New EPA rules target coal ash ponds for cleanup

To environmentalists, the scores of coal ash ponds that have sprung up around Indiana power plants over the decades are a looming threat to public health and water supplies. Most are near rivers and are filled with toxic chemicals, including arsenic and mercury.

But to the energy industry, the ponds are a necessary byproduct of burning mountains of coal over the years to produce cheap electricity for Hoosiers. They insist Indiana’s 86 ponds, more than in any other state, are safe and the risk of harm is low.

For years, the two sides have battled over how to treat the mountains of coal ash, most of which sits far from public view, behind fences, next to power plants.

But up close, the ponds spread out for acres. Many have grown into small lakes with high embankments, up to 50 feet deep and containing untold amounts of toxins.

Now a set of final rules by the U.S. Environmental Protection Agency could finally push electric utilities and other power generators to better monitor and clean up the coal ash around Indiana and the nation.

For the first time, federal regulations will cover the nearly 50 dumps spread across 14 locations in Indiana that were previously exempted from cleanup provisions.

Several Indiana utilities say they are studying the changes but stopped short of saying what they plan to do in response.

The regulations will force big players and policymakers in Indiana to deal with what some see as a major environmental problem.

Statewide, the ponds have had numerous cases of ash spills and groundwater contamination. One of the worst was a spill of 60 million gallons of coal ash into the West Fork of the White River near Martinsville in 2007 and 2008 when a levee failed at AES Indiana’s Eagle Valley power plant.

Several coal ash ponds are in areas that are prone to flooding, raising the risk that toxins in the ponds could be swept into nearby rivers and that the underground aquifer could become contaminated.

“For a long time, we’ve had a mindset in this state that if it’s economic development, if it supports the fossil fuel industry, we’re going to do it,” said David Van Gilder, senior policy and legal director at the Hoosier Environmental Council. “I think that’s something we’re going to turn the corner on if the EPA sticks to its guns and there’s some oomph behind this federal enforcement.”

Danielle McGrath, president of the Indiana Energy Association, the trade group representing large electric utilities, said each company will be affected differently. She told IB each utility will base “its decisions for managing coal ash on science and site characteristics, with its plans being reviewed and approved by state environmental regulators.”

“Regulations must balance the importance of environmental stewardship, customer cost impact and the reliable delivery of energy, given [that] the continued operation of our coal units is dependent on the safe disposal of this byproduct,” she said. “We are carefully assessing the new rule and evaluating impact on our existing plans for management and closure.”

Big change

The new rules, which go into effect in October, will bring millions of tons of Indiana coal ash under a federal regulation known as the Coal Combustion Residuals Rule, passed in 2015.

Two previously exempt types of coal ash disposal will now come under the cleanup and water protection requirement. One is “legacy surface impoundments,” where coal ash was placed in a pond and the power plant stopped producing power with coal before 2015. The other is where coal ash was placed on land but not in a regulated disposal unit.

The new rules require site owners (usually utilities) to monitor and clean up all the coal ash at each site, rather than requiring cleanup at some ponds but not others at the same plant. But legacy ponds are allowed up to six years to come into full compliance.

“With the 2015 rules, there was a circle of ponds and landfills that were subject to regulation,” Megan Wachspress, staff attorney with Sierra Club, said in a written statement last week. “That circle of ponds, landfills, and other dump sites just got bigger.”

Indiana has long protected utilities from stringent cleanup requirements at coal ash ponds. Last year, Gov. Eric Holcomb signed a bill into law that would prohibit the state from making stricter coal ash rules than federal ones.

Now, with the strictest federal rules ever concerning coal ash ponds, the Indiana Department of Environmental Management will need to match its cleanup rules to the federal ones.

“It’s a big win that should have significant implications in Indiana if both the EPA and IDEM move quickly to enforce the rule,” said Kerwin Olson, executive director of Citizens Action Coalition of Indiana. “It will force power plants to finally clean up their toxic waste.”

But it’s unclear how cleaning up will be defined. For example, the new rules don’t explicitly require utilities to remove the mountains of coal ash and truck them to landfills.

Many already closed

Duke Energy Indiana, the state’s largest electric utility, has 22 coal ash basins across the state and has been “closing them in a way that is protective of human health and the environment,” spokeswoman Angeline Protogere said.

She said the basin’s closure plan goes through a review and approval process with state environmental regulators.

“We have permanently removed all of our ash basins from service, and coal combustion residuals at our active generating stations are deposited directly into on-site landfills that comply with state and federal rules,” she said.

As part of state regulations, Duke Energy said it monitors groundwater for at least 30 years at all its Indiana basins after closing them. “As a result of the new EPA rule, we are evaluating all of our regulated facilities to determine the new rule’s impact,” Protogere added.

AES Indiana, the utility that serves the Indianapolis area, said it has coal ash ponds at each of its three generating stations: Harding Street in Indianapolis, Eagle Valley in Martinsburg and Petersburg in Pike County. The utility said it no longer deposits coal ash into any of those ponds.

“AES Indiana is currently reviewing the [new federal] rule and supporting materials to determine potential impacts,” spokeswoman Kelly Young said. “This includes evaluating impacts to surface impoundments previously exempt from the CCR Rule.”

Years away from action

It could take many months for utilities to decide how to proceed—and who will pay for the additional monitoring and cleanup. Utilities could ask state regulators to allow them to pass the costs along to ratepayers.

Under current law, the Indiana Utility Regulatory Commission is allowed to decide such requests on a case-by-case basis.

“Those are ultimately decisions made by the IURC, but perhaps a new governor will rethink existing policy and decide that the polluters should pay, not captive customers,” Olson said.

For years, utilities have fought tighter coal regulations and might challenge the new ones in federal court.

Lisa Evans, senior attorney for environmental group Earthjustice, said the 2015 rule failed to regulate about half of the coal ash. The changes will require monitoring and cleanup at an additional 700 coal ash dump sites, she said. “Utilities have fought coal ash regulation every step of the way with legislation, lawsuits and lobbying, deep pockets and friends in high places,” Evans said last month at a press conference. “That ends today.”

Some public officials applauded the tighter rules. State Sen. Rodney Pol Jr., D-Chesterton, said that for decades, utilities in northwestern Indiana and other parts of the state have disposed of coal ash by dumping it in ponds and landfills.

“Northwest Indiana has fought for years for this ruling to come down,” he said in a press release last week. “… This effort is a significant strike in the ongoing efforts to clean up coal ash. I am celebrating the economic, environmental and health benefits to come.”

The new coal ash rules were announced in tandem with three other regulations designed to reduce pollution from power plants: limits on carbon emissions from coal and new gas plants, wastewater treatment requirements for coal plants, and tougher standards for air emissions of mercury and other toxic air pollutants.

While it could take years to see how the rules will ultimately play out and how utilities will respond, environmentalists see the change as progress.

“The proof will be in the pudding, obviously,” said Van Gilder of the Hoosier Environmental Council. “But we think, given the strength of the EPA rule, which is not everything the environmental community wanted, things will certainly be a lot better than they were.”•