EPA considering stronger coal ash regulations

New regulations being considered by the U.S. Environmental Protection Agency concerning coal ash could have a significant impact on those companies that produce electric power for Michigan residents, especially DTE Energy and CMS Energy, which owns Consumers Energy.

Together DTE and CMS serve around 90 percent of state electricity customers and both companies get most of their power from coal-fired plants. In statements to investors this year both companies warned that if EPA decides to regulate coal ash as hazardous waste — one of the two options being considered — the cost of upgrading landfills or constructing new ones will be substantial.

“Some of the [coal ash] regulatory actions currently being contemplated could have a material adverse impact on our operations and financial position and the rates we charge our customers.” DTE warned investors in its annual report, noting that agencies and legislatures have lobbied EPA against reclassifying coal ash waste.

Both companies operate massive coal ash waste ponds or surface impoundments which EPA could require be retrofitted for safety or phased out within five years.

The coal ash impoundment for DTE Energy’s Monroe power plant is visible from I-75 in Monroe at Dunbar Rd. The 400 acre basin is three quarters of a mile across and has a capacity of 15 million cubic yards. According to state regulators, waste ash from the plant is mixed with water and sluiced into the basin, and when the ash settles the water is released into Lake Erie. The dump relies on the natural clay content of the soil to keep toxins from leaching into the groundwater. There is one groundwater test well in a sandy part of the dump and this is monitored by the company.

Just south of DTE’s facility the 20 million cubic foot, 400 acre ash lagoon used by CMS Energy’s JR Whiting facility since 1953 also relies on natural soil to serve as a barrier for leakage, and releases sluice water back into Lake Erie. At this site there is no required monitoring of groundwater. According to Larry Bean, supervisor of the Department of Natural Resources and Environment’s solid waste division in Jackson, CMS has been exempted from groundwater testing because the risk of aquifer contamination at this site has been deemed minimal.

Both of these Monroe sites were named in a 2007 EPA risk assessment that found significantly increased cancer risk associated with exposure to contaminated groundwater at ash disposal sites that are lined only with natural soil.

State regulators insist that these facilities are safe and they say that there’s been no sign that pollutants from these ash dumps have migrated into area waters.

At coal ash landfills in Lansing, Bay City and in St. Clair County, however, pollutants from coal ash are known to have leached into groundwater at levels that violate health standards.

Coal ash is one of the most pervasive waste products in the country and though it is known to contain arsenic, lead, boron, mercury and other health damaging toxins, it has not been regulated as a hazardous waste by the federal government. There is increasing information, however, that coal ash poses threats to water supplies.

Reports on the aftermath of the 2008 billion gallon spill from a Tennessee Valley Authority ash pond indicate that surrounding water has been contaminated with arsenic and radioactive radium, and recent EPA studies indicate that modern pollution controls that remove pollution from the air concentrate those pollutants in the ash, making the waste product more toxic than before.

Environmental groups point to the contamination at some Michigan coal ash sites and the light monitoring at others as evidence that stricter regulation is necessary.

In a June announcement EPA asked for feedback on two options for how it should handle coal ash under the Resource Conservation and Recovery Act (RCRA). One option, known as the “Subtitle C” option would treat coal ash waste as a hazardous material and create uniform, federally enforceable standards for its storage, handling, transportation and disposal. This option would allow for federal inspections and require the phase out of ash storage ponds like the ones in Monroe. The other option, known as “Subtitle D” would leave coal ash classed as solid waste and create management guidelines for states rather than enforceable federal standards.

The agency is also asking for information on whether states have adequate groundwater monitoring around ash waste disposal sites.

“Our position is that the nonhazardous designation is the appropriate approach and would be consistent with the existing regulatory approach, which has worked well in Michigan,” said CMS Energy spokesman Jeff Holyfield.

State regulators have not yet decided whether to support stricter regulation.

Margie Ring, state solid waste engineering coordinator for the Department of Natural Resources and Environment, is responsible for developing Michigan’s response to EPA’s options for coal ash regulation.

Ring acknowledged that coal ash toxins have polluted groundwater around the Karn/Weadock facility and that remediation plans are still in the discussion stage.

State law does require groundwater monitoring at closed landfills, she said, and new landfills are required to put up financial assurance bonds.

Ring said that she is still studying the options proposed by EPA. “We haven’t made our conclusion yet,” she said.

EPA would give a time frame to retrofit or close the ash dumps under both options, she said, so the impact would be on waste handling practices going forward.

“Retrofit could be difficult at a big facility,” she said.

Not everyone agrees that the existing framework is working.

The Sierra Club, the Natural Resources Defense Fund, the Environmental Integrity Project, Earthjustice and others are pushing for EPA to enact federal regulation of coal ash.

Tiffany Hartung of the Michigan Chapter of the Sierra Club’s Beyond Coal campaign points out that Consumers Energy’s two coal ash landfills at the company’s Karn Weadock complex sit at the mouth of the Saginaw River close to the drinking water intake for the Bay City water system.

“These landfills have been known to be discharging arsenic, boron, lithium and sulfate from coal ash leachate into Saginaw Bay since 2002.  Mercury is also a concern,” she said. “Given the seriousness of these risks, enforceable federal safeguards, not suggested state guidelines, are necessary to protect our communities.”