A newly appointed environmental justice adviser to the Environmental Protection Agency is criticizing an agency proposal to roll back regulations governing coal ash ponds, saying doing so would hurt disadvantaged communities.
EPA Administrator Scott Pruitt announced his proposal to weaken federal coal ash rules earlier this month as a cost-cutting measure for businesses. At the same time, utility companies, responding to a federal deadline to report water monitoring results, were revealing high levels of toxins in groundwater near coal ash ponds at power plants across the country.
"It's framed as being able to save up to $100 million for the utility industry, but what's the trade-off?" said Jeremy Orr, a civil rights attorney and environmental and climate justice chair for the NAACP's Michigan State Conference, whose appointment to the EPA's National Environmental Justice Advisory Council was announced last week.
"Can you really quantify and trade off the disproportionate health impacts that these communities near these ponds are going to suffer?" Orr asked.
Pruitt's proposed regulatory changes, along with the dismissal of civil rights complaints at an Alabama coal ash landfill, are the latest signs of a persistent conflict between civil rights advocates and the EPA that has only intensified under the Trump Administration.
The legal state of the 2015 coal ash rule is in some disarray, with court challenges from environmental advocates and industry pending in federal court.
Pruitt's proposed changes wouldn't fully dismantle the rule, which established minimum national standards regulating the location, design and operation of existing and new coal ash ponds and landfills at more than 400 coal-fired power plants nationwide. But they would give states more influence over regulations, could push back current deadlines for future groundwater monitoring and analysis, and might revisit current restrictions on the construction or operation of coal ash ponds and landfills.
The U.S. Commission on Civil Rights, an independent federal agency, faulted the EPA in 2016 for lax regulations on coal ash ponds. In a blistering, 230-page report, it argued that the EPA's 2015 coal ash rule didn't go far enough.
'We Have a Significant Problem'
Coal ash is the waste left over from burning coal in coal-fired power plants and is one of the largest types of industrial waste generated in the United States, with more than 100 million tons created each year. It contains a number of known carcinogens and is often stored in unlined pits, creating the potential for environmental and health risks, including increased risks of skin, lung and bladder cancers.
Under the 2015 rule, utilities across the country were required to publish groundwater monitoring results by March 2. The test results showed contamination, including high levels of arsenic and radium, at more than 70 sites nationwide, according to an initial analysis by the Associated Press.
"The data clearly show that nationwide we have a significant problem," said Earthjustice Senior Counsel Lisa Evans, whose group is still analyzing the tens of thousands of pages of groundwater monitoring reports.
"Consistently, what I see at these coal ash dumps is an indication that they are leaking, which confirms what we had suspected before the data came out," Evans said. "Most of the sites are unlined, and there are effectively no barriers to stop the hazardous contaminants from leaking into underlying groundwater."
The recent testing was required by the federal government after catastrophic spills in 2008 and 2014 released more than 1 billion gallons of coal ash slurry in Tennessee and North Carolina.
Civil Rights Commission: People Are at Risk
Martin Castro, former U.S. Commission on Civil Rights chair, said the water monitoring results confirm what he has heard for years from low-income communities and communities of color living near coal ash ponds.
"We heard the concerns and the warnings from individuals and community organizations about what the future might hold, and I think, unfortunately, they were right: coal ash, the way it was being stored in unlined ponds or ponds where lining was old and already failing, allowed these chemicals to leach into the groundwater," Castro said.
The toxins in coal ash can damage "all major organ systems," and the percentage of minorities and low-income families living near coal ash ponds are "disproportionately high when compared to the national average," the Civil Rights Commission concluded in its 2016 report.
The commission faulted the EPA's Office of Civil Rights for never making a formal finding of discrimination despite what the commission felt was clear evidence of disproportionate adverse impacts on low-income communities and communities of color.
Pruitt's new proposal, announced on March 1, raises the prospect of giving utilities greater flexibility in where they put coal ash ponds or landfills, something environmental justice advocates say would increase exposure to low-income communities and communities of color.
"They are located in communities of color, overwhelmingly, and low-income communities, overwhelmingly, and that is with current regulation," Orr said. "Imagine rolling that back. It's only going to be an increase in contamination and exposure for these communities."
Current Commission on Civil Rights Chair Catherine Lhamon declined a request to comment on the groundwater monitoring results and the EPA's proposed rule change. "The findings of the 2016 report remain the official position of the Commission," Brian Walch, director of communications for the commission, said.
Walnut Cove and the 300-Acre Ash Pond
The recent testing did not analyze groundwater at drinking water well sites, but the results may shed light on potential health hazards for a number of communities, said Evans, of Earthjustice.
One example is Walnut Cove in North Carolina where in 2016 African-American residents living near Duke Energy's Belews Creek Steam Station detailed their health concerns to the Commission on Civil Rights. They described cancer, respiratory illnesses, neurological problems, heart attacks and strokes that they attributed to the coal ash pond.
The Belews Creek coal ash pond sprawls across more than 300 acres behind a 13-story-tall embankment that company records show would inundate surrounding homes if the embankment were to fail. The results of water monitoring near the coal ash pond, published Feb. 6, found arsenic levels nine times higher than the Federal Drinking Water Standard.
Duke Energy downplayed the significance of the test results. "It's important to note that these CCR [Coal Combustion Residuals] monitoring wells are located immediately next to the CCR unit (basin, landfill, etc.) and do not reflect groundwater conditions farther away or off plant property where neighbors are located," Erin Culbert a spokesperson for Duke Energy, said. "At the Belews Creek site, groundwater near the ash basin is actually moving away from neighbors' wells."
Rev. Rodney Sadler, chair of the healthcare committee for the North Carolina NAACP, disagreed. He described "deleterious health impacts that are extraordinarily rare, occurring with an incredible frequency" in the area.
In preparing the 2016 Civil Rights Commission report, Castro said he heard anecdotal evidence of similar adverse health impacts near coal ash ponds across the country.
"It's consistent across states, it's consistent across generations, it's consistent across communities whether they are poor or African American or Latino," Castro said. "These sorts of toxins have an adverse impact on the health and vitality of individuals, families and communities and we need to regulate them more aggressively, more thoroughly, not less thoroughly."
Orr stressed that the EPA rule changes are still just proposals. The EPA anticipated publishing the proposed amendments in the Federal Register on Thursday and will accept public comments for 45 days once the proposal is published. A public hearing on the proposed amendments is planned for April 24 in Washington D.C.