The EPA wants to relax rules that govern how companies like Duke Energy can dispose of coal ash, but the proposal has some environmental groups in North Carolina concerned about how the changes might affect community health and citizens' ability to take legal action in the future.
Over the past few months, the agency has been in the midst of a public comment period for the proposal. Susan Wind spoke at one of the hearings on Oct. 2 in Arlington, Virginia.
"Parents like me should not have the burden of proving that coal ash is dangerous," Wind said. "You, the elected officials and regulators, work for us, and not the utility companies."
(You can listen to Wind's full statement here.)
Wind is an activist and a former resident of Mooresville, which is near Duke Energy’s Marshall Steam Station, a power plant with coal ash ponds and landfills. She’s been concerned for years about the health effects of coal ash used as fill in construction and landscaping projects, and Duke Energy’s coal ash storage practices.
In the area around Mooresville, state officials have identified a thyroid cancer cluster, an unusual number of cancer cases in a specific zip code. Wind’s daughter is one of those cases, and she was so concerned about the effects of coal ash on her community that she raised money to commission a study to identify causes of the cancer cluster. Professor Avner Vengosh of Duke University is part of the team conducting the study.
"It’s not aimed to find evidence for coal ash, it aims to find evidence for anything," Vengosh said. "For any environmental factors that make Mooresville different than the rest of the state. Coal ash is one of the candidates, but it’s not the only one."
The EPA's proposal
The EPA's proposal on coal ash disposal, in a nutshell, would remove its limit on how many tons of coal ash a company like Duke can put in one place.
Previously, companies that dumped more than the limit had to convince the EPA that the coal ash wasn’t a risk to the surrounding environment, particularly nearby water sources. Frank Holleman, a lawyer for the Southern Environmental Law Center, has represented environmental and citizen groups in lawsuits against Duke Energy over its coal ash sites.
"Now, however, the EPA has put a proposal out there to remove the cap entirely," Holleman said. "And although it would limit the use of coal ash in places like wetlands – of course, why should any coal ash be put in or near a wetland? – in general, it would remove the cap, and allow even larger amounts of coal ash to be used for unlined fill."
Instead of a limit, the new coal ash rules would use criteria based on where a coal ash site is located, like if it’s in a protected wetland or at risk of flooding.
Why the changes?
EPA officials say there are a number of reasons why they’re proposing these rule changes. For one, the agency is trying to respond to various court actions surrounding its original coal ash rule from 2015.
"The court told the EPA to go back to the 2015 rule, take a second look, and see if these requests that are coming from industry groups and environmental groups can be addressed in a revision of the rule," said Sylvia Carignan, a reporter for Bloomberg Environment who covers the EPA.
When EPA Administrator Andrew Wheeler announced the rule changes in July, he said the organization would “provide states and utilities much-needed flexibility in the management of coal ash, while ensuring human health and the environment are protected.” And while a spokesman for Duke Energy said the company did not ask for these changes, Carignan says that an industry group representing Duke, the Utility Solid Waste Activities Group (USWAG), has lobbied the EPA to amend its rules governing how companies can use and store coal ash.
Environmental groups are concerned about more than just the impacts these changes could have to community health and the environment. They also worry that removing that limit on coal ash disposal could make it more difficult to bring future lawsuits against companies they believe are mishandling coal ash. The EPA’s proposed changes would affect how the federal Resource Conservation and Recovery Act, or RCRA, deals with the disposal of waste products, including coal ash.
"Under RCRA, under the law the EPA has placed this disposal regulation, the public does have the right to sue, if they feel that utilities aren't following the regulations appropriately," Carignan said.
That law is different from the federal Clean Water Act, which environmental groups have used to sue Duke Energy in the past. Holleman said that the EPA's changes would still weaken the tools that citizens like Wind and these groups can use.
"But of course, if you eliminate the limit, then you eliminate the ability of citizens to effectively enforce it, because you’ve taken off the clear restriction that citizens could enforce," Holleman said.
Challenging Duke Energy
Environmental groups have had the most success using federal environmental laws like the Clean Water Act when suing Duke Energy over coal ash sites. Of the 14 coal ash sites Duke has in North Carolina, citizens have compelled the company to clean up eight of them. And at the other six sites, North Carolina’s environmental regulator has ordered Duke to remove the coal ash and dispose of it safely. Duke is still appealing that order.
North Carolina does have its own coal ash law, passed in 2014 after the Dan River coal ash spill, but only the state's environmental regulator can enforce it -- not citizens. Holleman said that means state enforcement depends on the environmental regulator's funding and its willingness to compel companies to clean up their coal ash sites.
The EPA’s new coal ash rules are not final, and the agency may make more changes before it finalizes them.
In response to statements made by Susan Wind and other activists, Duke Energy recently published an editorial written by a toxicologist saying there is no connection between coal ash and cancer cases. You can read that editorial here.