Conservation groups file lawsuit against transfer of oversight of toxic coal ash dumps from federal government to Oklahoma

September 28, 2018

On behalf of Sierra Club, Waterkeeper Alliance, and Local Environmental Action Demanded (“LEAD Agency”), Earthjustice filed a lawsuit against the U.S. EPA to block EPA from transferring federal oversight over disposal of toxic coal ash in Oklahoma to the state. The Oklahoma program runs directly counter to a federal court appeals court ruling the same organizations won that bans unlined toxic coal ash ponds from continuing to operate.

In a highly controversial move, the U.S. EPA in June approved a request by the Oklahoma Department of Environmental Quality to take over the oversight of toxic coal ash under the federal Resource Conservation and Recovery Act. As EPA was finalizing that decision, Earthjustice and the Environmental Integrity Project released analysis revealing that all of the dumps containing “coal ash” waste generated by Oklahoma’s coal-fired power plants that tested nearby groundwater found toxic contamination.

Unfortunately, Oklahoma state agencies have a seriously deficient track record in protecting public health and the environment from the impacts of coal ash, prompting today’s lawsuit.  

The lawsuit identifies a number of specific problems with the coal ash program that the state of Oklahoma operates:

• The D.C. Circuit Court of Appeals struck down key provisions of the federal coal ash program – all of which are included in the new Oklahoma program – because they were too weak to protect public health and the environment. That means Oklahoma’s plan contains unlawful provisions, including allowing unlined toxic coal ash ponds, such as the pond at A.E.P’s Northeastern coal plan in Oologah, to continue to operate.
• Oklahoma’s program grants coal ash dumps permits “for life,” effectively shielding them from new public health requirements EPA develops in the future.
• Oklahoma DEQ said it wanted to protect industry from citizen oversight, and that is what the state’s program does. DEQ officials make critical decisions about Oklahoman’s air and water – including how toxic coal ash dust pollution is controlled, how pollution from closed ash dumps is monitored, and, in some cases, how coal ash dumps will be closed – behind closed doors, with no public input or oversight.

Finally, the lawsuit also alleges that EPA violated federal law by failing to issue any public participation guidelines for state coal ash programs, and by approving Oklahoma’s coal ash program without first issuing those guidelines.

In response, Oklahoma Sierra Club Chapter Director Johnson Grimm-Bridgwater released the following statement:

“The State of Oklahoma is in no position, either financially or resource-wise, to take on such a monumental effort as managing coal ash. Coal ash disposal sites have already caused massive public health challenges in places like Bokoshe, Oklahoma, as well as groundwater contamination at sites across the state. Just this week a massive coal ash spill in North Carolina was caused by hurricane Florence, showing that massive coal ash dumps are risks in areas prone to storms or flooding. ODEQ’s budget has been slashed every year the last several years, and they have cut back staffing numbers repeatedly. Neither ODEQ nor any other state agency has a solid track record of managing coal ash, and they are not prepared to add on a new function to their environmental management responsibilities.”

Jennifer Cassel, attorney with Earthjustice, released the following statement:

“Time and time again, politicians in Oklahoma have chosen to ignore the health and safety of their own citizens. We fought hard to win a court ruling that rightly bans unlined coal ash ponds from continuing to operate, yet Oklahoma allows those dangerous ponds to do just that. Every single one of the coal ash dump sites that were tested in Oklahoma were found to have toxic chemicals from coal ash in nearby groundwater. It’s clear we need stronger protections from the hazardous chemicals in coal ash, not weaker ones.  EPA’s decision to transfer oversight over Oklahoma’s coal ash dumps to DEQ not only violates the law, it puts Oklahoma families at risk.”

Kelly Hunter Foster, senior attorney with Waterkeeper Alliance, released the following statement:

“State and federal laws are in place to protect Oklahoma citizens and their abundant, irreplaceable water resources, like the Verdigris and Grand Rivers, from toxic pollution caused by coal ash. Instead of implementing the law to protect the public, EPA and Oklahoma DEQ are openly trying to contort the law into a liability shield for industry. This is an attempt to preclude anyone injured by the pollution from taking action to protect themselves, turning the notions of rule of law and government in the public interest on their heads. That this was approved by former EPA administrator Scott Pruitt, whose ties to polluters are so well documented, is no surprise at all.”

Earl Hatley, Grand Riverkeeper with LEAD Agency, released the following statement:

“This is egregious. The Grand River Dam Authority in Northeast Oklahoma has contaminated the groundwater in Northeast Oklahoma with arsenic and other contaminants since 2007. They’ve been out of compliance with Oklahoma’s CCR rule; demonstrating that Oklahoma can’t manage its CCR Rule. Lifetime permits of these coal ash units and the fact that states are being given discretion as to what to do about these units that contaminate the groundwater now rather than shutting them down and cleaning them up, leaves the public without any rights regarding this problem. LEAD Agency takes exception to this and is joining this lawsuit because we have the right to know. We have the right to comment, and no solid or hazardous waste management unit should ever be given a lifetime permit. Every other solid or hazardous waste management facility gets a five-year permit, with permit renewal, giving the public transparency. That’s how this should be handled, too. OK has just waived those rights for its citizens and EPA is turning its back on Oklahoma.”  

Rebecca Jim, executive director and Tar Creekkeeper with LEAD Agency, released the following statement:

“The State of Oklahoma is waging an undemocratic campaign to surrender the health and welfare of its citizens to big business. The human health consequences of coal ash are well established, as is the failure of corporations to effectively contain coal ash. Oklahomans have a right to be heard when the State decides where and how to store toxic coal ash. The State’s program relegates its citizens to the status of bystanders and victims, handing out ‘for life’ permits to unaccountable corporate polluters. It is time to hold the State to account for its abdication of the fundamental duties to protect its people and to allow them a voice in shaping what its government does.”