Even as coal ash storage basins are leaking massive amounts of pollution in the wake of Hurricane Florence, the coal industry is working on a novel legal strategy to stop the federal regulation of this toxic byproduct of coal combustion. The very same week that coal ash turned some river water in North Carolina into gray pudding and the pollution amassed to the point that it could be seen from space, coal companies have been successfully limiting their liability for this contamination under the Clean Water Act.

The coal industry was already enjoying a banner year under the Trump administration — one capped by the rollback of a 2015 Environmental Protection Agency rule that had set basic limitations on the disposal of coal ash. The waste contains carcinogens and neurotoxins, including arsenic, boron, cadmium, hexavalent chromium, lead, lithium, and mercury, and is often stored in unlined pits.

The 2015 rule required that any coal ash storage facility within five feet of a groundwater aquifer be closed. The new rule, which the EPA finalized in July, extended the time coal companies have to close those ash ponds by 12 months, allowed states to suspend the monitoring of some groundwater near coal ash waste sites, and removed a requirement that only engineers can sign off on changes to coal ash ponds.

“They were essentially turning all the clear standards in the original rule on their head,” said Thomas Cmar, an attorney who manages the coal program for Earthjustice.

The coal industry’s latest push aims to ensure that some of its waste can’t be regulated under the Clean Water Act. In two appeals court cases this week, judges agreed with power companies that the Clean Water Act didn’t apply to ash ponds that leaked waste from coal-fueled power plants into groundwater in Tennessee and Kentucky. Because a Hawaii appeals court reached an opposite decision, the issue may be soon headed to the Supreme Court.

Meanwhile, Duke Energy, which owns all five of the dumps that have released coal ash in the wake of Hurricane Florence, recently sought the EPA’s guidance in shifting oversight of coal ash away from the Clean Water Act, which has long governed these discharges. In February, a lawyer from a law firm that has represented Duke Energy, emailed Susan Bodine, who heads the EPA’s Office of Enforcement and Compliance Assurance, about coal ash liability, according to internal emails obtained through a Freedom of Information Act request by the Waterkeeper Alliance.

Brooks Smith, who directs the environment and energy practice at the law firm Troutman Sanders, asked Bodine for her “input on substance and strategy for addressing” how water contamination leaking from coal ash waste should be regulated.

An attachment Smith sent Bodine, which Bodine noted in the email was authored by a Duke Energy attorney, contained “Proposed Congressional report language” designed to ensure that some liability for coal ash would fall under the Resource Conservation and Recovery Act, or RCRA, rather than the Clean Water Act. One month later, very similar language was included in an explanatory statement that accompanied the federal budget, which, after the budget was passed, became a congressional directive to the EPA.

Smith’s email also offered Bodine a “potential regulatory approach” on coal ash ponds, suggesting that the “EPA should clarify that if a facility is subject to the coal combustion residual (‘CCR’) rule, that facility is exempt from liability under the Clean Water Act.” So far, the EPA has not issued this clarification.

In an email, a Duke Energy spokesperson wrote that using the Clean Water Act to regulate coal ash released to groundwater “would create duplicative requirements that would subject our customers to additional costs and offer no additional environmental protection because groundwater impacts are already regulated under a number of state and federal environmental laws, including the Resource Conservation and Recovery Act.”

Duke’s email also said that the company is “fully committed to closing our ash basins in a manner that is protective of human health and the environment, and in full compliance with all federal and state regulations. At the same time, we will also defend our customers from being burdened with undue costs for the sake of a vocal activist minority pushing their agenda.”

Troutman Sanders did not respond to request for comment. The EPA declined to comment.

