Arizona Environmental Agency Wants to Change Regulations for Coal Ash Dumps

Coal ash, the sludgy leftovers from burning coal, contains mercury, lead, arsenic, and other toxic substances. After it is dumped into landfills and lagoons, those harmful contaminants can leach into groundwater.

The Arizona Department of Environmental Quality is proposing to exempt these dumps from a state permitting program to protect groundwater. Instead, it wants those dumps to be subject to federal regulations, which it says are more stringent.

For the state’s precious underground reserves of water, and for the people that care about them, that might be good news — at least for a little while. The change could expose the owners of coal-fired power plants to more citizen lawsuits, but in the long run, it’s unclear how much safer Arizona’s aquifers will be from the fly ash, bottom ash, boiler slag, and other byproducts of burning coal.

ADEQ Director Misael Cabrera wrote in letters to state leaders on May 3 that the DEQ plans to expedite the process that would allow only federal rules to apply to coal ash dumps — in government lingo, the preferred phrase is “coal combustion residual disposal units” — at Arizona’s power plants.

The exception would apply to four coal-fired plants, owned by the state’s biggest and most powerful utilities: Apache Generating Station (owned by Arizona Electric Power Cooperative), Cholla Power Plant (Arizona Public Service), Springerville Generating Station (Tucson Electric Power Company), and Coronado Generating Station (Salt River Project), according to DEQ’s formal notice of its proposal.

Cabrera said that the proposal was appropriate because it “amends or repeals rules that are outdated, redundant, or otherwise no longer necessary for the operation of state government.” The letters were sent to House Speaker Rusty Bowers, Senate President Karen Fann, Governor Doug Ducey, the governor’s regulatory review council, and the legislative council.

“We’re just providing the exemption from the state rule so they can meet the federal rule quicker,” said Erin Jordan, a spokesperson for the department.

One environmental advocate was neutral about this particular swapping of regulatory power.

“I was a little bit suspicious — whenever anyone is trying to exempt anything you want to look at it closely — but it really does look like the [federal] program is more protective, and that because of how the timelines work, there really is a conflict,” said Sandy Bahr, director of the Grand Canyon Chapter of the Sierra Club. “We’re not supporting this, but we’re not opposing it.”

Instead, Bahr was more concerned about the state’s stated long-term goal of taking over federal environmental permitting programs, including for coal ash dumping.

Arizona is already pushing to take over one such program, under the Clean Water Act, and the DEQ has indicated that ultimately, it hopes to take over permitting for coal ash, despite an apparent setback in its efforts to do so.

“This interim exemption will avoid conflicts and duplicative regulation … while at the same time laying the foundation for a potential future state-assumed [coal combustion residuals] regulatory program,” its formal notice said.

The state made clear more than a year ago that it wanted to take over the federal permitting program, holding a meeting at the end of March 2018 to discuss the possibility. A tentative timeline presented at that meeting showed that the department had hoped to make the change by spring 2019.

What worries environmentalists like Bahr is that the Department of Environmental Quality lacks the resources to take on such a critical oversight role.

“We have a lot of concerns, because the ADEQ is pretty much funded through permit fees,” she explained. “It gives them more of an incentive to get out permits,” instead of, say, denying them when appropriate.

For now, it’s difficult to tell whether the proposed temporary switch to federal oversight would keep Arizona’s groundwater cleaner from the toxic waste dumped by coal-burning power plants.

The federal rule is “self-implementing,” the department’s formal notice stated, which means that “the regulations were not intended to be implemented through direct government oversight.”

It added, “Enforcement is largely left to be performed through citizen lawsuits.”

To Bahr, that’s a good thing.

“The citizen suit provisions under federal laws are better from an enforcement perspective than Arizona, which really for all intents and purposes doesn’t really have a citizen suit provision,” Bahr said. “I think having the opportunity to hold them accountable under federal law … is important.”

Others, like the environmental group Waterkeeper Alliance, have noted that the current federal rules on dumping coal ash were influenced and drafted by the coal industry.

Last August, a three-judge panel District of Columbia Circuit Court of Appeals concluded that those rules, adopted by the Obama administration and rolled back under President Donald Trump earlier in 2018, did too little, Courthouse News Service reported at the time. The rules did not address the risks to public health and to the environment before leakage of the dumps’ toxic materials is detected, judges wrote in their opinion.

Nor did the rules confront “the harms from continued leakage during the years before leakage is ultimately halted by retrofit or closure.”

When the nonprofit Environmental Integrity Project compiled and analyzed groundwater monitoring data from power companies in 2018, it found that 91 percent of coal plants had unsafe levels of coal-ash contaminants in the groundwater beneath them.

The group’s findings, published in March, also showed that some coal plant companies’ testing methods just weren’t good enough.

At the Cholla Power Plant, in Joseph City, Arizona, lithium contamination was so imprecisely measured that “we don’t really know what the lithium concentration is, or whether it is safe or unsafe,” the report by Environmental Integrity Project noted. “Multiple plants are using detection limits or reporting limits that far exceed the safe levels of harmful coal ash contaminants.”

The public can comment on the proposed rule until Friday, June 14, when a public hearing will also be held at the Department of Environmental Quality in Phoenix.