One of the vexing parts of the new U.S. Environmental Protection Agency (EPA) rule on coal ash takes effect in October is that anyone who believes the federal rules have been violated can file a lawsuit.
The rule, finalized in December but not published until April, lays out minimum criteria for coal ash disposal, but does not give the EPA, or any other federal or state authority the ability to enforce the new regulations. Instead, the rule will be enforced through policing by the public.
“That’s going to be very onerous and very difficult for utilities to work with," says Bill Hodges, an engineer who has been working on solutions for coal ash disposal. “There’s no threshold for filing a lawsuit. If [anyone] believes there’s been a compliance issue, they have a right to go to court.”
The EPA’s final rule has been years in the making and states that coal ash can be regulated as a non-hazardous material and set minimum criteria for groundwater monitoring and other rules for coal ash disposal facilities. That means landfills could have big roles to play in the future disposal of coal ash.
Roughly 115 million tons of coal ash were generated in 2013, the last year for which data is available from the American Coal Ash Association. That was up slightly from 2012’s figure of 110 million, but lower than prior years when the volume of coal ash generated was typically around 130 million tons annually. Coal ash generation is expected to continue its decline, and about 40 percent of the coal ash generated is recycled or used in other products such as drywall and concrete. Sixty percent of the remaining coal ash not reused ends up in landfills. Typically, (80 percent of the time) the coal ash is placed in on-site landfills owned by the utility that generated the coal ash.
Calls for an official rule on coal ash management were prompted by a series of coal ash spills in recent years. In February 2014, a Duke Energy facility in North Carolina spilled coal ash into the Dan River. The company has had to pay millions in cleanup costs, fines and legal fees and is currently planning construction of a new coal ash landfill for future disposal.
Six years before that, a Tennessee Valley Authority (TVA) power plant flooded more than 300 acres in Tennessee and dumped coal ash into the Emory and Clinch rivers. Arrowhead Landfill in Alabama is one of the sites that was called upon to mitigate the TVA spill in 2008. Arrowhead had only opened in 2006, but its access to a rail yard and geology meant the landfill was well-equipped to take on the roughly 2.5 million cubic yards of coal ash from TVA.
After that, Arrowhead owners decided to make more of the landfill available for coal ash disposal and brought Hodges in to help revise the landfill’s operational plans.
Although the portion of the landfill that took in the TVA coal ash was closed and capped, additional cells were reconfigured to handle more coal ash in the future. The cells will allow utilities to maintain their own disposal sites for tracking purposes, Hodges says, and each cell has its own liquid management system. Operations plans also were reconfigured to allow CCR sites to be operated completely separately from the MSW portion of the landfill.
“The utilities are concerned, and they want to make sure how their waste product is handled is correct,” Hodges says.
Arrowhead’s geology afforded the site more than 300 feet of very tight clay, Hodges says, making it an ideal site for waste disposal.
“It’s got an unbelievable natural containment system,” Hodges says, in addition to the man-made cap added to line the landfill.
And despite several civil rights complaints about the location of the landfill in a poor, primarily African-American community, the heavily inspected Arrowhead has never received any violations from either the state or the EPA, says Jeff Tieszen, vice president of the Austin-based public relations firm Influence Opinions.
Although Arrowhead isn’t currently accepting any coal ash, it is capable of receiving up to 15,000 tons per day.
Hodges says sites like Arrowhead might be needed in the future, as the landfill industry makes sense of the EPA’s new coal ash disposal rule. Many utilities currently dispose of CCR on site, but as they need additional space down the road, or need to move large amounts of CCR off-site, utilities may look to sites like Arrowhead.
The EPA rule is also being challenged, however, through legislative efforts in Washington. Rep. David McKinley (R-W.Va.) proposed H.R. 1734 to weaken some of the provisions in the EPA bill. The bill was introduced April 13 and was approved by the House Commerce and Energy Committee on April 15.
McKinley calls current coal ash regulations “vague and harmful” and says 316,000 jobs are at risk without intervention.
“We need this common-sense reform to ensure coal ash programs meet standards to protect the environment while providing flexibility to the states on implementation,” McKinley said on a statement about his bill.
McKinley introduced similar bills over the last two legislative sessions, but both died in the Senate. The bill would allow states to set up coal ash permit programs, and states that don’t set up their own programs could defer to the EPA regulation.