Environmental Groups File Lawsuit Against EPA to Force Coal Ash Regulation

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A coalition of 11 environmental and public health groups filed a lawsuit April 5 to force the Environmental Protection Agency to complete its rulemaking on coal ash (Appalachian Voices v. Jackson, D.D.C., docket number unavailable, 4/5/12).

The lawsuit, filed in the U.S. District Court for the District of Columbia, asks the court to set deadlines for EPA to review and revise coal ash regulations.

The agency issued a proposed rule in May 2010 outlining two options for regulating coal ash, the residual from coal-fired power plants. EPA has not yet issued a final rule, but says it expects to do so by the end of the year. A court order could hold the agency to a specific date.

Earthjustice, which will represent the coalition, said EPA has violated section 2002(b) of the Resource Conservation and Recovery Act by not reviewing and appropriately revising coal ash regulations every three years.

According to the filing, the coalition wants to compel EPA to “undertake long overdue action to address the serious and widespread risks that unsafe disposal of coal combustion waste or 'coal ash' poses to human health and the environment.”

EPA is deciding whether to regulate coal ash as a special waste under Subtitle C of the Resource Conservation and Recovery Act, subjecting it to hazardous waste regulations, or as a nonhazardous waste under Subtitle D, leaving regulatory authority with the states.

The agency's proposed rule contained those two options as approaches it was considering. That proposed rule received more than 450,000 public comments, according to EPA.

Coalition Filed Notice of Intent

The coalition first filed a notice of intent to sue in January. Two coal ash recyclers, Headwaters Resources Inc. and Boral Material Technologies Inc., also filed notices of intent shortly afterward (43 ER 392, 2/17/12).

“The numbers of coal ash ponds and landfills that are contaminating water supplies continues to grow, yet nearby communities still do not have effective federal protection,” Earthjustice attorney Lisa Evans said in a statement. “It is well past time the EPA acts on promises made years ago to protect the nation from coal ash contamination and life-threatening coal ash ponds.”

Among the plaintiffs in the lawsuit are Appalachian Voices, the Chesapeake Climate Action Network, the Environmental Integrity Project, Physicians for Social Responsibility, and the Sierra Club.

John Ward, chairman of Citizens for Recycling First, said coal ash recyclers supported a firm deadline for a final rule but would file their own lawsuits to ensure proper representation in the process.

“The beneficial use community must look out for recycling's interests,” Ward said. “We are concerned that some environmental groups, in their zeal to kill coal, could seek to harm safe, environmentally beneficial recycling practices through their lawsuit.”

Electric Industry Objects to Lawsuit

Jim Roewer of the Utility Solid Waste Activities Group criticized the Earthjustice lawsuit. The litigation could prevent EPA from crafting a careful rule and could result in bad public policy, according to Roewer, whose organization addresses waste issues on behalf of the electric utility industry.

“A court ordered deadline could inappropriately restrict EPA's discretion and their ability to take the proper path forward,” he said told BNA. “The agency has to take into account hundreds of thousands of comments. We're concerned that taking a discretionary decision by EPA to a judicially driven process doesn't reflect good public policy.”

Ryan Bernstein, deputy chief of staff for Sen. John Hoeven (R-N.D.), said the senator opposes judicial action on coal ash and believes a more effective solution could come from Congress.

Hoeven and Sen. Kent Conrad (D-N.D.) introduced legislation in October that would prevent EPA from regulating coal ash as a hazardous waste and give primary oversight of the material to the states.

“We believe it is a good bill that addresses an environmental concern,” Bernstein told BNA April 5.

Companion legislation from Rep. David McKinley (R-W.Va.) passed the House in October.

Contaminated Groundwater Found

Earthjustice also released information it obtained from EPA that the group says shows 29 power plants in 16 states have contaminated groundwater close to coal ash storage facilities. The information was obtained through a Freedom of Information Act request (see related story).

EPA and McKinley were unavailable for comment on the lawsuit.

By Anthony Adragna  

The complaint in Appalachian Voices v. Jackson is available at http://earthjustice.org/sites/default/files/Stamped-Complaint_04-05-2012.pdf.