Too many loopholes disguised as “flexibilities.”

That’s what conservation groups and private citizens told the Alabama Department of Environmental Management about its proposed plan to develop a state permitting program to regulate toxic coal ash waste from power plants. The agency held its sole public hearing on the issue Wednesday in Montgomery.

Alabama’s major utility and source of coal ash, Alabama Power Co., said through a spokesman that it supports the current federal rule on coal ash. Environmentalists say the federal rule is more restrictive than the state’s proposed plan.

Coal ash is regulated under what is known as the U.S. Environmental Protection Agency’s 2015 Coal Combustion Residuals rule. But in December a change in law allowed states the option of developing their own permitting program so long as it is “as protective” as the federal CCR rule.

The hearing followed the federally mandated March 2 release of data from groundwater sampling at coal ash ponds around the state. All of Alabama’s six coal ash sites were found from the testing to have “significant” amounts of toxins such as arsenic. At Alabama Power Co.’s Barry Plant in the delta region near Mobile, arsenic was found in concentrations as high as 873 percent above applicable standards. Lead, radium, selenium, boron and beryllium also were found in concentrations significantly above allowable levels.

Plant Barry is among the five coal ash storage sites operated by APC. The other belongs to PowerSouth Energy Cooperative. Because of the testing results, the state agency proposed the maximum fine of $250,000 for each site.

At Issue: Covering Ash Ponds

More than 100 million cubic yards of coal ash is stored across Alabama. Alabama Power Co. announced last year it would close its ash ponds, cover them with an impermeable liner and leave them where they are without a bottom liner.

Environmental groups object to that strategy, saying it would not prevent further leaching of toxins into groundwater, partly because much of Alabama’s geology and hydrology features groundwater that is very close to the surface.

“In some cases, the coal ash sits in the groundwater,” according to Keith Johnston, managing attorney for the Southern Environmental Law Center in Birmingham. The law center represented multiple groups, including the Alabama Rivers Alliance, the Sierra Club and itself, in comments submitted to the environmental management agency.

In a statement, Johnston said: ““Establishing a strong and protective state permitting program for coal ash management and disposal is mandatory, but this rulemaking as currently drafted fails to provide adequate protections for our water. We cannot afford to create loopholes that allow coal ash to sit in groundwater and continue to contaminate our rivers and streams.”

He said the only sure solution is to move the coal ash to dry, lined storage and out of groundwater.

“ADEM must not allow loopholes that allow these ponds to continue leaking,” Johnston said.

ADEM officials did not respond to complaints during Wednesday’s hearing, which was called to allow community members to comment. The agency will evaluate comments and suggestions and finalize its draft before presenting it for approval to its oversight board, the Alabama Commission on Environmental Management, on April 20 at 11 a.m. at ADEM headquarters in Montgomery.

 Flexibilities vs. Loopholes

Mobile Baykeeper Cade Kistler told the public hearing panel, “We are very concerned with the addition of some significant loopholes – ‘flexibilities’ as they are called in ADEM’s proposed rules.” Kistler said the flexibilities allowed in the draft are contrary to existing federal rules as well as to the public interest based on pollution levels seen in the groundwater monitoring results.

Among draft rules that conservationists said were less protective than existing rules and therefore should be removed from the draft:

• Utilities would be allowed to suspend groundwater monitoring requirements in certain circumstances.
• Remediation of groundwater contamination would not be required under certain circumstances.
• The length of time a utility must continue to care for the ash after it is covered and closed may be shortened from 30 years in certain circumstances.

Johnston and others testifying at the hearing said the rules should ensure coal ash is not saturated with groundwater when the storage pits are closed. He also said utilities should survey drinking water wells located within one-half mile of the coal ash deposits.

Martha Steele, identified as a private citizen from Huntsville, told the hearing officers that utilities should survey drinking water wells even farther away. “I grew up in rural Tennessee, where we got drinking water from springs,” she said. “It’s ridiculous to sample only a half-mile away (from a coal ash pit).”

The law center has estimated that 44 percent of Alabama’s population, including some large cities, use groundwater wells for drinking.

Steele also drew a parallel between pollution from coal ash ponds and from federal Superfund sites that industry failed to clean up. “As with the Superfund, utilities may not pay the bill (down the road). It’s not right to put the burden on the taxpayers.”

She suggested that utilities could recycle more of the coal ash components into building materials such as concrete and drywall.

Alabama Power Co. said it typically recycles “about half our coal ash and gypsum each year, sometimes more.” spokesman Michael Sznajderman said in an email. Sznajderman said about 940,000 tons of material was recycled last year from all the company’s coal-fired plants.  

“We work to recycle as much as we can, with the proceeds benefiting the bottom line for our customers,” he said.

Poor, Minorities Affected

The issue of environmental justice was raised by Rob Burton of Birmingham, identified as a private citizen and a member of the Alabama Chapter of the Sierra Club. He noted that coal ash pits and municipal landfills often are located near poor minority populations, such as the Arrowhead municipal solid waste landfill near Uniontown that contains tons of coal ash from out-of-state utilities.

EPA statistics show that more than 40 percent of people living near coal ash ponds in Alabama are non-white, and about 25 percent are below the poverty line. “We want to make sure landfills are included in this discussion and we don’t allow exemptions for (those) holding coal ash,” Burton said.

The concentration of dump sites for the toxic coal residue makes the Southeast the dirtiest region in the country, and Alabama is an offender, according to SoutheastCoalAsh.org. Earthjustice, an environmental advocacy group, said Alabama “represents the worst of the worst when it comes to coal ash disposal.”

Most other states in the Southeast are moving at least some of their coal ash from storage lagoons near major waterways, but Alabama remains an outlier.

Developments in nearby states:

• Georgia is removing tons of toxic coal ash from electric utility generation plants on the Atlantic coast.
• In Tennessee last August, a federal judge ordered the Tennessee Valley Authority to not cover over unlined coal ash storage ponds close to the Cumberland River but “to pull them up by their roots” and move the coal residue away from Nashville’s drinking water source.
• South Carolina is drying its coal ash at all sites and will move it to lined waste sites away from waterways.

North Carolina has excavated and moved close to half its coal ash ponds, and the others are under litigation.