DC Circuit Rules EPA Dropped Ball on Coal Ash Storage Rules

WASHINGTON (CN) - In another defeat for President Trump’s pro-fossil fuels agenda, the D.C. Circuit on Tuesday found the Environmental Protection Agency has failed for years to issue and enforce adequate rules for the storage of toxic coal ash.

In a 72-page Per Curiam opinion, a three-judge panel reviewed coal ash rules established by the Obama administration in 2015, and changes the Trump administration made to those rules earlier this year. They concluded there were flaws throughout.

But they also agreed to grant the White House time to further review and amend the storage regime it issued in March.

“It’s a very well researched opinion,” said Larissa Liebmann, staff attorney at Waterkeeper Alliance, in an interview with Courthouse News. Her group was one of the petitioners in the combined seven cases in which both the coal industry and environmental groups challenged parts of the plan.

But what struck Liebmann most was the level of scientific detail - from failure rate statistics of coal ash ponds to the cancer rates associated with coal ash exposure -- used by the judges in making their decision.

“It was exciting to see them lay out their understanding how dangerous this is for people’s health,” she said.

At the heart of all of the legal challenges was a single question: What role does the federal government have in regulating coal ash and what responsibilities more properly belong to the states?

Both Obama and Trump administrations have sought to give states freer rein in creating their own standards, but according to the D.C. Circuit, neither set of rules satisfied the Resource Conservation and Recovery Act, a 1976 law that allows the federal government to regulate solid waste generation, storage, and disposal.

According to Liebmann, her organization took issue with the 2015 Obama-era rules, known as “Disposal of Coal Combustion, Residuals from Electric Utilities,” because they were drafted with the help and influence of the coal industry.

The opinion, using EPA data, said there are 310 landfills and 735 surface impoundments currently receiving coal ash across the United States. The landfill facilities cover about 120 acres, on average, and are more than 40-feet deep. Surface impoundments, another method of storing coal ash, typically cover about 50 acres and are 20-feet deep.

The panel noted there are another 111 facilities which are no longer receiving coal ash, but haven’t been “fully closed.”

According to Tuesday's opinion, a major issue at a majority of both active and dormant facilities is improper lining of the areas in which coal ash is stored.

Ideally, the pits in which coal ash is placed are lined with a composite seal and layers of compact soil to keep toxic material from seeping through. However many of these dump sites were created prior to modern understanding of the damage the waste could cause. This, according to EPA, leaves about 65 percent of over 500 inspected sites totally unlined and only 17 percent of them lined to modern EPA guidelines. Additionally, EPA found 157 sites where coal residuals had already caused damage to human health and the environment.

To illustrate the dangers these facilities pose, again citing EPA research, the judges pointed to a surface impoundment failure in Kingston, Tennessee in 2008. In that incident 5.4 million cubic yards of coal residual sludge slid across 300 acres of land and into the nearby Emory River. It ruptured a natural gas pipeline, damaged or destroyed dozens of homes and elevated levels of arsenic and lead in the river and wildlife making the fish unsafe to eat.

The river was closed for two years and it took four years, and $1.2 billion, to clean up the site.

According to the opinion, EPA has cited 50 surface impoundments as “high” hazard meaning “failure or mis-operation will probably cause loss of human life” while another 250 pose a “significant” hazard where failure “is unlikely to kill people, but would ‘probably cause economic loss, environmental damage, or disruption of lifeline facilities, or impact other concerns.’”

The opinion points to the Kingston disaster as the impetus for Obama’s rule making, something Liebmann said was long overdue.

“EPA never tried to regulate this before in a meaningful way,” Liebmann said, noting both Obama and Trump’s rules had flaws that should now be corrected by the courts. “It's wonderful to see the court find we have this law that is meant to protect people from toxic waste and [EPA and the coal industry] are not doing what they need to do.”

In an emailed statement, an EPA spokesperson said the agency is reviewing the decision but declined to comment further.

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