By Kennedy Maize
In a massive, coordinated campaign, late last month (June 29) 196 local community groups and the attorneys general of eight states — Illinois, Arizona, Colorado, Delaware, Maryland, Minnesota, New Mexico, and Vermont — filed objections to the Environmental Protection Agency’s April proposal to roll back regulations on coal ash disposal from the nation’s coal-fired power plants.
The filing came on the final day of comments on the proposed rule, which is likely headed to a confrontation in federal court. A letter by the community groups, organized by the national environmental law firm Earth Justice, notes that they represent “more than a million Americans concerned about hazardous pollution from leaking coal combustion residuals (“CCR” or coal ash) surface impoundments, landfills, and ‘beneficial use’ sites.”
In their comments, the AGs focus on the EPA’s claim that its proposed rules would increase flexibility in managing coal ash. They charge, “Rather than improving the program, more ‘flexibilities’ threaten to leave the environmental risk from massive quantities of CCR ignored under federal requirements, leaving states with the administrative burden of cleaning up the mess.” The state law enforcement officials complain that the EPA plan, “if adopted, would be arbitrary and capricious under the Administrative Procedure Act (‘APA’) and violate statutory requirements under the Resource Conservation and Recovery Act (‘RCRA’) as recently applied by the D.C. Circuit.”
In a news release when EPA issued the new proposed rules, the agency bragged that the new rules “would promote resource recovery, allow for site-specific considerations in permitting, provide regulatory relief while continuing to protect human health and the environment, and ensure continued transparency. The proposal would also encourage beneficial use, potentially reducing the need for disposing of CCR, set protective and uniform standards for CCR storage piles, and decrease the use of new natural resources.”
Upon diving into the proposed rule itself, a somewhat different story emerges. EPA’s summary of the rule notes that it would “modify or remove three of the criteria that facilities with legacy surface impoundments closed prior to November 8, 2024, must currently meet to be eligible for the deferral from complying with the CCR unit closure standards until site-specific decisions are made by permit authorities.”
The proposal would further “exempt from the CCR regulations in Title 40 of the Code of Federal Regulations Part 257 certain structures primarily used to dewater CCR waste that facilitate disposal of the CCR elsewhere,” and “rescind all CCR management unit requirements and accept comments on alternative approaches that would include revisions to the existing CCR management unit regulations.”
When EPA proposed the rule last Spring, Earth Justice commented, “The proposed rule would dismantle coal ash protections for both operating and former coal power plants sites; exempt hundreds of coal ash dumps from any regulation at all; and permit the owners of coal power plant sites to minimize, delay, or entirely avoid cleanup of contamination at their facilities.”
In their comments last month, the community groups said, “EPA’s current coal ash regulations are the product of decades of research by EPA, the Center for Disease Control and Prevention, and independent scientists. The rules are informed by robust industry data, citizen input, and evidence at scores of sites contaminated by mismanagement of toxic ash. EPA and industry data have confirmed repeatedly that the hazardous constituents in coal ash, including arsenic, boron, chromium, cobalt, lead, lithium molybdenum, and radium, pose serious harm to human health and the environment when they are released to air, water, and soil.”
The AGs state, “Overall, coal plants have generated approximately 5 billion tons of coal ash. Historically, power plants have disposed of coal ash in surface impoundments, often beside or near lakes and rivers. Surface impoundments are prone to leak or rupture, endangering soil, groundwater, surface water, and surrounding communities.”
They cite the disastrous 2008 failure of the ash pond at the Tennessee Valley Authority’s giant Kingston coal-fired plant, the largest industrial accident in U.S. history, costing TVA more than $1 billion in cleanup costs and requiring seven years to remediate.
The states note that EPA “would relax or rescind uniform, nationwide requirements for baseline CCR standards. Rather than own the harm that the Proposal will create, however, EPA devolves authority to permitting agencies, usually state permitting agencies, to decide on their own how to regulate without the benefit of strong baseline standards. By abdicating its statutory responsibility in this way, EPA would create an immense burden on the well-regulated states to craft numerous individual requirements to ensure continued protection of human health and the environment. Simultaneously, the rule changes would relieve laggard states of uniform, nationwide requirements, threatening harm to their own residents as well as neighbor states.”
Earthjustice senior counsel Lisa Evans commented, “This EPA is eradicating environmental and health protections and will make Americans sicker, poorer, and destroy irreplaceable water resources. And Trump’s EPA is doing this because the coal industry asked them to. If this reprehensible and illegal proposal becomes law, we will take the EPA to court and fight for national coal ash protections.”
The Quad Report, covering energy policy and politics
