EPA wants to expand coal ash rule. Here's what it adds to protect disposal site neighbors

The Environmental Protection Agency plans to expand its federal coal ash rule to apply to hundreds of previously exempted disposal sites, increasing protections for local communities living near coal ash.

According to a draft of the new regulations posted in the federal register, the EPA's revised coal ash rule would:

• Establish regulations to ensure environmental safety at closed coal ash ponds at closed coal power plants, as directed by a D.C. Court of Appeals in 2018.

• Establish "ground water monitoring, corrective action, closure and post-closure care requirements" for all coal ash landfills, including legacy landfills that previously were exempted from the rule.

The additional regulations come as a result of two lawsuits from environmental groups calling for the EPA to apply the rule to exempted coal ash disposal sites.

The United States has burned coal for decades, leaving millions of tons of coal ash to be disposed of or reused. Coal ash is the concentrated waste left after burning coal. It can contain heavy metals as well as elements that emit radiation. If left unregulated, coal ash can enter the environment either through the air or by contaminating ground water, which could potentially come into contact with people.

"Coal ash contains contaminants like mercury, cadmium, chromium and arsenic associated with cancer and various other serious health effects," the EPA said in a May 17 press release. "Today’s action delivers protections for underserved communities already overburdened by pollution, reflecting the Biden-Harris Administration’s whole-of-government commitment to advancing environmental justice."

The coal ash rule, created after the Tennessee Valley Authority's 2008 Kingston coal ash spill, was the first federal regulation of coal ash disposal. The current rule does not apply to landfills that stopped receiving coal ash prior to Oct. 19, 2015, when the rule took effect. The existing regulations also do not apply to closed coal ash ponds at closed power plants, even though the 2018 court order required the EPA to regulate these sites.

Why did the environmental groups sue?

Environmental groups sued the EPA in late 2022 to have the coal ash rule revised to include legacy landfills, and reached a settlement earlier this year. The EPA agreed to review the rule and consider expanding it to include the legacy landfills.

Regarding legacy coal ash ponds, environmental groups sued the EPA in 2016 over the original rule exempting inactive coal ash ponds at inactive power plants from regulation. The D.C. Court of Appeals in 2018 vacated EPA's exemption of legacy coal ash ponds, and required the agency to create regulations for these disposal sites.

The EPA addresses the results of the two lawsuits together in the new proposed regulations, which would increase protections for communities that live near coal ash disposal sites. Federal regulations provide the minimum standard for coal ash disposal sites; states can set stricter regulations of their own.

What do environmental groups think of the proposed regulations?

Earthjustice was involved in both lawsuits that led EPA to expand its existing coal ash regulations.

"This is a really big deal. The Biden administration is standing up for people near a lot of hazardous coal waste sites around the country," Lisa Evans, senior counsel for Earthjustice, said in a press release. "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 from cleaning up the toxic mess they created. Power plants will finally lose their hall pass to leave coal ash wherever they dumped it."

In the press release, Earthjustice also criticized EPA's proposed rule, however, for not applying to all coal ash sites and for not addressing sites where coal ash was used as fill.

"The EPA should extend federal coal ash regulations to all coal ash disposed at current and retired power plant sites to address immediate threats and prevent further contamination," the press release said.

What does this mean for coal ash disposal sites in Tennessee?

Knox News asked the Tennessee Valley Authority and the Tennessee Department of Environment and Conservation about the impact the proposal would have on coal ash disposal sites in Tennessee, but both are reviewing the rule and its implications.

What we do know is the Tennessee Valley Authority stopped storing coal ash wet and in ponds after the Kingston coal ash spill in 2008. The regulations that likely would be more relevant to communities in TVA's seven-state region would be the changes to include legacy landfills.

TVA previously burned coal in Alabama and continues to burn coal in Tennessee and Kentucky.

In Tennessee specifically, TDEC requires TVA to investigate, assess and remediate all coal ash disposal sites under the state's supervision, meaning the state regulations were already stricter than the federal ones.

While this proposed federal rule update might not change the regulations for TVA's coal ash landfills in Tennessee, it could reaffirm the regulations from TDEC on TVA's landfills.

"We are reviewing the proposed federal rule and how it will apply to our program, but it will not impact our steadfast commitment and efforts to safe, innovative, responsible coal ash management," TVA spokesperson Scott Brooks said in a statement to Knox News.

Knox News has reached out to TDEC for a statement about how the rule might impact TVA's operations. The agency is reviewing the proposed rule and had not provided a statement as of publication.

How can I comment on the draft rule?

EPA plans to hold an in-person public hearing on June 28 and a virtual public hearing on July 12.

If a resident would like to speak at the public hearing, the last day to pre-register is June 26 for the in-person hearing and July 10 for the virtual hearing. Residents can pre-register to speak by filling out the form on the EPA's website: https://www.epa.gov/coalash or by reaching out to Michelle Lloyd at 202-566-0560 orLloyd.Michelle@epa.gov.

Residents can send comments to EPA about the proposed regulations by including the following Docket ID in submissions: No. EPA-HQ-OLEM-2020-0107

• Online at Federal eRulemaking Portal: https://www.regulations.gov/

• By mail: U.S. Environmental Protection Agency, EPA Docket Center, Office of Land and Emergency Management (OLEM) Docket, Mail Code 28221T, 1200 Pennsylvania Ave. N.W., Washington, DC 20460.

The public comment period will end 60 days after May 18.

This article originally appeared on Knoxville News Sentinel: EPA to expand coal ash rule to regulate exempted landfills and ponds