When utilities submit their compliance plans for the EPA’s first-ever federal coal ash disposal rule on Oct. 17, Martin Castro, the chairman of the U.S. Commission on Civil Rights, will be watching closely.

Castro recently sat down with Utility Dive to discuss the commission’s 2016 Statutory Enforcement Report, focused on environmental injustice and coal ash issues (video below). He said that utilities need to “step up” to their corporate social responsibility when it comes to protecting affected communities.

The report, he explained, shows that the EPA had “dropped the ball” when it came to protecting low-income, minority communities from the consequences of unchecked coal ash pollution via its 2014 Coal Combustion Residual (CCR) rule, the recent EPA regulation.

“There are 47 states in the U.S. that have coal ash. Of those, about 30 of the states that are not going to be taking any action on the coal ash rule are states that have high minority populations,” Castro said. “So, it’s extremely incumbent on us to look at how that impacts communities of color. That’s our mandate.”

The CCR rule designates coal ash as a solid waste under subtitle D of the Resource Conservation and Recovery Act (RCRA). By not listing it as a hazardous waste, EPA declined to impose more stringent guidelines for coal ash disposal and residual landfills.

The regulation is self-implementing, meaning that utilities must determine whether and how they should comply with the rule. They are subject to enforcement authority of citizen lawsuits, not the EPA itself. Since its inception in 2014, a number of utilities, like Duke Energy, have become embroiled in a number of costly litigation battles over their handling of coal ash.

Now that utilities are gearing up to submit their compliance plans for the October 17th deadline, Castro urged sector stakeholders to go “above and beyond mere compliance” with state and federal regulations to preserve the health of communities near their coal ash facilities.

In terms of environmental injustice issues — why coal ash, why now? [Video: 0:10] 

Castro believes that civil rights and environmental justice go hand in hand. The EPA’s decision to issue the CCR rule was the perfect opportunity, he said, to look into whether the agency had been following its mandate to protect communities.

“How can you enforce any of your other civil rights, if the community you live in, the water you drink, the air that you breath, the place where you raise your children is contaminated?” Castro asked. “Studies are showing that more people of color live in those toxic areas.”

In constructing its Statutory Enforcement Report, the U.S. Commission on Civil Rights held a number of state hearings throughout the nation to hear concerns of citizens on the way coal ash had been affecting their communities. After an emotional hearing in Walnut Cove in April, where citizens expressed stories of health and economic impacts of coal ash on their families, Castro said that he would be an advocate in Washington.

“We were able to go and talk to folks in communities in Alabama that are living in essence nightmares as a result of [coal ash pollution],” he told Utility Dive.

Those experiences and others led the Civil Rights Commission to some tough conclusions in their 2016 report.

“What we determined was that unfortunately the EPA tremendously dropped the ball on making the determinations on whether there were environmental justice violations when it was determining how to issue the coal ash rule," Castro said. "There’s 47 states in the U.S. that have coal ash. Of those, about 30 of the states that are not going to be taking any action on the coal ash rule are states with high minority populations, so it’s incumbent on us to look at how this is affecting communities of color."

In a statement to Utility Dive, Mustafa Ali, Senior Advisor to Administrator McCarthy for Environmental Justice, wrote that the EPA maintains an extensive program to address the needs of communities.

“EPA has a robust and successful national program to protect minority and low-income communities from pollution. This work, coordinated across our federal, state and tribal partners, has achieved strong results in reducing exposure to serious health threats that overburdened communities face,” wrote Ali.

Ali added that the EPA developed its EJ 2020 action agenda to build on successful strategies to address communities, but that the plan wasn’t mentioned in the report.

“We will review the report in detail, and as in the past, seek to work collaboratively with the Commission on our ongoing and shared commitment to civil rights and to promote environmental justice,” he wrote.  

The report has no enforcement authority. What does that mean?  [1:48] 

Castro took care to explain that while the report has no enforcement authority, the commission has important moral and statutory authority that he hopes Congress and the EPA will pay attention to. He said that the Commission plans on using the report to reach out to policymakers and advocates.

Within the current framework of the CCR rule, the onus of responsibility presents an unfair burden on the communities, which generally consist of low-income families that cannot afford the resources to protect themselves.

“The onus of enforcement [is] on the very same communities of color and low-income that don’t have the resources to start with...We are hurting the same people we are supposed to be helping by the EPA’s coal ash rule,” he said.

“How can you say that coal ash isn’t a toxic substance when many of its components are.”

Castro, later in the interview, also mentions the role of states in maintaining oversight. He says that they have an obligation to citizens to pay attention to what utilities are doing in compliance.

“[States] are first responders in many instances, and they have an important obligation to insure that the communities that are to be protected by the EPA’s regulations and the local regulations are in fact being protected.”

What should utilities consider? What can they learn from Duke Energy? [3:58]

Castro believes that as utilities consider how they are complying with the CCR rule, they must recognize their social corporate responsibility to make their communities safe and free of toxins.

“The utilities in particular should learn from one another,” he said. “We encourage all companies that are producers of energy and coal ash to really think about what they can do above and beyond mere compliance to make their communities safe.”

What utilities can learn from Duke Energy, which recently agreed to a $6 million dollar fine over its Dan River spill, is that they ought to be engaging in a dialogue with the communities that are an important stakeholders.

“It’s important for Duke Energy and all other energy providers to really engage in … a dialogue,” said Castro. “In their corporate social responsibility effort, Duke Energy indicates that the vitality of the communities they serve is important to them. Well when you have communities that are suffering from coal ash, that threatens their vitality. If those words are to have meaning, those organizations need to step up.”

Dawn Santoianni, an official spokesperson for Duke Energy,  wrote in a statement to Utility Dive that the company is strongly committed to protecting the health and safety of the communities it serves.

“We want to ensure our neighbors are updated regularly about our facilities, and the scientific studies and engineering plans for coal ash basins. In 2015 alone, we’ve mailed more than 21,000 letters, implemented pre-recorded phone calls (similar to schools that call parents to report closures or delays), and hosted dozens of community meetings and face-to-face interactions to share updates and answer questions,” wrote Santoianni.

“We are complying with both state and federal regulations regarding our operations and closure efforts...As we move forward with closing ash basins, site-specific engineering studies and consideration of broader environmental, human health, public safety and community impacts guide our planning.”

Moving forward, what are the report’s recommendations? [5:50] 

The report makes several recommendations to the EPA and Congress, and Castro explains that his commission will be asking lawmakers to grant the EPA the resources necessary to more effectively handle civil rights complaints and hire more personnel to effectively monitor utilities and their coal ash management.

Most importantly, the commission says that the EPA ought to prohibit states with EPA funding from allowing utilities to operate without appropriate permits and to eliminate deadlines in hearing Title VI civil rights complaints.

Castro also recommends that coal ash be specified as a "special waste" that requires further research on potential health consequences — a shot at the agency's determination in 2014 that coal ash not be considered a "hazardous waste" for federal regulations.

Further, the report recommends that the EPA "investigate the risk level of residents living the closest to coal ash ponds and potentially provide the economic means for them to be relocated."