Groups Blast EPA Over Proposal to Hand Over Regulation of Coal Ash to State Agency

March 29, 2018

National and local Oklahoma environmental and conservation groups jointly submitted public comments to the U.S. Environmental Protection Agency (EPA) explaining why EPA’s proposed approval of an Oklahoma Department of Environmental Quality (DEQ) program to assume regulation of state coal ash (CCR) dumps from the EPA is ill-advised. If the approval is finalized, the federal coal ash rule currently in effect in Oklahoma will no longer apply to the state’s dumps.

In January, EPA proposed granting approval to Oklahoma’s coal ash program, which issues permanent disposal grants permits to coal ash landfills and impoundments (ponds). Coal ash waste carries high levels of toxic heavy metals and other contaminants found in other regulated wastes that are typically given only limited-term permits.

If approved by EPA, Oklahoma’s rules would allow coal ash landfills and retainer ponds to have permits that last “for life.” Unlike permits for hazardous waste landfills, air pollution, and wastewater discharges, these state coal ash permits would never terminate. Under the Oklahoma program, the status of these coal ash dumps would no longer be reported, depriving the public of critical information on the safety of their operations and potential groundwater pollution. It would also remove the possibility of challenging the renewal of permits for sites found to be dangerous.

DEQ’s failure to protect Oklahoma communities against coal ash pollution is demonstrated by historic, documented contamination of groundwater and air quality at sites that include: American Electric Power’s Northeastern coal plant in Oologah, Grand River Dam Authority’s Grand River Energy Center coal plant near Choteau, Western Farmers’ Electric Cooperative’s Hugo coal plant in Choctaw County, Big Fork Ranch coal ash landfill in Noble County, and the large coal ash dump in Bokoshe filled with ash waste generated by AES’s Shady Point plant.

Earl Hatley, Grand Riverkeeper and LEAD Agency, Inc. commented, “Nearly all of these companies have already violated the state’s coal ash rule by failing to report results from groundwater monitoring, or failing to test groundwater for all the required pollutants. The state has shown its favoritism for industry by letting these lapses go unchecked and giving industry all the cheating tools they need.”

Conditions in Oklahoma create serious risks of even greater harm from coal ash dumps. Nearly all of Oklahoma’s ash pits and landfill units are next to our rivers and lakes. Nearly all of these existing units are known to have contaminated groundwater with toxic substances, including high levels of arsenic. Earthquakes frequently shake the land and may further destabilize these ash dumps.

“The Department isn’t even trying to hide the fact that this is a gift to industry and a slap in the face to the people of Oklahoma,” said Johnson Bridgwater, Executive Director of the OK Sierra Club Chapter. “At the Environmental Quality Board meeting when the CCR rule was approved, DEQ shamelessly stated that it intended the rule to protect industry from citizen suits.”

“DEQ plans to regulate new and existing coal ash dumps, which are already known to be polluting groundwater, behind closed doors,” said Jennifer Cassel, Earthjustice Coal Ash Project Attorney who helped prepare the comments, “This is a clear violation of the Resource Conservation and Recovery Act (RCRA).”

The groups commenting include Grand Riverkeeper, Sierra Club, Tar Creekkeeper, Waterkeeper Alliance and Earthjustice. The comments asked that the EPA not hand-off oversight of coal ash dumps to DEQ — at least until Oklahoma provides real, substantive evidence that it will hold polluters accountable, ensures that appropriate protections are put in place at coal ash dumps, and offers meaningful opportunity to the public to weigh in on whether the state’s ash dumps are complying with the required standards.

“Because Oklahoma is the first state seeking approval of its coal ash regulatory program under EPA’s CCR Rule, it is reasonable to expect that other states will take cues from EPA’s response to Oklahoma’s proposal,” explained Larissa Liebmann, Staff Attorney at Waterkeeper Alliance. “This makes it vitally important that EPA gets this right, and we are gravely concerned with several aspects of Oklahoma’s proposal that EPA must correct before the program is approved and serves as a template for other states.”