Ignoring coal ash could be toxic to Trump’s legacy

Communities are tackling coal ash cleanup through the courts. But can they count on a strong federal partner?

Coal piled at the Gallatin Fossil Plant in Gallatin, Tennessee. CREDIT: AP Photo/Mark Humphrey
Coal piled at the Gallatin Fossil Plant in Gallatin, Tennessee. CREDIT: AP Photo/Mark Humphrey

For decades, environmental groups in Tennessee allege that the Gallatin coal plant — a Tennessee Valley Authority-owned facility located north of Nashville — has been leaching toxins from coal ash into surface water.

As communities and environmentalists across the southeast continue to push for utilities to be held responsible for the pollution they cause and clean up their coal ash storage practices, the fight over the Gallatin plant moves to federal court. Proceedings began on Monday for the lawsuit filed by the Southern Environmental Law Center (SELC) — on behalf of the Tennessee Clean Water Network and Tennessee Scenic Rivers Association — against the Tennessee Valley Authority.

Attorneys from the SELC are hoping the trial will result in the TVA being found guilty of Clean Water Act violations from coal ash leaching at the Gallatin coal plant — a finding that could eventually compel the utility to excavate its coal ash and store it in lined pits or landfills away from water sources.

“TVA has a history of ignoring concerns of the communities.”

“TVA has a history of ignoring concerns of the communities and people of Tennessee, and polluting our water resources with its coal ash,” said Anne Davis, managing attorney in the SELC’s Nashville office. “The Gallatin plant has been contaminating our water supplies for more than half a century, it’s time we put a stop to TVA’s coal ash pollution.”

The trial is set to last four days, and a ruling in favor of the environmental groups will most directly impact the communities that depend on groundwater from sources near the Gallatin plant. But the push to clean up coal ash in the southeast could eventually put President Donald Trump in a tough political position, forcing him to choose between supporting Trump voters currently fighting coal ash in their backyards or bending to the policy desires of Washington think tanks and lobbyists.

A region of resistance

The U.S. Southeast — which, with the exception of Virginia, voted exclusively for Trump in the 2016 presidential election — is home to 40 percent of the nation’s coal ash pits. Coal ash, the waste product leftover from burning coal, is the second-largest form of industrial waste in the country; in 2014, according to the EPA, some 130 million tons of coal was was produced. Utilities have traditionally mixed that coal ash with water and stored the resulting slurry in unlined pits — many separated from waterways like rivers and lakes by little more than earthen dikes. When those dike break, the results are catastrophic — in 2008, a breach in the dike of a coal ash pit at TVA’s Kingston power plant sent 5.4 million cubic yards of coal ash spilling into Tennessee’s Emory River.

But catastrophic breaches aren’t the only way coal ash can endanger water supplies. When coal ash in stored in unlined pits, it can leach toxins such as mercury and arsenic into groundwater. This has prompted communities to push for utilities — like TVA, or Duke Energy in North Carolina — to excavate their unlined coal ash pits and move the coal ash to lined, dry storage away from water sources.

“Utilities need to be aware that local communities are not going to continue to accept business as usual.”

In addition to the Gallatin case in Tennessee, SELC has worked with communities throughout the southeast to push utilities to clean up their coal ash. They succeeded in convincing all three of South Carolina’s major utilities to move their coal ash from unlined to lined storage, and successfully worked to get Duke Energy to clean up eight of its 14 unlined coal ash pits in North Carolina. The remaining six are the subject of enforcement actions, being brought against Duke by SELC on behalf of community groups.

“The utilities need to be aware — and I think are becoming more and more aware — that local communities are not going to continue to accept business as usual,” Frank Holleman, a senior attorney with SELC, told ThinkProgress. “Some utilities are taking the more protective view of their communities. Others, like TVA and Duke Energy, are trailing in this respect and are having to be forced to address the threats to their communities. Those utilities can expect to revive continued pressure from their communities until they do the right thing.”

A nonpartisan issue

The fight to clean up coal ash pits throughout the southeast, according to Holleman, has largely managed to avoid the traditional partisan politics that usually surround environmental issues.

In South Carolina — a state Trump carried by 14 points — the push to get utilities to excavate their coal ash pits enjoyed support from environmentalists, local businesses, and local government. In 2013, the Conway City Council — located in Horry County, which voted 67 percent for Trump in the presidential election — unanimously approved a resolution calling for the removal of coal ash from the area. That move, Holleman said, was crucial in getting Santee Cooper — South Carolina’s state-owned utility — to agree to clean up its coal ash pits.

“When we [at SELC] and local community groups have addressed coal ash pollution and unlined coal ash pollution, there has been no political or ideological division,” Holleman said. “Everyone from the Tea Party to no party has supported our efforts.”

Efforts to clean up unlined coal ash pits have stretched on for decades, but accelerated, in large part, following the 2014 coal ash spill in North Carolina, during which a coal ash pit operated by Duke Energy sent 82,000 tons of coal ash into the Dan River. Following that spill, a federal judge ordered the EPA to draft rules governing the cleanup and disposal of coal ash. Those rules were released in 2014, and while they required all new coal ash pits to be lined, old pits only needed to be cleaned up if they were actively found to be polluting groundwater.

In 2016, Congress passed the the Water Infrastructure Improvements for the Nation Act, or the WINN Act, which allows states to develop their own plans for coal ash disposal, so long as those plans are at least as stringent as the federal rule.

Still, both the EPA’s coal ash rule and the WINN Act leave groups like SELC, or local environmental groups, with a problem — identifying old coal ash pits that might be leaking into groundwater, and convincing a utility — either through community pressure or judicial means — to clean up the pit.

An uncertain federal future

While states are granted fairly broad leeway under the WINN Act for devising their own plans for coal ash cleanup, Holleman cautions against assuming the federal government need not play a role.

“There are a lot of very well-meaning individuals who work in our state environmental protection agencies, but they are state entities,” he said. “The most powerful institutions in the state legislatures in our region are the utilities.”

“The well-meaning people in the state agencies can only go so far.”

Utilities in the southeast spend millions of dollars each year on political spending. Between 2015 and 2016, Duke Energy spent almost $1.3 million on political contributions. Dominion Resources, the largest investor-owned utility in Virginia, spent a little over $1 million over the same time period.

“What that means is, for our state environmental agencies, they find it very hard to make the utilities change because the same legislators who are most heavily influenced by these utilities are the same people who appropriate the money for the budget of the state environmental agencies,” Holleman said. “The well-meaning people in the state agencies can only go so far, and they look to EPA as a backstop, as do we, to give them the authority and the ultimate support to require the utilities to do the right thing.”

Trump himself has not commented on coal ash, but has pledged to reign in the EPA’s regulatory authority, nominating vocal EPA critic Scott Pruitt to head the administration. He has also appointed a former lobbyist for Southern Company — a southeastern power company that has considerable coal assets — as acting assistant attorney general for the Department of Justice’s Environment and Natural Resource Division. The Environment and Natural Resource Division is the division of the Justice Department that prosecutes environmental crimes — including the 2015 case against Duke Energy related to the Dan River coal ash spill.

“We don’t expect much enforcement to come out of the Trump administration,” Lisa Evans, an attorney with EarthJustice specializing in hazardous waste law, told ThinkProgress. “Fortunately, we’re not looking at a situation where the [EPA coal ash] rule can’t be enforced. We’re looking at an administration that is likely to be very reluctant to vigorously enforce the rule.”

But choosing to ignore the issue of coal ash pollution might be a political miscalculation for Trump, who could run the risk of indulging the policy preferences of Washington lobbyists and think-tanks at the expense of his voter base.

“If the Trump administration thinks that people who support Trump want more coal ash pollution in their community, they just don’t understand what is happening in the local communities where people voted for Trump,” Holleman said.

“If the Trump administration thinks that people who support Trump want more coal ash pollution in their community, they just don’t understand what is happening in the local communities where people voted for Trump.”

Take, for example, Pickens County, South Carolina — a county that voted almost 74 percent for Trump, his highest margin in the state. Residents there are currently embroiled in a fight against a recycling and waste company that wants to build a coal ash landfill within the county. Despite a bill passed by the state legislature aimed at barring the company from disposing of coal ash in the county, the waste company is currently suing the county for $25 million, citing a breach of contract. According to local news coverage, residents of Pickens County filled the county council’s chambers several times in 2016, urging the council to reject the landfill proposal.

“I don’t think you could find a Trump supporter in the county of Pickens who is a supporter of coal ash, nor a supporter of weakening coal ash protection,” Holleman said. “If communities learn and perceive that the national government is not standing up to protect them from problems associated with coal ash, they will not like that and they will react against it.”