EPA rule prompted by Kingston coal ash spill might be revised to include older landfills

Anila Yoganathan, Knoxville News Sentinel
·4 min read
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Residents living near old coal ash landfills might be better protected if the Environmental Protection Agency agrees to a settlement in a lawsuit filed by environmental groups. The federal agency might review the scope of its 2015 coal ash rule, which exempts inactive coal ash landfills, according to the proposed agreement. Environmental groups hope a review would lead the EPA to revise the rule to include the legacy landfills.

While this is a small step in the direction the groups hope the EPA will go, the pressure for increased regulation of the large amounts of this industrial waste is by no means over.

Why do we have a coal ash rule?

When coal is burned, it leaves behind a concentrated waste of heavy metals, such as arsenic and mercury, and potentially elements that emit radiation. This is coal ash.

A home near the TVA Kingston Fossil Plant in Roane County is flooded by coal ash in 2008 after the failure of a dike that unleashed more than 1.1 billion gallons of toxic coal ash slurry.
A home near the TVA Kingston Fossil Plant in Roane County is flooded by coal ash in 2008 after the failure of a dike that unleashed more than 1.1 billion gallons of toxic coal ash slurry.

The 2008 Kingston coal ash spill was a catalyst for coal ash disposal regulation. The EPA established the first federal rule on the disposal of coal ash in 2015 after a review of coal ash disposal sites across the country. The Tennessee Department of Environment and Conservation took a similar approach with a commissioner's order set in August 2015, according to TVA.

The EPA rule required owners or operators of new and existing coal ash landfills to meet specific criteria by regulating:

  • Location, design and operation of landfills.

  • Monitoring of groundwater underneath landfills and fixing any ash leaks

  • How to handle closing a landfill and what to do after it's closed

For subscribers: 14 years after TVA's Kingston coal ash spill, workers' families might never be made whole

How can the old coal ash landfills be dangerous?

The current rule exempts landfills that stopped receiving ash before Oct. 19, 2015, according to the Federal Register. Environmental groups worry that, without the oversight, these older landfills could be leaking ash into the environment unnoticed, polluting resources such as groundwater.

In August 2022, Earthjustice sued the EPA, asking the agency to review the rule and consider applying the original restrictions to the exempted landfills. The lawsuit was filed on behalf of environmental groups across the country, including Statewide Organizing for Community eMpowerment and the Sierra Club.

How Tennessee law is more protective than federal law

Tennesseans living near a TVA coal plant already have protections at the state level that don't exist at the federal level. The Tennessee Department of Environment and Conservation has its own coal ash regulation in place that is more restrictive than the EPA's current rule.

"(The) EPA’s proposal would not have an impact on TDEC’s oversight of Coal Combustion Residual (CCR) units (coal ash disposal sites) in Tennessee. Through TDEC’s Commissioner’s Order, we are already investigating all CCR units – active, inactive, closed, etc. – regardless of federal rule status," TDEC said in an emailed statement to Knox News.

Tennessee's rule does not apply to any of TVA's former or current coal plants outside the state. TVA has had coal plants in in Kentucky and Alabama. TVA still operates the Shawnee Fossil Plant in Kentucky.

More:TVA plan details option to demolish Bull Run power plant

What could happen next?

The EPA has agreed to potentially review the scope of the coal ash rule that now exempts the legacy landfills. By May 5, 2023, the EPA will decide whether to leave the rule as is or to propose a revision which could potentially apply the same regulations to the inactive landfills. If the EPA proposes a rule, a final decision of that proposal will be published in the Federal Register by May 6, 2024.

Revision of the rule would mean exempted landfills could be made safer, which could benefit the communities living near them. Earthjustice hopes that while reviewing the rule, EPA will decide to revise it.

"So if they did the review, we strongly believe that there would be no choice but for them to have to revise the rule to address inactive landfills," Mychal Ozaeta, senior associate attorney at Earthjustice, said.

EPA asks for public comment on the potential settlement

The EPA is asking for public comment on the proposed consent decree by March 6, 2023, saying it "will consider and address, if appropriate, any adverse comments, and determine whether entering into the consent decree is warranted and whether the parties should move to enter the consent decree."Comments can be submitted online at https://www.regulations.gov. The docket ID number is: EPA-HQ-OGC-2023-0055.

Anila Yoganathan is a Knox News investigative reporter. You can contact her at anila.yoganathan@knoxnews.com, and follow her on Twitter @AnilaYoganathan. Enjoy exclusive content and premium perks while supporting strong local journalism by subscribing at knoxnews.com/subscribe.

This article originally appeared on Knoxville News Sentinel: EPA might close loophole in its 2015 coal ash rule