The new standards — the first major rule signed by EPA acting administrator Andrew Wheeler — will extend the life of some existing ash ponds from April 2019 until October 2020, empower states to suspend groundwater monitoring in certain cases and allow state officials to certify whether utilities’ facilities meet adequate standards. EPA officials estimate that the rule change will save the industry between $28 million and $31 million a year in compliance costs.
“These amendments provide states and utilities much-needed flexibility in the management of coal ash, while ensuring human health and the environment are protected,” Wheeler said in a statement. “Our actions mark a significant departure from the one-size-fits-all policies of the past and save tens of millions of dollars in regulatory costs.”
Industry officials petitioned the Trump administration last year to reconsider existing standards for the fine powder and sludge — which contains mercury, cadmium, arsenic and other heavy metals — and the new regulation expands on the proposal then-EPA Administrator Scott Pruitt issued in March.
Wheeler worked for several years as a lobbyist for Murray Energy, which supported reconsideration of the coal ash rule, before joining the administration this spring. He said in an interview with The Washington Post this month that he has not lobbied EPA directly for several years, though he lobbied other government departments since President Trump took office.
The Obama administration negotiated for years with environmental groups, electric utilities and other affected industries about how to address coal waste, which can poison wildlife and lead to respiratory illnesses among those living near storage sites. The 2015 rule increased inspections and monitoring of coal ash disposal sites and required measures such as liners in new waste pits to prevent leaks that might threaten nearby drinking water supplies.
Tuesday’s rule — which will be followed by a second one, most likely next year, to address how to recycle coal ash to make concrete, gypsum wallboard and pavement — incorporated several requests from industry. For example, it would allow a state to suspend groundwater monitoring if it determines that there are no leaks, contamination or migration of contaminants that can be detected.
And while the initial proposal required a professional engineer to issue a certification of compliance for coal ash storage sites, the new rule will allow state authorities to sign off on it instead.
The rule will allow coal ash impoundments that are at risk for leaks — including ones within five feet of groundwater or in wetlands or seismic zones — to continue operating beyond April 2019, when they were slated to close. Instead, they may remain open under the new rule until October 2020.
In addition, the new rule would allow states to establish their own “risk-based” standards for substances for which there are no federally mandated “maximum contaminant level,” or MCL. That could affect the regulation of contaminants such as cobalt, lithium and lead, all of which have been linked to potentially serious health problems in humans.
Jim Matheson, who heads the National Rural Electric Cooperative Association, praised the deadline extension, saying in a statement that “EPA is working to avoid unintended consequences while the agency updates the original rule” to reflect new authority Congress gave the agency a year and a half ago.
Earthjustice senior counsel Lisa Evans criticized the agency for making concessions to the power sector. “Wheeler is on course to give industry exactly what it asks for, regardless of the damage it wreaks on our drinking water and health,” she wrote in an email.
Avner Vengosh, a Duke University expert on the environmental impacts of coal ash, said that scaling back monitoring requirements, in particular, could leave communities vulnerable to potential pollution.
“We have very clear evidence that coal ash ponds are leaking into groundwater sources,” Vengosh said. “The question is, has it reached areas where people use it for drinking water? We just don’t know. That’s the problem.”
And officials are unlikely to know, he said, unless basic monitoring requirements — which were part of a compromise in 2015 after the EPA decided not to define coal ash as hazardous waste — remain in place.
The EPA aims next year to finalize a separate rule addressing toxic wastewater discharge from power plants, and a senior agency official said that it made sense to align the two deadlines so that utilities could determine how best to comply with both revised standards.
The administration did opt to preserve the 2015 rule’s requirement that utilities publicly post the groundwater monitoring data they collect from coal ash disposal sites. This year, more than a dozen power plants across eight states publicly released data showing widespread groundwater contamination from such sites.
Environmental groups seized on the data, pointing to increases in potentially toxic substances such as arsenic detected in the groundwater near coal ash storage pits.
Industry representatives, however, noted that despite evidence of leakage from some existing coal ash storage facilities, whether such leaks have harmed drinking water supplies remains unclear.
EPA officials said they received roughly 160,000 comments on the proposed rule but declined to say how many people favored or opposed it.
During public hearings, agency officials received an earful from environmentalists and residents of communities affected by coal ash. In April, inside the ballroom of a Doubletree Hotel in Arlington, Va., those who testified at a public hearing on the coal ash proposal overwhelmingly opposed a rollback of the Obama-era standards.
“We will oppose this rollback every step of the way, including in the courts,” Mary Anne Hitt, the head of the Sierra Club’s Beyond Coal campaign, said that day. “Weakening these standards is a betrayal of these families across the country who are counting on you.”
Using its authority under the 2016 Water Infrastructure Improvements Act, the EPA has begun delegating significant authority for overseeing coal ash disposal to the states. Oklahoma received federal approval for its own program, Georgia has completed its application and nine other states are in the process of applying.