On August 3, 2023, the Environmental Protection Agency (“EPA”) issued a proposed denial of Alabama’s permit program to manage coal ash in landfills and surface impoundments. The EPA claims Alabama’s program is significantly less protective of people and waterways than required by federal regulations. This is the first time the EPA has proposed denying a state coal ash permit program. The decision may be finalized after a 60-day comment period.

The Alabama Department of Environmental Management (“ADEM”) has adopted a coal ash permit program that largely incorporates the language in federal coal ash regulations. However, according to the EPA, the primary issue with Alabama’s coal ash disposal program is its failure to prevent groundwater from infiltrating and flowing out of the disposal areas. ADEM denies that its coal ash permits are less protective than federal standards.

If the EPA’s denial is finalized, Alabama’s utility companies, which rely heavily on coal power plants, may be forced to excavate and remove millions of tons of wet coal ash slurry from unlined disposal ponds alongside rivers in Alabama. Although EPA rules issued in 2015 disallowed the disposal of coal ash into unlined ponds, coal ash ponds preexisting this ruling remain in existence.

Groundwater testing near coal ash ponds in Alabama has shown elevated levels of contaminants, including arsenic, radium, lead and beryllium, all of which are contained in coal ash. These contaminants are associated with cancer and other serious health effects. If the EPA’s decision is finalized, the EPA will consider using all available authorities to enforce the ruling if it identifies any immediate threats to human health or the environment posed by Alabama’s coal ash ponds.