EPA under the gun to regulate coal ash

Introduction

The Environmental Protection Agency is facing new pressure to regulate the disposal of coal ash for the first time after a federal judge issued a memorandum in a lawsuit filed against the agency by environmental groups.

In a decision Tuesday, U.S. District Judge Reggie Walton of the D.C. Circuit Court gave the EPA 60 days to file what he calls “a proposed deadline for its compliance with its obligation to review and revise if necessary … regulations concerning coal ash,” as well as any legal reasoning for the timeline. The memorandum follows an earlier judicial order, issued Sept. 30, partly ruling in favor of Earthjustice and 10 other groups in a lawsuit challenging the EPA over its slow regulatory action.

The agency is weighing how to regulate coal ash, waste from the production of electricity. One of the nation’s largest refuse streams at 136 million tons a year, coal ash has fouled water supplies and threatened communities across the country. The consequences have been highlighted by the Center for Public Integrity in a series of stories.

Debate over federal regulation of coal ash has dragged on for decades. After a disastrous December 2008 spill in eastern Tennessee, the EPA pledged to act. In June 2010, the agency announced a proposal to begin regulating the disposal of coal ash, presenting two alternatives in a 563-page draft. Under the first option, the EPA would classify the ash as “hazardous,” triggering a series of strict controls for its dumping. The second option would deem coal ash “non-hazardous” and subject it to less stringent national standards that amount to guidelines for states.

Three years after unveiling its plan, however, the EPA has delayed the rules, sparking the environmental groups’ legal challenge.

In Tuesday’s decision, Walton sided with the environmental groups in finding that, under federal waste law, the EPA has a duty to review and, if necessary, revise rules every three years. But the agency has not done so for rules governing coal-ash disposal since 2000.

“The language is unambiguous in its command,” the judge wrote, “and contains no limitation ending the EPA’s obligation to undertake such reviews and revisions at least every three years.”

Environmental advocates are hailing the ruling as a victory for those who live next to hundreds of coal-ash ponds, landfills, and mine pits across the U.S. “The court is saying to EPA, ‘Put forward a schedule for making a final decision,’” said Lisa Evans, the Earthjustice lawyer handling the suit, explaining that the judge does not address the substance of EPA’s existing proposal, or order the agency how to regulate coal ash.

“Today’s order creates a clear path for a binding deadline for the coal-ash rule,” Evans added. “Communities near thousands of dumpsites, ignored for decades despite the toxic threat of coal ash, can finally rest assured the protections are coming.”

In court filings, the EPA has essentially acknowledged the merits of the environmental groups’ primary argument, conceding that it “has an obligation to conclude the review and any necessary revision” of the coal-ash regulations. A spokesperson said the agency is reviewing Walton’s decision but offered no further comment.

The utility industry, intervening in the case, expects the EPA to leave the details of its existing proposal pretty much the same, keeping both alternatives for the dumping of coal ash in its final rule. What matters to the industry, said Jim Roewer, of the Utility Solid Waste Activities Group, is that “the judge is taking a more pragmatic approach in letting EPA propose a schedule.”

“We’ve always had an interest ensuring that the agency has the time to issue a viable rule,” he said, “and it seems this ruling will preserve that interest.”