Power plants that burn fossil fuels would have to significantly curb heat-trapping carbon emissions under new EPA rules being challenged in federal court by Kentucky's Russell Coleman and other Republican attorneys general. (Getty Images)

The Biden administration is taking steps to address a regulatory loophole that public interest groups said allowed at least a half-billion tons of toxic coal ash to go unregulated.

The Environmental Protection Agency published a new draft rule last week that the groups said would extend federal oversight to much of the coal ash disposed at both operating and retired power plants.?

The proposed rule would extend federal monitoring, closure and cleanup requirements to hundreds of previously excluded older landfills, legacy ponds and fill sites. Coal ash is the waste that remains after coal is burned for electricity, and is among the most costly of the long-term legacies from more than a century of burning coal.?

The action comes as part of a settlement between the federal agency and public interest groups, including the Sierra Club. The groups said the proposed rule would force owners to address problems at facilities like the Bull Run Fossil Plant near Oak Ridge, Tennessee, Four Corners Power Plant near Fruitland, New Mexico, and Stanton Energy Center in Orlando, Florida. Many of the sites are in low-income communities and communities of color. The action also comes after Inside Climate News, WMFE in Orlando and NPR brought national attention to the federal loophole in late 2021 and early 2022.

“This is a really big deal,” said Lisa Evans, senior counsel at Earthjustice, a nonprofit organization litigating environmental issues, which represented the public interest groups. “For far too long a large portion of toxic coal ash around the U.S. was left leaching into drinking water supplies without any requirement it be cleaned up. The EPA is taking significant steps to address a massive loophole that let many coal plant owners off the hook.”

Indiana, Ohio, Illinois and Pennsylvania rank as the states with the most power plants with at least one regulated or unregulated coal ash dump, with 24, 23, 23 and 21 dumps each, followed by Kentucky, with 20, according to Earthjustice mapping.

The Obama administration’s EPA in 2015 adopted the first national regulations on coal ash. The regulations applied to existing and new sites but exempted coal ash at power plants that had already stopped generating electricity and landfills that had already closed. Those rules required monitoring and cleanup, but only at dump sites that were covered by the new regulations. Earthjustice has since identified 566 landfills and ponds at 242 coal plants in 40 states that were excluded from the regulations, based on an analysis of industry data provided to the EPA.

For instance, at the Stanton Energy Center in Orlando, dumping at a 90-acre coal ash landfill stopped just 52 days before the regulations took effect. The maneuver exempted the landfill from the new requirements for environmental monitoring and, if contamination were found, a requirement to take corrective actions. Those standards only applied to new dumping areas next to the closed landfill at Stanton, which is operated by the Orlando Utilities Commission

“OUC has always managed coal ash responsibly and transparently, in accordance with regulations set by the U.S. Environmental Protection Agency’s (EPA) Coal Combustion Residuals Rule and the Florida Department of Environmental Protection’s Power Plant Siting Act,” said Michelle Lynch, a spokeswoman. “OUC is and will remain committed to our environmental responsibility by working to meet or exceed all local, state and federal regulatory requirements now and in the future. We have always made it a point to do the right thing — and we will continue to do so for our community and environment.”?

Under the new draft rule, the EPA would compel owners, with some exceptions, to monitor and clean up all coal ash at their facilities, rather than trying to regulate each dump individually. The proposed site-wide approach would lead to more effective safeguards, Earthjustice said.

“It’s a step forward, for sure. It’s a more holistic approach to regulate coal ash, and it does close a very important loophole,” said Abel Russ, senior attorney at the Environmental Integrity Project, a nonprofit advocating for more enforcement of environmental laws, and a plaintiff in the lawsuit that prompted the new EPA action on coal ash. “There are ways we still think it could be stronger. But in particular, I really appreciate that the EPA is going to be requiring the owners and operators to provide information about their sites in a way that the public will be able to access.”??

Russ said the proposed rule would continue to be self-implementing and would be difficult to enforce. The public interest groups also said the draft rule fails to extend regulations to all coal ash dump sites at former plants. For instance, ponds that did not have water in them in 2015 or later would be excluded, and landfills at former plants that do not have a legacy pond also would be excluded. Earthjustice said up to 58 landfills could be excluded under this exemption. The proposed rule also does not address coal ash that was used as construction fill at playgrounds, schools and throughout neighborhoods, Earthjustice said.

“As the EPA works to finalize these reforms by next year there are a few things they need to do,” said Evans of Earthjustice, which sued the EPA in 2022. Among other plaintiffs were the Indiana? branch of the National Association for the Advancement of Colored People and Hoosier Environmental Council.