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Suit Pressures EPA to Rule on Coal Ash

Monday, April 9, 2012

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Environmental and public health groups have filed a federal lawsuit to force the Environmental Protection Agency to complete its long-stalled rule on disposal of Coal Combustion Residuals (CCRs).

The move puts the EPA squarely in the crosshairs from all sides of the heated issue to move forward on the rule.

 Coal ash spill at the Kingston Fossil Plant in Kingston, TN, in December 2008.

 Tennessee Valley Authority

The Environmental Protection Agency proposed the coal-ash regulation 18 months after a massive coal ash spill at the Kingston Fossil Plant in Kingston, TN, in December 2008. This photo was taken the day after the spill.

In September, a pro-coal ash group called Citizens for Recycling First petitioned the Obama administration to “protect coal ash recycling by promptly enacting disposal regulations that do NOT designate coal ash a ‘hazardous waste.’”

On Thursday (April 5), the anti-coal ash side—advocates of tougher disposal regulations on CCRs— weighed in. Their suit, filed in U.S. District Court in Washington, D.C., aims to force the EPA to “complete its rulemaking process and finalize public health safeguards against toxic coal ash.”

‘Long Overdue Action’

The 11 plaintiff groups include the Sierra Club and Physicians for Social Responsibility.

The suit seeks a court judgment compelling the EPA “to undertake long-overdue action to address the serious and widespread risks that unsafe disposal of coal combustion waste or ‘coal ash’ poses to human health and the environment.”

Specifically, it seeks to force EPA to set deadlines to review and revise “solid and hazardous waste safeguards to address coal ash” and to revise “the test that determines whether a waste is hazardous” under federal law.

Coal slag and other coal wastes produced as byproducts of coal-fired power plants are widely used in the coatings industry in abrasive blast media, paint manufacturing, structural fill and concrete products.

Hazardous Waste?

In June 2010, EPA issued its Proposed Rule for Disposal of Coal Combustion Residuals [CCRs] from Electric Utilities. At the heart of the proposal is a decision critical to the coatings industry: whether or not to designate CCRs for the first time as “hazardous waste” for purposes of disposal under the Resource Conservation and Recovery Act.

In 2000, the EPA issued a determination that CCRs were not hazardous, and the agency has unwaveringly stuck by that position. So steadfast has its support been, in fact, that EPA’s own auditor general has twice criticized the agency for not being candid with the public about the risks of coal waste.

Although continuing inaction on the rule would seem to favor the status quo, which treats CCR as non-hazardous, coal ash advocates say that the ongoing uncertainty is now hurting coal ash recycling and they are pushing for resolution.

‘Toxic Solid Waste Stream’

In their suit, coal-ash opponents contend that coal-fired power plants in the U.S. “generate one of the largest and most toxic solid waste streams in the nation.”

That “voluminous waste stream” includes “large quantities of heavy metals and metal compounds such as arsenic, boron, cadmium, chromium, lead, mercury, selenium and thallium,” which can “cause cancer and other adverse health impacts, including reproductive, neurological, respiratory, and developmental problems,” the suit says.

 Heated public hearings on the coal ash proposal in 2010 included the arrest of some Greenpeace activists.

 Greenpeace USA

Heated public hearings on the coal ash proposal in 2010 included the arrest of some Greenpeace activists. EPA has received hundreds of thousands of comments on the proposal but will not say when it will release a final rule.

It adds: “In the absence of national standards requiring safe disposal, coal ash has been dumped in thousands of unlined and unmonitored ponds, landfills, pits and mines. The result has been the widespread release of hazardous pollutants from coal ash to water, air and soil, endangering human health and the environment.”

RCRA Violation?

The plaintiffs accuse EPA of violating RCRA, which requires review of each regulation every three years. The EPA “has not reviewed and revised the regulations that are applicable to coal ash since 1981 and has thus lost pace with developments in the industry,” the suit says.

“The outdated regulations are inadequate to deal with the rising volumes and increasing toxicity of waste and the resulting threats to health and the environment. It defies the most fundamental purpose of RCRA to leave this voluminous and dangerous waste stream without adequate regulation for over 30 years.”

The EPA’s “longstanding failure to act in the face of well-documented risks associated with irresponsible disposal of coal ash violates” RCRA, the complaint says.

Groundwater Contamination Alleged

The groups cite EPA’s own data showing that 29 coal-ash containment sites in 16 states had contaminated groundwater with arsenic, lead and other pollutants.

That information comes from a 2010 questionnaire that EPA sent to about 700 fossil- and nuclear-fueled power plants to collect data on water discharges. The plaintiffs obtained the data under a Freedom of Information Act request.

“Coal ash poses a very real health risk to families and communities around the country,” said Mary Anne Hitt, director of the Sierra Club’s Beyond Coal Campaign. “It’s time the EPA put in place strong protections that address the threats communities affected by coal ash have been facing for decades.”

Hitt noted that the rule and continuing controversy had been prompted by spill at a Tennessee Valley Authority power plant storage site.

“We’ve been waiting for these standards since the disastrous TVA coal ash spill in 2008, and it’s time for action,” she said. “The EPA needs to put these common-sense protections in place to keep this toxic pollution out of our rivers, lakes and streams.”

EPA Response

In a statement Monday (April 9), EPA declined again to say when it might make a decision on the rule.

EPA said it and the Department of Justice were “reviewing the lawsuit and will respond as appropriate.”

“EPA is aware of the concerns around coal ash management and disposal, and the agency is committed to protecting people’s health and the environment in a responsible manner,” the statement said.

“In a historic step, EPA proposed the first-ever national standards for coal ash. We are reviewing the more than 450,000 comments received on the proposed rule and will finalize the rule pending a full evaluation of all the information and comments the agency received on the proposal.”


Tagged categories: Abrasive blasting; Coal ash; Coal Combustion Residuals; Coatings manufacturers; EPA; Laws and litigation

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