Coalition of State Attorneys General Oppose EPA’s Proposal to Roll Back Standards for Toxic Coal Ash Dumps

Washington, D.C. — Maryland Attorney General Brian Frosh led a coalition of three state attorneys general in submitting comments to the Environmental Protection Agency (EPA) on April 16 opposing “any effort to weaken or roll back the closure and lining requirements applicable to coal ash impoundments” and to correct multiple legal defects in a proposed rule that would allow many coal ash dumps — including dumps with a history of leaking — to potentially remain open indefinitely. The agency’s proposal would also permit additional coal ash to be added to dumps that are closing, and fails to address “legacy ponds,” inactive coal ash dumps that are located next to closed power plants. Every year, coal plants generate about 110 million tons of coal ash. There are at least 737 coal ash dumps in 43 states, and nearly all are contaminating groundwater with toxins, according to an analysis conducted by Earthjustice.

“The EPA’s proposal allowing coal ash ponds to remain open increases the chances of dangerous leaks and spills,” said AG Frosh. “Coal ash ponds contain arsenic, chromium, lead and other toxic chemicals. When they leak into groundwater, surface waters, and nearby land, the contamination is dangerous to humans as well as to animals and habitats.”

The AGs called the EPA’s proposed rule “irrational and unlawful in multiple respects” and highlighted three areas of particular concern:

1. The EPA’s proposal would allow some inadequately lined coal ash dumps to remain open. The AGs highlighted this provision as an “unlawful end-run around” a 2018 court order by the U.S. Court of Appeals for the D.C. Circuit that “repeatedly faulted EPA for understating or ignoring overwhelming evidence of the dangers to the environment and public health posed by unlined or leaking coal ash impoundments” in a 2015 rule. The court rejected the EPA’s attempt to permit leak-prone clay-lined coal ash dumps, noting that the dumps have a 9.1 percent chance of contaminating drinking water wells within one mile, and that the Resource Conservation and Recovery Act (RCRA) requires that dumps pose “no reasonable probability of adverse effects on health or the environment from disposal of solid waste.”
2. The EPA’s proposal would permit more coal ash to be placed in dumps that are closing. The AGs described this provision as “irrational and unlawful” because it “makes a mockery of the concept of closure,” noting that “an impoundment is not truly ‘closing’ if, for years after initiating closure, it is continuing to receive [coal ash]…every bit as toxic as the [coal ash] previously placed there.” The AGs also pointed out that dumps that are closing are, “by definition, ones that cannot operate safely,” either because they are inadequately lined or because they are located in an unsuitable location. The proposal also sets the amount of additional coal ash that can be dumped proportional to the size of the dump. The AGs warned that this provision means that the dumps “likely to pose the greatest danger in the first place are also the ones allowed to receive the most additional [coal ash] under EPA’s proposal, resulting in increased risks associated with any leak.”
3. The EPA’s proposal fails to address the closure of “legacy ponds.” Inactive coal ash dumps adjacent to closed power plants are called “legacy ponds,” and are unregulated by the EPA, generally unlined, especially prone to leaking and frequently unmonitored. In their comments, the AGs pointed out that the Circuit Court rejected EPA’s blanket exemption for these dumps, holding that “EPA’s decision to shrug off preventative regulation makes no sense.” The AGs called for the EPA to “act promptly to adopt regulations specifically addressing and facilitating the closure of legacy ponds.

The attorneys general of Illinois and Michigan joined Maryland in submitting the comments.

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About the State Energy & Environmental Impact Center:
The State Energy & Environmental Impact Center at NYU School of Law is a nonpartisan academic center at NYU School of Law. The Center is dedicated to working towards a healthy and safe environment, guided by inclusive and equitable principles. The Center studies and supports the work of state attorneys general (AGs) in defending, enforcing, and promoting strong laws and policies in the areas of climate, environmental justice, environmental protection, and clean energy.