By Christopher Talgo

Sepember 10, 2018 - The EPA approved a major rule change allowing states greater flexibility in regulating coal-powered electrical plants’ waste products.

The rule, finalized on July 17, reverses an Obama-era regulation that usurped states’ long-held authority to manage coal ash ponds and storage facilities and gave it to the EPA.

Embracing Federalism

In keeping with EPA’s new policy of “Cooperative Federalism,” the rule change allows states to evaluate ash ponds on a case-by-case basis. Coal ash, a waste product of burning coal, contains substances such as arsenic, mercury, and cadmium. Coal ash is typically stored in ponds and landfills near coal-powered electrical plants. EPA estimates U.S. coal-powered plants produce nearly 100 million tons of coal ash each year.

The policy reversal is the first major rule signed by EPA Acting Administrator Andrew Wheeler.

“These amendments provide states and utilities much-needed flexibility in the management of coal ash, while ensuring human health and the environment are protected,” said Wheeler in a statement. “Our actions mark a significant departure from the one-size-fits-all policies of the past and save tens of millions of dollars in regulatory costs.”

The new rule allows states to suspend groundwater testing if they can show contaminants won’t migrate away from coal ash sites, and it gives them greater flexibility in the standards and methods by which they certify storage compounds meet federal standards. The new rule also returns the authority to manage maximum contaminant levels (MCL) in coal materials and byproducts to states, allowing them to create their own MCL standards and regulations.

Lower Compliance Costs

EPA estimates returning authority to the states will affect more than 400 coal power plants across the United States, saving the coal industry up to $31 million in annual compliance costs.

The new rule also extends the working life of some coal ash ponds. Under the Obama administration’s rule, coal ash storage sites and ponds considered at risk for leaks or located within five feet of “groundwater, wetlands, or seismic zones” were required to close by April 2019. The new rule allows these coal ash ponds to continue operating until October 2020.

Simplification and Certainty

EPA’s new rule will simplify coal ash management, lowering costs to power plant operators, says Fred Palmer, a former coal industry executive and a senior fellow with The Heartland Institute, which publishes Environment & Climate News.

“The Obama administration’s rule change was one more part of its effort to shut the coal industry down by making coal ash maintenance prohibitively expensive, thereby pricing marginal coal-powered electrical plants out of the market,” Palmer said “EPA’s new rule will simplify coal power plant operations by providing greater certainty concerning which authorities regulate coal ash and what the regulations are.

“Returning coal ash regulatory authority to the states will reduce costs, helping to ensure coal remains an integral part of the U.S. electric power grid and its waste byproducts can continue to be used beneficially,” said Palmer.

Tim Benson, a policy analyst with The Heartland Institute, says EPA’s rule change places the authority for coal ash management where it belongs: the states.

“Every state has its own equivalent of the federal Environmental Protection Agency,” said Benson. “These state agencies are better informed on the specific environmental challenges and opportunities in their states than the federal EPA.” 

‘Overstepped Its Bounds’

Benson says Obama’s rule change was about fighting purported climate change, not protecting the environment.

 “Obama’s coal ash rule had little to do with the impact of coal ash on the environment but rather was seen by the administration as an opportunity to further advance its radical anti-fossil-fuel agenda by dealing another blow to the U.S. coal industry, which it blamed for global warming,” Benson said.

“EPA Acting Administrator Wheeler wisely recognized the Obama administration overstepped its bounds by reversing decades of federal deference to state environmental agencies regarding coal ash and related issues,” said Benson. “By reversing the nefarious Obama administration rule, EPA can get back to its core mission of partnering with the states to be responsible stewards of the environment.”