House Amendment Could Establish Coal Ash Permitting Program in Indiana

An amendment added to an IDEM omnibus bill could establish a state program to take over toxic coal ash disposal oversight responsibilities from the federal government
March 17, 2021

A bill written to lighten the load for the Indiana Department of Environmental Management could now task the agency with overseeing the storage and disposal of hundreds of millions of tons of toxic coal ash in the state, with less rigorous regulations than those required by the federal government.

Senate Bill 271, originally written to remove IDEM’s responsibility to assess industrial waste control facility property tax exemptions and to change where the state posted its impaired waters list, could now establish the state’s first coal ash permitting program.

The program could save coal ash-producing industries money by ultimately regulating coal ash disposal through policies less stringent than the federal regulations currently in effect in Indiana .

An amendment to the bill introduced by Rep. Mike Speedy, vice chair of the House Environmental Affairs Committee, rewrites the Indiana Code to allow the state to regulate coal combustion residuals, or coal ash. The bill, if passed, would force IDEM to inform the U.S. Environmental Protection Agency about the new permitting program and establish the program within 16 months after passage of the bill.

“Without this amendment, there is strong potential that IDEM would let this program revert to the federal level. It is in the best interest of not only power companies but ratepayers and our state government and all taxpayers that this is a program that stays with the state and stays with IDEM,” said Speedy during the introduction of the amendment.

The bill passed the House Environmental Affairs Committee 9 to 4, and will head to the full Indiana House of Representatives for consideration.

If the bill passes, it would allow the state to oversee the closure of many of the state’s coal ash ponds, some of which must close by April 11.

The bill would have a widespread effect in the state of Indiana, where most of the energy consumed and produced is coal-fired.

In coal-fired power plants and generators, coal is burned to heat water, which then creates high-pressure steam. That steam drives turbines that create electricity.

Burning coal also creates a toxic byproduct called coal ash, which is known in official regulations as coal combustion residuals. Coal ash can contain mercury, lead, arsenic and many other metals and elements that can cause cancer, lung and heart problems or death.

Indiana has a serious coal ash problem.

For decades, Indiana’s power plants have produced millions of tons of coal ash every year. That coal ash is stored in about 80 impoundments, sometimes called ponds, located on or near the grounds of plants where the ash is produced. Those ponds are often placed above shallow aquifers.

Most coal ash ponds in Indiana are unlined, meaning there is nothing to stop the coal ash from leaching into the ground, and, sometimes, the groundwater near the ponds.

Chart from Hoosier Environmental Council's Our Waters At Risk 2 Report

The Hoosier Environmental Council, one of the state’s largest environmental advocacy groups, found that 14 of the 15 monitored coal ash sites in the state have contaminated groundwater, rendering it unfit to be used for drinking water.

The HEC said it does not support the amendment introducing state coal ash permitting.

“There is a coal ash rule at the federal level that’s been in place since 2015. Our utilities are already well along the way of implementing the provisions of that rule, so we see it as unnecessary for the state of Indiana,” testified Dr. Indra Frank, the HEC’s director of environmental health and water policy.

A 2016 law, the Water Infrastructure Improvements for the Nation Act, allows states to establish their own permitting program as long as the U.S. Environmental Protection Agency administrator determines that state criteria for the program are “at least as protective” as minimum federal requirements for coal ash disposal or reuse.

Frank said the wording of the bill was vague and could be used to allow “problematic disposal practices” that have resulted in contaminated ground water in the state.

Most electricity producers in the state have begun to transition away from coal-fired generation and towards natural gas, renewable energy or a mix of the two.

As they transition, those companies will have to face the legacy of decades worth of coal ash production.

The bill would pass oversight responsibility to IDEM, instead of the EPA.

The magnitude of the shift can be seen by looking at the coal ash clean-up duties of a single company that announced plans to become completely coal-free by 2028, the Northern Indiana Public Service Co.

Because of the coal plant retirements, NIPSCO must now clean up the impoundments that stored coal ash for decades.

Coal ash from NIPSCO’s retired Bailly Generating Station threatens to contaminate the Indiana Dunes National Park.

Coal ash stored at NIPSCO's Bailly Generating Station between 1965 and 1970 now threatens the Indiana Dunes National Park. U.S. EPA

Coal ash stored in an area abutting the park between 1965 and 1970 leached into groundwater, contaminating it with high levels of boron, which can cause damage to the testes, intestines, liver, kidneys and brain. The EPA found that about half of the 200,000 cubic yards of coal ash found in just one storage site are submerged in groundwater and are affecting the park.

NIPSCO, under the EPA’s supervision, will dig out the contaminated ash above ground and transport it to a landfill. The ash below groundwater level will be mixed with cement and solidified to prevent itfrom spreading. The removal of the rest of the coal ash at the site may be overseen by the state in the future.

NIPSCO will also close and remove coal ash from five ponds at its Michigan City Generating Station, some 25 miles away from the Bailly plant. This spring, NIPSCO will dig out the coal ash from the coal ponds there and transport them to a landfill on the grounds of another retiring power plant, the Schahfer Generating Station in Wheatfield.

Coal ash ponds at Michigan City Generating Station

The Indiana Energy Association, which represents major coal ash producers like Duke Energy, NIPSCO, Vectren and AES Indiana, formerly known as Indianapolis Power & Light, supports the bill.

All of the companies mentioned are facing coal plant retirements and will have to complete the closure of their coal ponds by April 11, although some may be allowed to remain open.

The bill is also supported by the Indiana Manufacturers Association.

“Of course, we want to regulate [coal ash] in a sound way, but in a cost-effective way, because those get passed along to the consumers,” testified Andrew Berger, the Indiana Manufacturers Association senior vice president for governmental affairs. “What they’ve designed here is, I think, certainly cheaper than it’s going to be in the long run if it’s the EPA administering it. So, it’s good for ratepayers as well.”

Only two states, Oklahoma and Georgia, currently have EPA permission to run their own coal ash permitting program.

Texas has submitted an application for its own coal ash permitting program, but the program was only partially approved.

House Amendment Could Establish Coal Ash Permitting Program in Indiana