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Lawsuit filed vs. EPA to force coal-ash regulations

News | April 10, 2012 | By:

GMA has lobbied for lined containment

Environmental and public health groups filed a lawsuit April 5 to compel the U.S. Environmental Protection Agency (EPA) to complete its rulemaking on coal ash. A court order could hold the agency to a specific date for issuing a final rule on coal ash.

Coal ash is a byproduct of burning coal to generate electricity. Coal-ash holding ponds are largely unregulated and unlined, including the use of geosynthetic liners (geomembranes or geosynthetic clay liners) for safety.

Environmentalists have called for more-strenuous regulations, particularly since a December 2008 disaster when a containment site in Kingston, Tenn., burst open and flooded 300 acres with coal-ash sludge. That impoundment failure resulted in a multi-year cleanup costing more than $1.2 billion.

Another spill occurred in 2011 in Oak Creek, Wis., near Milwaukee, where a power company’s coal-ash containment pond collapsed and the byproduct sludge slid into Lake Michigan.

The containment facilities in Tennessee and Wisconsin were not lined.

The April 5 lawsuit is intended to force the EPA to complete its rulemaking on coal ash (Appalachian Voices v. Jackson, D.D.C., docket number unavailable, 4/5/12). The lawsuit, filed in U.S. District Court for the District of Columbia, asks the court to set deadlines for the EPA to review and revise coal-ash regulations.

The EPA issued a proposed rule in May 2010 that outlined two options for regulating coal ash. But the agency has not yet issued a final rule, maintaining that it expects to do so by the end of the year. A court order could hold the agency to a specific date.

Earthjustice, representing a coalition of 11 groups, said the EPA has violated section 2002(b) of the Resource Conservation and Recovery Act (RCRA) by not reviewing and revising coal-ash regulations every three years.

The EPA process is intended to determine whether to regulate coal ash as a special waste under Subtitle C of the RCRA, subjecting it to hazardous waste regulations; or as non-hazardous waste—such as municipal solid waste—under Subtitle D, leaving regulation authority with the states.

That proposed rule received more than 450,000 public comments, according to EPA. The Geosynthetic Materials Association (GMA) offered professional testimony regarding geosynthetic lining technologies at eight of these public hearings, which were conducted across the country in 2009–2010.

The environmental-group coalition first filed a notice of intent to sue in January. Among the plaintiffs in the current lawsuit are Appalachian Voices, the Chesapeake Climate Action Network, the Environmental Integrity Project, Physicians for Social Responsibility, and the Sierra Club.

The Utility Solid Waste Activities Group (USWAG) has criticized the Earthjustice lawsuit. Litigation could prevent the EPA from crafting an effective rule and could result in bad public policy, according to the USWAG, an organization that addresses waste issues on behalf of the electric utility industry.

Sen. John Hoeven (R-N.D.) and Sen. Kent Conrad (D-N.D.) introduced legislation last October that would prevent the EPA from regulating coal ash as a hazardous waste and give primary oversight of the material to the states. Companion legislation from Rep. David McKinley (R-W.Va.) passed the House in October, 2011.

Ron Bygness is the editor of Geosynthetics magazine.

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