Court Upholds National Safeguard for Coal Ash: Nation’s No. 2 Toxic Pollution Threat

The court’s decision today sided with public interest groups by concluding that the Obama-era rule failed to adequately protect against pollution from unlined and inadequately lined ash pits, many of which are already leaking dangerous pollution into rivers and streams. The Court ordered EPA to revise the rule to properly address the health and environmental threats from these dump sites.  The Court also agreed with public interest groups that EPA did not go far enough in regulating coal ash dumps, holding that 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 EPA acted within its authority to regulate coal ash ponds no longer actively receiving waste and located at operating plants.

“Today’s ruling is a victory for the people who are exposed to toxic waste from coal-fired power plants,” said Earthjustice attorney Lisa Evans, one of the attorneys who filed the lawsuit. “The court’s decision limits the Trump Administration’s ability to further roll back these vital health protections by recognizing the danger that these dumps already pose.”

The Court’s decision follows the Trump EPA’s publication this July of revisions that weaken the rule promulgated by the Obama administration. The court decision casts serious doubt on the legality of those revisions, which, among other things, extend the deadline to close leaking unlined coal ash ponds.  A defeat for the Trump Administration on those revisions would be par for the course: courts have repeatedly struck down the Administration’s attempts to eviscerate environmental protections.

“This ruling makes Trump’s EPA’s attempt to gut standards that reduce toxic coal ash contamination even more outrageous,” said Jennifer Peters, National Water Programs Director for Clean Water Action. “The Court made it clear that EPA has a responsibility to protect people and communities by addressing the threats coal ash dumps pose to our health and environment. EPA should focus on that responsibility instead of gutting commonsense safeguards for our water.”

“The timing of this decision could not be more ironic,” said Larissa Liebmann, Waterkeeper Alliance Staff Attorney. “While Trump’s EPA attempts to sell out public health and the environment by replacing the Clean Power Plan to prop up the dirty, dying coal industry, we will keep fighting to make EPA do its job of protecting communities and waterways from toxic, carcinogenic, coal pollution.”

Today’s decision arises from lawsuits challenging the 2015 coal ash 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 common-sense 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 abandoned 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 over a 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.

“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. “The evidence of toxic pollution leaking from these ponds is staggering, and communities can rest easier that these utilities will no longer be let off the hook.”

The court decision also follows the March release of nationwide water testing data from coal ash sites that indicates that industry dump sites are polluting groundwater at almost every plant in the country. Together with today’s decision, those test results, and other results available on the Environmental Integrity Project’s ashtracker website (www.ashtracker.org), suggest that EPA will have an even more difficult time justifying rollbacks of the rule going forward.

“This is a major legal victory for clean and safe drinking water and another setback for the Trump Administration’s hackneyed approach to dismantling protections designed to safeguard our communities from water pollution,” said Mary Anne Hitt, Senior Director of Sierra Club’s Beyond Coal campaign. “For decades, Americans have demanded government agencies use strong science to guide their decisions in managing coal ash. Today’s court decision is another step in that direction — despite the frequent assaults from the Trump Administration.”

The coal ash rule went into effect in October 2015, after Earthjustice filed a lawsuit seeking protections on behalf of public interest groups and a Native American tribe, the Moapa Band of Paiutes. The EPA received more than a half-million comments from people supporting the safeguards that the Court largely upheld today.

Among other things, EPA’s 2015 coal ash 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 EPA deems safe for drinking water. More than half of the sites have unsafe levels of arsenic, often many times higher than the safe drinking water standard. Levels of cobalt, lithium, and sulfate are also far above health-based levels at most sites. One in five sites has unsafe levels of radium (radioactivity), and over a third have unsafe levels of molybdenum. Overall, 92 percent of sites have unsafe levels of at least one of the following constituents, arsenic, boron, cobalt, lithium, molybdenum, radium or sulfate.

Today’s decision also affects the coal ash rule’s provisions regulating enormous piles of ash, such as those at AEP’s coal plant in Puerto Rico, and provisions concerning the “beneficial reuse” of coal ash.  The court granted EPA’s request to revise those provisions, which EPA has indicated that it will address in proposals later this year.

“The Court’s ruling provides hope to communities in Puerto Rico and throughout the United States that groundwater will be protected from coal ash waste contamination and that AES Corporation and other coal burning power plants will not be allowed to continue to pollute our aquifers and rivers,” said Ruth Santiago, an attorney with Comite Dialogo Ambiental.

Today’s 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. About 70 percent of the toxic dumps are located in low-income areas. The impact on communities throughout the nation is immense.

Today’s court decision is a pivotal victory for our health, our environment, and our communities,” noted PennEnvironment Executive Director David Masur. “It’s also a stark reminder of the plethora of ways in which our dependence on fossil fuels endangers our health and planet, and one more reason that America needs an energy future that quickly transitions to 100% clean, renewable energy

Federal protections are critical, because the dumps are ticking time bombs. In 2008, the single-largest toxic waste spill in U.S. history happened when a billion gallons of coal ash sludge burst through a dam at the Tennessee Valley Authority Kingston plant in Harriman, Tennessee and covered 300 acres, destroying dozens of homes. In 2014, a portion of a coal ash dump in North Carolina collapsed, fouling 80 miles of the Dan River with toxic sludge.