ADEM program shows “a consistent pattern of deficiencies,” EPA says

by Sydney Cromwell

On Thursday, Aug. 3, the Environmental Protection Agency announced a proposal to deny Alabama’s coal combustion residuals (CCR) program for failing to meet federal standards.

CCR, commonly called “coal ash,” is a group of byproducts made in the process of burning coal to generate electricity. It contains around 20 different heavy metals and chemicals known to be toxic to humans.

Read more from Southern Science about the dangers of coal ash and the EPA’s other proposed regulations related to coal ash.

Alabama had applied to run its own state-level permitting program for coal ash in lieu of the federal program, as have Georgia, Texas and Oklahoma. However, state permitting programs must meet or exceed the regulations required at the federal level, and the EPA has determined that parts of Alabama’s permitting standards do not meet those requirements.

If the EPA’s rejection is approved, Alabama’s power companies will have to meet federal regulatory standards for handling and cleaning up coal ash, which could include excavating coal ash ponds and landfills.

According to the EPA on Thursday, the permit program that the Alabama Department of Environmental Management (ADEM) submitted in December 2021 mostly mirrored federal coal ash regulations that were established in 2015. However, some parts of the permitting program were “interpreting its State regulations in a manner inconsistent with the plain language of the federal requirements” and were not as strict as was required, the EPA said.

The EPA claims ADEM has shown “a consistent pattern of deficiencies in the permits and a lack of oversight and independent evaluation of facilities’ proposed permit terms.”

In particular, the EPA found fault with the state’s requirements for closing and cleaning up “unlined surface impoundments,” where coal ash is dumped into pits or landfills without a protective barrier between the ash and the soil. The EPA said ADEM’s requirements for groundwater monitoring and correcting violations related to these unlined impoundments were insufficient as well.

Lynn Battle, the chief of ADEM’s Office of External Affairs, gave the following statement in response to the EPA’s proposal: “The permits issued by ADEM for the closure of coal ash impoundments and the remediation of groundwater around the impoundments meet all current state and federal requirements and are protective of human health and the environment. This action by EPA is not unexpected, since EPA is currently defending multiple lawsuits related to the same issues cited as the basis for the proposed denial of ADEM’s program that cleans up coal ash impoundments in Alabama.”

The EPA alleges that it discussed these inadequate regulatory standards with ADEM, which “declined to modify the existing permits” and issued another permit that also didn’t meet federal standards.

According to the EPA, the state had already started issuing permits for CCR handling and disposal to coal-fired power plants based on its own permit program before it had applied to the EPA for approval. Those plants included Alabama Power’s Plant Miller (Jefferson County), Plant Greene County, Plant Gadsden (Etowah County), Plant Barry (Mobile County) and Plant Gaston (Shelby County), as well as PowerSouth’s Plant Lowman (Washington County).

After submitting its application to the EPA, ADEM also issued permits to Alabama Power’s Plant Gorgas (Walker County) and the Tennessee Valley Authority’s Plant Colbert (Colbert County).

Discussions between the EPA and ADEM about the state CCR permit program continued until July 2022. The EPA said it expressed concerns about several parts of the state’s regulations, including where coal ash was being stored in unlined pits below the water table, increasing the likelihood that coal ash would escape into nearby groundwater.

The EPA also alleges that ADEM has approved groundwater monitoring systems that are not sufficient based on the number of monitoring wells and their locations, and that it has issued permits that “effectively allow the permittee to delay implementation” of steps to fix coal ash contamination.

Last July, the EPA decided to put its review of the state’s program on hold until it had been revised to meet federal standards. However, ADEM moved forward with its permit for Plant Colbert in October, without addressing those concerns.

In December 2022, ADEM and the state attorney general filed notice that they intended to sue the EPA, claiming that the agency had overstepped its regulatory bounds in its review of Alabama’s permit program application and that the EPA had failed in its duty by not approving the state’s permit program in a timely manner.

With its announcement on Thursday, the EPA began a 60-day period to accept public comments. Input can be given online at regulations.gov or via mail:

U.S. Environmental Protection Agency, EPA Docket Center
Office of Land and Emergency Management (OLEM) Docket, Mail Code 28221T
1200 Pennsylvania Ave. N.W., Washington, DC 20460.

The EPA will also hold a public hearing in Montgomery on Sept. 20 and a virtual hearing on Sept. 27. Register for the virtual hearing at epa.gov/coalash.

To read the EPA’s complete notice denying the state CCR program, click here.

Main article image of a pile of fly ash, one form of coal ash waste, courtesy of the Department of Energy.