Coal ash has never been regulated in the U.S. as a hazardous waste.

But following the massive 2008 Tennessee Valley Authority Kingston spill of more than a billion gallons of coal ash into the Emory River, the U.S. EPA under President Obama concluded that current industry practices posed risks to human and environmental health, and initiated a federal rulemaking for coal ash storage facilities.

The federal law under which such a rule could be issued is called the Resource Conservation and Recovery Act (RCRA). In 2010 the EPA published a proposed rule for regulating coal ash disposal, and requested public comments on whether coal ash should be regulated as “hazardous waste” or as “non-hazardous solid waste.” The EPA only has authority to enforce “cradle-to-grave” regulations on materials classified as hazardous waste.

Issued in 2015, the Coal Ash Rule established standards for the construction and safety of coal ash impoundments, including structural assessments, groundwater monitoring, and public reporting of contamination. It set allowable levels of certain pollutants in groundwater. If the level was exceeded, the owner of the impoundment would be required to take corrective action.

But under pressure from the coal industry, the EPA opted not to declare coal ash a hazardous waste. Because of this the Coal Ash Rule is classified as self-implementing, meaning the federal government has no role in implementation.

“What the term self-implementing means is that there is no regulatory agency that's directly in charge of implementing the rule,” said Thomas Cmar, attorney with Earthjustice. That leaves enforcement up to the states and lawsuits by citizens.

In addition, the 2015 Coal Ash Rule exempted coal ash storage sites that were retired or “inactive” when the rule was published in the Federal Register. Sites like the Vermilion Power Plant were therefore not covered by the rule.

State regulation of coal ash in Illinois

Illinois started its own rulemaking for coal ash disposal in 2009 after groundwater contamination was found at sites throughout the state.

“Illinois is an example of a state that did see the problem coming and was proactive about it for a number of years. They required a lot of monitoring before the federal government ever did,” said Abel Russ, attorney at the Environmental Integrity Project. “They were looking at all coal ash units, not just the ones that were ultimately regulated by the federal role, and they were trying to figure out the best way to nip this problem in the bud.”

In 2010 Illinois had 24 coal power plants with a total of 83 coal ash impoundments. Only 31 of these impoundments were lined to prevent leaching into groundwater, and just 28 were monitored for groundwater contamination.

Illinois coal ash impoundments as of June 3, 2018

Illinois coal ash impoundment locations and data as of June 3, 2018. Click on a location for information about each site. Data was compiled by the Prairie Rivers Network from public sources.

The Illinois EPA proposed a state coal ash rule in 2013, but approval remains pending before Illinois Pollution Control Board. Sanjay Sofat, Chief of the Bureau of Water at the Illinois EPA, said at some point the Board will issue a first notice on the rule followed by a public comment period. “As far as that rulemaking is concerned it's still very active and it is pending before the board,” Sofat said in an interview.

"I think that's a very clever non-responsive response by Illinois EPA,” Cmar said. "I'm not aware of any of any sort of order that's been issued or any clear plan that's in place for that rulemaking to move forward. I think ultimately it's going to remain in a holding pattern as long as the Rauner administration is in place."

The Illinois EPA has been hit hard in recent years by budget cuts. In 2002 the agency employed 1,260 full-time staff. Today that number is just over 600 full-time staff, a cut of 50 percent.

Andrew Rehn from Prairie Rivers said cuts in the Illinois EPA’s groundwater division limit the agency’s capacity in dealing with coal ash pollution. “That’s just one small portion of the many groundwater things they work on, so I bet it’s hard,” he said. “But we didn’t see what we thought needed to be happening so we took action.”

“We know lots of people in state government who are very committed to their jobs and committed to environmental protection and they just don't have the manpower or the funding to do it adequately,” said Russ. “And it's that way pretty much across the country.”

A federal rollback to boost coal

Meanwhile, in July the federal EPA under acting administrator Andrew Wheeler announced a rollback of the 2015 Coal Ash Rule. The new rule reduces requirements for groundwater monitoring. Utilities are no longer required to hire professional engineer to assess the structural integrity of their impoundments, but can instead apply to state authorities for “technical certifications” that they are safe. States can allow coal ash facilities to delay or avoid closure when they are leaching contaminants.

Before joining the EPA as Deputy Director in 2018, Andrew Wheeler was a lobbyist with the firm Faegre Baker Daniels Consulting. The firm was paid $3,074,000 by coal producer Murray Energy from 2009 to 2017 – by far its biggest client.

Documents obtained by E&E News under the Freedom of Information Act include draft presidential executive orders written by Robert Murray, the company’s founder and chief executive, and sent to Energy Secretary Rick Perry. They include withdrawing from the Paris Climate Accord, reducing air quality standards, and cutting the staff of the EPA by half. At the top of Murray’s list was suspension and review the 2015 Coal Ash Rule.

“Someone who just a few months ago was being paid to lobby the administration on the weakening of this rule is now the person signing the rollback,” Thomas Cmar said. "Our concern is that this is just one step in what is a larger deregulatory campaign by EPA where additional changes are likely to come."

Frank Holleman, senior attorney with the Southeastern Environmental Law Center, said the retreat from national coal ash standards only benefits the utilities. “What they're saying is let the states do it because we control that game,” he said. “We know if we can get it down into the bowels of the state capitol we'll make sure we have to do the least possible cleanup.”

Intervention by the Court of Appeals

But the Trump-era rollback of the Coal Ash Rule, and the Obama-era rule itself is now in question. On August 21 a U.S. Court of Appeals ruled that the 2015 rule had not gone far enough in regulating “legacy” ponds – inactive impoundments at retired power plants like Vermilion.

“Legacy ponds, which by their nature are older than most surface impoundments, are ‘generally unlined’ and unmonitored, and so are more likely to leak than units at utilities still in operation,” the Court wrote. “Without an on-site operator to monitor and maintain such a unit, consequences of leakage or structural failure may be amplified.”

The Court also found the 2015 Coal Ash Rule deficient in allowing existing unlined impoundments to continue operating until they are determined to be leaking. The EPA’s research showed that at 157 sites where coal waste had already caused damage to human health and the environment, the damage cases “were primarily associated with unlined units.”

Noting that the majority of coal ash disposal sites are unlined, the Court found the rule’s reliance on leak detection and after-the-fact remediation to be “arbitrary and contrary to the RCRA.”

“Only once a leak is found must the operator of an unlined impoundment begin either retrofitting the unit with a composite liner, or closing it down,” the Court wrote, “a process that may take upwards of fifteen years.”

In addition, the Court agreed with a petition by environmental groups that so-called “clay-lined” impoundments – which use compacted soil as a buffer between coal ash sludge and the soil beneath – are unlikely to contain toxic materials and should be regulated like unlined impoundments.

“Clay-lined units are dangerous,” the Court wrote, citing EPA research, and “have a 9.1 percent chance of causing groundwater contamination at drinking water wells at a one-mile distance from the impoundment perimeter.”

In summary the Court of Appeals struck down provisions in the 2015 rule that allowed inactive, unlined, and “clay-lined” coal ash impoundments to escape regulation, and ordered the EPA to revise the Coal Ash Rule to better protect human and environmental health.

Short of a further appeal to the U.S. Supreme Court, the federal Coal Ash Rule will be undergoing revision and review once again.