Groups to sue EPA for release of coal ash regulations - Business, Government Legal News from throughout WV

Groups to sue EPA for release of coal ash regulations

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Environmental and public health groups announced their intent Jan. 18 to sue the U.S. Environmental Protection Agency in federal court to force the release of delayed regulations for the disposal of coal combustion residues.

Groups notifying the EPA today that they plan to sue under the Resource Conservation and Recovery Act, or RCRA, include Earthjustice, on behalf of Appalachian Voices; Chesapeake Climate Action Network; Environmental Integrity Project; French Broad Riverkeeper; Kentuckians For The Commonwealth; Moapa band of Paiutes; Montana Environmental Information Center; Physicians for Social Responsibility; Prairie Rivers Network; Sierra Club and Southern Alliance for Clean Energy.

"Politics and pressure from corporate lobbyists are delaying much needed health protections from coal ash," said Earthjustice attorney Lisa Evans on announcing the intent to sue.

"The law states that the EPA should protect citizens who are exposed to cancer-causing chemicals in their drinking water from coal ash," Evans said. "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."

RCRA requires the EPA to ensure that safeguards are regularly updated to address threats posed by wastes.

However, the agency has not taken action to ensure that safeguards address what the groups emphasize are known threats posed by coal combustion residuals, abbreviated as CCRs and often called "coal ash." 

CCRs are one of the nation's largest waste streams, with more than 130 million tons generated each year. They include bottom and fly ash, boiler slag and growing volumes of scrubber residues as utilities install sulfur dioxide controls.

Depending on the type of residual and the type of coal that was burned, some CCRs contain the heavy metals arsenic, lead, hexavalent chromium, mercury, selenium, cadmium and other pollutants that result from burning coal at coal-fired power plants.

More than 40 percent of CCRs have found industrial re-uses such as in concrete and cement, in drywall and as blasting grit, according to the American Coal Ash Association.

But "unencapsulated" — stored in unlined landfills, for example — CCRs have been found to leach arsenic, mercury, lead, and other toxic heavy metals into groundwater.

And improperly constructed slurry impoundments, such as the one that failed in December 2008 in Kingston, Tenn., can spill and contaminate hundreds of acres of land and many miles of streams.

It was that event, along with mounting evidence that states' regulation of disposal is falling short, that led the EPA to propose for public comment in 2010 two regulatory approaches: one, a set of national standards under RCRA Subtitle D that states could adopt at their discretion; the other, under the hazardous waste Subtitle C, in which CCRs destined for disposal would fall under a federally enforceable permitting program.

Those destined for re-use would not be regulated as waste.

Coal-burning electric utilities argue that regulating CCRs as hazardous waste will attach a stigma to re-use, inviting legal action and depriving a variety of industries of a raw material. They say it will increase disposal costs and, therefore, rates for electricity.

In April 2011, Rep. David McKinley, R-W.Va., introduced H.R. 1391, the "Recycling Coal Combustion Residuals Accessibility Act of 2011," to prevent the EPA from regulating CCRs under the RCRA hazardous waste subtitle. H.R. 1405 would have similar effect. Neither bill has passed.

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