States can gain similar authority over the regulation of underground injection wells, and in February, the EPA approved West Virginia as the fourth state — along with Wyoming, North Dakota, and Louisiana — with such primacy.
Weakened coal ash rules would be hard to reverse
In 2021 and again in 2023, Indiana lawmakers adopted legislation obligating the state to adopt its own coal ash rules and then seek primacy to enforce them. This upset environmental and health advocates, said attorney Indra Frank, since they feared that the state would not actually enforce coal ash standards after being freed from federal scrutiny.
“In Indiana, our industry would prefer to deal with [the Indiana Department of Environmental Management] rather than EPA,” added Frank, who serves as coal ash adviser for the Hoosier Environmental Council. “It’s a problem if the EPA approves a program like the one they just approved in North Dakota, where the state agency has a long history of ignoring noncompliance and actually issuing approvals for plans that are not compliant. Once the state has primacy, the EPA will be very hesitant to step in. And the courts will defer to the state’s primacy as well.”
In 2024, Indiana issued draft state coal ash rules akin to the federal rules and accepted public comment on them. But Frank suspects that Indiana regulators will wait to revise those standards once laxer federal rules are finalized. In March, Zeldin announced a review and planned overhauls of the coal ash rules, which were barely enforced until 2022, when the Biden administration began issuing decisions and mandates.
With revised federal rules on the books, Indiana could enshrine state rules that are similarly weakened.
And even if the federal rules are beefed up again in the future, the federal government would be hard-pressed to impose those rules on a state that gained primacy with weak rules, explained Evans and Frank.
“The trifecta would be that EPA weakens the current regulations, and the states adopt those weak regulations and issue permits based on those weak regulations,” said Evans. “Then I think we’re in a really terrible situation. Because if the regulations are again strengthened under a new administration, the states have three years to change their programs to be consistent, but who is going to enforce that deadline? I think it would be more than three years before corrections would be made to state programs, and in the meantime a lot of damage is being done.”
Ash in Indiana
Indiana is home to more than 73 million cubic yards of coal ash stored on at least 16 sites, according to data compiled by Earthjustice in 2022 based on companies’ own reporting required under federal rules. That’s the equivalent of more than 22,000 Olympic swimming pools. And that number doesn’t even include ash not covered by the federal rules until a 2024 update.
All the coal ash ponds noted in the data are unlined, and most of them have contaminated groundwater with elements including arsenic, molybdenum, and lithium, according to the companies’ own reports.
Companies have proposed to close many of the ponds in place — without removing the coal ash from the unlined repositories. Ben Inskeep, program director for the consumer group Citizens Action Coalition, said he would expect state regulators to approve such plans.
“The track record in Indiana has been lax enforcement, not particularly focused on ensuring good environmental quality outcomes and more focused on doing the bidding of industry,” he said, noting that’s a reason to oppose primacy on coal ash.
“We certainly would be very concerned by that path forward, given we think the EPA is the right entity to implement those regulations and ensure enforcement,” Inskeep said. “The Trump administration is a four-year term, and managing coal ash is going to be decades into the future. This is a long-term issue that requires federal oversight for the duration; it’s absolutely critical the federal government keep that ability.”
