Federal judge gives EPA 60 days to decide when to revise coal ash disposal regulations

A federal judge in Washington has ordered the Environmental Protection Agency to set a deadline, within sixty days, by which it will review and revise, if necessary, regulations for coal ash disposal.

The memorandum opinion by U.S. district judge Reggie Walton followed an order released last month indicating that he would rule in favor of the environmentalist plaintiffs in the case.

The Oct. 29 order is here.

EPA announced a lengthy proposed coal ash disposal rule in June 2010 but has not acted to finalize it during the ensuing three-plus years.

The agency has not reviewed existing coal ash disposal regulations, or formally revised them, since 2000. The nation's principal hazardous waste law, the Resource Conservation and Recovery Act, requires it do so every three years.

In 2009 Public Integrity published an investigative story that examined the damage caused by existing coal ash disposal methods. The piece provides excellent background on the issue.

Federal court orders EPA to regulate coal ash

A federal court has held that the U.S. Environmental Protection Agency must regulate the disposal of the toxic byproduct of coal-fired power plants into slurry ponds.

The decision comes in a case that turns on the application of the nation's principal hazardous waste law, the Resource Conservation and Recovery Act.

In June 2010 EPA proposed a regulation that would tighten the current weak limits applicable to handling of coal conversion residues. However, the agency has declined to finalize it. 

The aim of the lawsuit is to force EPA to do so.

Coal combustion residues contain a variety of toxic metals, including arsenic, cadmium, lead, mercury, and selenium. EPA has identified at least 36 other heavy metals and other substances in CCRs.  

Discharge of CCRs by coal-fired power plants means that such facilities are the source of more than half of all the toxic pollutants discharged into the nation's surface waters by permitted industrial facilities.

There are hundreds of CCR sites in the United States. According to an EPA web page, 45 of them are considered to pose a "high hazard."

Judge Reggie B. Walton's Sept. 30 memorandum order does not explain his reasoning beyond mention that the environmental group plaintiffs prevailed on their second cause of action listed in a complaint.

The litigation in which the order was issued does not relate to CCR discharges directly into surface waters, either as a result of leaking earthen dams or otherwise. That issue is the subject of a proposed rule announced by EPA last April. The agency faces a May 2014 deadline to finalize that regulation.

The Republican-dominated U.S. House of Representatives approved in July a bill that would strip EPA of any authority to regulate CCR disposal.

Coal ash pond failures in the past have proven to be highly destructive of the environment. A 1976 incident on Virginia's Clinch River contaminated 90 miles of the watershed, killing several hundred thousand fish, while another in Dec. 2008 in eastern Tennessee released more than billion gallons of coal ash slurry into the Clinch and Emory rivers.