The U.S. Environmental Protection Agency announced on Tuesday proposed changes to the federal coal ash rule that would eliminate onsite dry storage requirements as well as environmental protections on fill projects larger than 12,400 tons.

Industry says the proposal could allow coal ash to be recycled more easily. Environmental groups are concerned it would leave more waste untracked and unregulated, which could be dangerous.

Under the Obama-era version of the rule, companies with coal ash fill projects larger than 12,400 tons had to ensure that surrounding water, soil and air were not impacted by the ash. Trump's EPA is eliminating that provision and only enforcing those requirements at sites that have geological vulnerabilities, without establishing an upper limit on tonnage.

In addition, the proposed rule would merge the definitions of onsite and offsite storage of dry ash, if onsite ash provides evidence it is a "temporary accumulation" that will eventually be recycled. Previously, coal ash piled at power plant sites was regulated like a landfill. Finally, the proposal says it intends to increase transparency on utility groundwater filings.

The CCR rule

The EPA has been working with the utility industry since March 2018 to streamline and rollback the 2015 coal combustion residual (CCR) rule — an effort to provide more "flexibility" to industry. That rule was issued by the Obama administration as a response to coal ash spills in Tennessee and North Carolina, which released almost 1 billion tons and 39,000 tons of coal ash waste, respectively. 

The agency's first change, finalized in July 2018, extended the closure timelines for sites. In August of that year, the U.S. Court of Appeals for the D.C. Circuit ruled the Obama-era rules did not go far enough in protecting the environment and human health, putting the next phase of rollbacks in limbo. 

However, the D.C. Circuit also exempted some matters from litigation, including the definition of "beneficial use" or recycling the coal ash.

Coal ash as a 'temporary accumulation'

Under the Obama-era rule, dry coal ash stored on utility grounds "onsite" in large piles was under the same restrictions as waste stored in landfills, even if it was intended to eventually be recycled. Namely, that waste needed to be contained somehow to prevent the ash from contaminating the surrounding environment.

Tuesday's proposal would essentially eliminate the requirement for waste piles to be enclosed if they qualify as a "temporary accumulation," defined in the proposal as "an accumulation on land that is neither permanent nor indefinite" without setting timeline requirements for disposal.

The proposed shift comes in response to requests filed in 2017 from AES Puerto Rico and the Utilities Solid Waste Activities Group. AES owns a 430,000 ton waste pile on the island. In 2017 — before the U.S. territory was devastated by Hurricane Maria — Gov. Ricardo Rossello banned coal ash disposal except in cases where it was put to commercial use, such as recycling. That put pressure on AES to determine what to do with the waste.

Merging the definitions of onsite and offsite storage of dry ash will make it easier for companies to recycle the waste, Executive Director of the American Coal Ash Association Thomas Adams told Utility Dive.

"The concern was that if ... fly ash was being placed in a pile at a utility plant prior to being moved to a cement kiln for use in making Portland cement they were not regulated the same as if that pile was on the cement company's property already," he said. With the rule change, piles on a utility's site would be regulated in the same way as piles on their way to being recycled.

But environmental groups say they should be regulated differently as the risk of the ash's exposure to the elements could cause waste runoff, or the entire pile could collapse, which they say is riskier at an uncapped and un-walled site.

EPA said it is planning "to control releases of CCR," which addresses the same problem as keeping coal ash on utility sites encapsulated. Others disagree.

Unlike a landfill, where coal ash is stored in lined cells with a cover, waste piles are often openly "exposed to erosion by wind and water, and subject to surface runoff, and to soaking by rain, which makes the chemicals leach out of it," Lisa Evans, senior attorney at Earthjustice told Utility Dive. "It's a very dangerous way of disposing of waste."

Eliminating the tonnage limit

The second part of the proposal eliminates the "mass threshold" of the Obama era rule — which held that any fill project greater than 12,400 tons had to meet certain environmental protections — and replaces it with "specific location-based criteria," according to the EPA.

"If you think about it intuitively, it makes more sense ... to really look at the factors in the environment" rather than the amount of coal ash fill, said Adams. "What's the geological makeup of the area? And where are you going to place this material? Some things that really influence a potential for any kind of environmental impact, rather than just picking a number and saying this number works from a coast to coast." 

Specifically, the EPA said, ash placed in an unstable area, wetland, floodplain or seismic zone will have to meet existing environmental protection requirements. It is also "also soliciting comments and information" that could be used to set a new tonnage limit. 

Environmental groups say these rules were already weak and would be essentially nonexistent with the proposed changes.

"So EPA in 2015 had far too light of a touch, but now they've really abandoned any meaningful regulations," said Evans. 

Utilities "wanted to raise that tonnage limitation because they didn't want to be required to do these [environmental impact] demonstrations, even though the demonstrations didn't have to be publicly posted anywhere," she said. "No one knew where to find them. There are very little requirements of the demonstrations. They didn't even have to be signed off by a professional engineer."

Essentially, Evans said, if a utility wants to use ash for fill projects, it won't have to report on environmental impacts if the site does not meet the locational factors outlined in the proposal.

"And if you're not in one of those areas, let's say you got a vacant lot, or some low-lying farmland or you want to make a parking lot and you want to put 100,000 tons of coal ash down instead of costly clean fill, which is soil, you can do that," she said. 

And, Evans added, "You don't have to tell anybody and you don't have to have any kind of demonstration of harm and you can put it right next to drinking water wells. You can put it right next to a lake. You can put it next to a stream as long as it's not in the flood plain."

Increasing transparency

Finally, the proposal said it intends to improve requirements on how utilities present their CCR data.

"EPA reviewed the annual reports available on the CCR websites and observed that some facilities provided groundwater monitoring data in formats that were clear and easy for the public to understand, while some did not," EPA said. 

While reports with concise summaries were helpful, some made it difficult to determine whether a site was active or inactive, or whether any corrective action had been taken. In addition, some reports only provided laboratory printouts of the data "potentially making it difficult for the public and other stakeholders to put the results into context within the overall groundwater monitoring program."

"The purpose of requiring posting of the annual reports is to allow the public, states and EPA to easily see and understand the groundwater monitoring data," said the agency.

Earthjustice, which went through and compiled all the utility groundwater filings into a report, eventually found that more than 90% of coal plants across the country are releasing coal ash pollutants.

"We complained very strenuously to EPA that the utilities were publishing these reports in ways that made it almost impossible to determine exactly what was happening," said Evans. "The data was there, but it was almost like it was coded. And we wrote about this in our national report. You'd have reports that were literally 2,500 pages long."

While Evans hasn't reviewed that part of the proposal to make sure it fixes the problem, she said the EPA seems to be responsive to the complaint.

"EPA heard that complaint. I mean, this wasn't the worst thing about the whole situation, but for some reason the Trump administration felt motivated to fix that," she said.

EPA will hold a public hearing on the proposal on Oct. 2, 2019, in Washington, D.C.