Raleigh, N.C. — The federal government is putting new rules in place that say power companies must dispose of coal ash using similar standards to those that are now applied to household garbage.
Although they represent a first-of-their-kind national standard, the federal rules released Friday afternoon are weaker than regulations North Carolina put in place as part of a coal ash law that went into effect this year following an ash spill on the Dan River.
The federal rules will "prevent costly risks to our health and our economy," U.S. Environmental Protection Agency Administrator Gina McCarthy told reporters on a conference call early Friday afternoon.
Coal ash is the material left over after coal is burned for fuel. Although the bulk of the material is inert, there are levels of selenium, arsenic and other toxins that are capable of contaminating nearby rivers and groundwater. Although modern methods of disposal put ash in lined landfills, ash is stored in unlined ponds at 14 locations throughout North Carolina. Fact Check: Is Duke telling "The Truth About Toxicity?"
North Carolina's 2014 coal ash law moves to regulate those open-air ponds, one of which spilled as much as 39,000 tons of ash into the Dan River on Feb. 2. That spill sparked intense scrutiny of these facilities across the state and spurred the passage of the state regulations.
That law requires Duke Energy, the major power generator in the state, to clean up the ponds under oversight of a new created Coal Ash Management Commission. In some cases, the company will be required to remove the material entirely to lined landfills. In other cases, the company may be allowed to cap the material in place, taking out the water but leaving the ash covered.
Federal regulators say their new rules are meant to prevent spills like the one that fouled the Dan River and a 2008 disaster in Tennessee. As described by McCarthy, the federal rules set a minimum standard for handling coal ash and monitoring the movement of toxins, but states are free to put their own, more stringent, rules into place. Although both utilities and environmental groups are still poring through the rules, it appears North Carolina's law is already more stringent.
"The bottom line is disappointment," said Elizabeth Ouzts, state director for Environment North Carolina.
The federal rules, she said, don't "give us any extra assurance that all these coal ash ponds will be cleaned up."
Federal regulators had been contemplating a more stringent set of regulations that would have dealt with coal ash as a hazardous material. Many groups, including power generators and companies that use coal ash to make products such as concrete and wallboard, objected to those rules.
McCarthy said the federal government did not have sufficient evidence to call for such stringent regulation.
"If they (the federal government) had come back that the ash was toxic, then it would have thrown it into a whole different regulatory scheme, and what we in North Carolina did in August would have needed substantial revision," Rep. Chuck McGrady, R-Henderson, said. "Given what they did, North Carolina is much further along in the regulation of coal ash than any other state in the union."
Although he has not reviewed the rules fully, McGrady said he did not believe they would require North Carolina to do anything different from what was called for in the 2014 law.
Even if the new federal coal ash rules had been in place a year ago, it's unlikely the new federal rules would have prevented the Dan River spill. That's because EPA officials say they have authority to regulate only the ponds at power plants that are still in operation – not at closed plants such as the one near Eden where the spill occurred.
"We don't believe we have the legal authority under that circumstance," said Assistant EPA Administrator Mattie Stanislaus.
North Carolina's state rules apply to ponds at power plants that are still in operation as well as plants that have ceased operation.
In other areas of environmental regulation, such as air quality, North Carolina has moved toward aligning state standards with the federal government, paring back state rules that exceed federal guidelines. That most likely won't be the case with coal ash.
"I don't see us lessening anything with ours," said Sen. Tom Apodaca, R-Henderson, one of the primary authors of the state's coal ash regulations.
In particular, Apodaca said, the state wants to pay special attention to the aging ponds located at shuttered plants. The Dan River spill was caused by such a pond.
"We definitely want to concentrate on those," he said.
Duke issued a statement through spokesman David Scanzoni, essentially saying that the company needs to review the rules before commenting.
"Duke Energy already is aggressively taking action to improve coal ash management across its service territories by closing ash basins in a way that protects the environment and local communities," the statement said.
Like Ouzts, other environmental groups said they were disappointed the federal rules would not push North Carolina to go beyond its current regimen.
"While there are some new tools for addressing our nation’s coal ash problem in these new federal protections, there are glaring flaws in the EPA’s approach," said Frank Holleman, senior attorney with the Southern Environmental Law Center, a group that has sued Duke over pollution from coal ash ponds.
In particular, Holleman noted, the federal government left the states to enforce the new rules. In fact, the federal regulators emphasized that new disclosure rules would allow states and private citizens to see whether utilities such as Duke are living up to the standards.
"In recent years, our states have failed to adequately address the widespread threat of coal ash, and we are concerned that state decision-makers will not do their part in protecting waterways and the health of citizens," Holleman said. "We have seen how this issue plays out in North Carolina, where the state has not done enough to address Duke Energy’s irresponsible handling of coal ash, despite the disastrous Dan River spill earlier this year."
Holleman also pointed out that the federal rules don't necessarily require that ash be removed from outdated coal ash lagoons, even at operating power plants. Rather, the federal rules require monitoring and only mandate that ash be removed if toxins from the ponds are found in ground or surface water.
"The Dan River spill showed dramatically how dangerous old lagoons are," he said.