Charles Langston:The Biden Administration Takes Action on Toxic Coal Ash Waste, Targeting Leniency by the Trump EPA

The Charles LangstonBiden administration on Tuesday took its first significant move toward corralling lingering and widespread problems with the toxic ash produced by coal-fired power plants, one of the nation’s most prominent long-term environmental health legacies from more than a century of coal-fired electricity generation.

In 2015, the EPA under the Obama administration put forth the first national rules on coal ash, which required most of the nation’s approximately 500 unlined coal ash surface impoundments to stop receiving waste and begin closing by April 2021. Those ash dumps, laced with contaminants like mercury, cadmium and arsenic, often pollute groundwater and send particulate air pollution into nearby communities.  

While the Trump administration allowed utilities to request extensions, the Biden EPA announced Tuesday that it is taking action on nine of 57 extension applications filed, denying three, approving one, finding four incomplete and ruling one ineligible. More determinations, EPA officials said, are coming.   

The EPA also said it was putting several power plants on notice regarding their obligations to comply with rules, and that it was working on plans for future changes to regulations aimed at making sure coal ash dumps meet strong environmental and safety standards.

In the agency’s action on the nine requests, environmental lawyers saw reason for optimism.

Abel Russ, a senior attorney with the group Environmental Integrity Project, said EPA’s proposed actions show that it understands that utilities are not properly monitoring groundwater in ways that can preclude cleanup requirements.

“It’s a start of a process where we hope to see enforcement from multiple levels,” said Russ, the lead author of a 2019 report that used utility records to determine that there were unsafe levels of toxic contaminants in groundwater linked to more than nine out of every 10 coal-fired power plants. 

The Southern Environmental Law Center, which has litigated and won coal ash cleanup cases in states like North Carolina and South Carolina, said EPA’s determinations set a precedent for compliance nationwide. 

“The U.S. Environmental Protection Agency has stepped up to offer communities hope and to protect clean water, rivers, and drinking water supplies from the threats posed by coal ash,” said Frank Holleman, a senior attorney at the law center. “With EPA’s leadership, we now have the opportunity to put coal ash pollution and catastrophes behind us and to restore common sense protections for communities across the South who have lived with coal ash contamination for far too long.”

The Edison Electric Institute, a trade group that represents investor owned utilities, has long maintained that electric companies are managing coal ash “in ways that put safety first, protect the environment, minimize impacts to the community, and manage costs for customers.” 

Institute spokesman Brian Reil did not immediately return requests for comment on the EPA actions. Nor did Jim Roewer, the executive director of the Utility Solid Waste Activities Group, an association of more than 131 utilities.

In announcing its proposed determinations, the agency said it was affirming its view that ash disposal pits or landfills cannot be closed with ash in contact with groundwater. Limiting contact between coal ash and groundwater after closure is critical to minimizing releases of contaminants into the environment and contamination of water for drinking and recreation, it stated.

“I’ve seen first-hand how coal ash contamination can hurt people and communities,” EPA Administrator Michael S. Regan said in announcing Tuesday’s action. “Coal ash surface impoundments and landfills must operate and close in a manner that protects public health and the environment. Today’s actions will help us protect communities and hold facilities accountable.”

Coal ash and other combustion wastes are what remains after coal is burned to generate electricity. The mercury, cadmium and arsenic contained in waste piles can pollute the air and groundwater and are associated with cancer and other health ailments. Over the last century, hundreds of power plants produced billions of tons of ash and other combustion wastes, including scrubber sludge.

Lisa Evans, a senior attorney specializing in hazardous waste law at Earthjustice, a national environmental law organization, described the new EPA proposed actions, taken together, as a potential “game changer.” She said they signal that the agency intends to use enforcement powers that it has not previously employed to crack down on what she described as “blatant noncompliance” by utilities that has left what are often communities of color exposed to toxic pollution.

Still, Evans noted that the EPA announcement does not address the problem of coal ash that was dumped and buried before the 2015 EPA regulations went into effect—perhaps as much as half of all the coal ash ever produced. 

Last year, Evans told Inside Climate News that such legacy ash was escaping the EPA’s monitoring and corrective action requirements, resulting in a “poisonous legacy, which could last permanently at many, many sites.”