EPA’s coal ash crackdown comes with a major caveat

By Miranda Willson | 06/11/2024 01:35 PM EDT

An updated rule targets pollution from ash dumps, but it’s up to companies that own them to propose steps to protect groundwater.

The Brandywine ash facility in Southern Prince George's County, Maryland.

The Brandywine ash facility in southern Prince George's County, Maryland, could be affected by EPA's new coal ash regulations. Miranda Willson/POLITICO's E&E News

BRANDYWINE, Maryland — Just beyond the boundaries of this town’s sole public park is a 140-acre coal ash pit slowly leaking heavy metals into groundwater.

For 50 years, energy companies hauled in coal ash from two nearby power plants and dumped it in this quiet community in Prince George’s County. Today, the ash pond spans the equivalent of 180 footballs fields, mostly hidden by grass and weeds.

“I hope that EPA makes them clean it up,” said Kamita Gray, a resident and activist who leads the BTB Coalition, a community organization concerning neighborhood issues in Brandywine. “Who knows the damage that’s been done and is still being done?”


The Biden administration is trying to prioritize cleanup at sites like this one in Brandywine, a majority Black, unincorporated community 20 miles southeast of Washington. But with scant federal oversight and the coal industry shrinking, an overriding question is how much the administration can force energy companies to comply with sweeping new regulations.

EPA finalized a major update to its coal ash rules in April. For the first time, companies must ensure that virtually all dumps are contained and stop pollution of heavy metals into water supplies.

But the rule, like previous coal ash regulations, comes with a major caveat: It is self-implementing. That means it’s mostly up to the companies that own the dumps to report where ash is stored and propose steps to stop groundwater contamination.

Direct implementation of the rules is largely carried out by states. That has left much room for interpretation and debate, often in obscure state regulatory proceedings, over what cleanup steps are acceptable.

Some states, including North Carolina and Virginia, have required utilities to remove coal ash from unlined pits and place it in fully lined landfills. Other states have allowed utilities to cover and leave in place unlined ash ponds, despite evidence that contaminants like arsenic, mercury and lead are leaking into groundwater, according to industry data and environmental advocates.

Now, with hundreds of additional coal ash sites covered by the federal regulations, questions have mounted over how much the administration and states will enforce the rules.

“A ton of these surface impoundments are leaking like crazy,” said Barnes Johnson, the former director of EPA’s Office of Resource Conservation and Recovery. “They have huge plumes, and the plumes need to be cleaned up before the companies walk away.”

A federal permitting plan?

EPA first finalized federal rules for coal ash in 2014, after a North Carolina dump spilled 39,000 tons of ash into the Dan River, causing an environmental disaster.

At the time, the agency classified coal ash as “nonhazardous” under the Resource Conservation and Recovery Act. Nonhazardous waste is regulated through a self-implementing system in which companies are expected to comply with national standards but states and EPA have limited enforcement mechanisms.

“All the rules were written in a way where a power plant can read the federal rules and follow them, and they are expected to do that,” Johnson said.

Enforcement has largely come in response to lawsuits from advocacy and citizens groups, said Jonathan Kidwell, a partner at the law firm Kirkland & Ellis who has worked with energy companies on environmental liability cases.

Some requirements were also rolled back during the Trump administration. In 2022, EPA for the first time began going after utilities deemed out of compliance. Last year, the agency made coal ash a national enforcement priority.

“We’re seeing EPA [now] double down on their enforcement authority. They’re really stepping up,” Johnson said of the original rules.

There is another potential compliance tool that EPA could use. In 2016, Congress passed the Water Infrastructure Improvements for the Nation Act, which granted the agency the authority to set up a federal permitting program for coal ash.

A permitting system would allow the agency to directly oversee, monitor and approve coal ash cleanup plans. States could also apply for the authority to run the permit system themselves.

In essence, coal ash closure requirements would be “explicitly spelled out” through permits, with an inspection process to monitor progress, Kidwell said.

“There’s more opportunity for EPA or a regulator to become aware of issues or violations in connection with a permit review or program, as opposed to the self-implementing system,” he said.

Yet EPA does not expect to finalize a federal permitting rule until late fall, agency spokesperson Remmington Belford said. That could make the policy vulnerable to being overturned next year in the event of a second Trump administration. Republicans in Congress have already introduced legislation to try to overturn the new coal ash rule, and legal experts expect it to be challenged in court.

In a statement, Belford agreed that a permitting program could improve compliance with the rules.

“This federal [coal ash] permitting program will bolster EPA’s efforts to protect water resources and communities from coal ash pollution by providing clarity about specific actions facility owners and operators must take,” Belford said in an email.

Utilities have argued that each coal ash site is different and that the most comprehensive cleanup approach — removal from unlined or leaking pits — can be prohibitively expensive.

Especially in sparsely populated areas, evidence of groundwater contamination does not necessarily mean that the public is at risk, many major utilities have argued.

“Excavation is not always the best solution, and there are other measures that can be taken to address any groundwater issues,” Angeline Protogere, a spokesperson for Duke Energy Indiana.

“The plan for each basin is site-specific and evaluated with environmental protection as well as customer costs in mind,” Protogere continued in an email.

‘Dumping ground’

Owned by Texas-based power company GenOn, the ash site in Brandywine is next to a community park with a playground, fields and a small pond. The facility was deemed one of the most polluting coal ash facilities in the nation in a 2022 report by Earthjustice and the Environmental Integrity Project.

Maryland has sought to get the ash cleaned up. In 2013, the Maryland Department of the Environment entered a consent decree with GenOn that required the company to stop contaminating groundwater, evaluate nearby drinking water wells and prevent further pollution.

An abandoned property, church and graveyard are located across the street from the Brandywine coal ash site.
An abandoned property, church and graveyard are located across the street from the Brandywine coal ash site. | Miranda Willson/POLITICO’s E&E News

Since then, the state has fined GenOn for unauthorized discharges and other violations on three occasions, most recently in 2021, spokesperson Jay Apperson said.

“There is still work to be done on the historical groundwater impact,” Apperson said in an email. “MDE is evaluating additional investigation and revisions to the Corrective Measures Plan due to groundwater contamination at this site.”

Groundwater nearby contains elevated levels of arsenic, lead, selenium and other pollutants, according to the department. Only about 20 percent of the ash pit is separated from the earth with a human-made lining. Discharges from the site flow into Mataponi Creek, a tributary of the Patuxent River, which in turn flows into the Chesapeake Bay, said Fred Tutman, who leads the Patuxent Riverkeeper organization.

“We know that there is contamination,” Tutman said. “We don’t know precisely who in the community has a contaminated well, but we know some of them [do].”

GenOn, which declined an interview for this story and would not answer questions about the facility, stopped adding ash to the site in 2023.

Gray, the Brandywine resident, said she’s worried about the coal ash in conjunction with other industrial development. The community has become a hub for warehouses and logistics centers, which bring heavy truck traffic and diesel fumes to the once quiet area, she said. Several power plants are located within a 13-mile radius of Brandywine.

“Brandywine in many ways is the dumping ground for Prince George’s County and for the region,” said Sacoby Wilson, a member of EPA’s Environmental Justice Advisory Council and a professor at the University of Maryland.

Brandywine also illustrates ongoing controversies over how to interpret EPA’s coal ash rules.

GenOn has maintained that a small portion of the ash was covered by the 2015 federal regulations and that the rest was an exempt “legacy” landfill.

That exemption no longer exists with EPA’s recent update, which explicitly targets inactive coal ash sites, but the distinction could affect the cleanup timeline.

EPA’s new rule gives inactive, legacy sites and previously unregulated coal ash units until 2027 and 2029, respectively, to complete their first groundwater monitoring report. Only after those reports have been submitted do companies propose cleanup strategies.

Originally, EPA had proposed giving companies six months to install groundwater monitoring systems. The agency extended that and other deadlines in response to requests from utilities, which had argued that the timeline was unreasonably fast.

“Delayed monitoring means delayed cleanup,” said Abel Russ, a senior attorney at the Environmental Integrity Project. “I’m hoping EPA is going to go in and enforce the 2015 rule at sites like [Brandywine], where owners have said they weren’t fully subject to it … so we don’t have to wait until 2028 or 2029.”

‘No oversight or enforcement’

As EPA gears up to finalize a permitting system, some advocates are wondering whether coal ash sites that have closed without protective linings will be off the hook from further remediation.

In Missouri, a large number of coal ash sites are contaminating groundwater that feeds into the Mississippi and Missouri rivers, said Peter Goode, an environmental engineer and law lecturer at Washington University in St. Louis. Most are located in floodplains, he said.

“Nobody has come in and said, ‘You need to fix that,’” said Goode, who previously worked at the Missouri Department of Natural Resources.

In Indiana, the state with the most coal ash in the nation, environmental groups and utilities have fought repeatedly over what constitutes an acceptable form of closure and decontamination.

Groundwater pollution has been documented at every coal ash site in the state where the water has been assessed, said Indra Frank, who recently retired as director of environmental health and water policy at the Hoosier Environmental Council.

“There’s been no oversight or enforcement,” Frank said.

Last month, the Indiana Utility Regulatory Commission approved Duke Energy Indiana’s plans for managing several ash ponds, despite some concerns from the state’s Office of Utility Consumer Counselor. Brian Wright, a utility analyst in the consumer-focused office, had criticized Duke’s decision to close in place ponds that he said could cause contamination in the future.

“Groundwater monitoring at all three of these sites indicate that contaminants from the [coal ash] are leaching into the groundwater,” Wright testified last fall. “The closure in place option exposes ratepayers to the risk of paying these costs 30 or more years into the future.”

Protegere of Duke Energy Indiana said the company is “required to meet state and federal groundwater quality standards” regardless of how a site is closed. If coal ash impacts are detected, the company takes steps to improve the situation, she added.

“There are no wells used for drinking water down gradient of Gibson or Gallagher ash basins other than one that the Gallagher plant was using itself,” Protegere said. “It has consistently showed no impacts from ash.”

Belford, of EPA, said that companies have different options for complying with the rules depending on the conditions of each site. In some cases, engineering measures can be sufficient to ensure that groundwater is no longer touching coal waste, he said.

He said the agency is working “diligently” to finalize the coal ash permitting program.

“EPA would implement this permit program directly in Indian Country, as it does other Resource Conservation and Recovery Act programs, and at [coal ash] units located in states that do not have an approved … program,” Belford said.

Still, Johnson, the former EPA official, questioned whether a formal permit system would be a cure-all for getting coal ash cleaned up.

“There’s literally hundreds of facilities here,” Johnson said. “I think EPA will have to prioritize and maybe take on what they view as the worst first.”