Southern States Split in Response to EPA’s Coal Ash Rule Rollbacks

This article originally appeared on Stateline.

As the Trump administration scales back federal regulation of the waste from coal-fired power plants known as coal ash, a handful of Southern states have passed laws forcing utilities to clean up or contain the toxic mess.

Other states, though, have done little or nothing.

Four years ago, the Obama administration put in place America’s first comprehensive regulations for disposing of coal ash, the residue left after coal is burned. The rule set minimum standards for monitoring groundwater near coal plants, set public record keeping and disclosure requirements, and told utilities to phase out unlined ash ponds.

But the Trump administration has had other ideas. At first, it delayed Obama regulations from fully going into effect.

Now, Environmental Protection Agency Administrator Andrew Wheeler, a former coal lobbyist, has proposed softening rules that aim to limit the leaching of coal ash toxins into water supplies. The Trump administration also has proposed softening groundwater monitoring requirements and allowing some sites to store coal ash in unlined ponds for a longer period of time.

The administration also has encouraged states to ask permission to take over disposal permitting.

Earlier this year, Wheeler said “proposed changes will further responsible management of coal ash while protecting human health and the environment.” Last month, Wheeler said the Obama-era coal ash rule “placed heavy burdens on electricity producers across the country.” EPA spokeswoman Maggie Sauerhage told Stateline that the changes “provide a workable and reasonable framework for facilities and states to implement going forward.”

The South is home to nearly half of America’s largest coal ash disposal sites — known as ponds or pits — according to a Stateline analysis of data from the Environmental Integrity Project.

Each year the burning of coal at U.S. plants leaves behind about 130 million tons of ash, one of the largest sources of industrial waste in the country, the EPA said on its website. Coal ash contains heavy metals such as arsenic, mercury and hexavalent chromium. Prolonged exposure to each of these contaminants can increase the risk of various forms of cancer, plus a host of other ailments including ulcers and kidney damage, according to research from the EPA and the Agency for Toxic Substances and Disease Registry.

Most of America’s ponds are unlined and contain contamination groundwater at levels that surpass federal standards, according to an analysis by the environmental nonprofit Earthjustice, which tracks coal ash data that current EPA regulations require utilities to disclose. Advocates with the organization now say that states must pick up the slack in lieu of the EPA.

“In this political climate, it’s essential for states to protect the health of their residents,” said Earthjustice senior counsel Lisa Evans. “But for every state that takes action, you have [others] that don’t.”

Lawmakers in Virginia and North Carolina have taken steps to require utilities to excavate coal ash from unlined ponds to prevent the heavy metals from seeping into groundwater.

This past June, Tennessee officials settled with the Tennessee Valley Authority to excavate millions of tons of coal ash from ponds that the state said polluted the Cumberland River.

“Whatever the EPA does — or doesn’t do — is not going to affect us,” said Virginia Democratic state Sen. Scott Surovell, who helped lead the bipartisan effort to pass his state’s law. “I don’t think anybody expects the EPA to adopt guidelines that are stricter than what we’ve accomplished in Virginia.”

In some states, including Kentucky, additional enforcement is limited by existing laws that restrict state officials from creating tougher regulations than the federal government.

In other states, such as Georgia and Alabama, officials have taken steps to adopt their own regulations. Advocates say those rules fall far short and leave environmental lawyers, groups and residents to fight utilities regarding coal ash disposal in courtrooms and the court of public opinion.

But state officials in Georgia, Oklahoma and Kentucky see the rollbacks as necessary to correct what they felt was an Obama-era overreach.

The chairman of the Georgia Public Service Commission, Lauren “Bubba” McDonald Jr., said the state should be allowed to create a plan that suits Georgia’s specific needs while also limiting the potential costs to taxpayers.

That perspective is shared by industry trade groups, including American Coal Ash Association communications coordinator John Ward, who said the EPA’s current course allows states to create more specific protections than a “one-size-fits-all” approach.

“My complaint is that EPA comes along with broad-brush restrictions that don’t fit every state the same way,” McDonald told Stateline. “Georgia is different from California. Georgia is different from New Jersey.”

State Policing

Southern states are home to not only some of the nation’s largest coal-fired plants, but also the largest coal ash disasters in modern American history. So as the EPA shifts away from policing coal ash, states such as Virginia have taken proactive steps to mitigate contamination.

Earlier this year, Virginia state lawmakers passed a measure that will require Dominion Energy to move 27 million cubic yards of coal ash from unlined ponds into landfills with liners. Liners help prevent the coal ash — and the heavy metals within it — from leaking into groundwater.

In December 2008, the TVA’s Kingston Fossil Plant coal ash pond’s wall collapsed. More than three-dozen cleanup workers died a decade later from illnesses related to the coal ash exposure. (A jury last year found that the TVA contractor Jacobs violated its contract by failing to protect its workers from coal ash. Jacobs has since appealed in federal court.)

The accident caused over 1 billion gallons of sludge to flow into the Emory River and damaged dozens of nearby homes, but no one died in the landslide.

In February 2014, a drainpipe ruptured at Duke Energy’s coal-fired plant near the town of Eden, North Carolina, and sent 39,000 tons of ash into the Dan River in one of the worst environmental disasters in state history.

Although the utility faced criminal charges and fines — and was forced to clean up the waste — few locals have forgotten about the spill.

“It’s a long-term issue,” said Steve Pulliam, who serves as the Dan River keeper as part of the Waterkeeper Alliance, an environmental organization. “If the Dan River is low, you can go to the section that was contained in the spill, and if you shovel into the riverbed, you can still find coal ash.”

Both spills pushed the Obama administration to issue the first federal regulations on U.S. coal ash ponds. (Before then, Congress had exempted coal ash from waste regulations.)

The director for the Virginia Department of Environmental Quality’s land protection and revitalization division, Justin Williams, said the commonwealth started by adopting those federal requirements into its state regulations to ensure that future EPA revisions wouldn’t undo those standards statewide.

“It ensured [the 2015 coal ash rule] was enforceable in the permitting we did at the state level,” Williams said. “That’s maintained to this day, even as EPA has proposed revisions to the rule.”

Surovell, the Virginia lawmaker, noted that Dominion is required to recycle at least a quarter of its coal ash. Beyond that, state lawmakers capped what the utility can recover from closing coal ash ponds.

Ultimately, Surovell said, Dominion supported the state’s coal ash efforts, which gave the utility more certainty at a time of “changing federal prerogatives.” Dominion did not respond to Stateline’s request for comment.

With the Virginia law passed, he said, the state and the utility can now get to the hard part: preventing more coal ash from seeping into groundwater. And they don’t have to wait around for the EPA.

“It’s challenging to get anything done at the federal level,” said Virginia state Sen. Amanda Chase, a Republican from Midlothian. “States are closer to what’s going on. They can address those issues more carefully.”

This past April, North Carolina’s Department of Environmental Quality ordered Duke Energy to move all its coal ash to lined landfills. Duke has appealed the decision, but so far has been unsuccessful.

Duke spokesman Bill Norton told Stateline that the appeal was intended “to protect customers from excessive disruption and unnecessary costs.” Norton asserted that drinking and recreational water supplies can be protected under the company’s preferred plans to close its ponds.

Pulliam, the riverkeeper, fears that deregulating coal ash gave Duke an opening to prolong its legal battle with the state of North Carolina. Thirty miles southwest of the Dan River spill site, the state has ordered Duke to excavate coal ash from half a dozen “low risk” sites, including the 277-acre Belews Creek Steam Station.

Norton said that Pulliam’s assertion is “symptomatic of a concerted effort by a small group of environmental extremists to mislead the public.”

Pulliam, however, said, “We’ve seen the effects of coal ash in Eden, but instead of being more proactive, [Duke is] waiting to act at [sites like] Belews Creek. They should stop fighting against this progress we want, jump on board, and do the right thing.”

‘We Have a Battle’

For other states, Earthjustice’s Evans said, the Trump administration’s “unprecedented activity” has left Southern communities near coal plants largely unprotected from potential air or water contamination.

In November, a group of more than two dozen Democratic U.S. House members — representing four Southern states — urged Wheeler to reconsider the EPA’s actions.

“You can’t rely on the EPA,” said Avner Vengosh, a professor of earth and ocean sciences at Duke University who studies coal ash. “Residents [near coal plants] need to push municipalities, counties and states to protect themselves from coal ash.”

In Kentucky, which has more than three dozen coal ash disposal sites, environmental officials are banned from enacting rules that go beyond federal ones.

The secretary of the Kentucky Energy and Environment Cabinet, Charles Snavely, declined an interview request.

Two weeks before President Barack Obama left office, the president signed a bill allowing states to take over coal ash permitting.

Under the Trump administration, the states that have sought to take advantage of this — including Alabama, Georgia and Oklahoma — had the potential to implement further safeguards.

But attorneys with the Southern Environmental Law Center say environmental officials in Alabama and Georgia have inserted loopholes that limit public hearings or citizen-group lawsuits. Officials from Georgia declined to comment, and ones in Oklahoma did not respond to Stateline’s requests for comment.

At a recent EPA panel in Atlanta, more than two dozen residents urged federal officials not to transfer coal ash permitting responsibilities to Georgia’s environmental division. Scientists and residents expressed concerns that Georgia’s environmental branch lacked the resources and staffing to provide stronger groundwater protections.

“A lot of these plans don’t end up looking like traditional permit programs,” said Abel Russ, senior attorney with the Environmental Integrity Project. “They’re more like rubber stamps with little oversight from a state agency.”

An official with the Alabama Department of Environmental Management told Stateline that the department had increased its staff from nine to 14 people in advance of handling more coal ash permits, and is not trying to limit public input or lawsuits.

"We're going to be as stringent as the feds, and maybe a little more," the official said, who asked not to be identified by name, but was authorized to speak on behalf of the agency. "And if our legislature says we need to dig all the coal ash up, we'll have [utilities] dig it all up."

Two subsidiaries of a giant utility, the Southern Company — Alabama Power and Georgia Power — plan to keep some of their coal ash in unlined ponds.

State lawmakers in Alabama and Georgia have not supported sweeping changes like in Virginia or North Carolina, where coal ash must often be placed in lined facilities.

Casi Callaway, the Mobile Bay Keeper in southern Alabama, said data from Alabama Power’s 2018 groundwater monitoring confirmed levels of arsenic more than 300% higher than the national limit at one of its plants.

Earlier this year, the subsidiary was fined $1.25 million for contaminating groundwater at five of its plants.

A spokesman for Alabama Power, Michael Sznajderman, said the utility’s corrective action plans include new systems for handling coal ash.

The utility also plans to move some coal ash away from waterways — placing that waste into an unlined pond that has a “natural clay” bottom and a retaining wall, he said.

“Our closure plans will address the elevated levels of material over time,” Sznajderman told Stateline. “We will also be monitoring for at least the next 30 years to ensure water quality protection.”

Still, Callaway hopes to persuade state lawmakers and regulators to embrace stricter rules by emphasizing the potential risk the waste poses to the state’s economy.

“We don’t have leadership at the state level that’s doing the right thing,” Callaway said.

Officials in Oklahoma stand by their push to regulate coal ash at the state level. Oklahoma’s secretary of energy and environment, Kenneth Wagner, did not respond to a Stateline interview request. But he recently said that state permitting remains “the most efficient way to protect the public and meet the needs of industry.”

“We continue to believe that federal standards are best implemented at the local level,” Wagner said in a recent EPA statement.

Rate Hikes

Faced with the EPA’s rollbacks, utilities responsible for coal ash disposal across the South find themselves at a crossroads. The Trump-era rollbacks haven’t caused utilities to fully shift course. But the recent deregulation has emboldened regional utilities to ask for double-digit rate increases.

In North Carolina, Duke Energy Progress, a subsidiary of Duke Energy, has asked to increase its rates by 12.3% to offset a $464 million investment. Georgia Power is hoping for a potential rate hike of nearly 11%.

The vice chairman of the Georgia Public Service Commission, Tim Echols, said regulators were unlikely to give Georgia Power the full rate hike. Moving forward, he thinks Georgia Power can potentially recycle coal ash and sell various products made from it.

South Carolina utility Santee Cooper, one of the first Southern utilities to remove coal ash from unlined ponds, has recycled some of its waste into drywall. Ward, the ACAA spokesman, said utilities also have used recycled coal ash in concrete for highways, bridges and airport runways. “The best solution is to quit throwing it away,” Ward said.

Executives from both utilities have argued the hikes would allow a faster shift away from coal. When asked by Stateline, a spokesperson from each utility said that the EPA’s recent decision would not alter their long-term plans.

“We are already far down the path of closure,” Duke spokesman Norton said.