The State of Coal Ash Regulation and Implications for the Commonwealth
Two recent developments, the finalization of Part B of the coal combustion residuals, or CCR, rule and the finalization of the 2020 Steam Electric Reconsideration Rule have triggered conversation about, and litigation over, the path forward for long-term management of CCR in the United States.
The two federal rules raise questions about which coal-fired power plants and coal ash basins are required to close, the timeline for closure or compliance and, for operational plants, what sort of coal ash slurry treatment is required in order to effectuate compliance.
In Pennsylvania, the Department of Environmental Protection (DEP) may face challenges from facilities requesting the relaxation of permit conditions to reflect the latest rules. Throughout the industry, pending litigation and tight deadlines may expose the electric generating industry to increased uncertainty and, potentially, expenditures in order to deal with CCR.
2020 Steam Electric Reconsideration Rule
On Aug. 31, 2020, the U.S. Environmental Protection Agency (EPA) finalized a rule revising the regulations for the Steam Electric Power Generating category, previously regulated under the 2015 Effluent Limitations Guidelines (ELG rule), 40 CFR Part 423. The ELG rule revises requirements for two specific waste streams produced by steam electric power plants: flue gas desulfurization (FGD) wastewater and bottom ash (BA) transport water.
Published in the Federal Register on Oct. 13, the ELG rule exempts coal plants that run at lower capacity or are in their final years of service from having to comply with stricter standards adopted by EPA in 2015.
In addition, it allows plants to use cheaper technology to clean wastewater from smokestack scrubbers that remove air pollutants and allows some treated coal ash slurry to be released into rivers and streams. For most facilities, it also extends the deadline for compliance to 2025.
More Dangerous Than Smoking a Pack of Cigarettes a Day
In August 2007, EPA published a draft risk assessment that found extremely high risks to human health and the environment from the disposal of coal ash in waste ponds and landfills.FN4
The chart below compares EPA’s findings on the cancer risk from arsenic in coal ash disposed in waste ponds to several other cancer risks, along with the highest level of cancer risk that EPA finds acceptable under current regulatory goals.FN5
While the risk estimates shown below are extremely high, EPA officials admitted that they underestimated risk by at least 50% in some cases.FN6
Years of delay
In 1980, Congress ordered EPA to study coal combustion waste and to make a regulatory determination by no later than 1983.FN7
On April 24, 2000, EPA finally completed that regulatory determination and found that coal combustion wastes could pose risks to human health and the environment if not properly managed and national regulations under subtitle D of RCRA are warranted for coal combustion wastes when they are disposed in landfills or surface impoundments.FN8
Despite that finding and subsequent studies revealing high levels of toxins and carcinogens in coal ash, EPA has failed to enact any rules.
The Road to Federal Regulation of Coal Ash
EPA has the authority to phase out these surface impoundment wet dumps the most dangerous ash disposal method and put in place common-sense regulations that protect human health and the environment by governing the disposal and recycling of dry coal ash.
In 2010 EPA proposed to regulate for the first time coal ash to address the risks from the disposal of the wastes generated by electric utilities and independent power producers. EPA is considering two possible options for the management of coal ash for public comment. Both options fall under the Resource Conservation and Recovery Act (RCRA). You can take a look at the proposed rule by clicking here.
CCR Rule Part B
On Oct. 15, 2020, the EPA finalized its revisions to Part B of the CCR rule. The CCR rule was created under the Obama administration in response to major coal ash spills in multiple states. Under the Trump administration, the EPA took a number of steps to relax the 2015 CCR rule.
In July 2019, the Agency finalized Part A of the CCR rule, giving some facilities more time to close unlined coal ash ponds. Part B of the rule broadens the definition of which ponds are considered lined.
Under the 2015 rule, all new facilities that generated coal ash were required to build composite-lined ponds to store the CCR, but the rule allowed unlined or clay-lined facilities to continue operating.
The 2015 CCR rule was challenged by environmental nongovernmental organizations as well as the Utility Solid Waste Activities Group. In 2018, the U.S. Court of Appeals for the D.C. Circuit handed down an opinion that noted that composite lining (a plastic geomembrane and several feet of compacted soil to act as a buffer) “effectively eliminates the risk of groundwater contamination.” In Utility Solid Waste Activities Group v. Environmental Protection Agency, the EPA identified 735 existing active surface impoundments through the country; of the 504 sites for which the EPA was able to collect liner data, only 17% had composite liners.
In USWAG, the D.C. Circuit vacated and remanded the provisions of the 2015 CCR rule that permitted unlined impoundments to continue receiving coal ash unless they leak, classified “clay-lined” impoundments as lined, and exempted inactive impoundments at inactive facilities from regulation.
Part B of the CCR rule may attract litigation from environmental groups because of the EPA’s procedure that would allow facilities to demonstrate to the EPA or a participating state director that a clay-lined impoundment is, in fact, lined and therefore not subject to certain closure requirements.
Operationally, Part B outlines a procedure by which facilities could use groundwater data and the design of a surface impoundment to show that a unit has and will continue to ensure there is no reasonable probability of adverse effects to human health and the environment and should be allowed to continue to operate.
Though the deadline for an initial alternate liner application is Nov. 30, with the full alternate liner demonstration due Nov. 30, 2021, (two aggressive deadlines), the agency and industry maintain that the alternative liner demonstration provisions give industry more flexibility, while continuing to protect the environment.
Frequently Asked Questions
What is Coal Ash?
Coal ash is an abundant and dangerous by-product of burning coal for energy. Despite its hazardous characteristics, coal ash and other coal combustion wastes are not subject to federal regulation, and state laws governing coal combustion waste disposal are usually weak or non-existent.
What’s wrong with Coal Ash?
Coal ash contains numerous hazardous chemicals, including arsenic, selenium, lead, mercury, cadmium, chromium, boron, thallium, and aluminum.FN1 When coal ash comes into contact with water, these hazardous materials leach out of the waste and contaminate groundwater and surface water.FN2 These substances are poisonous and can cause cancer and damage the nervous system or other organs, especially in children. EPA has identified over 600 coal ash sites and documented at least 67 proven or potential cases of surface water or groundwater contamination from coal ash in at least 23 states.FN3
Coal-fired power plants produce approximately 131 million tons of waste per year, making coal combustion waste the second largest industrial waste stream in the U.S. Across the country, millions of tons of coal ash are being stored in precarious surface waste ponds, impoundments and abandoned mines. These put human health at risk from potential large scale disasters and from gradual yet equally dangerous contamination as coal ash toxins seep into drinking water sources. The Environmental Protection Agency (EPA) has long recognized the danger of coal ash and needs to act quickly to fulfill its duty to protect public health and the environment through strong federal regulations on coal ash.
What Does the ELG Rule Mean for Pennsylvania Facilities?
On Nov. 2, 2020, nine conservation groups (including PennEnvironment, Inc.) filed a petition for review before the D.C. Circuit. The D.C. Circuit petition was filed on the heels of a similar complaint filed by a separate set of environmental organizations before the Fourth Circuit.
The environmental organizations allege that the technology to treat FGD wastewater and BA transport water, though more expensive, is widely available and that the revised ELG rule endangers human health and the environment.
The DEP is currently reviewing the ELG rule. However, in 2018, the DEP entered into a settlement with environmental groups to require the tighter Obama-era waste controls at 10 coal-fired power plants around the commonwealth.
Subsequently, water pollution permits for Pennsylvania’s coal-fired power plants have been updated with the provisions from the 2015 ELG rule. The existing permits and the pending litigation could put the DEP in a tricky position, as any plant that has not yet installed controls to comply with 2015 ELG rule could ask the DEP to revise its permits to reflect the more relaxed standards imposed by the 2020 ELG rule.
What Does Part B of the CCR Rule Mean for Pennsylvania Facilities?
If it sticks, Part B of the CCR rule could be a boon for Pennsylvania brightfields and brownfields redevelopment projects.
Pennsylvania already encourages beneficial use of coal ash, which is also included in Part B of the CCR rule, but in the past few years, there has been an uptick in the development of solar projects atop landfills, coal ash surface impoundments, and brownfields sites throughout the commonwealth.
If an alternative liner determination is successful, then a decommissioned coal ash basin could be capped in place rather than excavated, creating a faster path to redevelopment.
The electricity generation industry is one that relies heavily on long-term planning. The pending litigation of the ELG rule and the quick deadlines and likely litigation over Part B of the CCR rule expose the industry to increased uncertainty and, potentially, significant additional expenditures in order to deal with legacy liabilities.
Even with some uncertainty surrounding the longevity of these two rules, owners and operators of CCR impoundments and coal-fired plants must contend with ongoing compliance obligations and potential for liability.
It is also important to remember that failure to comply with the CCR rule or the ELG rule is not the only source of risk. Separate from these two rules, contamination from CCR impoundments and coal-fired plants can trigger federal or state cleanup requirements and with litigation underway throughout the country, industry may face even greater scrutiny from neighbors, public interest groups, and other stakeholders, making a holistic CCR risk strategy (rather than one that focuses solely on regulatory compliance) especially prudent. Source: Law.com
Lower Susquehanna Riverkeeper Association & Brunner Island Steam Electric Station
On July 31st, 2019 Lower Susquehanna Riverkeeper Association announced a historic agreement to reduce toxic pollutants leaking from a power plant’s coal ash dumps into groundwater and the Susquehanna River, the largest Chesapeake Bay tributary.
The consent decree requires Talen Energy, owner of the Brunner Island Generating Station in York Haven, to close and excavate one ash pond, monitor and address leakage of pollutants from other waste sites, pay a $1 million civil penalty, and contribute an additional $100,000 to fund supplemental projects to reduce local water pollution, according to the agreement.
FN1: US EPA, Human and Ecological Risk Assessment of Coal Combustion Wastes, August 6 2007 (draft).
FN3: US EPA, Coal Combustion Waste Damage Case Assessments, July 9, 2007.
FN5: Human and Ecological Risk Assessment of Coal Combustion Wastes, August 6. 2007 (draft). Date for cigarettes comes from Center for Disease Control, Cigarette Smoking-Attributable Morbidity-U.S. 2000, MMWR Weekly, September 5, 2003 / 52(35);842-844
FN6: EPA Acknowledges Underestimates of Coal Ash Waste Disposal Risks, Inside EPA, Dec. 7, 2007, Vol. 28, No. 49.
FN7: Solid Waste Disposal Act, Section 8002(n), 42 U.S.C. 6982.
FN8: US EPA, Reg. Determination on Wastes from the Combustion of Fossil Fuels, Final Rule 65 Fed. Reg. 32214, May 22, 2000.
For more information about coal ash in Pennsylvania, check out an excellent report documenting coal ash impacts on water quality in Pennsylvania from the Clean Air Task Force.