Even as coal ash storage basins are leaking massive amounts of pollution in the wake of Hurricane Florence, the coal industry is working on a novel legal strategy to stop the federal regulation of this toxic byproduct of coal combustion. The very same week that coal ash turned some river water in North Carolina into gray pudding and the pollution amassed to the point that it could be seen from space, coal companies have been successfully limiting their liability for this contamination under the Clean Water Act.

The coal industry was already enjoying a banner year under the Trump administration — one capped by the rollback of a 2015 Environmental Protection Agency rule that had set basic limitations on the disposal of coal ash. The waste contains carcinogens and neurotoxins, including arsenic, boron, cadmium, hexavalent chromium, lead, lithium, and mercury, and is often stored in unlined pits.

The 2015 rule required that any coal ash storage facility within five feet of a groundwater aquifer be closed. The new rule, which the EPA finalized in July, extended the time coal companies have to close those ash ponds by 12 months, allowed states to suspend the monitoring of some groundwater near coal ash waste sites, and removed a requirement that only engineers can sign off on changes to coal ash ponds.

“They were essentially turning all the clear standards in the original rule on their head,” said Thomas Cmar, an attorney who manages the coal program for Earthjustice.

The coal industry’s latest push aims to ensure that some of its waste can’t be regulated under the Clean Water Act. In two appeals court cases this week, judges agreed with power companies that the Clean Water Act didn’t apply to ash ponds that leaked waste from coal-fueled power plants into groundwater in Tennessee and Kentucky. Because a Hawaii appeals court reached an opposite decision, the issue may be soon headed to the Supreme Court.

Meanwhile, Duke Energy, which owns all five of the dumps that have released coal ash in the wake of Hurricane Florence, recently sought the EPA’s guidance in shifting oversight of coal ash away from the Clean Water Act, which has long governed these discharges. In February, a lawyer from a law firm that has represented Duke Energy, emailed Susan Bodine, who heads the EPA’s Office of Enforcement and Compliance Assurance, about coal ash liability, according to internal emails obtained through a Freedom of Information Act request by the Waterkeeper Alliance.

Brooks Smith, who directs the environment and energy practice at the law firm Troutman Sanders, asked Bodine for her “input on substance and strategy for addressing” how water contamination leaking from coal ash waste should be regulated.

An attachment Smith sent Bodine, which Bodine noted in the email was authored by a Duke Energy attorney, contained “Proposed Congressional report language” designed to ensure that some liability for coal ash would fall under the Resource Conservation and Recovery Act, or RCRA, rather than the Clean Water Act. One month later, very similar language was included in an explanatory statement that accompanied the federal budget, which, after the budget was passed, became a congressional directive to the EPA.

Smith’s email also offered Bodine a “potential regulatory approach” on coal ash ponds, suggesting that the “EPA should clarify that if a facility is subject to the coal combustion residual (‘CCR’) rule, that facility is exempt from liability under the Clean Water Act.” So far, the EPA has not issued this clarification.

In an email, a Duke Energy spokesperson wrote that using the Clean Water Act to regulate coal ash released to groundwater “would create duplicative requirements that would subject our customers to additional costs and offer no additional environmental protection because groundwater impacts are already regulated under a number of state and federal environmental laws, including the Resource Conservation and Recovery Act.”

Duke’s email also said that the company is “fully committed to closing our ash basins in a manner that is protective of human health and the environment, and in full compliance with all federal and state regulations. At the same time, we will also defend our customers from being burdened with undue costs for the sake of a vocal activist minority pushing their agenda.”

Troutman Sanders did not respond to request for comment. The EPA declined to comment.

Environmental advocates say coal companies are hoping the shift between laws will alleviate their liability for coal ash pollution. “Under the Clean Water Act, it’s clear you can’t discharge pollutants without a permit. It has very bright line triggers for enforcement,” said Abel Russ, a senior attorney at the Environmental Integrity Project. In contrast, Russ described the requirements in the industry’s preferred law, RCRA, as “pretty vague.”

Another factor driving the coal industry’s latest push is likely the relative ease with which citizens and advocacy groups can sue over pollution under the Clean Water Act as opposed to RCRA. “They’re scared of having private citizens be able to go to court to hold them accountable,” said Earthjustice’s Cmar.

Pushing enforcement away from the Clean Water Act will likely also mean that any enforcement actions will come from states, which typically opt for weaker regulation standards. “They want to deal with states where they’re in a position to capture the regulators and get the results they want,” Cmar said.

Indeed, violations of the Clean Water Act have cost the industry dearly in the past. The law was used in a 2015 case against Duke over a massive coal ash spill in North Carolina. A year earlier, a Duke power station released more than 140,000 tons of toxic coal sludge into the Dan River. A subsequent investigation revealed that the company had been releasing coal waste since 2010. Duke pleaded guilty to nine criminal violations of the Clean Water Act and agreed to pay $102 million in related fines.

While the current EPA’s enforcement office, which is headed by Bodine, has yet to hold any coal companies accountable for water pollution from coal ash, environmental groups have continued to use the Clean Water Act to sue coal companies. The Southern Environmental Law Center has filed eight federal lawsuits against Duke Energy alone under the Clean Water Act, according to Frank Holleman, an attorney for the group. The group has also inspected at least 20 of Duke’s coal ash storage sites in recent years. “We found violations of the Clean Water Act at every one of them,” he said.

In its emailed statement, Duke Energy took issue with the environmental group’s assessment of its coal ash storage ponds. “SELC may claim to have found us in violation of the CWA on several occasions, but we apply rigorous scientific processes to our operations and are ultimately answerable to state and federal regulators to demonstrate our compliance and responsibility,” the statement said, going on to note that the company had completed cooling pond dam improvement projects this year that were approved by the state of North Carolina and “really helped our facilities perform well during Hurricane Florence and the flooding that followed.”

For Holleman — and the residents of the Carolinas, where some floodwaters were still rising at press time — these violations of the law predictably translate into devastation when storms come, as they have with increasing intensity in recent years.

“Almost all of these facilities are sitting directly next to public drinking water supplies for thousands of people and, in some instances, on the banks of lakes that are drinking water reservoirs,” says Holleman. One of the five dumps that have released coal waste after Florence is the L.V. Sutton Plant, which has sent its toxic contamination into the Cape Fear River, a source of drinking water for some 250,000 people.

Damage from the L.V. Sutton plant release is “massive,” according to Donna Lisenby, global advocacy manager for Waterkeeper Alliance, who has been monitoring the impact of the storm on coal ash ponds in North and South Carolina by boat. “We have numerous photographs and videos showing large coal ash plumes and deposits in the Cape Fear River on Friday and Saturday.” Water samples from the Neuse River near Duke’s H.F. Lee Plant in North Carolina, had arsenic at nearly 18 times the state’s drinking water standard and elevated levels of other heavy metals, according to the Waterkeeper Alliance.

On Sunday, Duke Energy said that tests it conducted showed that the coal ash basins near the L. V. Sutton plant were stable and that any coal ash released into the water had “little to no impact to river water quality,” a position that the company reiterated in its email on Wednesday.

Coverage of the most recent coal ash spills has been understandably focused on weather. But Daniel Estrin, general counsel and advocacy director for Waterkeeper Alliance, emphasized the human role in the massive water pollution crisis. “These are disasters caused by bad policy allowing enormous amounts of dangerous waste to be stored in the floodplain,” said Estrin.

Estrin sees coal companies’ resistance to moving their ash dumps along with efforts to escape Clean Water Act regulation as part of a larger pattern of trying to minimize their responsibility for water pollution.

“It’s all about money and potential liability,” said Estrin. “It’ll cost them a fortune if they have to remove all of this coal waste and dispose of it properly.”

Update: September 28, 2018

This article has been updated with information about arsenic levels in the Neuse River near Duke Energy’s H.F. Lee Plant.