Plaintiffs renew challenge of state's coal ash rules

A truck filled with coal ash leaves the OG&E Generation Station in this file photo from March 2019, when the utility company closed a pit it had used to store coal combustion residuals before stricter federal regulations took effect in 2015. 

Waterkeeper Alliance and its allies renewed a challenge to Oklahoma's permitting program that regulates the disposal of coal ash generated by electric utilities and independent power producers. 

Grand Riverkeeper Earl Hatley at LEAD Agency, one of three plaintiffs contesting the program, said the regulatory program administered by the state seems designed "to protect industry from citizen oversight." He said the state program denies residents any meaningful opportunity to participate in the process before permits are granted or at regular intervals afterward. 

"Oklahoma's standards don't include any meaningful public participation or public notice for important permitting decisions at coal ash disposal sites," Hatley said. "These decisions could affect drinking water for thousands of people."

Coal-fired power plants generate annually about 110 million tons of coal ash, a byproduct known to contain carcinogens like arsenic, cadmium and hexavalent chromium, and neurotoxins such as lead and lithium. EPA estimates that there are about 1,000 coal ash pits or ponds across the United States, more than 400 landfills and thousands of uncounted coal ash fill sites.

An analysis of groundwater monitoring data collected at four Oklahoma coal ash dump sites revealed levels of toxic chemicals commonly found in coal ash that exceeded federal health standards. A 2018 report published by Environmental Integrity Project and Earthjustice shows contaminants found in groundwater at some or all of those sites included arsenic, boron, cobalt, lithium, molybdenum, radium, selenium and sulfate.

Erin Hatfield, a spokeswoman for Oklahoma Department of Environmental Quality, said Tuesday the state agency does not comment on pending litigation. In April, after the district court judge issued the ruling in Washington, Hatfield said the state agency has carried out its permitting program in accordance with a 2018 appellate court opinion that found the “EPA acted arbitrarily and capriciously and contrary” to the law when it failed to require the closure of unlined coal ash disposal sites.

U.S. District Judge John D. Bates, whose decision is being appealed, struck down the portion of Oklahoma's permitting program that was found invalid by the D.C. Circuit. But he ultimately determined that did "not require invalidation of the rest of the (state's) program,” prompting the appeal.

Jenny Cassel, staff lawyer for the national environmental law organization Earthjustice, said there are two issues at the heart of the appeal of the lower court's decision. The U.S. Environmental Protection Agency failed to adopt in the first instance minimum guidelines that would allow public participation in the permitting process. 

The federal agency erred, she said, when it approved Oklahoma's plan to regulate coal combustion residuals, because the program excludes public input from the permitting process. The state program also grants permits that never expire. 

"We believe RCRA — the statute authorizing approval of state coal ash program and setting out public participation mandates — requires greater opportunity for public involvement in permitting of toxic coal ash dumps than Oklahoma's program provides," Cassel said, referencing the Resource Conservation and Recovery Act. "For some ash dumps that has been no involvement whatsoever."

Cassel said the state program also violates a RCRA provision that "requires permits to expire or be 'reopened' to incorporate updated protections." She said coal ash disposal sites permitted to operate pursuant to "outdated provisions cannot protect health and the environment" as required by law. 

Hatley said the state wants to keep residents "in the dark" when it comes to the way electric utilities dispose of coal ash. Hatley said he is fighting to keep that information open. 

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