A group of conservation and environmental organizations is asking a federal court to overturn the U.S. Environmental Protection Agency’s decision this summer to transfer its regulation and oversight duties for coal ash disposal to Oklahoma’s state environmental agency, the Department of Environmental Quality.
The Waterkeeper Alliance, Sierra Club and Vinita-based LEAD Agency filed suit against the EPA and acting EPA Administrator Andrew Wheeler earlier this week in federal court in Washington D.C., alleging that Oklahoma’s coal ash disposal program and regulations do not meet the current minimum federal standards in effect and that the EPA failed to issue public participation guidelines for state coal ash programs.
Under administrative rules approved in 2015, the EPA established minimum standards for coal ash disposal including location restrictions, design and operation criteria, groundwater monitoring, as well as corrective action and post-closure requirements. In 2016, Congress passed legislation, signed into law by then-President Barack Obama, allowing states to regulate the disposal of coal ash as long as the state’s standards were at least as strict as the EPA’s.
In June 2018, Oklahoma was the first state to have its coal ash program approved by the EPA, under then EPA Administrator and former state Attorney General Scott Pruitt. Pruitt, who had been under several ethics investigations after being tapped to head the EPA by President Donald Trump and left the agency less than a month later.
Since leaving the EPA, Pruitt has reportedly been in talks with coal companies for a job as a consultant.
“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,” said Kelly Hunter Foster, senior attorney for the Waterkeeper Alliance. “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.”
A spokeswoman for the EPA did not return a phone message on Friday by The Frontier seeking comment.
Erin Hatfield, spokeswoman for the Oklahoma Department of Environmental Quality, said the agency has not yet had a chance to review the lawsuit, and agency policy prohibits public comment on pending litigation.
However, Hatfield said the DEQ has had experience regulating the disposal of coal ash for years.
“We have been regulating coal ash as part of our solid waste program since we became an agency,” Hatfield said.
Environmental groups, including the plaintiffs in the new lawsuit, had challenged the 2015 EPA rules in court, arguing that the rules were insufficient because, among other things, they allowed unlined surface impoundments to continue receiving coal ash as long as they did not leak, and considered clay-lined impoundments to be “lined” for the purposes of keeping the toxic material contained in the impoundments.
In the United States, coal-fired power plants burn more than 800 million tons of coal on average each year, creating around 110 million tons of coal ash (which includes fly ash, bottom ash, boiler slag and flue gas desulfurization sludge). The leftover ash contains carcinogens and neurotoxins such as mercury, arsenic, lead and a host of other toxic materials. Most of it is disposed in unlined or inadequately lined pits, man-made ponds, landfills, structural fills or mines, according to the environmental group Earthjustice, which filed this week’s lawsuit on behalf of the plaintiffs.
Earthjustice estimates there are about 735 surface impoundments around the country — averaging about 50 acres in size and 20 feet deep — currently receiving coal ash, and many more that are listed as “inactive.”
Oklahoma has five facilities with coal ash sites, including American Electric and Power’s coal plant near Oologah, the Grand River Dam Authority’s coal ash landfill near its Choteau plant, a coal ash landfill abutting the Arkansas River near Marland and coal ash impoundments near Fort Townsend.
In their petition, the environmental groups said there is evidence to show the coal ash sites in Oklahoma are causing “extensive” pollution to nearby sources of groundwater.
On Aug. 21, about two months after Oklahoma was handed the reigns by the EPA to regulate coal ash disposal, a federal judge ruled that the 2015 EPA rules regulating unlined and clay lined impoundments did not meet the requirements of federal law, and that the relevant part of the rules failed to guarantee “no reasonable probability of adverse effects on health or the environment,” and “does not address the identified health and environmental harms” occurring at the impoundments.
Oklahoma’s current standards regarding unlined pits and clay-lined pits are similar to the minimum EPA standards that were struck down by the court, the lawsuit states.
In addition, the lawsuit argues that the state’s requirements do not meet the minimum federal standards (which is a requirement of the 2016 law Oklahoma’s application was approved under) because Oklahoma does not require several documents detailing site-specific practices at coal ash units — such as a post-closure care plan, groundwater monitoring system specifications or structural stability assessments — be included in an application for a permit, the suit states.
Permits for coal ash disposal units are also issued for “the life” of the unit and the state regulations do not have a mechanism allowing permits be revoked or revised if the site is not in compliance with regulations, the suit states. In addition, the state does not allow the public to have an opportunity to offer input in the permitting process, and the EPA has yet to issue public participation guidelines for states that are regulating coal ash, the suit states.
“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,” said Earl Hatley, Grand Riverkeeper for the LEAD Agency. “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.”
The lawsuit asks the court to order the EPA to issue public participation guidelines for states regulating coal ash and to vacate its approval of Oklahoma’s program.
Johnson Grimm-Bridgwater, director of the Oklahoma Sierra Club, said in a statement that the DEQ has been facing budget and staff cuts for years, and is in no position to effectively monitor the disposal of coal ash.
“ODEQ’s budget has been slashed every year the last several years, and they have cut back staffing numbers repeatedly,” Grimm-Bridgwater said. “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.”