Under federal regulations that went into effect in October 2015, coal combustion residuals (CCR) cannot be disposed of in a way that contaminates groundwater. In 2016, Congress enacted legislation that gave EPA the authority to allow states to manage their own permitting programs for CCR disposal projects that met the regulatory requirements of the 2015 rule. Since then, EPA has granted CCR permitting authority to three states: Oklahoma, Georgia and Texas, all between 2018 and 2021. 

According to EPA, Alabama’s permitting application did not set up a framework to adequately address groundwater contamination during the closure of coal ash units. EPA Administrator Michael S. Regan noted in a statement that the agency is willing to “continue working with Alabama so that they can submit an approval application and implement a program that is as protective of public health as the federal standards.”

The Alabama Department of Environmental Management (ADEM) said in a statement that it was disappointed with EPA’s decision and would appeal in federal court, noting that EPA “only acted to deny the program after ADEM filed suit in federal court to compel EPA to act after EPA refused to act within the mandated 180 days of submission of the ADEM CCR program to the federal agency. In fact, EPA chose to withhold action on ADEM’s CCR program for more than 800 days.”

ADEM added that EPA “shifted the goalpost,” relying on a rule finalized last month as part of the basis for its denial. 

That rule, made final on April 25 this year, closed what environmental advocates called a major loophole in the 2015 regulations that allowed existing coal ash landfills and impoundments to remain unlined. 

This loophole left half of the residual waste generated at coal-fired plants unregulated and “allowed coal plant operators to evade cleanup responsibilities for all coal ash at many power plant sites by blaming contamination on exempted dumps,”  says Jennifer Cassell, a senior attorney at Earthjustice. As a result, she says, 91% of coal plants are currently contaminating groundwater. 

Potential Bellwether

Several other states have applications pending, and some environmental advocates say the denial of Alabama’s program could presage denials in those other states if those applications are similar to Alabama’s. 

“The EPA denial of Alabama's proposed program essentially arrived at a conclusion that we made many years ago: that you can't leave toxic coal ash and unlined near rivers and lakes. It doesn't work and it's unacceptable,” says Chris Manganiello, director of policy at Chattahoochee Riverkeeper. The EPA action in Alabama gives him hope that the agency “will be getting better at enforcing federal standards in Georgia, too,” which could include a potential revocation of that state’s permitting oversight for coal ash disposal, he adds. 

In February of this year, Acting EPA Region 4 Administrator Jeaneanne Gettle wrote a letter to the Georgia Environmental Protection Division noting concerns that the state’s final closure and groundwater monitoring plan for a pond at now-retired Plant Hammond in Rome, Ga., was “less protective than what the federal regulations require.” 

Those concerns included the technical adequacy of the groundwater modeling used to develop the closure and monitoring plans, and were communicated to Georgia EPD staff last year. The state agency issued a permit anyway. 

“EPA has reviewed the final permit and continues to believe that the concerns raised in our meetings were not adequately addressed,” she wrote. 

But Georgia Power has defended its plans to store coal ash in ponds at Plant Hammond and at other sites until it can move it permanently to lined and capped landfills, according to news reports.