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EPA Finalizes First National Regulations for Coal Ash

The federal government has released thenation’s first-ever rules on how to handle, store and dispose of waste from coal-fired power plants. The final iteration of the regulations has largely disappointed environmental groups—who hoped for more stringent rules. Industry groups were more optimistic, but largely said they would have preferred the Environmental Protection Agency not finalize the rules at all and leave the matter up to Congress. The EPA was choosing between two options, and chose to regulate coal ash as akin to household garbage, rather than hazardous waste.

When coal is burned for electricity, the resulting byproduct is a dusty product called coal ash (sometimes also called CCR, for coal combustion residuals). Coal ash is stored in dry landfills and wet ponds around the country, including at Louisville’s Cane Run and Mill Creek power plants. The ash contains toxic materials like arsenic and selenium, but until now, it hasn’t been regulated on a federal level. In Kentucky, various aspects of the pond and landfill were regulated by the state.

As environmental regulations have cracked down on the air pollution emitted from plants, the amount of coal ash produced has grown. Most of the heavy metals and other toxic contaminants aren’t going out the smokestacks anymore, but instead remain in the ash. Environmental analyses have suggested that many coal ash storage ponds are leaking and contaminating nearby groundwater. And in the past decade, there have been several large spills where the dams containing the ash in those storage ponds have been breached, resulting in widespread destruction. The most famous of these spills was in December 2008 in Kingston, Tennessee, where 1.1 billion gallons of coal ash covered more than 300 acres of rivers, fields and homes.

“EPA is taking action to protect our communities from the risk of mismanaged coal ash disposal units, and putting in place safeguards to help prevent the next catastrophic coal ash impoundment failure, which can cost millions for local businesses, communities and states,” said EPA Administrator Gina McCarthy in a press release. “These strong safeguards will protect drinking water from contamination, air from coal ash dust, and our communities from structural failures, while providing facilities a practical approach for implementation.”

But the new rule isn’t as stringent as environmental groups had lobbied for. Organizations like the Sierra Club, Earthjustice and the Natural Resources Defense Council had hoped the EPA would regulate coal ash as hazardous waste, which would also require federal enforcement. Under the new rule, enforcement will be left up to citizens (or states) filing lawsuits.

Mary Ann Hitt of the Sierra Club called the rules a “modest first step.”

“Some parts of what the EPA has handed down will provide useful tools for communities, like requiring groundwater monitoring and dust controls around coal ash sites and making that data available to the public, but we are disappointed that it allows utilities to continue disposing of coal ash in ponds and does not incorporate strong federal enforcement,” she said in a press release.

“Today’s announcement still leaves people to largely fend for themselves against powerful utility interests that have historically ignored public health in favor of delayed action.”

Industry groups praised the decision to not regulate coal ash as a hazardous waste, which they argued would make it harder to recycle the substance. In 2013, about 40 percent of the nation’s coal ash was recycled into products like concrete and wall board.

“We still have concerns with the self-implementing nature of the rule and the way in which EPA has left the door open to one day regulate coal ash as a hazardous waste, creating additional uncertainty for electric utilities,” said Edison Electric Institute President Tom Kuhn in a statement. “These regulations will add to the challenges the electric power industry faces in providing reliable, affordable and increasingly clean electricity to power the U.S. economy and to enhance the daily lives of all Americans.

“Passing legislation that establishes state-enforced federal requirements for the disposal of coal ash would address many of our concerns and help eliminate uncertainty. EEI will continue to advocate for such legislation in the next Congress. As always, EEI’s member companies support and comply with our nation’s environmental laws, and our industry continues to ensure that those laws are fully met.”

There’s also an online petition spearheaded by the Utility Solid Waste Activities Groupto ask Congress to regulate coal ash, rather than the EPA.

The new rule will have implications for coal ash storage at both of Louisville’s coal-fired power plants. Louisville Gas & Electric’s Cane Run Power Station is scheduled to close next year; the company is building a natural-gas fired plant in its place. Under the new rules, if LG&E removes all the water from the ash pond at Cane Run and installs a cap, the pond can avoid regulation under the new rules.

The plant’s neighbors have spent years registering concerns about the coal ash that leaves the plant’s landfill and contaminates their homes. Kathy Little lives across the street from Cane Run, and she said she would like to have seen the material classified as "hazardous waste."

“I’m very disappointed,” she said. “Because it is [hazardous]. As far as all of the things that fly ash is composed of, is a very dangerous material. And I’m very let down that it wasn’t deemed hazardous.”

Under the new rule, companies will have to take steps to avoid groundwater contamination and fugitive dust from landfills.

Local Sierra Club organizer Tom Pearce noted that the right to sue companies in federal court is a silver lining to the rule. “We’re going to be on them,” he said. “We’re going to be like a hound dog and be on them until they’re cleaned up.”

LG&E spokeswoman Liz Pratt said the company is still working to analyze the federal rule.

"We have been ahead of the curve across our coal-fired power plant fleet," she said. "We've been putting plans in place starting several years ago to move to dry storage facilities. Our newest special waste dry landfill designs incorporate all current environmental requirements and are expected to meet the standards from this rule."

These rules are years in the making. The EPA first proposed the measures four-and-a-half years ago, but didn’t take the steps necessary to finalize them. Earlier this year, environmental groups filed a lawsuit to force the agency’s hand, and the EPA agreed to today’s deadline.

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Erica Peterson is WFPL's Director of News and Programming.