EPA issues new final rule on coal ash landfills

Question exists whether Beacon Island is included in final rule’s coverage

GLENMONT – The United States Environmental Protection Agency recently issued a final rule amending 2015 regulations governing the disposal of coal combustion residuals in landfills and surface impoundments. The EPA’s final rule extends existing regulations concerning coal ash disposal from justactive electric utility sites to inactive electric utility sites, known as “legacy CCR surface impoundments.” It remains unclear whether the Port of Albany’s coal ash landfill at Beacon Island will be subject to the final rule’s requirements.

EPA Acting Director of Office of Media Relations and Risk Communications Angela Hackel, in response to written questions, said that the Beacon Island site is included on both the list of potential legacy CCR surface impoundments and the list of potential CCR management units. However, Hackel cautioned that those lists are not definitive and the Port of Albany, who owns the site, will need to do an applicability determination by the new rule’s deadline of November 8. Those assessment determinations must include information identifying the coal ash units, figures of the property’s power generating facilities, where the units are located and the sizes of the units.

Port Chief Commerce Officer Megan Daly said the Port’s engineering and environmental teams are currently assessing whether the Beacon Island site is covered by the final rule. The Port is also consulting with the State Department of Environmental Conservation and the EPA, said Penelope Vavura, the Port’s Director of External Affairs. She said no decision as to the final rule’s applicability has yet been made.

“We don’t think anybody knows at this point,” said Port CEO Richard Hendrick. “What we do know is we are not in the position the EPA is talking about regarding cleanup.” Hendrick said that rather than being contained in a pond, the coal ash on the site is encapsulated in the ground and not leaching out. “We will follow whatever rules we are asked to follow and that’s been our plan all along,” Hendrick said.

Hudson Riverkeeper, a local environmental watchdog organization that has monitored activities at Beacon Island and its adjacent power plant for years, is a member of the global not-for-profit organization Waterkeeper Alliance that advocates for clean water.

Waterkeeper’s General Counsel and Legal Director Dan Estrin said the final rule does not apply to Beacon Island. He said his organization had asked the EPA to extend the final rule to regulate coal ash used as fill off site and not just at the power plants, but the EPA’s final rule did not go that far. He said, “the final rule is not going to require anyone [regarding Beacon Island] to do anything. That doesn’t mean there’s nothing that can be done.” Estrin said the EPA’s fact finding supporting the final rule could be helpful to state DECs or citizen suits, regarding the risks of coal ash.

Sylvia Rowlands, a Glenmont resident and member of Beacon Island Environmental Justice, an entity that has mounted legal challenges to the site’s use, said she and other members of the group provided information, such as maps, state reports, and architectural studies, about Beacon Island requested by the EPA. She said that as a result of the information they provided to the EPA, the EPA placed Beacon Island on the CCRMU list. “We got so much information from everyone there and that’s what landed Beacon Island on the list,” Rowlands said.

Hackel said that during the public comment period for the May 18, 2023 proposed rule, EPA asked commenters to provide information on any sites that might meet the definitions. She said EPA received comments indicating that the Beacon Island facility had a former CCR disposal unit that could meet the definition of a legacy CCR surface impoundment.

EPA included Bethlehem Energy Site (now known as Bethlehem Energy Center), and the adjacent Beacon Island Parcel that was once part of it, on the list of potential legacy CCR surface impoundments and also the list as a potential CCR management unit.

Rowland said the Port will have to conduct the applicability assessment. “It has to be done and they have to say why the rule does or doesn’t apply to them.” She said if the EPA does not enforce the rule against Beacon Island, a civilian suit is a possibility. “We could sue if the EPA is busy,” she said.

If regulated, the final rule requires certain groundwater monitoring, corrective action, closure and post closure care requirements for all CCR management units regardless of how or when that CCR was placed at regulated CCR facilities.

Other than providing an assessment determination in November, facilities have until May 2028 to begin the closure process, but must comply with other deadlines in the interim.

According to an EPA fact sheet, the final rule is important because coal ash, a byproduct of burning coal in power plants, contains contaminants like mercury, cadmium, chromium, and arsenic associated with cancer and other health conditions. If not properly stored, coal ash has the potential to leak or fail, sending coal ash and its contaminants into water sources, such as surface water and groundwater.

Roddy Yagan, Port Senior Construction Project Manager, explained that due to all the permitting requirements, the Port had to start clearing the site for cleaning in April 2022.

Yagan said that by that time, the port had a clear understanding of what was on the site and what needed to be done.

“We developed an entire approach to construction and environmental safety to make sure we were compliant with both federal and state rules,” Yagan said.

Yagan also said the EPA ruling does not necessarily broaden what steps must be taken, but only broadens who must comply with the regulations. Port CCO Daly said the Port’s remediation plan went “above and beyond in anticipation of it [the final rule]”. She said doing so was important to the project, so even if Beacon Island falls within the final rule’s jurisdiction, “it may not require additional work.”

“This will now be a fully remediated site to generate clean energy,” said Edward Larkin, Regional Manager Buildings Engineering and Code Services for LaBella, an outside engineering firm employed by the Port on the project.

EPA’s Hackel said that other than adding which facilities are regulated by the rule, the final rule changed little from the draft rule. Hackel added that EPA cannot comment on the compliance status of individual facilities because it is “fact intensive and specific to each particular facility.” She also explained that units which have been capped are not automatically exempt from the rule, but a facility owner/operator would have to make a determination of applicability by November 8. After that date, she said the facility owner/operator will have to follow the Rule’s requirements to determine if there are steps that need to be taken.

Rowlands said the DEC permit will not shield the Port from compliance. “You may think that you have immunity because DEC gave you a permit to close the landfill, but New York State DEC doesn’t have a coal ash rule. DEC has no standing in the coal ash conversation.”

Dana Ferine, DEC’s Assistant Public Information Officer for Region 3 said, “DEC is reviewing the new regulations from the EPA but has no further comment.”

“We were advancing the project ahead of what’s coming. We knew how the rules handled coal ash. They want you to test and understand what is out there,” LaBella’s Larkin said. He said a plan was developed with EPA guidance and after speaking with Hudson Riverkeeper, which Larkin described as a key stakeholder. He added that now the Port has capped the site with four feet of clear material.

“Now we have guidance that governs legacy sites. We already meet them and go beyond the requirements,” Larkin said. “Now we know what’s required and the EPA does not have to worry about it. Other sites will take 40 more years to get to where Beacon Island is today.”

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