Environmental Groups are Enthusiastic About New Actions Taken by the Federal Government Regarding Coal Ash Disposal in Indiana

January 31, 2022

Indiana environmental groups are applauding new actions by the Environmental Protection Agency to protect communities from coal ash and to hold facilities accountable for cleaning up the contamination created by decades of coal ash disposal.

Coal ash, or coal combustion residuals, is a toxic byproduct of burning coal in coal-fired power plants, containing contaminants such as mercury, arsenic and lead. Indiana has more coal ash than any other state, and ground water contamination, including arsenic, mercury, lead, molybdenum and other toxins has been found to exceed drinking water standards at each facility in the state.

Coal ash usually is stored in ponds at the plant. The majority of ponds in Indiana are unlined and allow the contaminates to leach into the ground water below. Many coal ash ponds also sit in floodplain areas, and in some locations, the ponds are deep enough to soak in the ground water.

Coal ash ponds at the CenterPoint Energy owned A.B. Brown Generating Station in Evansville.

“I’ve seen firsthand how coal ash contamination can hurt people and communities. Coal ash surface impoundments and landfills must operate and close in a manner that protects public health and the environment,” said EPA administrator Michael S. Regan. “For too long, communities already disproportionately impacted by high levels of pollution have been burdened by improper coal ash disposal. Today’s actions will help us protect communities and hold facilities accountable. We look forward to working with our state partners to reverse damage that has already occurred. EPA will support communities with stakeholder engagement, technical assistance, compliance assistance, and enforcement.”

In a press release the EPA said, “Today’s actions advance the agency’s commitment to protecting groundwater from coal ash contamination and include (1) proposing decisions on requests for extensions to the current deadline for initiating closure of unlined CCR surface impoundments; (2) putting several facilities on notice regarding their obligations to comply with CCR regulations and (3) laying out plans for future regulatory actions to ensure coal ash impoundments meet strong environmental and safety standards. EPA is committed to working with states to ensure robust protections for communities.”

The EPA clarified the federal rule’s requirements for properly disposing of coal ash, testing groundwater near coal ash disposal sites and cleaning up groundwater contamination from unlined impoundments and landfills.

The EPA also clarified which coal ash disposal sites are subject to the federal coal ash rule. This is important to Indiana because before the announcement of these rules, the Indiana Department of Environmental Management (IDEM) and Indiana utilities had been interpreting the CCR Rule in a way that allowed millions of tons of coal ash at many sites around the state to remain in direct contact with groundwater, even after groundwater monitoring showed that groundwater was being contaminated by coal ash.

Graphic courtesy of the Hoosier Environmental Council

“The Hoosier Environmental Council fully supports this action by the EPA, which signals the agency’s intent to ensure that the federal law is followed appropriately. The result for Indiana will be improved coal ash disposal practices and better protection of Indiana’s water resources,” said Tim Maloney, senior policy director for the HEC.

Indra Frank, HEC’s director of environmental health and water policy, called the new guidance “a tremendous relief.”

“For many years, Indiana’s leaders have given undue deference to the utilities, and that has led to weak oversight and enforcement of coal ash disposal,” she said. “These decisive EPA clarifications mean that Indiana utilities won’t be able to dodge portions of the CCR Rule any longer. The net result will be less coal ash pollution.”

Three other important clarifications will affect many current closure plans in Indiana: Coal ash closure plans cannot leave ash in contact with groundwater; the utility can’t add additional coal ash to a pond that has failed to meet the standards and may no longer designate coal ash as structural fill; and coal ash groundwater plumes must be removed and not controlled by dilution.

Affects in Indiana

In August 2020, the EPA issued the final rule on Part A of the Coal Combustion Residuals Rule. The amendment allowed utilities continue placing ash in their ponds until the plant closed or they found alternative disposal methods.

Utilities around the country, including five in Indiana, submitted 57 applications for deadline extensions. The EPA responded to a handful of applications, including one from the Clifty Creek Generating Station in Madison to continue disposing of coal ash in two ponds on site.

The Indiana Kentucky Electric Corporation owned Clifty Creek Generating Station in Madison.

The EPA denied the request, citing contact between ash and groundwater, inadequate groundwater monitoring, and the impossibility of natural reduction of contaminants over time.

A 30-day public comment period on the proposed decision began Jan. 25. To make comment please go to regulations.gov

The EPA has not yet issued a determination on the other four utilities in Indiana that have also applied for an extension.

The EPA also issued Compliance Obligation Letters to utilities across the country, identifying problems with compliance to the federal CCR Rule. These letters included further interpretation of the CCR Rule and clarification on certain points of the law.

The only Indiana utility to receive a Compliance Obligation Letter was the Duke Energy Gallagher Generating Station in New Albany. The EPA said the site’s largest inactive impoundment fails to comply with the federal CCR rule. This means the impoundment can no longer leave millions of tons of coal ash sitting in groundwater.

The Duke Energy owned Gallagher Generating Station in New Albany.

This letter made clear that older, inactive impoundments still fall under federal and that ash being excavated from one pond cannot be used as fill for another pond that is closing in place.

At a recent meeting of the Hoosier Environmental Council, Maloney said HEC is encouraged by the EPA’s actions.

“We believe these actions by EPA in their interpretations and clarifications of the coal ash rule will not only affect these specific sites but will affect nearly every site in Indiana and require changes in the coal ash closure approach,” he said.

Frank agreed.

“We’ve had a history for the last few years for IDEM and our utilities interpreting the federal rule in a way that was allowing coal ash in groundwater and a number of other practices that contribute to groundwater contamination and hazardous disposal. We really welcome these interpretations from the EPA.”

While the EPA clarified coal ash requirements at the federal level, two bills were introduced this legislative session on coal ash disposal in both the Indiana State House and Senate.

Graphic by Alexa Chryssovergis

Last year, the Legislature passed a bill that requires the Indiana Department of Environmental Management to write state rules on coal ash disposal in 2022. SB 412 was a bipartisan bill that says the new rules must prohibit disposal of coal ash in the floodplain or in groundwater and also prohibit IDEM from approving a disposal plan that would leave the coal in the floodplain or in contact with groundwater.

The second bill, HB 1335, would have also prohibited coal ash from being stored in the floodplain or from being in contact with groundwater.

In addition, it called for public hearings on coal ash disposal plans, and it has a provision that labor used for coal ash clean-up should prioritize local workers or workers who have previously experienced some form of disadvantage. It also had a provision to protect ratepayers from the cost of clean-up in situations where coal ash has contaminated the groundwater. Finally, it had a provisions to help reduce coal ash dust from becoming a hazard to the community during excavation or transportation.

Both bills were introduced to their respective environmental affairs committees and for a second year in a row both committee chairs refused to hold hearings regarding coal ash legislation.

Environmental Groups are Enthusiastic About New Actions Taken by the Federal Government Regarding Coal Ash Disposal in Indiana