On January 15, a group of utility companies wrote a letter to Lee Zeldin, then president-elect Donald Trump’s nominee to lead the Environmental Protection Agency. “We provide the electricity for millions of homes, businesses, and institutions across the U.S., create thousands of good-paying jobs, and drive economic progress and American prosperity,” the letter stated.
After the polite opening, they got right to their main request: “Two matters in particular call for immediate action: (1) regulations on greenhouse gas (‘GHG’) emissions from existing coal-fired and new natural-gas power plants that mandate a carbon capture technology that has not been adequately demonstrated and (2) the unprecedented expansion of the federal regulation of coal combustion residuals (‘CCR’).”
The companies contend that the federal government has overstepped its authority in its enforcement of these two areas of regulation. The letter asked Zeldin to go easy on them — by delivering the regulatory authority back to states and rescinding a 2024 rule that mandated cleanup of coal ash at inactive power plants.
What the power companies call “coal combustion residuals,” and describe as “a natural byproduct of generating electricity with coal … used for beneficial purposes in U.S. construction and manufacturing,” is known more colloquially as coal ash — a toxic mixture of heavy metals like arsenic and mercury, which, because coal plants are usually built near bodies of water, often comes in contact with groundwater when it is buried in an unlined pit. Over the last century and a half of American coal power generation, power companies have dumped coal ash at hundreds of active and inactive power plants across the country.
Zeldin is now the administrator of the EPA, and it appears the power companies are getting their wish. Amid a barrage of press releases that, on March 12, proposed 31 deregulatory actions, were two that seem designed to significantly weaken enforcement of coal ash regulations, environmental attorneys told Grist.
Zeldin called it “the greatest day of deregulation our nation has seen.”
In the first, the EPA announced that it will encourage states to take over permitting and enforcement of the coal ash rule. When states are delegated the authority by the EPA to issue their own coal ash disposal permits, they are supposed to adhere to standards at least as stringent as the federal rules, but in some cases state environmental agencies have simply gone rogue and flouted this requirement.
Georgia, which received the authority to issue its own permits for coal ash disposal in 2019, has controversially approved plans at several coal plants for the utility Georgia Power to permanently store millions of tons of coal ash in unlined landfills that are partially submerged in groundwater, despite being notified by EPA that this violates the federal rule. In neighboring Alabama, state regulators sought the same delegated authority that their counterparts in Georgia had been granted, but last year the EPA denied their application because they planned to issue permits to Alabama Power that violated the federal rules in the same manner as Georgia’s.
Alabama’s was the first application for a state-run coal ash program that the EPA has denied; so far, only Georgia, Texas, and Oklahoma have been approved. But new approvals may be coming soon: “EPA will propose a determination on the North Dakota permit program within the next 60 days,” the release said.
The EPA also said it would be “reviewing” a rule it finalized in 2024, under president Joe Biden, that closed a longstanding loophole by extending coal ash regulations to cover so-called “legacy” coal ash ponds at shuttered power plants — which weren’t covered by a landmark 2015 rule that regulated coal ash disposal only at power plants in active use.
The EPA’s review of the 2024 legacy coal ash rule will focus on whether to extend the deadlines for compliance with the rule. Lisa Evans, senior counsel at Earthjustice, said the time frames in the rule as written were already far more lenient than was necessary. “Industry already got major concessions from the Biden EPA to establish deadlines that are far in the future,” she said.
Because coal ash’s peak contamination levels aren’t reached until some 70 years after waste is dumped, longer deadlines can only mean less effective cleanup. “The longer you ignore those sites, the worse the pollution gets,” Evans said.
In the second announcement related to coal ash, the EPA said it will revise a list of its top enforcement priorities that was announced in 2023 and applied to the fiscal years 2024 through 2027. The list of National Enforcement and Compliance Initiatives, or NECI, included six “priority areas” for action, one of which was “Protecting Communities from Coal Ash Contamination.”
The EPA now intends to “align” the agency’s enforcement priorities with President Trump’s executive orders. It said this would be accomplished by “immediately” revising the NECI list “to ensure that enforcement does not discriminate based on race and socioeconomic status (as it has under environmental justice initiatives) or shut down energy production and that it focuses on the most pressing health and safety issues.”
No further details were provided regarding what this meant for the agency’s actual enforcement actions. But a fuller picture is found in an internal agency memo, which was sent by Jeffrey Hall, the acting head of the agency’s enforcement and compliance division. The memo, seen by Grist, outlines the ways in which the NECI list was to be updated.
Hall’s memo said that the priorities are under review “to ensure alignment between the NECIs and the Administration’s directives and priorities,” and it laid out a series of directions that applied “in the interim” to all EPA enforcement and compliance actions. These include a blanket directive that “environmental justice considerations shall no longer inform EPA’s enforcement and compliance assurance work” and another declaring that “enforcement and compliance assurance actions shall not shut down any stage of energy production (from exploration to distribution) or power generation absent an imminent and substantial threat to human health or an express statutory or regulatory requirement to the contrary.”
With respect to coal ash, the memo argues that the NECI priority list “focuses in large part on perceived noncompliance with current performance standards and monitoring and testing requirements and is motivated largely by environmental justice considerations, which are inconsistent with the President’s Executive Orders and the Administrator’s Initiative.” Accordingly, the memo stipulates that “enforcement and compliance assurance for coal ash at active power plant facilities shall focus on imminent threats to human health.”
Due to the wording of the memo, Evans said in an email that “it would be entirely possible for EPA to justify avoiding any enforcement whatsoever of the coal ash rule under the NECI.”
This would be a dramatic reversal of the heightened enforcement that ramped up under the Biden administration. In 2024 — the first year of the coal ash NECI priority — the EPA conducted 107 compliance assessments of coal ash sites across 18 states. While only 5 enforcement cases (orders or agreements by which EPA requires companies to take certain actions) were filed in that year, Evans said it is likely that EPA will find reason for enforcement action at many of the other sites if the investigations are allowed to proceed.
Evans said the requirement that enforcement only take place in cases of an imminent threat to human health effectively restricts the agency from enforcing aspects of the coal ash rule designed to “prevent ‘imminent threats’ by requiring proper management and monitoring of toxic waste sites before damage and spills occur.”
For instance, Evans said, the directive would prohibit the EPA from requiring a utility to repair a faulty groundwater monitoring system. “Utilities have gamed the system at some plants by designing monitoring systems that intentionally miss detecting leakage from a coal ash dump,” she said, citing a 2022 report by Earthjustice and the Environmental Integrity Project that alleged a widespread practice among power companies of manipulating monitoring data to downplay the extent of contamination.
Power companies are supposed to dig wells to assess the groundwater quality at coal ash dumps, and in order to gauge their contamination level they compare it to what should be uncontaminated water samples nearby. But the 2022 report documented examples like coal plants in Texas, Indiana, and Florida where the EPA found that the “background” wells used for the purpose of providing baseline samples of water quality were dug in contaminated areas near the coal ash dump. The report also documented the practice of “intrawell” monitoring, or simply analyzing the data from each well in isolation, in order to assess changes in contamination levels over time, rather than contrasted with uncontaminated wells. This method doesn’t work unless the wells aren’t contaminated to begin with, and is prohibited by EPA guidelines — but the report found it was in use at 108 coal plants nationwide.
These practices could essentially be given a free pass under the new enforcement guidance. “While these are very significant violations (because contamination is not discovered and cleanup not triggered), they may not rise to an ‘imminent threat,’ especially if there are no data revealing toxic releases,” Evans said.
The section of the memo dealing with coal ash also stipulated that “any order or other enforcement action that would unduly burden or significantly disrupt power generation” requires “advance approval” from the assistant administrator of the Office of Enforcement and Compliance Assurance — the politically appointed position temporarily being held by Hall.
The memo justifies this requirement on the basis of the Trump administration’s stated intention of “unleashing American energy.” But to Nick Torrey, a senior attorney at the Southern Environmental Law Center, it has little to do with energy production — and more to do with utilities’ bottom line.
“There’s nothing about cleaning up coal ash that affects power generation; those are two separate activities,” Torrey noted. “So what it sounds like is they’re prioritizing polluters’ interests over people’s drinking water.”
This story was originally published by Grist with the headline Power companies would rather not clean their toxic messes. Trump’s EPA is granting their wish. on Mar 24, 2025.
Advocates fear the agency will “justify avoiding any enforcement whatsoever” of millions of tons of coal ash nationwide. Health, Regulation Grist
