Environmental Groups Fight to Shutter Coal Ash Pits

After the last administration gave some coal-fired power plants a pass on toxic-waste disposal rules, the D.C. Circuit will decide whether their exemption can stand.

This photo from Duke Energy shows the Sutton 1971 coal ash basin near Wilmington, N.C., on Sept. 21, 2018.

WASHINGTON (CN) — Three conservation groups filed a petition for review Thursday challenging the Trump era’s weakening of protections from toxic coal ash pollution. 

Coal ash refers to the watery mixture of waste from coal-fired power plants that is left for decades in man-made ponds. With no lining to stand in the way, heavy metals from these pools seep into the soil and groundwater. Among U.S. coal-fired power plants with monitoring data, 91% are contaminating groundwater with unsafe levels of toxic pollutants — pollutants that have been linked to cancer, heart disease, reproductive failure and stroke — according to a joint study by the Environmental Integrity Project and Earthjustice.

In 2018, the D.C. Circuit ordered the EPA to clean up these ponds, citing significant evidence that unlined ponds had widespread contamination that posed a significant risk to environmental and human health. 

Quickly coming to the coal industry’s defense, however, the EPA issued two new rules that allow utility sites to avoid their court-ordered closure. 

“They essentially turned the order on its head,” said Thomas Cmar, an attorney for EarthJustice who is representing the Sierra Club, the Alliance for Affordable Energy (Louisiana) and PENNEnvironment in Thursday’s petition.

“It is unlawful for the EPA to allow these ponds to continue to operate. The EPA says they are following the court’s orders — but they are introducing loopholes and exemptions, putting the burden back on groups like ours to challenge what they’ve done.” 

Earthjustice and its clients took aim Thursday at the second loophole, the Part B rule, which allows sites to apply for exemption waivers on the grounds that their particular dump site was not polluting the groundwater. Eight currently operating sites in Michigan, Louisiana, Arizona, Pennsylvania, Texas and North Dakota have applied to the EPA for an exemption under the Part B rule.

Though none have gotten that stamp of approval, Cmar said there is still harm that the D.C. Circuit can address. With how large these sites are, the soil isn’t uniform across the entire pit. 

EPA data found that landfill facilities cover about 120 acres, on average, and are more than 40-feet deep. Surface impoundments, another method of storing coal ash, typically cover about 50 acres and are 20-feet deep. There are more than 310 active on-site landfills, more than 735 active on-site surface impoundments and 11 facilities that are no longer receiving coal ash but haven’t been “fully closed.”

“It’s not evidence proving the negative,” Cmar said. “They created this loophole to try to prove safety. But it’s our view that it’s impossible to prove that these sites are safe. All leak.”

Earthjustice already filed a petition for review in November challenging the Part A rule, which extends the deadline for cleanup to April 2021 — 59 sites have applied for the extension. 

“It’s expensive for them,” Cmar said about sites properly disposing of the waste. “Which is the reason coal ash is handled so irresponsibly, and the industry has fought so hard for weakened regulations and requirements.” 

Under the EPA’s 2015 Coal Ash Disposal Rule, which regulated the storage and disposal of coal ash for the first time, coal-fired power plants can either dispose of the coal ash by relining the existing pond with a composite liner — a geomembrane and two feet of compacted clay — or creating a new landfill with a composite liner. 

The EPA’s own data shows that about 65% of more than 500 inspected sites are totally unlined, and only 17% of them lined to modern EPA guidelines, according to the 2018 ruling.

“Coal ash pits are regulated much less stringently than household garbage,” Cmar said.

Some sites began to close following the 2018 ruling, mostly in states where utilities are regulated by a state commission that allows them to take the costs of environmental expenditures and pass them onto ratepayers. 

But, even though sites have begun to close, many are not closing the right way, Cmar says. Under Trump’s EPA, the Coal Ash Disposal Rule hasn’t been enforced. 

With another method of closure, “cap and place,” utility sites just put a cap over the pond, without digging up the toxic waste and moving it to a lined disposal area. 

“A lot of utilities are looking for cheaper alternatives for closure,” Cmar says. “A substantial number of these sites will continue to contaminate the groundwater,” Cmar said. “Possibly for 100 years or more.” 

As part of Biden’s executive orders on climate change, the Biden administration announced they would review Trump-era EPA rules, including the Part A and Part B coal ash loopholes. 

Environmental groups applaud the move with hopes that the coal ash rules will be reconsidered, but still continue to take legal action to ensure that ponds will begin closing properly. 

A representative for the EPA declined to comment, citing agency policy on pending litigation.  

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