Environmental groups suing EPA over delayed coal ash rule

Environmental and public health groups planned to file a lawsuit April 5 in the U.S. District Court for the District of Columbia that is designed to force the U.S. Environmental Protection Agency to complete a stalled rulemaking process and finalize public health safeguards against toxic coal ash.

EPA floated a proposal in June 2010 to put tougher restrictions on coal ash disposal under regular solid waste disposal rules, or alternatively to classify it as a toxic waste, which would involve even tougher rules. Many industry observers have said the toxic waste alternative, on top of other EPA air regulations issued recently, would kill dozens of coal-fired power plants.

These environmental groups had in January sent to EPA a notice of intent to file this lawsuit.

EPA said in an April 6 e-mail statement about the response of that agency and the Department of Justice (DOJ) to the suit: “EPA and DOJ are reviewing the lawsuit and will respond as appropriate. EPA is aware of the concerns around coal ash management and disposal and the agency is committed to protecting people’s health and the environment in a responsible manner. In a historic step, EPA proposed the first ever national standards for coal ash. We are reviewing the more than 450,000 comments received on the proposed rule and will finalize the rule pending a full evaluation of all the information and comments the Agency received on the proposal.”

Although the EPA has not updated its waste disposal and control standards for coal ash in over 30 years, it continues to delay these needed federal protections despite more evidence of leaking waste ponds, poisoned groundwater supplies and threats to public health, said the Environmental Integrity Project in an April 5 statement about the lawsuit.

The lawsuit comes as EPA data show that an additional 29 power plants in 16 states have contaminated groundwater near coal ash dump sites, the statement added. That list includes the St. Johns River Power Park in Florida of JEA, the Riverside plant in Iowa of MidAmerican Energy, the Campbell plant in Michigan of Consumers Energy and the Kanawha River plant in West Virginia of American Electric Power (NYSE: AEP).

Earthjustice is suing the agency under the Resource Conservation and Recovery Act (RCRA) on behalf of Appalachian Voices, Environmental Integrity Project, Chesapeake Climate Action Network, French Broad Riverkeeper, Kentuckians for the Commonwealth, Moapa Band of Paiutes, Montana Environmental Information Center, Physicians for Social Responsibility, Prairie Rivers Network, Sierra Club and Southern Alliance for Clean Energy.

RCRA requires the EPA to ensure that safeguards are regularly updated to address threats posed by wastes, but the EPA has never revised the safeguards to ensure that they address coal ash, the statement said. Coal ash contains toxics such as arsenic, lead, hexavalent chromium, mercury, selenium and cadmium.

The new EPA data about groundwater contamination at 29 additional sites came as a result of a 2010 questionnaire the agency sent to operators of about 700 fossil- and nuclear-fueled power plants. The questionnaire collected general plant information and also required a subset of coal-fired power plants to collect and analyze samples of leachate from coal ash dump sites and report exceedances of toxic chemicals in groundwater monitored by the plants.

Project got EPA to release ash data

The Environmental Integrity Project filed a Freedom of Information Act request to obtain the data. After analysis by Earthjustice and EIP, according to the facilities’ own monitoring data, 29 sites had coal ash contaminants in groundwater, including arsenic, lead and other pollutants. Contamination was found at plants in 16 states, with multiple new cases in Texas (3), North Carolina (3), Colorado (2), South Carolina (2), Pennsylvania (2), Iowa (3), and West Virginia (5), among others.

“Approximately 39 percent of the coal ash disposed annually is placed in surface impoundments, the majority of which (about three-quarters) are unlined or inadequately lined,” said the lawsuit. “The EPA has determined that there are at least 676 coal ash surface impoundments currently operating in the U.S., and the Agency estimates that there are at least 337 operating landfills, of which a significant portion also are unlined. The exact number of structural fills (often unlined gravel quarries) and fills in active and abandoned coal mines (always unlined) is not known, but there are at least many hundreds of fill sites. According to the U.S. Department of Energy in 1993, there are also over 750 ‘retired’ coal ash impoundments and landfills.

Besides the health risks of toxics leaking from ash disposal sites, another danger to downstream residents is “catastrophic” failure of ash impoundment dams, like the collapse that occurred in 2008 at the Tennessee Valley Authority’s Kingston coal plant in Tennessee, the lawsuit noted. That wasn’t the only such failure, the lawsuit said. “Between 2002 and 2008, there were four major spills of coal ash from surface impoundments at three plants, including a two million gallon spill at Plant Bowen in Euharlee, Georgia; a release of over 100 million gallons from the Martin’s Creek Power Plant in Martins Creek, Pennsylvania; and two spills of thirty million gallons each at the Eagle Valley Generating Station in Martinsville, Indiana.”

And there was another more recently, in late 2011, when 25,000 tons of coal ash from a decades-old landfill on a bluff above Lake Michigan collapsed at a We Energies power plant in Oak Creek, Wisc., said the lawsuit. “The collapse left a debris field 120 yards long and eighty yards wide at the foot of the bluff and resulted in thousands of tons of coal ash fouling Lake Michigan,” the lawsuit added.

Utilities have been assessing their ash exposure

American Electric Power, one of the largest coal-fired generators in the country, addressed the ash issue in its Feb. 28 annual Form 10-K report.

“Our operations produce a number of different coal combustion products, including fly ash, bottom ash, gypsum and other materials,” said the AEP Form 10-K. “The Federal EPA completed an extensive study of the characteristics of coal ash in 2000 and concluded that combustion wastes do not warrant regulation as hazardous waste. In December 2008, the breach of a dike at the Tennessee Valley Authority’s Kingston Station resulted in a spill of several million cubic yards of ash into a nearby river and onto private properties, prompting federal and state reviews of ash storage and disposal practices at many coal-fired electric generating facilities, including ours.”

The Form 10-K added: “AEP operates 37 ash ponds and we manage these ponds in a manner that complies with state and local requirements, including dam safety rules designed to assure the structural integrity of these facilities. We also operate a number of dry disposal facilities in accordance with state standards, including ground water monitoring and other applicable standards. In June 2010, the Federal EPA published a proposed rule to regulate the disposal and beneficial re-use of coal combustion residuals, including fly ash and bottom ash generated at coal-fired electric generating units.”

CMS Energy (NYSE: CMS), the parent of Michigan’s Consumers Energy, addressed the ash issue in its Feb. 23 annual Form 10-K. “Historically, Consumers has worked with others to reuse 30 to 40 percent of ash produced by its coal-fueled plants, and sells ash for use as a Portland cement replacement in concrete products, as feedstock for the manufacture of Portland cement, and for other environmentally-compatible uses. Consumers’ solid waste disposal areas are regulated under Michigan’s solid waste rules. Consumers has converted all of its fly ash handling systems to dry systems, which reduce landfill venting substantially. All of Consumers’ ash facilities have programs designed to protect the environment and are subject to quarterly [state of Michigan] inspections. The EPA has proposed new federal regulations for ash disposal areas. Consumers estimates that it will incur expenditures of $150 million from 2012 through 2018 to comply with future regulations relating to ash disposal, assuming ash is regulated as a non-hazardous solid waste.”

The fact that Consumers Energy recycles some of its ash is a critical point. Industry groups have said that if EPA classifies ash as a hazardous waste, it can no longer be used in products like cement, which forces burial of more ash in landfills.

Wisconsin Energy (NYSE: WEC), the parent of We Energies, said in its Feb. 28 Form 10-K: “We currently have a program of beneficial utilization for substantially all of our coal combustion products, including fly ash, bottom ash and gypsum, which minimizes the need for disposal in specially-designed landfills. Some early designed and constructed coal combustion product landfills, which we used prior to developing this program, may allow the release of low levels of constituents resulting in the need for various levels of remediation. Where we have become aware of these conditions, efforts have been made to define the nature and extent of any release, and work has been performed to address these conditions. In addition, fill areas for coal ash were used prior to the introduction of landfill regulations.”

The We Energies disposal sites currently undergoing review include the Oak Creek landfills, the Form 10-K added. “Groundwater impacts identified near the sites, located in the Village of Caledonia and the City of Oak Creek, Wisconsin, prompted Wisconsin Electric to begin investigation in 2009 for the source of impacts found in monitoring wells on the site and surrounding area,” said the report. “Preliminary results indicate that the groundwater impacts may be naturally occurring or are from other sources based on groundwater flow direction and increasing concentrations of elements deeper in the ground. The [Wisconsin Department of Natural Resources] began sampling work in 2011 to identify the source of the impacts.”

We Energies deals with bluff collapse aftermath

As for the October 2011 bluff collapse at Oak Creek mentioned in the lawsuit, Wisconsin Energy said that this disposal site was a former ravine that had been filled with coal ash prior to the advent of landfill regulations. It is estimated that approximately 23,000 cubic yards of soil, coal ash and water was released from the bluff. This mixture of materials, along with several trailers, vehicles and other construction materials from an air quality control project at the power plant, slid down the bluff to the shoreline. Some of the soil and coal ash mixture fell into Lake Michigan. Ash and soil materials have been removed from the area, and construction equipment and related materials have been removed from Lake Michigan. The clean-up work has been completed, and the bluff was stabilized for this past winter. Permanent bluff stabilization efforts will commence during the second quarter of 2012.

“We have consulted with nearby water utilities who have indicated that they have not detected any impacts to public drinking water supplies,” the Form 10-K added. “In November 2011, the WDNR conducted a survey of Lake Michigan’s lakebed. The survey did not locate any fly ash or construction materials on the lakebed immediately east and south of the Oak Creek site. Both water quality and sediment sampling have not indicated a serious risk of harm to human health or the environment. We anticipate the WDNR will release its investigative findings during the first quarter of 2012. At this time, we cannot predict with certainty whether the WDNR or other regulatory agency will seek fines or penalties from us as a result of this incident.”

About Barry Cassell 20414 Articles
Barry Cassell is Chief Analyst for GenerationHub covering coal and emission controls issues, projects and policy. He has covered the coal and power generation industry for more than 24 years, beginning in November 2011 at GenerationHub and prior to that as editor of SNL Energy’s Coal Report. He was formerly with Coal Outlook for 15 years as the publication’s editor and contributing writer, and prior to that he was editor of Coal & Synfuels Technology and associate editor of The Energy Report. He has a bachelor’s degree from Central Michigan University.