The Biden administration is proposing a new rule that would close existing loopholes in coal ash cleanup regulations, requiring utilities to cleanup up previously unregulated coal ash at inactive power plants and areas that were historically used as coal ash dumps.

The U.S. Environmental Protection Agency’s proposed rule would require utilities to address all coal ash found at a site, instead of only the coal ash found in official impoundments.

The draft rule is the result of a lawsuit filed by various Indiana-based environmental and advocacy organizations, including the Hoosier Environmental Council, Indiana State Conference of the NAACP and its LaPorte County branch and other groups.

The proposal could help address dozens of coal ash sites in Indiana that have so far evaded complete cleanups, like a portion of “made land” at Northern Indiana Public Service Co.’s Michigan City Generating Station made of a mixture of coal ash and dirt that threatens to contaminate Lake Michigan.

“This is a really big deal,” said Lisa Evans, senior counsel for Earthjustice, the organization that represented the Indiana groups in the case. “For far too long, a large portion of toxic coal ash around the U.S. was left leaching into drinking water supplies without any requirement it be cleaned up. The EPA is taking significant steps to address a massive loophole that let many coal plant owners off the hook from cleaning up the toxic mess they created. Power plants will finally lose their hall pass to leave coal ash wherever they dumped it.”

Coal ash is the toxic waste created when coal is burned as fuel. It can contain mercury, lead, arsenic or many other heavy metals and elements that could cause cancer and affect every major organ system in the human body.

A large portion of coal ash produced yearly, about 60%, is now reused, mainly in cement and concrete production. But billions of tons of coal ash produced in the last century remain in ponds or in former landfills.

In Indiana alone, more than 70 coal ash impoundments exist, holding about 96 million tons of coal ash. The impoundments frequently leak heavy metals and other contaminants into groundwater at levels many times their drinking water standards and other standards.

Coal ash went largely unregulated until 2015, when the first rule regulating their disposal was finalized. The rule was put in place under the Resource Conservation and Recovery Act, a 1976 law giving the EPA the authority to control hazardous waste.

The rule regulated new and existing coal ash sites, but did not apply to landfills or coal ash dumping grounds that had already closed.

The regulations led to a mixture of cleanup efforts at power plant sites with coal ash impoundments, like the NIPSCO Michigan City Generating Station, where the company eagerly sought to close its coal ash ponds but was less eager to address the millions of tons of coal ash used in fill across the station grounds over generations.

NIPSCO is currently removing coal ash from its Michigan City impoundments to a lined landfill at its Schahfer Generating Station in Wheatfield. But the company has not agreed to clean up portions of the plant grounds containing coal ash that abut Lake Michigan and are separated from the lake’s water solely by a pair of decades-old steel sheet pile barriers, some of which have been corroded away by the coal ash.

Station grounds contaminated with coal ash are also being swept into the lake. Camera-carrying drones have caught lake waves cresting over the barriers, taking bits of the grounds into the lake as the waves recede.

NIPSCO previously told the Indiana Environmental Reporter that it was working to address the primary source of known groundwater impacts in accordance with environmental regulations. The legacy coal ash locations do not seem to have been part of that effort.

Michigan City residents and local environmental groups petitioned the EPA and IDEM to force NIPSCO to conduct a complete cleanup. If the proposed rule is finalized, it could give residents the type of cleanup they were looking for.

“This is our collective moment that we have long been waiting for, to bring a mighty voice to this silent crisis. In Michigan City, like so many communities, we are sick and tired of being sacrificed by utility profiteers,” said Ashley Williams, executive director of Just Transition Northwest Indiana, one of the groups involved in the suit that led to the proposed rule. “Every day the Biden Administration waits, another coal ash disaster becomes even more inevitable. We are ready to hold polluters accountable and see environmental justice prevail. Today’s draft rule is a crucial part of this. We will fight to demand all toxic coal ash sites are regulated and no community is left behind.”

The rule comes at an important juncture for the state, whose lawmakers recently passed legislation setting the path for dealing with coal ash. The path ahead for a coal ash-free future will be as easy for utilities as the law allows and as expensive for ratepayers as the Indiana Utility Regulatory Commission will allow.

State lawmakers passed a law in 2021 that would begin the process to establish a state coal ash permitting program that would be at least as protective as the EPA’s coal ash rule. This year, lawmakers passed House Enrolled Act 1623 which, among dozens of new administrative regulations introduced by Senate Republicans, limits IDEM from making a state coal ash permitting program that would be more protective or restrictive than the federal program.

The proposed rule would allow IDEM to enforce coal ash regulations in a way that would not be possible without it. The Indiana Environmental Reporter has reached out to IDEM to find out how the new rule could affect its permitting program application, but the agency has not yet responded.

“As they say, the devil is in the details. The EPA must close the loophole tightly, so utilities cannot avoid cleaning up any toxic waste. It doesn’t matter when or where it’s been dumped; it needs to be dealt with,” said Evans. “The EPA must keep close tabs on whether the utilities are complying with federal health protections. We’ve learned polluters rarely do the right thing unless they know there are serious consequences. Enforcement will make or break these new safeguards.”

Lawmakers also passed a law, House Enrolled Act 1417, which allows utilities to pass on the costs of coal ash cleanups and other costs to ratepayers by increasing their monthly bills. The increase is dependent on a review by the IURC.

The EPA will accept public comments on the rule until July 17. To submit a comment, click here.

The agency will hold an in-person public hearing in Chicago June 28. Registration for the hearing is available online. Registration is also open for an online hearing to be held July 12.