Bowing to industry’s push, the U.S. Environmental Protection Agency now proposes changes in Obama-era federal rules for power plant coal-ash disposal enacted in 2015 after several major spills, aiming to let states provide local oversight and enforcement. Environmentalists are concerned the changes will eliminate what they say are “bright lines” of specific federal requirements and allow states to set less stringent standards, but some states say they are retaining similarly tough mandates in their own programs.

EPA on March 8 published in the Federal Register the first of two rule amendments, claiming they allow states to incorporate more local flexibility into coal-ash permit mandates. The agency estimates the changes would save more than 400 coal-fired plants nationwide between $31 million and $100 million a year. The 2015 rule was prompted by a dike breach at the Tennessee Valley Authority’s Kingston, Tenn., coal-fired plant that spilled 5.4 million cu yd of coal-ash slurry across 300 acres and into the Clinch River. The rule required utilities to install by last October groundwater monitoring wells for leaks at surface impoundments, with monitoring data made public. It also set pollution limits and closure rules but did not require a permit, so the disclosed monitoring data became a citizens’ enforcement provision that could be used to sue noncomplying utilities. 

Environmental activists contend that many states have not done a good job of policing utilities, says Nat Mund, an attorney at the Southern Environmental Law Center. “States have a history of not being strong stewards, so the proposed changes leave communities at risk,” he says, noting North Carolina’s move to penalize Duke Energy only $99,000, with no mandate to clean up 39,000 tons of coal ash that spilled into the Dan River in 2014. “EPA stepped in and found Duke criminally guilty,” he says.

Ironically, the proposed changes are being made under the Water Infrastructure Improvements for the Nation Act signed by President Obama that gives states authority to issue permits as long as EPA determines the state programs are as protective as the 2015 rule. Alabama has requested authority to administer its own coal-ash program, but it is not as protective as the federal rule, says Mund.

The state agency on March 2 fined Alabama Power $1.25 million for coal-ash pollution violations at five plants, but it did not require any meaningful cleanup of the sources of pollution, notes the environmental group. The Alabama Dept. of Environmental Management did not return a request for comment. Alabama Power already is closing waste ponds at six plants by dewatering and capping impoundments, says a spokesman. Pollution data from five plants used for the fine indicates no water sources at risk, he says.

In Virginia, legislators on March 9 passed a bill that requires Dominion Virginia Power to seek proposals by July 15 to tally the amount of ash at five impoundments and assess the cleanup cost and recycling potential. By Nov. 15, the utility must provide a business plan for each of the five sites, says a spokesman. Georgia regulators have incorporated the 2015 federal standards into state rules, and Oklahoma has asked EPA to allow it to adopt the 2015 federal rule as its state standard. While EPA Administrator Scott Pruitt is a former Oklahoma state senator and attorney general, the agency said it plans to approve the application.

American Electric Power, which has coal-ash impoundments in eight states, supports EPA’s proposed changes to oversee state regulatory programs. “We have worked closely with our states at many sites for years,” says a spokeswoman. EPA in 1985 determined that coal ash should be regulated at the state level due to differences in geologic conditions and varying ash constituents, says Barry Thacker, principal engineer at Schnabel Engineering, who was on a 1980s team that evaluated coal-ash disposal practices for EPA. “The 2015 federal rule was ill advised. It is impossible to write a regulation to apply to all,” he says. “Site-specific conditions and leachability of ash constituents must be considered … and can best be managed at the state level.”