EPA’s race to deregulate and “enforcement discretion” during the COVID-19 crisis leaves Hoosiers living near coal ash dump sites vulnerable.
A flip of a switch brings light to darkness in most homes, but also sets into motion a chain of lasting pollution that could be made worse by environmental agency deregulation and inaction during the COVID-19 crisis.
Environmental groups worry the U.S. Environmental Protection Agency’s race to deregulate in what could be President Donald Trump’s final year in office and the agency’s COVID-19 “enforcement discretion” policy will allow industrial polluters to legally endanger the health of Hoosiers and other Americans.
The lack of continuing and complete state and federal oversight could have disastrous results in Indiana, which has the largest number of toxic coal ash disposal sites of any state.
While most of the country is at a standstill, EPA employees are working to reshape the nation’s environmental regulations to become more industry-friendly while making available only small amounts of money to clean up environmental problems.
“We’re open and continuing our regulatory work business as usual,” the EPA told multiple news outlets.
In just the last 30 days, the EPA announced nearly $58 million in grants to help communities clean up environmental problems, mainly in reliably red states and politically useful swing states.
But the agency has also been working to weaken the regulations aiming to prevent those problems in the first place.
While the public has been sequestered to prevent the spread of COVID-19, the EPA has weakened regulations on mercury and other toxic metals released from oil and coal-fired power plants, finalized a rule weakening vehicle emissions standards, weakened regulations on gasoline and diesel fuel programs, rolled back air pollution regulations for waste coal plants in West Virginia and Pennsylvania, declined to adopt stricter controls on particulate matter emissions, disregarded and discredited an internal report about informing people living near toxic ethylene-oxide-emitting plants about the dangers present.
“The overall reaction from the EPA has been full speed ahead with deregulating, notwithstanding the pandemic,” said Thomas Cmar, deputy managing attorney for Earthjustice’s coal program. “At a time when there is so much going on, so many economic burdens and health concerns on peoples’ lives, for EPA to move forward at this time with these rulemakings and not allow the public to participate in the process is a travesty.”
COAL ASH IN INDIANA
While the EPA’s rulemaking continues, its enforcement of existing environmental laws has basically stopped.
The EPA decided to adopt an “enforcement discretion” policy that will allow industries to violate some environmental laws if they claim those violations were unavoidable due to COVID-19. The agency said it may review those claims after the pandemic is over, potentially revoking the noncompliance allowance.
Indiana’s Department of Environmental Management has adopted a similar policy, which could have an impact on the oversight of coal ash disposal
Coal ash is toxic waste created by burning coal to generate electricity. It can contain mercury, lead, arsenic, and many other metals and elements that could cause cancer, lung and heart problems or death.
Nationwide, coal-fired power plants generate about 110 million tons of coal ash every year. Since the 1950s, power plants have deposited millions of tons of coal ash in unlined pits called impoundments.
“There are dozens of sites around Indiana, hundreds of sites around the United States where power plants have deposited decades’ worth of coal ash,” said Cmar. “They are essentially unlined holes in the ground just dug into the dirt, oftentimes dug all the way to the underlying groundwater underneath the site.”
For decades, Indiana ranked near the top of states that generated the most coal ash. For much of that time, there was little to no regulation on how companies were supposed to dispose of the byproduct.
“Indiana has a lot of coal ash. It’s a state that has had dozens of coal-fired power plants operating over the years,” Cmar said. “Several of them have now retired, but even at sites where the power plants have retired there’s a need for evaluation of whether additional cleanup is needed and whether the closure of these legacy dumpsites are adequately protective.”
LAW & THE CURRENT ORDER
In 2014, the EPA settled a lawsuit that argued the agency had a mandatory duty to review and revise waste regulations, including coal ash, under the Resource and Conservation Recovery Act, a law that gives EPA the authority to control hazardous and non-hazardous waste treatment, storage and disposal.
The EPA agreed it would establish the first-ever federal regulations for coal ash disposal. The result was the 2015 Coal Combustion Residuals rule, which required coal-fired power plants to take steps to prevent about 1.4 billion pounds of coal ash from leaking into waterways. Under the plan, coal ash waste ponds that seeped into groundwater had to close by 2019.
The Trump administration rolled back the rule, and introduced more lenient rules for coal ash generators.
A rule introduced late last year gave most companies until Aug. 31, 2020 to retrofit or close coal ash impoundments and gave plants until 2028 to implement new wastewater disposal standards.
Lenient policies have already led to coal ash contamination, but will COVID-19 policies make that situation worse?
IDEM told the Indiana Environmental Reporter that it has not relaxed any policies, nor has the agency issued any “broad based waivers” from meeting regulatory requirements at coal ash or other sites.
“The sad truth is that there’s very little enforcement at coal ash sites, even under normal times, so it’s hard for me to point at the pandemic as making that any worse, because it’s already close to zero,” said Cmar. “Part of the reason for that is because, historically, state and federal agencies have not been aggressive about enforcing rules against power companies, who are some of the most politically connected and powerful companies in our country.”
The influence of fossil fuel industries reaches state and federal lawmakers.
The fossil fuel industry donated heavily to Trump’s inauguration. One of the largest contributors was the head of Murray Energy, the fourth largest coal producer in the nation.
Current EPA administrator Andrew Wheeler was a former Faegre Baker Daniels LLP lobbyist for coal, chemical and uranium companies in the U.S. One of his clients was Murray Energy.
Murray Energy, which owns the Sitran Terminal in Evansville, has since filed for bankruptcy, but the fossil fuel industry’s influence has already shaped current and future federal and state policies.
The energy industry has also hedged its bets by generously contributing to the campaigns of members of the Indiana House Utilities, Energy and Communications Committee, which shapes the state’s energy laws.
Committee chairman Rep. Ed Soliday’s political campaign reported receiving contributions from political action committees tied to many energy industry mainstays and lobbyists, including Vectren Energy, American Electric Power, Duke Energy, the Indiana Coal Council, Alliance Coal, BP North America and Andrew Wheeler’s former employer, Faegre Baker Daniels LLP.
Committee vice chair Rep. Ethan Manning’s campaign reported receiving contributions from NiSource Inc., American Electric Power and Duke Energy.
Earlier this year, Soliday introduced a controversial bill that would slow the closure of coal-fired power plants, effectively propping up the coal industry in the state.
During the introduction of House Bill 1414, Soliday said coal was necessary in order to make the transition to renewables, and protecting the livelihood of coal miners was vital to Indiana’s economy.
Only about 2,500 coal miners are employed in the state, but the coal industry is a reliable and important contributor to the campaigns of lawmakers who write the rules companies must live by.
“Power companies are able to use their political connections to shape the rules that make them very difficult to enforce against them,” said Cmar. “It’s rare for a utility to be blatantly in violation of coal ash requirements because the requirements are specifically designed with the utility’s input to make them easy to meet.”
ONLINE AND AMPLIFIED
Cmar said the most effective tool for advocates is to become part of the rulemaking process, which can be done by submitting comments when rules are proposed or attend hearings held by agencies or companies trying to change the rules.
Public input to policies and other moves by the EPA and other entities are now mostly confined to the Internet, fulfilling regulatory needs, but possibly blunting the human element of rulemaking.
Companies and agencies will sometimes hold public hearings as part of the regulatory process, forcing their representatives to answer questions face to face.
These hearings allow the public to air concerns and ask questions directly, but they are impractical and potentially deadly during a pandemic.
Some companies have taken those hearings online.
The Northern Indiana Public Service Co., which owns several of the active coal ash sites, will hold a virtual public hearing on its Michigan City Generating Plant coal ash pond closure plans Wednesday, April 22 from 4pm to 6pm.
The EPA continue to accept public comments for its rulemakings online, through the regulations.gov website. IDEM accepts comments through email.
Cmar said public comment is still possible, and likely more important than ever.
“It’s vitally important that industry doesn’t leave the communities, that it has long been a neighbor to, holding the bag in terms of decades worth of legacy contamination,” said Cmar. “We see that as a critical part of a just transition away from these dirty old power plants is making sure they clean up these sites before they transition to new ways of generating electricity.”