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\n <\/figure>\n \u201cIt\u2019s unfortunate that it had to take this many years for industry to be called out to admit that numerous dump sites were contaminating groundwater, but it\u2019s how this system works,\u201d said Lisa Evans, senior counsel for Earthjustice. \u201cUnless you have a specific rule requiring investigation and cleanup, industry is just not going to do it.\u201d<\/p>\n\n\n\n
But the rule covered only half of U.S. coal ash. The rest, stored in inactive legacy sites, continues polluting the environment, largely without remedy. According to a tally of industry data by Earthjustice, as many as 808 ponds and landfills<\/a>, including at least one at Kingston, were exempt. (A preliminary EPA finding shows 261 sites: 134 landfills and 127 ponds.) In May, after several rounds of lawsuits, the EPA proposed an amendment<\/a> to the rule that will cover most of these legacy sites. <\/p>\n\n\n\n The U.S. Environmental Protection Agency, or EPA, told Grist in an email that the 2015 order was in line with past decisions under the federal Resource Conservation and Recovery Act, which governs the coal ash rule. But the agency said the proposed change was driven by a record showing that regulating legacy sites \u201cwill have significant public health and environmental benefits.\u201d <\/p>\n\n\n\n The agency is expected to finalize the rule by May 6, 2024. Six months later, the new law will go into effect. While environmental advocates are hopeful, noting that closing the loophole is long overdue, they warn that the change may not entirely solve the problem. Simply including more sites in the rule doesn\u2019t guarantee greater federal oversight, accelerate the cleanup by industry, or ensure an increase in community and environmental protection. <\/p>\n\n\n\n Betty Johnson plans to be in Chicago on June 24 for a public hearing on the amendment, where she will speak up for her husband and others who have suffered after doing their part to clean up the messes others left behind. <\/p>\n\n\n\n “I want to warn people about coal ash,” she told Grist by phone. “People don’t realize how dangerous it is.”<\/p>\n\n\n\n The stacks of the Cane Run and Mill Creek power plants loom over the banks on Kentucky\u2019s side of the Ohio River. They go largely unnoticed by those who gather on the river, the largest tributary of the Mississippi, to paddle, or fish, or spend the day boating. Each summer, the shoreline brims with blue stands of chicory and the pink pods of swamp milkweed. The wide, flowering leaves of catalpas hang over the water, framed by tall oaks. Even in winter, when the foliage fades and falls, the area retains its beauty.<\/p>\n\n\n\n Yet those two power plants, which sit roughly 20 miles apart and are owned by Louisville Gas & Electric and Kentucky Utilities, are home to at least four of the state\u2019s 25 unregulated coal ash sites. In 2021, a pair of studies by the University of Louisville showed that children experienced increasing health risks the closer they lived to the plants. Kids age 6-14 faced an escalating threat of neurobehavioral issues<\/a> like anxiety, attention deficit\/hyperactivity disorder, and social problems. Their nail samples also contained elevated concentrations of heavy metals<\/a> like chromium, manganese, and zinc, all of which are coal ash constituents. <\/p>\n\n\n\n \u201cOnce you\u2019re exposed to coal ash, it really is a major risk to human health,\u201d Vengosh told Grist. Over the last 15 years, his studies of water near and beneath coal ash sites, and from lakes located near regulated and unregulated sites in North Carolina<\/a>, show that not only does the material leach contaminants into groundwater, but the pollutant has entered the broader environment, in some cases occurring in 50 percent of lake bed sediment. Climate events, like hurricanes, further the spread of pollution. \u201cClosing [all the sites] is a must that should have been done eight years ago,\u201d Vengosh said. <\/p>\n\n\n\n The fight to regulate these remaining sites began in 2016, when Earthjustice sued over a loophole that excluded ponds created by utilities that stopped generating electricity before the rule took effect in October 2015. Two years later, a federal appeals court<\/a> determined these sites \u2014 also called surface impoundments \u2014 required regulation because they pose a significant threat to \u201chuman health and the environment through catastrophic failure.\u201d The court order cited two legacy pond disasters: a 2009 pipe break at the Tennessee Valley Authority\u2019s Widows Creek site that dumped over 6 million gallons<\/a> of coal ash into local waterways and the 2014 Duke Energy spill of 27 million gallons<\/a> of the slurry into North Carolina\u2019s Dan River. <\/p>\n\n\n\n But under the Trump administration, the EPA didn\u2019t act and instead rolled back coal ash regulations. In 2022, Earthjustice sued again<\/a> to close another loophole that exempted landfill sites \u2014 also called CCR management units \u2014 that stopped receiving ash after October 17, 2015. In a settlement<\/a>, the Biden administration agreed to review and revise the 2015 rule. In May, it formally proposed including most unregulated ponds and landfills in the federal coal ash rule.<\/p>\n\n\n\n The expanded regulation is necessary because \u201csome of the most dangerous sites in our region\u201d are those excluded from the 2015 rule, said Frank Holleman, an attorney at the Southern Environmental Law Center who has fought for tighter regulation of coal ash dumps. These unlined, largely abandoned and unmonitored locations are \u201cticking time bombs,\u201d he said, and most if not all of them are below the water table, threatening drinking water. \u201cThere is no distinction between regulated and unregulated sites in terms of environmental threat, or the risk of catastrophic failure,\u201d he said. In an email to Grist, the EPA agreed that \u201cthe risks of these unregulated units are like currently regulated units.\u201d<\/p>\n\n\n\n Almost half of Kentucky\u2019s 43 regulated coal ash areas have a hazard risk high enough<\/a> to cause environmental damage, economic losses, or loss of life, according to an analysis by the Ohio River Valley Institute, an Appalachian think tank. (Kentucky isn\u2019t alone; for decades before the Kingston spill, the Tennessee Valley Authority ignored \u201cred flag\u201d warnings<\/a> over the safety and stability of its coal ash ponds, according to the agency\u2019s inspector general.) When a coal plant shutters, the towns around them \u2014 more often than not low-income<\/a> and communities of color<\/a> \u2014 are left to police the waste left behind. <\/p>\n\n\n \u201cUnlined ponds and landfills, and the legacy of the undermanagement of waste, are part of the burden that this generation carries, and it\u2019s important that we not pass that burden on to the next generation,\u201d said Tom Fitzgerald, retired director of the Kentucky Resources Council, a nonprofit that provides legal representation in environmental cases. \u201cUtilities have the ability to absorb those costs, and in some cases, it\u2019ll be ratepayers that pay those costs. But those costs are currently being borne, off the books, by people who live in contaminated areas.\u201d <\/p>\n\n\n\n The amendment is important because under current federal law, if a utility reports a high level or significant increase in a coal ash constituent like arsenic, lithium, or radium, it is only required to remedy the pollution if the source is a regulated site. Should the company link the contamination to an unregulated facility, it can essentially ignore the problem.<\/p>\n\n\n\n The EPA said it found power plants actively disposing of coal ash in areas outside regulated units, and 42 instances where companies managing the coal ash blamed groundwater contamination on unregulated units. <\/p>\n\n\n\n In the 2023 proposal, the EPA investigated 10 facilities across nine states that had reported high levels of contaminants but blamed the potential pollution on the unregulated coal ash sites. Examples abound: Nevada\u2019s Reid Gardner Generating Station, neighboring the Moapa Band of Paiutes reservation, continues leaking at least 10 contaminants at levels above groundwater protection standards, including 682 times the lithium, 252 times the arsenic, and almost double the radium allowed by law. But owner-operator NV Energy blames the pollution on an unregulated pond complex dating to the 1970s and has so far avoided cleanup.<\/p>\n\n\n\n At Pennsylvania\u2019s New Castle Generating Station, where owner GenOn Power Midwest LP self-reported arsenic at levels 372 times higher, on average, than EPA health standards, the company blamed the contamination on an unregulated landfill directly underneath its regulated landfill, again avoiding cleanup.<\/p>\n\n\n\n On a crook in the Cumberland River in southeastern Kentucky, East Kentucky Power Cooperative\u2019s Cooper Station also manages a regulated, lined landfill directly over an unregulated, unlined coal ash pond that has collected waste since 1965. Utility reports note the site has \u201cextremely high karst potential\u201d \u2014 meaning the highly permeable bedrock below dissolves easily and readily transports water. Such groundwater movement may have facilitated the release of boron, calcium, and sulfate, but the owner said the regulated landfill wasn\u2019t responsible for the pollution.<\/p>\n\n\n\n According to the EPA, these sites, and hundreds more, will be included under its revision to the 2015 rule. John Mura, executive director of communication at the Kentucky Energy and Environment Cabinet, confirmed that Cooper\u2019s \u201cvery old former ash pond\u201d will be brought \u201cinto the fold with this new rule.\u201d<\/p>\n\n\n\n Abel Russ, an attorney with the Environmental Integrity Project, said the proposed rule makes sense from a cleanup perspective because it allows utilities to deal with all of the ash rather than picking and choosing which sites to clean and close and which to blame for continued contamination. Another benefit: The 2021 study<\/a> by the Ohio River Valley Institute argues that a \u201cclean closure\u201d plan could create hundreds of jobs at coal plants and bring money to local economies.<\/p>\n\n\n\n \u201cIt will make cleanup more efficient, more effective, and more logical, which should be to everyone\u2019s benefit, even owners,\u201d said Russ.<\/p>\n\n\n\n While most environmental advocates say they\u2019re happy with the proposal, they note several very specific exemptions that apply to perhaps 50 sites. For example, active power plants that claim not to have regulated units, or long-closed power plants that claim not to have legacy ponds, are exempt. The EPA said it is soliciting comments, \u201cbut currently, the Agency lacks sufficient data to support regulating these units.\u201d <\/p>\n\n\n\n \u201cThat\u2019s a gap we want EPA to close, because old landfills at retired plants are likely to be leaking hazardous contaminants just like all other landfills. There\u2019s no difference and no less risk,\u201d said Evans. \u201cWe don\u2019t think it\u2019s a huge number of sites, but there\u2019s no reason to exclude them.\u201d <\/p>\n\n\n\n John Ward, communications coordinator of the American Coal Ash Association, which advocates for recycling coal ash waste, said the EPA also could promote the beneficial reuse of the material instead of \u201cjust moving the ash from one disposal site to another.\u201d Encapsulated ash used in cement and concrete could help decarbonize those industries, but Ward said it would require more flexible timelines and compliance. <\/p>\n\n\n\n \u201cIn all of these EPA regulations the compliance guidelines are generally very tight,\u201d said Ward. \u201cThe [EPA] would probably have to allow a different timeline for cases where an owner-operator will go to the expense of setting up a harvesting operation and the time it takes for markets to absorb those materials.\u201d <\/p>\n\n\n\n The EPA says the rule doesn\u2019t change beneficial use requirements and it \u201cdid not propose to change the closure completion timeframes for the newly regulated units.\u201d <\/p>\n\n\n\n But perhaps the biggest critique is EPA\u2019s continued lack of enforcement, even after it proposed making the coal ash rule an enforcement priority for 2024. EPA said its enforcement program ensures landfills and ponds \u201cdo not present dangerous structural stability issues (such as those that led to the catastrophic 2008 Kingston Tennessee coal ash disaster) that could put surrounding communities in harm\u2019s way,\u201d while monitoring groundwater data, cleanup, and closure \u201cto determine whether facilities are complying with the regulatory requirements and adequately addressing coal ash disposal risks.\u201d <\/p>\n\n\n\n![\"A](\"https:\/\/grist.org\/wp-content\/uploads\/2020\/12\/sludge-river-tennessee.jpg\")
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