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Coal ash crackdown continues as EPA denies extensions for six power plants


January 26, 2023

Coal ash crackdown continues as EPA denies extensions for six power plants

The U.S. EPA on Wednesday denied six coal plants’ requests to keep dumping toxic ash into unlined or inadequately lined pits, signaling the agency’s commitment to enforce the 2015 federal coal ash rules that had been widely flaunted by companies and ignored by regulators.

The rules say that pits without legally compliant liners needed to stop receiving coal ash by April 2021, but many companies continued dumping ash in such pits and ponds, with more than 60 seeking extensions to the deadline. The EPA began a series of enforcement actions last year.

The six plants covered by the new decisions had argued they should not have to meet the deadline since naturally occurring clay, archaic liners or other conditions made their pits essentially as safe as impoundments with modern liners. In its denials, the EPA cited holes in the companies’ arguments about the pits’ safety and faulted the companies for failing to comply with other provisions of the rules.

“While of course it’s site-specific and they’re limited to these six applications that were before the agency, it does show EPA is taking a really close look at compliance with the rule,” said Sierra Club senior attorney Bridget Lee. “They’re going through the applications carefully, looking at everything at these sites. Highlighting all the places where the owners and operators have gone wrong is a really important step.”

Extensions to the 2021 deadline were denied at DTE’s Belle River and Monroe plants in Michigan; the Coal Creek station in North Dakota; the Conemaugh plant owned by Talen Energy near Pittsburgh; the publicly-owned Salt River Project’s Coronado Generating Station amid Native American reservations in Arizona; and the Martin Lake Steam Electric Plant in eastern Texas. 

The Apache Generating Station in Arizona was granted an extension, on the condition it improves groundwater monitoring meant to check for pollution from coal ash.

The ash pits will have to close after going through a public comment period and final EPA decision, assuming the EPA upholds their recent orders in final rulings. The decisions do not mandate how the pits must be closed, but the federal rules say coal ash repositories cannot be closed with ash contaminating groundwater, and the recent decisions would seemingly indicate that the companies could not legally leave the ash in place in these unlined or poorly lined pits. 

Lee noted that by the time the pits actually close, it will be more than two years beyond the original April 2021 deadline.

“So the communities located near these ponds have definitely been waiting too long for this action,” she said. “But we applaud EPA for it and we are happy to see this first step.”

A long road

Last year, the EPA denied extension requests for a number of plants that argued they needed more time to stop sending waste to pits because they had nowhere else to place the waste and the coal plant would need to close; or they planned to close the coal plant soon and wanted to keep depositing ash to the end.  

Environmental advocates hailed those decisions, starting in January 2022, as evidence the EPA is finally taking the federal rules seriously, as the Energy News Network chronicled last year in an investigation of the toll of coal ash nationwide.

However, there are more than 500 coal ash impoundments nationwide covered by the federal rules, and environmental groups’ recent analysis of data reported by companies for almost 300 sites found groundwater contamination at more than 90% of them.   

“The vast majority are not doing anything to clean it up,” said Thomas Cmar, a senior attorney for Earthjustice, which produced the report on groundwater contamination along with the Environmental Integrity Project. 

“It is heartening to see that EPA is taking steps to hold power plants accountable, but more follow-up and enforcement is needed everywhere,” Cmar continued. “I do hope that some companies read these additional decisions from EPA, see the writing on the wall, and begin to clean up their act. But unfortunately, what we have seen throughout the country is that violations of the coal ash rule are so widespread that a lot of enforcement is going to be needed — by EPA, states, and local groups filing lawsuits.”

Flawed compliance

In denying the extensions, the EPA cited various failings at each plant in showing that the coal ash pits with no liners or archaic liners were not causing harmful groundwater contamination.

At the Coal Creek plant, the EPA tested samples of a liner installed in 1991 and repaired multiple times. It found that the liner was thinner than current requirements and made of materials that raised concerns. The Coal Creek station was sold last year by Minnesota-based cooperative Great River Energy to Rainbow Energy LLC, and the new owner plans to keep running the plant, attempting carbon capture and sequestration, rather than retiring it as previously planned. 

The EPA also said companies failed to prove groundwater was monitored rigorously enough to detect contamination should it occur. The 2015 rules lay out detailed requirements for ongoing groundwater monitoring around coal ash impoundments, but critics argue companies regularly find ways to avoid showing contamination, like putting monitoring wells in the wrong places.

The Martin Lake plant in Texas, owned by Luminant Generating Company, burns lignite coal, a particularly dirty form of coal, and stores the ash onsite. (Coal Creek also burns lignite.) 

Among other criticisms, the EPA found that the plant located its pollution-monitoring wells at least 150 feet away from where pollution would be expected to flow. 

“The application provides no explanation for why downgradient wells could not have been located at the waste boundary or at least closer to the identified downgradient boundary of the impoundment,” the decision says.  

Soil samples taken to determine where groundwater might flow were also spaced so widely apart that the company might not know all the “pathways” contamination could take, the EPA added. The EPA also criticized the company’s methods for drawing groundwater for testing, noting that: “Wells screened at an improper depth or over too long an interval can draw groundwater from far beyond the area that is initially impacted by a [contaminant] release, resulting in dilution of the sample” and “masking” possible coal ash pollution.

The EPA also argued that monitoring wells were misplaced at DTE’s Monroe plant south of Detroit on Lake Erie. Pollution from coal ash could flow into both the upgradient wells meant to provide background readings, and downgradient wells where contaminants from coal ash could flow, according to EPA.

“The application indicates that upgradient wells were knowingly installed in areas with potential to be affected by leakage from the impoundment,” EPA wrote, meaning the company could be off the hook for pollution when compared to background levels.  

Unconvincing ‘alternate sources’ 

The EPA cited evidence of potential pollution releases from the pits, and “insufficient information to support claims that the contamination is from sources other than the impoundments.”

In documents the companies are required to post publicly under the rules, the companies had argued that contamination was coming from sources other than the impoundments in question. 

At the Conemaugh plant, the company argued that groundwater contamination was caused by waste from sulfur dioxide scrubbers that had fallen off trucks on the site. The EPA wrote that it doubted this explained all the contamination, and even if it did, that raised other concerns.  

The rules don’t cover coal ash scattered on sites before the rules took effect, a widespread practice by companies that used ash to build up berms or bolster land. Environmental advocates and attorneys have long argued that such ash causes contamination that companies can then blame as a way to avoid cleaning up the pits that are covered by the rules.

The EPA has promised to add provisions covering such “legacy ash” to the rules, but so far this has not happened. Last year Earthjustice filed a lawsuit representing local groups demanding action on legacy ash.

Most of the coal plants covered by the EPA’s recent decisions are scheduled to close in coming years, and companies like DTE have emphasized their commitment to clean energy. But advocates and attorneys say no clean energy transition can be complete until the hundreds of millions of tons of coal ash stored nationwide are dealt with, including by moving it out of unlined or leaking pits.

“For decades we’ve known that our reliance on dirty coal power has huge negative effects from cradle to grave for our health, our planet, and our communities,” said PennEnvironment executive director David Masur, in a statement regarding the Conemaugh plant. “Today’s EPA announcement is a crucial step towards ending the decades-long cycle of allowing fossil fuel companies to get a free ride for the toxic pollution that they release into our air, water and surrounding environment.”

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