Coal Ash Limbo: Groups File Lawsuit to Move EPA While Congress Moves to Restrict Agency Authority

Last week, a coalition of environmental and public health groups filed a lawsuit to compel the U.S. Environmental Protection Agency (EPA) to regulate the waste created when coal is burned (commonly known as coal ash). Coal ash is disposed of in almost every state, and areas near disposal sites can face increased risks of cancer and other diseases caused by drinking water contamination and exposure to toxins. The suit calls for EPA to set a deadline to adopt federal coal ash protections.

New calls for the regulation of coal ash began in 2008 after an embankment holding wet coal ash ruptured at the Tennessee Valley Authority's Kingston plant, releasing 5.4 million cubic yards of coal ash sludge that buried a community and severely contaminated a nearby river. Coal ash can contain arsenic, lead, chromium, and other heavy metals, all of which poison humans. Roughly five times more coal ash sludge engulfed the area around Kingston than oil spilled into the Gulf of Mexico during the BP oil spill disaster.

More than three years after the Kingston incident, and nearly two years after EPA proposed options for regulating coal ash, no final rules have been issued. Now, Congress is considering legislation that would limit federal oversight and authority over coal ash.

Earthjustice, on behalf of eleven groups, filed suit April 5 in U.S. District Court for the District of Columbia. The organizations are suing the agency under the Resource Conservation and Recovery Act (RCRA), which "requires the EPA to ensure that safeguards are regularly updated to address threats posed by wastes." Earthjustice attorney Lisa Evans stated, "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."

In 2010, EPA proposed two options for regulating coal ash:

  • The first option would designate coal ash as a hazardous waste, requiring special handling, transportation, and disposal, and would closely monitor any potential reuse. This option would be far more protective of Americans' health and the environment.
  • The second would regulate coal ash in a way used to control less toxic wastes like household garbage – an option that would limit EPA's responsibility and authority over coal ash management.

Both options would require that surface impoundments of coal ash have protective liners, mandate groundwater monitoring for landfills, and provide for corrective action where contamination is found (though the corrective action requirements are more extensive under the first option).

But Congress is now considering the Coal Residuals Reuse and Management Act (H.R. 2273). The bill passed the House Oct. 14 by a vote of 267-144 despite criticism from Democrats on the Energy and Commerce Committee. Its Senate companion bill, S. 1751, was introduced in October by Sens. John Hoeven (R-ND) and Kent Conrad (D-ND), after coal ash ponds in their state received "poor" inspection ratings. The bills would limit federal oversight and require the EPA to defer to states with respect to the regulation of coal ash. Most states do not have standards in place to protect against the dangers of uncontrolled coal ash, according to an August report from Earthjustice and the Appalachian Mountain Advocates.

Josh Galperin with the Southern Alliance for Clean Energy, one of the organizations bringing suit, said: "It has been over two years since EPA started the coal ash rulemaking process and over three years since the Kingston disaster and still we have no comprehensive safeguards. If you ignore the growing problem of coal ash contamination and the people at risk for future disasters you could chalk this up to bureaucratic delay. Looking at the big picture, however, and despite federal laws requiring frequent review, it has been 30 years since EPA last addressed ash contamination. The people who drink, fish, swim, boat, play or live around water cannot wait any longer."

The suit asks the court to require that EPA complete a review of the regulations applying to coal ash and issue necessary revisions as soon as possible. No court date has been set.

Image by flickr user SkyTruth, used under a Creative Commons license

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