Activists Sue EPA to Issue Final Coal Ash Rule

Date: January 19, 2012

Source: News Room

A coalition of 11 environmental and public health groups are suing the EPA to force the agency to set a hard deadline by which it will issue the final version of its long-stalled coal combustion residuals (CCRs) disposal rule. They argue that EPA is ignoring a Resource Conservation & Recovery Act (RCRA) requirement to periodically review and revise its waste rules. EPA Administrator Lisa Jackson recently said the agency plans to finalize the rule in late 2012 after completing a risk analysis of coal ash reuse in products. The rule will finalize EPA’s June 2010 proposal to regulate coal ash either as a RCRA subtitle C hazardous waste subject to strict disposal controls, as desired by the activists, or under RCRA’s subtitle D solid waste program, which would delegate the regulation of CCRs to the states.

Despite Jackson’s assurance, several activist groups, Earthjustice, Physicians for Social Responsibly and 10 other organizations, sent the EPA a Jan. 18 notice of intent to sue saying that the agency “has effectively ignored RCRA’s requirement to periodically review and revise regulations for decades. It is now incumbent on the Agency to remedy this longstanding legal violation by completing reviews and regulatory revisions that are plainly necessary based on the wealth of data gathered and multiple reports issued by the Agency.” Lisa Evans of Earthjustice said that the intent of the lawsuit is to obtain a legal deadline compelling EPA to act on the proposed rule and issue a final rule.

The groups claim EPA “has neither completed final review nor revised the regulation exempting coal ash from hazardous waste rules since its promulgation in 1980 . . . nor has it completed its review and timely revised the industrial solid waste regulations that apply to coal ash disposal . . . which were promulgated in 1979.”

Those comments contrast sharply with the view of states, who have defended the effectiveness of their regulations and sought legislation that would effectively bar an EPA rule under subtitle C. In comments last year, the Association of State & Territorial Solid Waste Management Officials reiterated long-running criticisms that activists “drastically underestimate the adequacy of state coal combustion residuals management programs” and interpret data from studies “in a way that makes the programs appear to be less effective than actually reported.”

PRESS RELEASE
January 18, 2012

Delayed Coal Ash Protections Put Public Health at Risk

Environmental and public health groups announced their intent to sue the U.S. Environmental Protection Agency in federal court to force the release of long awaited public health safeguards against toxic coal ash. The EPA has delayed the first-ever federal protections for coal ash for nearly two years despite more evidence of leaking ponds, poisoned groundwater supplies and threats to public health.

Earthjustice, on behalf of Appalachian Voices (NC), Chesapeake Climate Action Network (MD), Environmental Integrity Project, French Broad Riverkeeper (NC), Kentuckians For The Commonwealth (KY), Moapa band of Paiutes (NV), Montana Environmental Information Center (MT), Physicians for Social Responsibility, Prairie Rivers Network (IL), Sierra Club and Southern Alliance for Clean Energy (TN), sent the EPA a notice of intent to sue the agency under the Resource Conservation and Recovery Act (RCRA). The law requires the EPA to ensure that safeguards are regularly updated to address threats posed by wastes. However, the EPA has never undertaken any action to ensure safeguards address the known threats posed by coal ash, a toxic mix of arsenic, lead, hexavalent chromium, mercury, selenium, cadmium and other dangerous pollutants that result from burning coal at coal-fired power plants.

A copy of the Notice of Intent to Sue letter sent to the EPA is available here: (earthjustice.org/documents/legal-document/pdf/notice-of-intent-to-sue-under-rcra).

Following a spill of more than a billion gallons of coal ash at a disposal pond in Harriman, TN, in December 2008, EPA Administrator Lisa Jackson announced in 2009 plans to set federal coal ash regulations by year’s end. In May 2010, the EPA proposed a hybrid regulation to classify coal ash either as hazardous or non-hazardous waste. After eight public hearings across the country and more than 450,000 public comments, the agency decided to delay finalizing the rule amid intense pressure from the coal and power industries.

Despite numerous studies showing the inadequacy of current federal coal ash safeguards to protect public health and the environment as well as documented evidence by the EPA and environmental groups showing coal ash poisoned aquifers and surface waters at 150 sites in 36 states, the EPA continues to fail to adopt federal safeguards. Today’s lawsuit would force the EPA to set deadlines for review and revision of relevant solid and hazardous waste regulations to address coal ash, as well as the much needed and overdue changes to the test that determines whether a waste is hazardous under RCRA.

“Politics and pressure from corporate lobbyists are delaying much needed health protections from coal ash,” said Earthjustice attorney Lisa Evans. “The law states that the EPA should protect citizens who are exposed to cancer-causing chemicals in their drinking water from coal ash. As we clean up the smokestacks of power plants, we can’t just shift the pollution from air to water and think the problem is solved. The EPA must set strong, federally enforceable safeguards against this toxic menace.”

“It’s well past time for the EPA to do something about this hazardous waste,” said Anne Hedges, Program Director of the Montana Environmental Information Center. “Our biggest coal ash ponds in Montana are leaking and have been leaking for decades.”

“For far too long the Tennessee Valley Authority has been allowed to ignore the dangers of coal ash, resulting in the 2008 Kingston disaster, one of the worst environmental catastrophes of our time,” said Josh Galperin, policy analyst and research attorney for Southern Alliance for Clean Energy. “Despite the lessons of Kingston and an explicit congressional mandate, coal ash continues to be unregulated by the EPA. We are taking action today to drive EPA to follow-through on its legal duty to protect Americans from this toxic waste.”

“Data on groundwater at coal ash disposal sites is now available, and the results in Illinois and many other states are grim,” said Traci Barkley, water resources scientist with Prairie Rivers Network. “State regulators found high levels of coal ash pollutants in groundwater at all 22 sites in our state. Seeing that our state’s rules have not protected our residents and our clean water, we need to know that the EPA will get the job done.”

“Right now our organization is involved in several lawsuits against old, leaking coal ash landfills in Maryland,” said Diana Dascalu-Joffe, staff attorney with Chesapeake Climate Action Network. “Dangerous coal ash is leaching into waterways that hurt the Chesapeake Bay and could be threatening the health of Maryland citizens. The EPA has a responsibility to issue a uniform, strong rule to address coal ash so groups like ours don’t have to fight to clean them up, facility by facility, at the state level.”

“With a state legislature bent on weakening the ability to protect public health, North Carolinians are calling on the EPA to demonstrate political leadership by providing strong and consistent federal guidelines for coal ash disposal and storage,” said Sandra Diaz, North Carolina Campaign Coordinator for Appalachian Voices.

“With many coal ash dumps located in populated areas, the public depends on the EPA to do everything possible to protect our health and keep our communities safe,” said Mary Love, member of Kentuckians For The Commonwealth. “We need strong standards so we can not only clean up communities that have already been poisoned but make sure these toxic chemicals never again leak into our homes and communities.”

“The EPA promised to set standards for coal ash disposal sites more than a decade ago,” said Eric Schaeffer, executive director at Environmental Integrity Project. “Are we going to have to wait for another disaster before EPA finally keeps that promise?”

“The toxic threat that coal ash poses to human health is severe,” said Dr. Maureen McCue, MD, PhD, of Physicians for Social Responsibility. “Coal ash contains contaminants that can cause cancer and can damage the intestines, liver, kidney, lungs, heart, peripheral nervous system and brain. It’s unthinkable that the EPA allows this toxic stew to get into drinking water. It doesn’t get much dirtier than this.”

“Our children are losing more than their health because of the power plants; they’re losing their culture, too,” said William Anderson, chairman of the Moapa Band of Paiutes in southeastern Nevada. “We used to hunt ducks and geese on our land-but no longer. The birds land in the coal wastewater ponds. We used to harvest medicinal plants, but not anymore. The plants have been contaminated over the years by the plant’s coal ash dust, soot and other pollutants.”

“Two of the nation’s 49 high hazard coal ash dams sit on the banks of the French Broad River. These ponds pose a looming threat to the health and safety of the surrounding community, as well as the French Broad River,” said Hartwell Carson, French Broad Riverkeeper. “The dams also hold back toxic coal ash that pollutes the groundwater and surface water every day. It is time for the EPA to act to protect the French Broad River and the hundreds of similarly impacted rivers and communities around the country.”

“The EPA must act and they must act soon,” said Bruce Nilles, Senior Campaign Director for the Sierra Club’s Beyond Coal Campaign. “Millions of tons of toxic waste from coal plants – coal ash containing arsenic, lead, mercury and other dangerous pollution – are dumped across the country each year, often without basic safety protections. Even though the EPA has identified more than four dozen highly dangerous coal ash sites around the country they have still failed to safeguard the health and well being of those living near the dumping grounds. We urge the EPA to take definitive action to protect American families and communities.”

For more information, contact:
Jared Saylor, Earthjustice, (202) 667-4500, ext. 5213

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