Loopholes Remain as State’s Environmental Oversight Board OK’s Coal Ash Rules

Gaston Steam Plant in Shelby County (Source: Alabama Power Co.)

Last month, the Alabama Department of Environmental Management levied fines of $250,000 on each of six power-generating facilities in the state for excessive groundwater contamination from their coal ash ponds.

On Friday, ADEM’s oversight board unanimously approved new rules that environmental advocacy groups say open “significant loopholes” in the regulations for disposal of coal ash.

The Southern Environmental Law Center contended in a statement that, under the new rules, ADEM could allow utilities to halt groundwater monitoring around coal ash disposal sites, although coal ash contains arsenic, lead, radium and many other toxic substances. ADEM also could decide that a utility doesn’t have to clean up the coal ash ponds in certain circumstances. And ADEM could shorten the length of time a utility must care for the ash after it is covered and closed, which now is 30 years.

Coal ash is regulated under a 2015 federal 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 rule.

Environmental Protection Agency Director Scott Pruitt has proposed alternative performance standards for owners and operators of coal ash ponds located in states that have approved permitting programs. That, he said, could save utilities up to $100 million in compliance costs. A public hearing on those proposals is scheduled for April 24 in Washington.

The Alabama Environmental Management Commission vote Friday was part of efforts to develop such a state permitting program.

Toxic Byproduct

Coal ash is a byproduct of burning coal to produce energy. The fines levied last month were in response to tests showing toxic substances had leached into the groundwater adjacent to the ponds where it is stored at six power plants, five of which belong to Alabama Power Co. Most ponds lie next to streams and rivers that Alabamians depend on for recreation and drinking water.

Alabama Power last year announced plans to close and cover all its remaining coal ash pits, which do not have a bottom liner to keep the residue away from groundwater. In March the company said it supported the federal regulations in place at the time. Friday, it issued a statement in support of a state program. It also said it remains “committed to meeting or doing better than all environmental standards set by regulations, as the company has done for decades.”

Environmental organizations submitted numerous comments objecting to ADEM’s draft rules during a public comment period that ended in March.

Immediately before the vote Friday, Lee McCarty, mayor of Wilsonville, made an impassioned plea for the commission to make the rules more stringent, noting that Alabama Power’s Gaston Plant near his town reported high levels of contaminants he feared endanger the area’s drinking water. The level of radium was 2,000 percent of the maximum level allowed, he said.

“How will a fine of $250,000 clean up the groundwater?” McCarty asked. “What does that accomplish? How does that clean up my groundwater? How does it provide for the health, safety and welfare of my constituents and yours? We’re not solving a problem, we’re monitoring it.”

His solution: move the coal ash. “That’s the only thing we can do to clean this thing up.”

Lance LeFleur, ADEM director said $250,000 was the maximum allowable fine.

The law center’s statement said the new rules “failed to require utilities to close coal ash ponds and excavate the ash to dry, lined landfills” even if the coal ash is literally sitting in groundwater.

Keith Johnston, managing attorney for the law center, said Friday, “These rules seek to further roll back and weaken federal coal ash protections.”

Johnston added, “Rather than extending essential protections to Alabama’s waters and the communities that depend on them, signing off on significant loopholes in our state coal ash storage and disposal rules basically amounts to a permitting program that favors utilities and requires them to do less.”

Coal ash can be stored in landfills under the new rules because it is not classified as hazardous waste. ADEM issues permits if the landfill is properly designed, constructed and operated “to be protective of human health and the environment, but the location of the site is a local decision,” LeFleur said in remarks to the commission Friday.

Another regulation passed Friday will implement a recently passed state law that provides that the local officials’ approval of a landfill’s location must receive circuit court confirmation before application for a landfill permit can be submitted to ADEM.