Pruitt’s EPA wants to let states handle coal ash. Oklahoma shows why that’s so dangerous.

Oklahoma is the first state to get approval from the agency to regulate coal ash at a state level.

Heavy machinery excavate  and carry coal ash from a drained coal ash pond at Possum Point Power Station in Dumfries, VA. (CREDIT: Kate Patterson for The Washington Post via Getty Images)
Heavy machinery excavate and carry coal ash from a drained coal ash pond at Possum Point Power Station in Dumfries, VA. (CREDIT: Kate Patterson for The Washington Post via Getty Images)

In the eastern part of Oklahoma, near the Arkansas border, sits a small town named Bokoshe. Along with a population of just 512, Bokoshe also happens to be home to several old coal mines, which have been turned into landfills for another sort of coal product: coal ash, the toxic byproduct that results from burning coal.

These landfills are uncovered and unlined, meaning wind can whip the dust over nearby homes while rain can force the dust to leech into the soil below and, possibly, into groundwater. One landfill, known as the Making Money Pit — after the former name of the company that runs it, Making Money Having Fun — is filled with so much coal ash that it’s formed a 50-foot hill atop an already full 70-foot deep pit.

For more than 20 years, residents of the town, plagued by high rates of asthma and cancer, have appealed to state and federal regulators for help. And for years those pleas have gone largely unheard, thanks to the complex web of regulations that address — or more often, fail to properly address — coal ash.

Now, as Oklahoma prepares to be the first state to break away from the federal program that regulates coal ash, environmental and public health advocates worry that the Environmental Protection Agency’s new, state-focused approach will do more to harm communities like Bokoshe than protect them. On January 16 — with little public notice — the EPA published its approval of Oklahoma’s state coal ash disposal program, which would supersede federal regulations. In short, it would give state agencies sole authority to issue — and enforce — permits for the handling and disposal of coal ash throughout Oklahoma.

The move to grant preliminary approval to Oklahoma’s state plan surprised environmental activists in the state, who said the process lacked transparency and had been carried out largely outside of public view. For some, it’s another sign of the EPA’s new path under Administrator Scott Pruitt — one where lax enforcement, presented under the guise of states rights, is presented with little input from the groups and communities most affected by environmental harms.

If they are trying to get state oversight for coal ash in general, we have massive concerns that it is simply going to be swept under the rug and nothing is going to be looked at in the way it should be,” Johnson Bridgewater, director of Oklahoma’s Sierra Club chapter, told ThinkProgress.

For years, coal ash — the second-largest waste stream in the United States — went unregulated, deemed to be neither a hazardous waste material worthy of federal oversight nor a non-hazardous material left to the states. In 2008, following the disaster at the Kingston Fossil Plant in Tennessee that unleashed more than 1 billion gallons of coal ash into nearby waterways and communities — exposing those communities to levels of toxic chemicals well above the safe limit — the federal government finally began talking about how to regulate coal ash.

After six years, the EPA decided it would regulate coal ash as a non-hazardous waste, essentially treating it like household garbage, despite the fact that multiple studies have found coal ash to contain heavy metals like arsenic, chromium, mercury, and lead, as well as high levels of radioactivity. And while the new rule required regular inspection of coal ash pits and required that all new pits to be lined, the EPA didn’t require old coal ash disposal sites to change their operations at all unless they were shown to be actively polluting groundwater. 

Environmentalists criticized the weak regulations, made weaker by the EPA’s decision to also forgo federal enforcement, leaving it up to states and citizen watchdogs to file lawsuits or enforcement actions against companies that failed to comply with the new rule. In 2016, as part of the Water Infrastructure Improvements for the Nation (WIIN) Act, Congress empowered states to follow their own program, rather than federal regulations, as long as the EPA signed off on the state program and deemed it was “at least as protective” as the federal rule.

That entire process, however, relies on having an EPA that is actively interested in regulating coal ash — something public health and environmental groups contend won’t happen under Pruitt.

Like almost all environmental regulations created under the Obama administration, the coal ash rule has now come under Pruitt’s scrutiny, who in September granted an industry petition asking the agency to “reconsider” portions of the rule. But while the fate of the federal regulation remains up in the air — pending both Pruitt’s reconsideration of portions of the rule and legal challenges that have been put on hold — states are already moving forward with their own plans that would supplant any federal rule.

In August, the EPA opened the door for states to begin submitting their own programs for approval to the agency — kicking off a comment period that environmental and public interest groups contend was too short to elicit meaningful public engagement. When a coalition of 50 environmental groups asked the EPA for a 30-day extension for public comment on the process, they were given a verbal extension, only to have that extension rescinded four hours before the original comment deadline.

EPA is in such a rush to approve state’s coal ash permit programs that they have dispensed with that is the ordinary course of business,” Lisa Evans, an attorney for Earthjustice who worked to coordinate public comment from the environmental groups, told ThinkProgress. “Pruitt thinks it is more important to move fast than to move fairly.”

Local environmental groups also point to a lack of transparency — and ability for meaningful public participation — in the decision to approve Oklahoma’s coal ash plan.

It completely took us off guard,” Bridgewater, who has been working on local coal ash issues in Oklahoma for years as part of his role with Sierra Club, told ThinkProgress. “This process was rushed through in what appears to be very short order. I have not had anyone ask me about this, which makes me think there has not been any attempts to make the public aware or let the public weigh in on this.”

But beyond a general lack of transparency and public input, environmental and public health groups have serious concerns about the EPA’s willingness to cede enforcement of coal ash to states — and, in particular, concerns about Oklahoma’s plan for coal ash permitting and disposal.

Having worked at EPA and seen how this works in the regions, when states administer programs, it’s almost always the case that the state are more reluctant to levy high fines, bring enforcement actions, and make tough decisions regarding regulatory compliance,” Evans said. “The states that are now very interested in getting their own program happen to be the states that have never regulated coal ash in an appropriate manner.”

Under Oklahoma’s program, for instance, permits for coal ash disposal would last forever; they would never expire, and never need to be renewed. This is a stark departure from how permits normally work, both at the state and federal level. In Oklahoma, water discharge permits — which allow industry to discharge pollutants into waterways — need to be renewed every five years, which gives the state Department of Environmental Quality an opportunity to reevaluate the permit and whether or not the operator has been in compliance. Air permits also need to be renewed every five years.

Issuing one permit for coal ash that never expires, on the other hand, limits the ability of both the public and the relevant state agencies to enforce any potential issues that might appear down the road, like groundwater contamination. Moreover, since Oklahoma is the first state to be granted approval by the EPA for a state coal ash program, if its permits never expire, that could very well set a precedent for other states.

Oklahoma’s state program also doesn’t cover all coal ash disposal; places where coal ash is moved to abandoned coal pits and coal mines, for example, wouldn’t qualify for regulation under the Oklahoma rule. That means the hills of coal ash that have bedeviled Bokoshe wouldn’t qualify for any kind of state regulation. And it’s not just Bokoshe — there are dozens of old mines and coal pits around the state that would fall through the regulatory gap under Oklahoma’s state permitting program.

Environmental groups were dismayed that the state rule did not go further than the federal regulation, and said it points to Oklahoma officials’ lack of interest in seriously pursuing coal ash cleanup.

We take this new program very seriously because the goal of this program and of permitting these facilities to make sure this contamination stops,” Evans said. “These are activities that have affected public health and the environment before in Oklahoma, so it’s important that we get it right.”

Beyond issues with the permitting process, local activists like Bridgewater fear Oklahoma simply doesn’t have the manpower — or political will — to properly enforce coal ash regulations on its own. One big gap in the state’s environmental enforcement ability stems directly from Pruitt himself: when he was elected Oklahoma attorney general in 2010, Pruitt folded the state’s Environmental Protection Unit, which had been charged with investigating water contamination issues created by industry.

While Scott Pruitt was attorney general, he dismantled [Oklahoma’s] environmental enforcement office,” James Goodwin, a senior policy analyst with the Center for Progressive Reform, told ThinkProgress. “You have no office setting up this enforcement program, it’s hard not to draw the conclusion that this is meant to eliminate any serious enforcement of coal ash disposal standards.”

Other environmental agencies throughout the state — chiefly the Department of Environmental Quality and the Water Resources Board — have seen sharp budget cuts in recent years, which have forced the agencies to cut back on staff. In Oklahoma, oversight of waterways and water pollution is funded by state dollars, not federal funds, meaning budget cuts will likely have a direct impact on the state’s ability to monitor potential water contamination from coal ash disposal. Years of budget cuts have already caused the state Department of Environmental Quality to close 17 of its field offices, leaving it with just 22 around the state. It has also seen its force of inspectors shrink from 89 to 58.

Normally, if a state lacks the manpower or funds to properly ensure the safety of its waterways, the EPA can step in. But under the coal ash program, state authority would supplant the EPA’s ability to help enforce regulations — meaning Oklahoma will be completely in charge of whether its permit program is implemented in a way that protects public health and the environment.

A lot of permit programs can look very good on paper, and Oklahoma’s proposal maybe tracks the federal rule, but it’s really what the state does in enforcement of those rules where the state enforcement will succeed or fail,” Evans said.

Following the EPA’s preliminary approval of Oklahoma’s program, the public has until March 2 to comment on the plan. At least one other state — Georgia — has applied to have its own state plan approved by the EPA, though other states may also be considering a similar move. But with Oklahoma’s permit program poised to move forward, environmental and public interest groups lament that after nearly a decade of public debate about coal ash regulations, the current process has been defined by a lack of transparency that has become the norm under Administrator Pruitt.

There’s a complete lack of transparency around this process,” Goodwin said. “These things are just kind of cropping up out of nowhere, and that really undermines people’s ability to participate in the public comment process.”