Indiana Senate Chooses Bare-Minimum Standards for Future State Coal Ash Permit Program

April 17, 2023

Indiana lawmakers voted to ensure a planned state coal ash permitting program will be as limited as the federal government will allow.

Coal ash is the toxic waste that remains after coal is burned for fuel. It can contain mercury, lead, arsenic or many other heavy metals and elements that could cause cancer, lung and heart problems or death.

Since the 1950s, power plants have deposited millions of tons of coal ash in unlined pits called impoundments. More than 70 coal ash impoundments, sometimes called coal ash ponds, exist in Indiana. In all, they hold about 96 million tons of coal ash. The ponds have frequently leaked coal ash into groundwater at levels many times the drinking water standards and other health-based standards.

States have been allowed to establish their own coal ash permitting programs since 2016. The programs must be at least “as protective as” the federal coal combustion residual rule. States are also allowed to enact stricter regulations, if they so choose.

The Indiana Senate voted to prevent the state from doing so, defeating a proposed amendment to House Bill 1623. The bill addresses procedural changes regarding the adoption of a variety of administrative rules and includes language saying state standards for the disposal of coal ash cannot be stricter than federal standards. A proposed amendment to the bill would have removed that language, allowing the state to add restrictions to a planned state coal ash permit program that are more stringent than or not included in a federal coal ash disposal rule.

Sen. Rodney Pol, the amendment’s author, represents parts of Porter and LaPorte Counties. Both counties are the sites of large coal ash impoundments that have leaked into neighboring areas.

“Without this amendment, this bill would ensure that IDEM could not address the specific concerns that the Hoosier State has, specifically those living in Porter, Posey, Vermillion, Jefferson, Warrick, Vigo, Morgan, Knox, Floyd, Gibson, Marion, Sullivan, LaPorte, Lake, Hamilton, Pike, Spencer, Jasper, Dearborn and Wayne counties. That's a whole lot of us,” Pol said.

Pol’s district includes the impoundments at the Northern Indiana Public Service Co.’s retired Bailly Generating Station in Burns Harbor and the retiring Michigan City Generating Station in Michigan City.

The Bailly impoundment was found to be leaking boron from coal ash into the neighboring Indiana Dunes National Park through groundwater contamination. Toxic materials from coal ash at NIPSCO’s Michigan impoundments and surrounding areas have seeped into Lake Michigan and into groundwater near the impoundment. Coal ash from the plant was also used as fill in Town of Pines in the 1970s, eventually contaminating water in private wells with boron and molybdenum.

The coal ash situations in all three communities are in the process of being addressed by the U.S Environmental Protection Agency, but only after decades of requests and legal action by concerned Hoosiers.

Pol said limiting what the state can do would ultimately hurt Hoosiers.

“I don't know about you, but I think IDEM is probably going to be much more attentive to the needs of those counties that I just listed than the federal government,” Pol said. “I tend to believe that we have to entrust those that are elected at the local level, to get their feet held to the fire and solving local problems. You know, no one has more of an interest in solving those issues than those whose job is on the line. However, this bill without this amendment says that even those at the state level shouldn't address those issues, we should just let the federal government do what the federal government says and nothing more.”

Sen. Chris Garten, majority floor leader and one of the main architects of the 2021 repeal of state protections for wetlands, opposed Pol’s amendment. Holding what he said were 260 pages of EPA coal ash cleanup rules, Garten appealed to Senate Republicans to vote against the amendment on the basis of partisanship.

“Colleagues, what I have here is 260 pages of the Obama administration EPA rules around coal ash cleanup. Not the Trump administration, not a Republican administration. The Obama administration. Two hundred and sixty pages. We’ve given IDEM almost two years to promulgate rules around this and get them approved by the EPA. They have not done so,” Garten said. “So, I would encourage you that if you want to vote for this amendment, go ahead and side with the Obama administration EPA if you don’t think it is gonna go far enough.”

Despite Garten’s appeal, 10 Republicans joined Senate Democrats in voting for Pol’s amendment. The amendment failed by a vote of 20 to 28. The Indiana Senate will hold its final vote on HB 1623 in the next week.

Indiana Senate Chooses Bare-Minimum Standards for Future State Coal Ash Permit Program