EPA Proposes to Expand its Regulations on Dumps of Toxic Waste From Burning Coal

The Biden administration is taking steps to address a regulatory loophole that public interest groups said allowed at least a half-billion tons of toxic coal ash to go unregulated.

The Environmental Protection Agency published a new draft rule Wednesday that the groups said would extend federal oversight to much of the coal ash disposed at both operating and retired power plants. 

The proposed rule would extend federal monitoring, closure and cleanup requirements to hundreds of previously excluded older landfills, legacy ponds and fill sites. Coal ash is the waste that remains after coal is burned for electricity, and is among the most costly of the long-term legacies from more than a century of burning coal. 

The action comes as part of a settlement between the federal agency and public interest groups, including the Sierra Club. The groups said the proposed rule would force owners to address problems at facilities like the Bull Run Fossil Plant near Oak Ridge, Tennessee, Four Corners Power Plant near Fruitland, New Mexico and Stanton Energy Center in Orlando, Florida. Many of the sites are in low-income communities and communities of color. The action also comes after Inside Climate News, WMFE in Orlando and NPR brought national attention to the federal loophole in late 2021 and early 2022.

“This is a really big deal,” said Lisa Evans, senior counsel at Earthjustice, a nonprofit organization litigating environmental issues, which represented the public interest groups. “For far too long a large portion of toxic coal ash around the U.S. was left leaching into drinking water supplies without any requirement it be cleaned up. The EPA is taking significant steps to address a massive loophole that let many coal plant owners off the hook.”

Indiana, Ohio, Illinois and Pennsylvania rank as the states with the most power plants with at least one regulated or unregulated coal ash dump, with 24, 23, 23 and 21 dumps each, followed by Kentucky, with 20, according to Earthjustice mapping.

The Obama administration’s EPA in 2015 adopted the first national regulations on coal ash. The regulations applied to existing and new sites but exempted coal ash at power plants that had already stopped generating electricity and landfills that had already closed. Those rules required monitoring and cleanup, but only at dump sites that were covered by the new regulations. Earthjustice has since identified 566 landfills and ponds at 242 coal plants in 40 states that were excluded from the regulations, based on an analysis of industry data provided to the EPA.

The Utility Solid Waste Activities Group looks forward to working with the EPA on a final rule that “incorporates the appropriate regulatory requirements,” although it will take time for the group’s members to review the proposed rule and evaluate its impact, said Dan Chartier, the group’s executive director. 

The Edison Electric Institute, a trade group that represents investor-owned utilities, has long maintained that electric companies are managing coal ash appropriately.

“Electric companies are beginning to close basins where coal ash is stored, in ways that put safety first, protect the environment, minimize impacts to the community, and manage costs for customers,” according to the institute’s website.

Coal ash contains toxic contaminants like mercury, cadmium and arsenic that can pollute the air and seep into groundwater. The contaminants are associated with cancer and other illnesses.

The 2015 regulations were spurred by major disasters. One was near Knoxville, Tennessee, on Dec. 22, 2008, when a levee that was holding a mountain of sodden ash suddenly broke loose from the Tennessee Valley Authority’s Kingston power plant. Some 300 acres were smothered. The ash spilled into two rivers. Three homes were destroyed, dozens more were damaged. In the years since, hundreds of cleanup workers fell ill and many have died.

Then, in 2014, tens of thousands of tons of coal ash spilled from a Duke Energy power plant into the Dan River at Eden, North Carolina, affecting 70 miles of the watershed downstream.

The new draft rule faces a 60-day public comment period and public hearing process.