June 17, 2025 - A recent pact between North Dakota and the Trump administration shows how coal-friendly states could enshrine lax standards and block future federal enforcement on toxic coal ash pollution.

North Dakota earned preliminary approval from the U.S. Environmental Protection Agency last month to regulate coal ash — a byproduct of burning coal — at the state instead of federal level. Indiana environmentalists fear that their state will follow the same path.

The distinction may seem moot under President Donald Trump — whose administration did not enforce federal coal ash regulations during his first presidency — but if his EPA approves so-called primacy arrangements allowing states to run their own programs, it could lock in weaker enforcement even if a future administration wants to take a tougher stance on coal ash contamination.

“What primacy would do is cement a situation that, depending on the state, could be very detrimental,” said Lisa Evans, senior counsel for the law firm Earthjustice, calling the North Dakota decision ?“precedent-setting.”

Under 2015 federal rules, coal ash is not allowed to be stored in contact with groundwater, and contamination caused by the substance must be reported and remedied. A 2016 law allows states to adopt their own coal ash rules that are at least as protective as the federal standards, after which states can petition the EPA to gain primacy and take responsibility for issuing coal ash permits and enforcing regulations.

EPA Administrator Lee Zeldin has encouraged states to do this, citing the administration’s commitment to ?“clean beautiful coal.”

This raises concerns when a state’s government is known to be friendly to the coal industry and lenient on pollution. Indiana consumer and environmental leaders have long described their state this way, and indeed, Indiana lawmakers have proposed and passed multiple measures supporting coal, including two laws obligating the state to seek coal ash primacy.

“One reason” the possibility of primacy ?“is so bad in Indiana is the amount of coal they burn and the amount of coal ash that’s been mismanaged,” Evans said.

In a Jan. 15 letter to Zeldin, obtained by Canary Media, coal and energy companies asked the government to expedite state control over coal ash regulation.

West Virginia, Wyoming, and Alabama have also sought coal ash primacy, and all three are plaintiffs in a lawsuit challenging aspects of the federal coal ash rules, according to the Cowboy State Daily. In May 2024, the Biden administration denied Alabama’s request for primacy, and state officials said they would appeal.

North Dakota’s attorney general sent the EPA a notice of the state’s intent to sue over its coal ash primacy application, in January, shortly before Trump took office. The Trump administration proposed approving North Dakota’s primacy request last month.

Georgia was granted coal ash primacy in 2019, and it has issued permits allowing utility Georgia Power to permanently leave large amounts of coal ash in pits submerged partially in groundwater, a move that environmental groups say violates federal rules. Texas and Oklahoma also have primacy programs.

States can gain similar authority over the regulation of underground injection wells, and in February, the EPA approved West Virginia as the fourth state — along with Wyoming, North Dakota, and Louisiana — with such primacy.

Weakened coal ash rules would be hard to reverse

In 2021 and again in 2023, Indiana lawmakers adopted legislation obligating the state to adopt its own coal ash rules and then seek primacy to enforce them. This upset environmental and health advocates, said attorney Indra Frank, since they feared that the state would not actually enforce coal ash standards after being freed from federal scrutiny.

“In Indiana, our industry would prefer to deal with [the Indiana Department of Environmental Management] rather than EPA,” added Frank, who serves as coal ash adviser for the Hoosier Environmental Council. ?“It’s a problem if the EPA approves a program like the one they just approved in North Dakota, where the state agency has a long history of ignoring noncompliance and actually issuing approvals for plans that are not compliant. Once the state has primacy, the EPA will be very hesitant to step in. And the courts will defer to the state’s primacy as well.”

In 2024, Indiana issued draft state coal ash rules akin to the federal rules and accepted public comment on them. But Frank suspects that Indiana regulators will wait to revise those standards once laxer federal rules are finalized. In March, Zeldin announced a review and planned overhauls of the coal ash rules, which were barely enforced until 2022, when the Biden administration began issuing decisions and mandates.

With revised federal rules on the books, Indiana could enshrine state rules that are similarly weakened.

And even if the federal rules are beefed up again in the future, the federal government would be hard-pressed to impose those rules on a state that gained primacy with weak rules, explained Evans and Frank.

“The trifecta would be that EPA weakens the current regulations, and the states adopt those weak regulations and issue permits based on those weak regulations,” said Evans. ?“Then I think we’re in a really terrible situation. Because if the regulations are again strengthened under a new administration, the states have three years to change their programs to be consistent, but who is going to enforce that deadline? I think it would be more than three years before corrections would be made to state programs, and in the meantime a lot of damage is being done.”

Ash in Indiana

Indiana is home to more than 73 million cubic yards of coal ash stored on at least 16 sites, according to data compiled by Earthjustice in 2022 based on companies’ own reporting required under federal rules. That’s the equivalent of more than 22,000 Olympic swimming pools. And that number doesn’t even include ash not covered by the federal rules until a 2024 update.

All the coal ash ponds noted in the data are unlined, and most of them have contaminated groundwater with elements including arsenic, molybdenum, and lithium, according to the companies’ own reports.

Companies have proposed to close many of the ponds in place — without removing the coal ash from the unlined repositories. Ben Inskeep, program director for the consumer group Citizens Action Coalition, said he would expect state regulators to approve such plans.

“The track record in Indiana has been lax enforcement, not particularly focused on ensuring good environmental quality outcomes and more focused on doing the bidding of industry,” he said, noting that’s a reason to oppose primacy on coal ash.

“We certainly would be very concerned by that path forward, given we think the EPA is the right entity to implement those regulations and ensure enforcement,” Inskeep said. ?“The Trump administration is a four-year term, and managing coal ash is going to be decades into the future. This is a long-term issue that requires federal oversight for the duration; it’s absolutely critical the federal government keep that ability.”