EPA may violate courts with new rule extending life of unlined coal ash ponds

The Environmental Protection Agency (EPA) will allow utilities to store toxic waste from coal in open, unlined pits — a move that may defy a court order requiring the agency to close certain types of so-called coal ash ponds that may be leaking contaminants into water.

Research has found even plastic-lined coal ash ponds are likely to leak, but those risks are even higher when a clay barrier is the only layer used to hold the arsenic-laced sludge.

Environmental groups have already pledged to sue over the Friday rule, which will allow unlined pits to continue operating, so long as companies can demonstrate using groundwater monitoring data that the pond is unlikely to leak.

“These focused common-sense changes allow owners and operators the opportunity to submit a substantial factual and technical demonstration that there is no reasonable probability of groundwater contamination. This will allow coal ash management to be determined based on site-specific conditions,” EPA Administrator Andrew Wheeler said in a release.  

There are more than 400 coal ash ponds in the U.S. 

An Environmental Integrity Project and Earthjustice review of monitoring data from coal ash ponds found 91 percent were leaking toxins in excess of what EPA allows, contaminating groundwater and drinking wells in nearby communities.

And when they aren’t leaching into groundwater, the contaminants risk spilling over the sides of the pond any time there is a heavy rain.

“When ponds without lining leak, it’s often more aggressive, faster and harder to control,” said Lisa Evans, an attorney with Earthjustice, which will fight the rule in court.

“Utilities are asking for favors and exemptions and EPA is willing to give them and is willing to rush to provide these exemptions,” she added.

A 2018 order from the U.S. Court of Appeals for the D.C. Circuit required the EPA to shut down all coal ash ponds that do not have a plastic liner. The ruling said a 2015 Obama-era coal ash rule violated the Resource Conservation and Recovery Act dealing with hazardous waste “in failing to require the closure of unlined surface impoundments.”

EPA did not answer a question from The Hill seeking an explanation of how the rule complies with the court order. The agency instead wrote in a statement the new rule would “accurately reflect the decision by the D.C. Circuit Court of Appeals.”

The lobby for private utilities, however, called the rule a “critical step” as companies transition away from coal, arguing the rule does not violate the court order because it gives companies a chance to prove they can meet the protectiveness standards required under the law.

“Some [coal combustion residue] surface impoundments with alternative liner systems can continue operating without posing an unreasonable risk of adverse effects to health or the environment,” Jim Rower, executive director of the Utility Solid Waste Activities Group, said in a statement. The group’s members include all major utility lobbies.

The rule gives the public 20 days to comment on any petition to keep an unlined coal ash pond in operation, but Evans said the new rule will allow coal ash pits to stay open indefinitely as the EPA does not specify the amount of time under which it must review the petition.

“Because there’s no end date to that determination, utilities can buy years to operate an unlined pond,” she said.

The Trump administration has issued a number of piecemeal regulations dealing with coal ash ponds. Friday’s rule is Part 1 of Part B.

In July the agency finalized Part A of the rule, extending the life of coal ash ponds to as late as 2038 in some instances. 

“They’re biting these decisions into pieces so they can move faster,” Evans said. “We’re getting multiple rules weakening the 2015 rules in rapid succession.”