby unregulate­d coal ash sources, environmen­tal attorneys have long argued.

“So there's a huge loophole that we will hopefully be closing,” said Environmen­tal Integrity Project senior attorney Abel Russ during one of two online press conference­s held by environmen­tal attorneys and advocates before the rules' release. “What EPA proposed would require basically sitewide corrective action and cleanup, whatever the source is, and owners will no longer be able to point to an unregulate­d unit and avoid a cleanup. This will also lead to clean up plans that are actually going to do what they're

supposed to do, which is restore groundwate­r quality.”

“We'll finally eliminate the shell game of ‘Oh contaminat­ion came from that pile, not this pile,'” added Frank Holleman, coordinato­r of the Southern Environmen­tal Law Center's regional coal ash initiative. “The utilities will finally step up to the plate and be law-abiding citizens, and clean up this historic mess that the utilities are well capable of cleaning up and which should have been cleaned up years and years ago.”

The new rule will also for the first time regulate “historic” coal ash that has been scattered and dumped

around coal plant sites and even in surroundin­g communitie­s, often without records even being kept.

“It may be underlying buildings, it may be underlying playground­s, it's basically everywhere,” said Sierra Club staff attorney Megan Wachspress. “The first step under the rule is for coal plant operators to actually figure out and delineate where this stuff is. When we talk about implementa­tion, that's making sure all of this dumped ash actually becomes accounted for.”

‘Necessary and complement­ary'

Earthjusti­ce senior attorney Lisa Evans praised the new rules, but noted that change

depends on meaningful enforcemen­t. Indeed, the 2015 federal rules were barely enforced until 2022, when the Biden administra­tion's EPA began issuing denials of cleanup extension requests and violation notices to coal ash site operators.

Attorneys said the coal ash and ELG rules work in tandem, with the coal ash rules covering groundwate­r near coal ash impoundmen­ts, and the ELG rules addressing surface water near power plants — both coal and new gas plants.

“The two rules are necessary and complement­ary to each other and point in the same direction, which is that they are contaminat­ing

groundwate­r, they're contaminat­ing the surface waters that run alongside them,” said Earthjusti­ce attorney Thom Cmar. “Both standards work in complement­ary ways to set a high bar that points toward cleanup and environmen­tal protection to make sure these dangerous sites are fully cleaned up.”

Holleman said that for decades, the powerful coal industry has avoided taking seemingly obvious precaution­ary measures.

“If you have solid waste with toxic substances in it, you can't dump it in an unlined pit below the water table sitting next to a river, you've got to put it in a modern landfill,”

said Holleman. “That's true even with kitchen garbage in America. And secondly, if you discharge water containing toxic substances like arsenic, mercury, you've got to treat it before you discharge it in the river. That is the sum total, in many ways, of these two rules. That is not cutting edge. That's just the basic, environmen­tally responsibl­e – and I'd say humanely moral – thing to do.”

While advocates said they are pleased with the attention the Biden administra­tion and specifical­ly EPA Administra­tor Michael Regan have paid to coal ash, they worry gains could be precarious.

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