Sometimes a cheap and fast repair can end up costing more in the long run.

That’s the situation Alabama appears to be facing at two of its coal ash ponds, sites the state has okayed, but that are still leaching toxic substances, such as arsenic and mercury, into Alabama’s groundwater.

And that’s not OK with the federal government.

Alabama Power and the Tennessee Valley Authority each spent millions to retire old coal ash ponds, one at Plant Gadsden in Etowah County and the other at the Colbert Fossil Plant in Tuscumbia. They compacted the ash and covered each pond with dirt and a synthetic liner.

But the U.S. Environmental Protection Agency said in August that Alabama’s coal ash permits are too lax. Now, the EPA may force those utilities to dig up the two ponds and start from scratch, moving the coal ash from the old unlined impoundments to new, lined landfills. And ratepayers could potentially pick up the costs in their monthly power bills.

SEE ALSO: Alabama, EPA in billion-dollar showdown over coal ash

Frank Holleman, director of the Southern Environmental Law Center’s coal ash program, said Alabama regulators and utilities erred by rushing to pick the cheapest cleanup option.

“They went ahead and capped those ponds without first determining they were in compliance with the federal rule,” Holleman said. “That was an unwise act, a wasteful act to go ahead and cap a site without first ensuring its compliance with all the laws.”

Alabama rushed ahead

How did Alabama get here? The EPA passed new coal ash regulations in 2015. And Alabama jumped out early and fast.

Alabama was one of the first four states to apply for a program that would allow utilities with coal ash ponds to get permits from the state instead of the EPA.

But the state didn’t run fast enough to get its program approved by the EPA before Donald Trump lost to Joe Biden in 2020. Then, while waiting on the federal thumbs up, Alabama threatened to sue the Biden EPA for not approving the state’s plan quickly enough.

The EPA responded by rejecting Alabama’s application.

That’s where we stand now. So the permits issued by Alabama could be invalid as the Biden EPA says Alabama’s plan doesn’t meet federal standards.

While EPA approved the other three programs, in Texas, Oklahoma and Georgia, the EPA said the coal ash plan submitted by the Alabama Department of Environmental Management is not protective enough of the environment. That decision is expected to be finalized in the coming months.

The EPA said Alabama’s coal ash program application showed a number of problems, which the state chose not to address, even after EPA discussed the shortcomings with ADEM.

The EPA also said Alabama was the only state to begin issuing coal ash closure permits without waiting for the agency to sign off on its program for creating those permits.

“During its review, EPA identified a consistent pattern of ADEM issuing permits to [coal ash] units that fail to demonstrate compliance with fundamental requirements in [the 2015 coal ash rules], without requiring the permittees to take specific actions to bring the units into compliance,” the EPA said in its rejection of Alabama’s plan.

Can coal ash safely sit in groundwater?

The high-stakes dispute between ADEM and the EPA over coal ash rules boils down to a relatively simple question: Can a coal ash pond be considered safely closed when the ash material inside is still sitting in groundwater?

The 2015 EPA rules gave utilities two choices for retiring their ash ponds: Dig the ash out and move it to a lined landfill, or leave it in the unlined pits, cover it from the top, remove all “free liquids,” and allow the toxic pollution from the ash to naturally diminish over time.

But what’s a free liquid? According to the EPA, that includes groundwater, which bubbles up from the depths into the stored coal ash, grabbing toxic components from the ash and leaching them out into the environment.

All of Alabama’s major ash ponds, including the two that have already been capped, are believed to be in contact with groundwater, based on EPA paperwork and engineering reports submitted by the utilities.

In its denial, EPA argues that plants such as Alabama’s Colbert Fossil Plant cannot meet the free liquid requirement when ash sits unlined, below the water table.

“In situations such as [Colbert], where the waste in the unit is inundated with groundwater, the requirement to eliminate free liquids thus obligates the facility to take engineering measures necessary to ensure that the groundwater, along with the other free liquids, has been permanently removed from the unit prior to installing the final cover system,” the agency said.

“Specifically, EPA rejected the claim that the Federal closure regulations do not require a facility to address groundwater in the impoundment as part of closure,” the agency said.

Some watching the dispute say this groundwater interpretation may require all of Alabama’s ash ponds to be dug out.

“As far as we can tell, every coal ash lagoon or impoundment in Alabama is in contact with groundwater,” Holleman said. “We’re not aware of one that isn’t.”

But Alabama utilities and the Alabama Department of Environmental Management proposed that removing free liquid just meant removing as much water as possible from the ash and compacting the ash into a smaller footprint.

Environmental advocates have long argued that leaving the coal ash in these impoundments meant that the hazardous constituents of the coal ash – mercury, arsenic, lead and other heavy metals – would continuously leach into the groundwater indefinitely.

Alabama utilities have been fined more than $1.5 million for contamination of groundwater near coal ash ponds, and without a bottom liner to separate ash from groundwater, environmental groups and the EPA now say the pollution will continue indefinitely under the current plans.

Other Southeastern utilities like Georgia Power, Duke Energy, South Carolina Electric and Gas, Santee Cooper, Appalachian Power and Dominion Energy decided to excavate some or all of their ash ponds rather than choose the less expensive cover-in-place option.

Holleman said many utilities in other states now see excavation as a safer, more responsible choice than cover-in-place.

“[Those utilities] have concluded the only way they can comply with the law is to remove the ash from the unlined pits, recycle it into cement or concrete or put in a safe, modern lined landfill, away from the rivers and lakes and separated from the groundwater,” Holleman said.

The EPA, when rejecting Alabama’s application, said that leaving the coal ash in groundwater not only ensures continued groundwater pollution, but the plan also raises concerns about structural stability of the capped ponds.

Will the covered ponds have to be dug out again?

Environmental groups arguing for removal had warned for years that the EPA coal ash rules require the utilities to fix groundwater pollution and utilities could be forced to go back in and dig up the ponds.

That may be coming true at Gadsden and Colbert.

The TVA Colbert plant stopped burning coal in 2016, and the pond was covered in 2018.

Now the EPA says that up to 35% of the ash at Colbert may be sitting in groundwater, at a depth possibly as high as 13 feet.

TVA said in public comments filed about EPA’s decision that EPA should approve Alabama’s program, and that the Agency had changed its interpretations of the rule from 2015 to 2022.

“Contrary to these [2015] positions, in January 2022, EPA began stating that clean closure or closure by removal is required when coal ash is in contact with groundwater” the TVA said. “This has led to several lawsuits in the United States Court of Appeals for the District of Columbia Circuit.

“EPA’s change has led to confusion and uncertainty for the industry which for over seven years relied on and invested money in implementing and executing plans based on EPA’s initial positions for the 2015 Rule,” the TVA said.

At Gadsden, the coal ash under the cap is still sitting in groundwater up to four feet deep, with about a third of the total volume sitting below the water table.

Alabama has not been entirely alone in prematurely capping ash sites. Georgia Power also has at least one capped ash pond sitting in groundwater that may have to be excavated.

But Alabama utilities already capped two ponds and were moving forward – with ADEM permits – to cap others when EPA stepped in.

Build that (underground) wall?

Barring a drastic change in its interpretation of the coal ash rules, it seems the Biden administration’s EPA will not sign off on unlined coal ash ponds.

But is there another option?

In at least two other plants, Alabama Power is now proposing to build massive underground walls around the perimeter of the ash ponds, extending up to 30 feet below the surface to keep the ash contained laterally, though the ponds would still be open on the bottom.

At Alabama Power’s Plant Greene County, the company has proposed building a wall around the perimeter of the pond that would be about 2.5 miles long.

The company has included in its closure plans a similar wall at Plant Barry in Mobile County but has not said how long that wall would be.

It remains to be seen if that kind of solution would be enough for EPA. It’s also unclear how much cost that adds to the total cost of covering in place, potentially narrowing the cost difference between cover-in-place and removal.

Holleman, with the Southern Environmental Law Center, said there are other costs of cover-in-place that could be avoided with disposal in a lined landfill.

“When you cap a site in place, you have to monitor it for 30 years,” Holleman said. “And if it fails, you may have to go back and redo the whole thing.”

Court battle looming?

ADEM has argued that the cover-in-place plans can meet the requirements of the federal CCR rules and that it’s up to the utilities to decide.

“ADEM does not and cannot dictate to the power companies what method they must use,” ADEM Director Lance LeFleur wrote in a guest opinion column for AL.com.

ADEM submitted detailed written comments to the EPA objecting to the agency’s decision, including technical arguments for why a cap in place is protective.

ADEM argues that groundwater pollution will decrease over time through a process called monitored natural attenuation. They say that once the pond is capped from the top, that water will stop flowing through the ash and less of the harmful constituents from the ash will reach groundwater.

“Alabama Power, PowerSouth and TVA all chose to cap in place,” wrote LeFleur, “which they had the right to do.”

There is reason to think that the state may head to court if EPA moves forward with its plans.

ADEM, represented by the Alabama Attorney General’s Office, filed a notice of intent to sue the EPA last year for not approving Alabama’s coal ash plan fast enough.

The EPA responded that it had concerns about Alabama’s application and did not consider the application complete until those concerns were addressed. ADEM responded that its application was final. The EPA proposed its rejection of the state plan in August.

Alabama Attorney General Steve Marshall’s office did not respond to requests to comment for this story, nor did the office file formal comments with EPA during the public comment period, as ADEM did.

But the state has often sued EPA over federal regulations.

LeFleur, in his op-ed for AL.com, argues that the EPA changed its own interpretation of the coal ash rules, and the new interpretations are “being widely challenged on many fronts – legally, environmentally, economically, practically, and how they potentially adversely impact disadvantaged communities.”

“However, I do want to make another promise to the people of Alabama,” LeFleur writes.

“Although we cannot predict how the challenges to EPA’s new interpretations will end, ADEM CCR regulations and closure permits will comply with all federal regulations and court rulings now and in the future.”

Up Next: Who pays for Alabama’s billion-dollar ash cleanups?