The D.C. Circuit Court of Appeals has stomped down two separate, nearly identical coal-fired utility challenges to the Environmental Protection Agency’s long-running rules on cleaning up coal ash ponds.
In a ruling June 28, the three-judge panel rejected a claim from the utilities that somehow groundwater and rainfall are different and the EPA’s 2015 coal ash disposal rules don’t recognize that distinction. In a unanimous, unsigned (per curium) opinion, the court agreed with the EPA. The agency had recently clarified that its rules for disposing of coal ash in ponds covered not only liquid coming from above (rainfall) but from below (groundwater).
Some 20 owners of coal-fired power plants plus Texas challenged EPA, arguing that the agency had issued a new rule without going through the regulatory hoops of the Administrative Procedures Act. The utilities said the original EPA rules specified the need to control “free liquid” in ash ponds, specifying rainwater. When EPA clarified that the rule also pertained to infiltration of groundwater to the ponds, that was a rulemaking according to the utilities.
“It may be true in a simplistic sense that ‘groundwater’ is a ‘liquid.’” — utility filing
In their challenge, the utilities argued that EPA didn’t originally specify groundwater as a “free liquid,” while essentially admitting their argument was disingenuous: “It may be true in a simplistic sense that ‘groundwater’ is a ‘liquid.’”
Earthjustice attorney Gavin Kearney, who argued the case on EPA’s side, called the utility argument “preposterous. He told Grist, “These words are clear in their meaning. A liquid is a liquid, in any sense of the word, and infiltration means water coming in from any sides’”
The court found EPA’s action did not require a new rulemaking: “Because the 4 challenged documents straightforwardly apply existing regulations, they do not amount to the kind of agency action ‘promulgating a[] regulation, or requirement’ that we have jurisdiction to review under the Resource Conservation and Recovery Act…. We accordingly dismiss the related petitions for lack of jurisdiction.”
In a POWER magazine commentary the environmental law firm Earthjustice noted, “A 2022 report by Earthjustice and the Environmental Integrity Project found that ash at 91 percent of coal plants is contaminating groundwater above federal safety standards. When the report was written, a whopping 96% of power plants with ash contaminating groundwater were not proposing any groundwater treatment. Only one plant out of 292 was planning a comprehensive cleanup. In December of 2023, the EPA issued an enforcement alert that found ‘widespread noncompliance’ with the law.”
EPA rules require coal ash pond owners to either drain their ponds and move the ash to an acceptable dry landfill or cover and line the ponds to prevent spills over the top or underground contamination with the toxic chemicals including heavy metals in the pond water. Utilities have been fighting the rules at least since 2015, when the EPA first promulgated them.
Under the EPA’s coal ash cleanup program, authorized by the 1976 Resource Conservation and Recovery Act, the agency can delegate oversight to approved state regulatory offices. In May, EPA rejected Alabama’s application for a state program. EPA said the plan state environmental officials submitted was inadequate in multiple ways and was “significantly less protective of people and waterways than federal law requires.” EPA Administrator Michael Regan said, “EPA stands ready to continue working with Alabama so that they can submit an approvable application and implement a program that is as protective of public health as the federal standards.”
Only Georgia, Oklahoma, and Texas have EPA-approved state programs. Alabama’s is the first EPA has rejected. The Georgia program is also under fire.
–Kennedy Maize