A coal ash mound at a facility in Tennessee.
Photo: AP

Coal ash is nasty stuff. Full of dangerous metals like lead and mercury, the ash left over after the combustion of coal can increase a person’s risk for cancer and mess with their brain health.

That however, isn’t stopped President Donald Trump and his boy Scott Pruitt over at the Environmental Protection Agency (EPA) from making it easier for coal ash to end up in people’s waterways and their bodies. Earlier this week, the EPA approved the first state permit program for coal ash management in his home state of Oklahoma. Georgia is also seeking to have its plan approved. While this in and of itself isn’t evil at all, some environmentalists worry these plans will allow states to be more lenient with industry polluters.

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The EPA is supposed to oversee management of coal ash, including signing off on state plans. That’s following a landmark coal ash rule created by former President Barack Obama’s EPA in 2016, which requires groundwater monitoring and standards on how to store and dispose of the substance.

“EPA regulated coal ash disposal because of concerns about the potential collapse of disposal units and potential health risks to people living near these units,” said Suzanne Rudzinski, a former EPA official with the Office of Resource Conservation and Recovery, who oversaw some of this rule, to Earther. These health risks could result from contaminated groundwater or dust blowing off coal plants, none of which the agency was monitoring at the time.

The thing is, Obama’s law didn’t include a normal regulatory structure. Instead, he went ahead and gave the EPA the power to approve (or deny) state plans when he signed the Water Infrastructure for Improvements to the Nation (WIIN) Act that same year. This act requires any state plans to meet federal standards at the very least. If a state opts to not make its own plan (or fails to make an adequate one), it adheres to federal standards.

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Under the current Pruitt-run EPA, though, anything goes. A state’s permitting plan may meet federal requirements on paper, but whether the state actually implements that is a separate question—especially if utilities support the plan. Like in Oklahoma.

“One of the problems we see is that states have a dismal record in both the regulation and enforcement of coal ash
,” said Jennifer Cassel, an attorney that deals with coal ash with environmental law firm Earthjustice, to Earther. “Oklahoma is a prime example of that.”

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The state’s Department of Environmental Quality, which is handling all this, disagrees. “We have a long history of regulating these facilities, and we are much closer to the situation,” said Fenton Rood, an assistant land division director with Oklahoma’s Department of Environmental Quality, to Earther. “We have a more robust enforcement structure.”

Really, though? A recent analysis by environmental groups found groundwater contamination at four coal ash dump sites in the state. In the town of Bokoshe, the state’s ignored a coal ash dump for decades. It’s a town whose poverty rate doubles that of the U.S.—indicative of the kind of communities often left to bear the burden of coal ash contamination. This case, in particular, is reason enough for many environmentalists to oppose the state’s permitting plan.

“There’s absolutely no evidence in how things have changed in the way Oklahoma will enforce,” Cassel said.

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The U.S. Commission on Civil Rights even took a look at the way coal ash was infiltrating low-income communities, many of which also happen to be of color, in its 2016 enforcement report. It noted:

Whether coal ash facilities are disproportionately located in low-income and minority communities depends on how the comparison is done, but the EPA did find the percentage of minorities and low-income individuals living within the catchment area of coal ash disposal facilities is disproportionately high when compared to the national average. The EPA did not fully consider the civil rights impacts in approving movement and storage of coal ash.

Still, the Obama rule was a step forward for many. Coal ash disposal was completely unregulated before it. “The rule is a critical and good step,” said Rudzinski, who now offers environmental consulting services. “People can argue whether the rule went too far or not far enough, but at least these units finally have a protective national set of standards.”

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It’s hard to imagine a state like Oklahoma will enforce these standards under an EPA that has only shown interest in weakening regulations, though. While groundwater around coal facilities often contains troubling amounts of chemicals (like arsenic), the EPA is proposing to amend Obama’s coal ash rule to save utilities money. If people get sick, oh well. At least states were granted more rights?