SEPA ENFORCEMENT ALERT AND COMPLIANCE ASSURANCE
National Enforcement and Compliance Initiative
Protecting Communities from Coal Ash Contamination
EPA Document #310F23002 December 2023
EPA F nds Significant Noncompliance with the RCRA
Coal Ash Disposal Regulations
This Enforcement Alert highlights important compliance issues regarding the Coal Combustion
Residuals (also referred to as coal ash or CCR) Rule, which was created under the Resource
Conservation and Recovery Act. This Alert focuses on several specific regulatory requirements and
highlights recently concluded enforcement matters.
Detected Widespread Noncompliance
EPA initiated numerous facility assessments and
inspections to determine compliance with regulatory
requirements such as groundwater monitoring, corrective
action implementation, and disposal unit closure. These
assessments detected widespread noncompliance with
important CCR Rule requirements. EPA made coal ash
contamination a national priority this year. (See highlight
box on this page.) As of November 2023, the Agency has
already finalized two settlement agreements to address
detected noncompliance, as described later in this
document.
Specific Areas of Concern for
Compliance Assessment and
Enforcement
The CCR Rule was promulgated to promote
the safe management and effective cleanup of
coal ash. One of the key programmatic goals
of the CCR Rule is to ensure that the manner
in which coal ash disposal units are closed will
ensure that the long-term (which in most
cases means permanent) disposition of the
coal ash will not adversely impact human
health and the environment, particularly
groundwater. Groundwater contamination at
coal ash disposal facilities is a significant
concern.
National Enforcement and Compliance
Initiative
EPA has been monitoring compliance with the coal
ash regulations since Congress provided EPA the
authority to do so in 2016. These requirements are
currently the subject of a National Enforcement and
Compliance Initiative (NECI). Through the NECI,
EPA is increasing its compliance and enforcement
activities to ensure companies are properly handling
coal ash, appropriately addressing releases, and
protecting communities from the impact of coal ash
contamination. More information is available on the
Agency's NECI web page.
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Approximately 150 facilities have detected groundwater contamination from metals and other
inorganic compounds released through coal ash disposal and EPA believes that number will continue
to increase.
The coal ash disposal program is premised upon the well-understood principle that groundwater
resources must be protected regardless of the current use or status of those resources. This is even
more true as the effects of climate change put unsustainable pressure on existing groundwater
throughout the country. To this end, the regulations allow either closure by removal of all coal ash, or
closure with coal ash remaining in the unit, both of which have associated performance standards
that must be met to ensure no further releases of coal ash and coal ash contaminants from the unit,
including into groundwater. The coal ash regulations do not mandate a particular closure option;
rather, each facility is provided flexibility to choose an appropriate closure option that meets
applicable and relevant performance standards.
EPA has detected the following types of noncompliance related to closure and groundwater
remediation:
¦ Closure by Removal of All Coal Ash
o Failure to make an adequate
assessment that all coal ash has been
removed;
o Failure to assess and address all areas,
including groundwater, that may have
been affected by a release of coal ash or
its constituents.
¦ Closure with Coal Ash Remaining in the Unit
o Failure to prepare and post an adequate
closure plan that addresses how the
performance standards will be achieved;
o Failure to remove all liquids in the unit;
o Failure to implement measures to prevent future infiltration of liquids regardless of the
source or direction of the infiltration;
o Failure to implement measures to prevent future collection and containment of liquids;
o Failure to implement measures to prevent releases of coai ash and contaminated
leachate to groundwater.
¦ Groundwater Monitoring Efforts
o Failure to adequately justify and support alternative contamination source
demonstrations;
o Failure to properly consider well data using same wells comparisons (intrawell) rather
than comparison across separate wells (interwell);
o Failure to establish an adequate groundwater monitoring network, including installation
of an insufficient number of wells and deficient well spacing coverage.
Photo 2: Slurried Coal Ash Being Discharged
to a Management Unit
Credit: U.S. EPA
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¦ Remedy Selection
o Failure to adequately consider the regulatory criteria in development of the assessment
of corrective measures;
o Failure to justify delays in implementation of corrective measures;
o Failure to adequately justify the selection of corrective measures (e.g., selection and
reliance on monitored natural attenuation as a groundwater remedy without technical
support that legitimate attenuation mechanisms are likely to be present).
Photo 3: Typical Coal Ash Surface Impoundment Used for Storage and Disposal of Coal Ash: Surface impoundments can
be quite large, with some units reaching upwards of 500 acres.
Credit: U.S.. EPA
Overview of Concluded Settlement Agreements
In 2022, EPA finalized settlement agreements with facilities addressing numerous aspects of coal ash
noncompliance which are highlighted below.
Public Service Company of Colorado Comanche Station, Pueblo, Colorado
On May 20, 2022, EPA finalized a settlement agreement with the Public Service Company of
Colorado's ("PSCo") Comanche power station in Pueblo, Colorado.
In the agreement, EPA alleged that PSCo did not meet certain requirements of the CCR Rule,
including:
• Failure to monitor groundwater under the facility and prepare related reports;
• Failure to conduct statistical analysis of groundwater data and establish groundwater
background contaminant concentrations;
• Failure to cease using a coal ash surface impoundment after the applicable "cease receipt" of
waste date; and
• Failure to post required documents on a publicly accessible internet site.
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The settlement agreement commits PSCo to
address groundwater contamination issues and to
ensure the proper closure of coal ash surface
impoundments under RCRA, as well as pay a civil
penalty of $925,000.
Evergy Tecumseh Energy Center, Topeka,
Kansas
• Failure to adequately prepare annual
groundwater monitoring and corrective
action report;
• Failure to comply with groundwater
monitoring requirements;
• Failure to comply with groundwater
sampling and analysis requirements;
• Failure to adequately complete the
assessment monitoring program; and
• Failure to comply with closure and post-
closure requirements.
The settlement agreement commits Evergy to re-
assess groundwater monitoring data and revise
and enhance groundwater monitoring efforts
through additional well installation at both the
surface impoundment and the landfill, as well as
pay a civil penalty of $120,000.
The RCRA Civil Penalty Policy
Applies to Coal Ash Enforcement
Cases
In 2016, when Congress authorized EPA to
take enforcement actions related to CCR
rule violations, Congress applied penalty
provisions from the RCRA statute that are
the same penalty provisions that apply to
the RCRA hazardous waste program.
These penalty provisions are, in large part,
the foundation for the RCRA Civil Penalty
Policy that was developed originally for the
hazardous waste program. The Penalty
Policy sets out a penalty assessment
framework that allows for consideration of
all levels of potential for harm and the full
range of deviations from compliance with
any given requirement. The Policy
framework is not premised upon
presumptions that are linked to the
hazardous waste program. Therefore, the
Agency will continue to use the Policy for
penalty assessment in CCR enforcement
matters. The Agency's confirmation of this
was set out in the Application of the RCRA
Civil Penalty Policy to RCRA Coal
Combustion Residuals Program
Enforcement Actions (1/4/2023) and
Revisions to the 1990 RCRA Civil Penalty
Policy (6/23/2023).
On November 7, 2022, EPA finalized a settlement
agreement with Evergy, Inc., to address alleged
violations at its Tecumseh Energy Center facility in
Topeka, Kansas. In the agreement, EPA alleged
the following violations:
More Information on Coal Ash and the Coal Combustion Residuals Program, including
the regulations and the WIIN Act, which amended RCRA to provide EPA additional
responsibilities and authority regarding the Program, can be found on EPA's Coal Ash
(Coal Combustion Residuals) website.
Disclaimer: This Enforcement Alert addresses select provisions of EPA regulatory requirements with a
focus on the Resource Conservation and Recovery Act using plain language. Nothing in this
Enforcement Alert is meant to replace or revise any EPA regulatory provision or any other part of the
Code of Federal Regulations, the Federal Register or the Resource Conservation and Recovery Act or
any currently valid EPA policy or guidance document.
Enforcement Alert
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