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Appeals court orders EPA revisions to 2015 coal ash final rule

Case Studies | August 27, 2018 | By:

The U.S. Court of Appeals for the D.C. Circuit issued a decision Aug. 21 holding that the first-ever federal safeguards set by the Obama administration for coal ash dumps do not sufficiently protect communities and the environment from pollution from coal combustion residual (coal ash) waste.

The court’s decision sided with public interest groups by concludfining that the Obama-era rule failed to adequately protect against pollution from unlined and inadequately lined ash pits, many of which are already leaking pollution into rivers and streams. The court ordered the U.S. Environmental Protection Agency (EPA) to revise the rule to properly address the health and environmental threats from these dump sites. The court also held that the EPA improperly exempted coal ash ponds at closed, coal-fired power plants from regulation. Rejecting industry challenges to the rule, the court further held that the EPA acted within its authority to regulate coal ash ponds no longer actively receiving waste and located at operating plants.

Coal ash spill at Kingston (Tenn.) plant in 2008. Photograph by Brian Stansberry

“With this ruling, the court has delivered a win for communities and for public health—EPA and utilities can no longer ignore the clear dangers posed by unlined coal ash ponds or poorly lined ponds,” said Lisa Hallowell, senior attorney with the Environmental Integrity Project, in a prepared statement.

The court’s decision follows the Trump administration’s EPA’s publication in July of revisions that weaken the final rule promulgated by the Obama administration. The court decision casts doubt on the legality of those revisions, which, among other things, extend the deadline to close leaking unlined coal ash ponds.

The August decision arises from lawsuits challenging the 2015 final rule: one by public interest groups arguing that the rule was not strong enough and one by industry groups arguing that the rule was too stringent. The Utilities Solid Waste Activities Group (USWAG), a trade organization that has long fought against the pollution protections for coal ash dumps, sought broad rollbacks of key protections in the rule. Among other requests, USWAG urged EPA to scrap standards for retired coal ash dumps. The court’s decision indicates not only that the EPA has the authority to regulate those retired dumps, but that it must do so.

Coal ash is the toxic waste left over from coal-burning power plants. For decades, coal ash was dumped into more than one thousand unlined ponds and landfills across the nation, where hazardous chemicals seep into water and soil and blow into the air. Coal ash waste contains some of some of the deadliest known toxins, including arsenic, lead, mercury and chromium. The toxics cause cancer, heart disease, reproductive failure and stroke, and can inflict lasting brain damage on children.

Among other things, the EPA’s 2015 coal ash final rule required utilities to test the water near their coal ash dumps to make sure hazardous chemicals were not leaking into drinking water sources. Industry monitoring results were made available to the public in March, and the testing reveals that more than 90 percent of the coal ash dumps in the U.S. are contaminating groundwater with toxins above levels that the EPA deems safe for drinking water.   The decision by the Court of Appeals affects coal ash dump sites throughout the country, including over one hundred abandoned coal ash dumps at inactive coal plants that the Court directed EPA to regulate. More than 1,400 ash dumps are currently spread across the nation.

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