Let the US EPA coal ash rule procedures work
Environmentalists are raising concerns about risks to groundwater from coal ash, making this an opportune time to clarify EPA’s 2015 coal combustion residual rule, attorney Brent Fewell writes.
In recent weeks, environmental activists have begun to ratchet-up a public media campaign aimed at flaming concerns about the public health risks associated with groundwater in proximity to coal combustion disposal units. Unfortunately, this campaign is fraught with erroneous, premature and misleading statements, which do not serve the public interest and ought to be corrected.
Now is an opportune time to set the facts straight about the U.S. EPA’s 2015 coal combustion residual (CCR) rule, and what is being done to protect public health. The CCR rule sets forth a clear and orderly process (with defined deadlines) for utilities to assess groundwater conditions and potential human risks, to provide the public with timely data and information regarding those risks, and to make informed decisions regarding corrective measures where necessary to eliminate any unacceptable risks.
The CCR rule initially requires utilities to conduct groundwater detection monitoring near coal ash basins and make that data publicly available by posting a report on their websites by March 2. Electric power utilities are in the process of assessing and correcting any public health risks associated with these basins pursuant to the CCR rule.
Initial monitoring results
While most utilities are still assembling their initial monitoring data for the March 2 report, a handful have already published their initial monitoring results. Unfortunately, some activists are already wrongfully alleging that utilities are stalling, even though companies still have weeks to finalize and file their plans, which involve steps beyond providing the initial monitoring data.** And this initial monitoring is only the first step in a phased, multi-step groundwater monitoring and assessment process established under the CCR rule.
Over the last year, utilities with CCR disposal units have been monitoring groundwater for a host of constituents associated with coal combustion residuals (many of them naturally occurring) to assess groundwater conditions, including, for example, pH, total dissolved solids, sulfate, boron, calcium, chloride, fluoride, antimony, arsenic, lithium, molybdenum and selenium.
The March 2 report will include initial data from a utility’s monitoring program, including the number and location of monitoring wells and the results of the initial sampling data. The data will also identify any groundwater constituents, if any, where there is a statistically significant increase of the CCR constituents above background levels.
Importantly, however, if a statistically significant increase is observed during initial monitoring, this does not automatically mean that groundwater protection standards are being violated or that a facility is having an impact on drinking water. Rather, these preliminary data collected at the edge of the disposal unit simply mean that the facility must take the next steps under the rule's groundwater assessment monitoring program.
Groundwater quality and potential health risks associated with CCR units are often highly complex and depend upon site specific conditions, including the geology and hydrogeology of the site, concentration of naturally occurring elements, impacts or interferences from nearby sources of contamination, groundwater fluctuations and flows, soil porosity, and proximity to any downgradient receptors such as drinking water wells.
The CCR rule expressly authorizes a utility to conduct what is called an alternative source demonstration (ASD) to ensure that the data are correct and not due to sampling or statistical error, natural variation in groundwater or contamination from another source. Alternative source demonstrations for the initial round of sampling must be completed by April 15.
Groundwater protection standards
A facility that fails to successfully demonstrate an alternate source of contamination — that is, a statistically significant increase has been confirmed — is required within 90 days to initiate an assessment monitoring program, under which a facility must establish groundwater protection standards (contamination levels that cannot be exceeded) and conduct more sampling for constituents that may pose health risks. Groundwater Protection Standards are either maximum contaminant levels established under the federal Safe Drinking Water Act or background levels, whichever is higher.This additional information is due later this year by October 12.
Importantly, facilities unable to achieve groundwater protection standards are required to select a remedy and corrective measures by April 10, 2019. And corrective measures must be implemented within 90 days of the remedy selection and continue until all groundwater standards are met.
The industry is committed to managing CCR in an environmentally sound manner and takes seriously its commitment to environmental protection and regulatory compliance. It will take the necessary steps to address any adverse impacts to the environment.
Unfortunately, for certain groups to draw premature conclusions regarding health risks based on initial groundwater data is not only wrong, it is irresponsible. It is important we let the regulatory process play out without needlessly playing on the public’s fears
Brent Fewell is the Founder of Earth & Water Law Group located in Washington DC and the former Principal Deputy Assistant Administrator for U.S. EPA’s Office of Water during the George W. Bush Administration. Brent is a practicing environmental lawyer who has consulted for energy industry clients on coal ash issues, and has extensive experience in water quality issues associated with the cleanup of contaminated sites and landfill closures.