What the Law Says About Coal Ash
The Environmental Protection Agency (EPA)
Under the Environmental Protection Agency’s (EPA) Coal Combustion Residuals Rule (“CCR”), it is illegal to keep coal ash sitting in groundwater, which is happening all over Alabama. The CCR rule provides a comprehensive set of requirements for the disposal of coal ash from coal-fired power plants, but it does not allow utilities to cap-in-place where coal ash meets groundwater. In order to cap-in-place, the location must meet the following requirements (among many others):
If the utility plans to cap-in-place, the utility must ensure that the plans “[p]reclude the probability of future impoundment of water, sediment, or slurry.” In other words, the coal ash cannot be in contact with groundwater and hold water.
“Free liquids must be eliminated by removing liquid wastes or solidifying the remaining wastes and waste residues.” “Free liquids” do not mean just the water on top; a utility can’t satisfy this requirement by decanting the pond while leaving the ash sitting in groundwater. Utilities around the country are satisfying this requirement by removing the coal ash as well as excess groundwater drains prior to moving it to a landfill.
Utilities must “[c]ontrol, minimize or eliminate, to the maximum extent feasible, post-closure infiltration of liquids into the waste and releases of CCR, leachate, or contaminated run-off to the ground or surface waters or to the atmosphere.” This isn’t practical in most cap-in-place plans because if the ash remains in or near groundwater, either continuously or during wet weather, groundwater infiltrates through the sides and bottom of the unlined pit.
These protections further address the risks of coal ash disposal, set record-keeping and reporting requirements for utilities, require them to make their reports publicly available, and support the responsible recycling of coal ash through safe, beneficial use.
When the North Carolina Department of Environmental Quality (DEQ) ordered Duke Energy to remove coal ash from their unlined pits, DEQ Secretary Michael S. Regan stated that
“science points us clearly to excavation as the only way to protect public health and the environment.”
Alabama Department of Environmental Management (ADEM)
ADEM has fined Alabama Power just $250,000 dollars at each site for their groundwater violations but are not currently requiring removal of coal ash. In ADEM’s November 14, 2019 response to Alabama Power’s CCR documents submitted for approval, ADEM criticized the company for jumping to the conclusion of cap-in-place without doing proper research: “As stated previously, it is the Department’s position that any final decision regarding corrective measures at the sites is premature, considering the …extent of contamination at each of the sites has yet to be fully delineated.” Read the full letter here.