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07 • 30 • 2021

Surfrider Calls on Regulators to Hold Parties Accountable for Coal Ash Spill off Northeast Florida Coast

By Kelsey Manes, Surfrider Summer Legal Intern

In March 2021, a barge transporting thousands of tons of coal ash, the equivalent of 800 standard garbage trucks, ran aground off the Jacksonville coast. The coal ash, a byproduct of burning coal for coal fired power plants, also known as coal combustion residuals (CCR), was on its way from a facility in Puerto Rico to Jacksonville, where it would then be transported to a landfill in Georgia. The wreck resulted in a significant amount of coal ash – perhaps more than 9,300 tons - spilling into the ocean only a mile from the shoreline, and one of the First Coast’s most popular surf spots, the Mayport Poles.

While Florida Department of Environmental Protection (DEP) reportedly claims the exact effects of coal ash on marine environments is uncertain, coal ash is known to pose potential danger both to marine life and human health. As it settles on the ocean floor, it can kill aquatic organisms living there. Smaller organisms may consume the material, after which it can make its way up the food chain to humans. If it makes its way to the beach and mixes with the sand, it can harm nesting sea turtles. In humans, exposure has been linked to multiple types of cancers, liver damage, kidney damage, and cardiac arrythmia. Despite the toxicity of coal ash, the federal government is limited in its ability to respond to spills like this, due to the EPA’s classification of coal ash.

What exactly is coal ash?

Most importantly, coal ash is a toxic waste. It is a byproduct of burning coal, often containing multiple substances proven to be harmful to human health, including arsenic, chromium, lead, and mercury. United States coal-fired plants generate about 140 million tons of it per year, and store it in pits and ponds, or surface impoundments, in combination with water.  

Despite the dangers presented by coal ash, the EPA categorizes it as “non-hazardous” solid waste, giving coal ash the same designation as household garbage. Surfrider and environmentalists across the country are concerned about the implications of such a weak designation. Because coal ash is deemed to be “non-hazardous” rather than “hazardous,” there are fewer mechanisms by which to hold accountable parties responsible for coal ash spills, such as the Comprehensive Environmental Response, Compensation, and Liability Act, which provides broad Federal authority to respond to releases or threatened releases of hazardous substances that pose a danger to public health or the environment. Under the current framework and classification, states have the responsibility to actually create any CCR regulations, with enforcement relying mainly on citizen suits, while the federal government only provides an “overall regulatory direction.” On the other hand, hazardous substances are regulated under a comprehensive EPA program, ensuring that the waste is managed safely at every point, from “cradle to grave.”

Why such a weak designation?

Coal industry groups that make money on the recycling of coal ash lobbied hard for the frustrating designation, and regulators appear to have caved to industry, despite thousands of comments in support of a “hazardous” designation. (Hazardous and Solid Waste Management System; Disposal of Coal Combustion Residuals From Electric Utilities 80 Fed. Reg. 21302, 21319 (Apr. 17, 2015)). Coal ash is often recycled into concrete, wall board, and other profitable materials. Industry argues that designating coal ash as “hazardous” would stigmatize its reuse, thus affecting those industries’ bottom line.

What this means for the recent spill

Despite the nonhazardous classification, which Surfrider disagrees with, the recent spill of thousands of tons of coal ash into the Atlantic Ocean is still a clear and egregious violation of the Clean Water Act, which prohibits the discharge of pollutants into U.S. waterways without a permit, and other Florida law.  

On July 12, Florida DEP issued AES Puerto Rico, LP, the company that generated the toxic coal ash and is responsible for its disposal, and two companies responsible for shipping it between Puerto Rico and north Florida, a Warning Letter, which may be the first step to issuing a fine or enforcing a consent order (a type of agreement, with penalties) against responsible parties. The letter provides that DEP is conducting an investigation, and that there may have been violations of [Chapters] 253 and 403 of the Florida Statutes. Florida Statutes Chapter 403 relates to environmental control and encompasses the state’s Clean Water Act regulation of pollutant discharges into waters of the U.S. (Section 403.0885).  Chapter 253 regulates the state’s public lands, and provides the duty and authority to protect and conserve such lands, including state waters.  The letter required a response by each recipient by July 27th to schedule a meeting with DEP.

As DEP continues their investigation, Surfrider strongly encourages the agency to bring a meaningful enforcement action against the companies for the egregious coal ash spill off the Jacksonville coast. We believe an appropriate sanction must be harsh enough to penalize this significant spill, deter events like this in the future, and ensure more careful transportation of coal ash in our waters. Regulators must not acquiesce to corporate polluters. Second, we encourage the state of Florida to adopt strict state regulations to ensure the smarter, safer transportation of coal ash in the future. The environmental cost of spills like this is too high to accept such a weak enforcement regime. 

You can help by encouraging DEP to bring meaningful enforcement. Please send an email to Greg.Strong@dep.state.fl.us, Jim.Maher@dep.state.fl.us, and Matthew.Kershner@dep.state.fl.us, encouraging them to hold the responsible parties accountable for spilling thousands of tons of toxic coal ash into Jacksonville’s nearshore waters. This spill threatened the health and safety of the many people who recreate within close proximity, harmed Florida’s public trust property and marine resources, and is a clear violation of the Clean Water Act.