New Analysis of EPA Proposal Reveals It Fails to Protect Children from Coal Ash Pollution and Removes Polluters’ Obligation to Immediately Clean Up Spills

A new, close review of the Trump Environmental Protection Agency’s (EPA) draft plan to gut federal coal ash regulations established in 2015 reveals that it would encourage states to ignore risks to children and remove the requirement that polluters immediately clean up their coal ash spills. The analysis was done by the Environmental Integrity Project and Earthjustice.

EPA will hold a hearing on the proposed coal ash rule rollback on Tuesday in Arlington, VA, and Congress will hold a briefing Wednesday at which experts and people living near coal plants will testify.

Environmental, health and safety experts had previously highlighted other detrimental aspects of the EPA proposal, which was first unveiled last month. But the Environmental Integrity Project and Earthjustice only recently found in the fine print the problem about the risk to children and the lack of immediate cleanup requirements for polluters.

“EPA knows that the health risks from coal ash pollution hit children the hardest, yet EPA’s new proposal allows states and polluters to ignore risks to children and leave them in harm’s way,” said Abel Russ, attorney with Environmental Integrity Project.

Coal ash, the byproduct of burning coal at power plants, is loaded with toxic pollutants like arsenic, lead, and even radioactivity, and EPA in 2015 released the first federal regulations designed to help control the escape of these pollutants from coal ash dumps.

In the Trump administration’s proposed revision of the coal regulations, the agency shifts the responsibility of setting groundwater protection standards for many toxic coal ash pollutants, such as lead, boron, cobalt, lithium, and molybdenum, into the states’ (and even the polluters’) hands for the first time. To make this change, the EPA cut and pasted language from existing regulations for municipal solid waste landfills (household trash dumps), but deliberately omitted a critical reference to the consideration of the health of “sensitive subgroups,” which includes children.

“The EPA has, for years, made a point of paying special attention to children’s health, and has in fact protected children from toxic pollution in countless ways. But apparently Scott Pruitt doesn’t think that’s EPA’s job,” said Russ. “If you own a municipal landfill, you have to make sure that you are protecting children. If you are a coal plant owner? EPA knows that you pose a special risk to children, but hey, don’t worry about it. This is not the EPA Americans have come to depend on. It’s truly shameful.”

In its new draft rule, EPA also turns its back on hundreds of communities living near dangerous coal ash dams. Across the nation nearly 700 earthen impoundments hold back tens of millions of tons of toxic coal ash sludge. The largest toxic waste spill in the U.S. occurred at the TVA Kingston Fossil Plant in 2008, when an earthen dam broke in Harriman, Tennessee and released over a billion gallons of toxic sludge into a riverfront community. The EPA’s recent proposal deliberately ignores these risks and removes the requirement for industry to immediately respond to a disaster and control the toxic flood.

Dam safety expert Jack Spadaro has never seen anything like it in his decades of dam oversight for the U.S. government. “High hazard coal ash dams will kill people if they break,” said Spadaro, former administrator of the National Mine Health and Safety Academy. “Removing the duty to immediately respond to a disaster places communities near coal ash dams in great jeopardy.”

The EPA proposal is the biggest giveaway to polluters this year.

“The draft rule is gratuitously anti-public health and safety, and it shows who Pruitt is really protecting — and it’s the polluters,” said Lisa Evans, Senior Administrative Counsel at Earthjustice and former Assistant Regional Counsel at the EPA. “The Trump EPA has completely abandoned its mission to protect communities and the environment from future coal ash disasters.”

Background

Coal ash has historically been dumped in unlined landfills and ponds without concern for water quality or safety. In fact, many of these ash dumps are dug so deep that the coal ash is sitting in the water table, which often is a source of drinking water. It should be no surprise that groundwater near coal plants is frequently contaminated with unsafe levels of multiple chemicals. At hundreds of dump sites, coal ash is also impounded behind aging earthen dams. When these dams break or the pipes underlying them fail, the spills can be catastrophic, as seen in 2008 in Kingston, TN and at the Duke Energy Dan River Plant in 2014, where a broken pipe caused a spill that fouled 70 miles of the Dan River in North Carolina and Virginia.

In the course of the 2015 rulemaking, EPA determined that certain pollutants posed unacceptable risks at unregulated coal ash dumps. These include boron, which can harm fetal development and reproductive health; cobalt, which can cause blood and thyroid disorders; and several others. EPA also determined that these noncancer risks were highest for infants.

In 2015, after years of pressure and litigation from the public interest community, the U.S. Environmental Protection Agency finally issued first-ever federal regulations for the disposal of coal ash. The 2015 regulations required owners of coal plants take many steps to ensure that deadly coal ash pollutants would not contaminate drinking water and dams would not break

Exposing children to harm

Fast-forward to March of 2018. Now, upon industry’s bidding, EPA is proposing to roll back the 2015 federal rule and gut critical health protections. EPA wants to allow the states, and even the polluters themselves, to set their own drinking water standards for pollutants without maximum contaminant levels (MCLs), including boron, cobalt, lead, lithium, and molybdenum. EPA copied and pasted the language for “alternative groundwater protection standards” from the regulations that apply to municipal solid waste landfills. But EPA deliberately left something out. This is what the municipal landfill regulations say:

“For systemic toxicants, the [groundwater standard] represents a concentration to which the human population (including sensitive subgroups) could be exposed on a daily basis that is likely to be without appreciable risk of deleterious effects during a lifetime.” 40 C.F.R. § 258.55(i)(4) (emphasis added).

And this is what EPA is proposing in the re-write of its coal ash regulations:

“For systemic toxicants, the [groundwater standard] represents a concentration to which the human population could be exposed on a daily basis that is likely to be without appreciable risk of deleterious effects during a lifetime.” 83 Fed. Reg. 11613.

“Sensitive subgroups” includes, of course, children. Everything was copied and pasted, but the language protecting children was struck out.

Releasing polluters from their duty to respond immediately to toxic spills

The 2015 coal ash rule requires polluters to respond immediately to toxic spills and take all necessary measures to control the source of the coal ash release. This requirement is essential to limiting the impacts of a spill and preventing further toxic releases. The current rule requires:

“In the event of a release from a CCR unit, the owner or operator must immediately take all necessary measures to control the source(s) so as to reduce or eliminate, to the maximum extent feasible, further releases of contaminants into the environment. The owner or operator of the [coal ash disposal] unit must comply with all applicable requirements in §§ 257.96, 257.97, and 257.98. 40 C.F.R. § 257.90(d).”

The Pruitt EPA has proposed to strike entirely the first sentence of the regulation, effectively removing the duty of polluters to immediately control the spill. This radical change will increase the damage to communities in the event of a disaster. The change puts the nation’s most vulnerable populations in harm’s way because communities downstream of dangerous coal ash dumps are disproportionately low income. Because the proposed rollback also proposes to make cleanups optional in many situations, the proposed changes spells disaster for these communities.