Coal ash case to proceed, judge rules

A lawsuit seeking to void the U.S. EPA’s decision to allow Oklahoma to regulate coal ash disposal won’t be paused as the ongoing partial shutdown of the federal government continues, a U.S. District Court judge in the District of Columbia has ruled. U.S. District Judge John D. Bates denied a motion brought by EPA that sought a delay because of a lack of appropriations. Bates issued his ruling this week after considering arguments from both the government and from the case’s plaintiffs, who countered a prompt resolution is needed. “The court recognizes and is sympathetic to the impact” the partial shutdown has brought to EPA, Bates wrote. “But where ... there is a ‘reasonable and articulable connection between the function to be performed and the safety of human life’ ... government functions may continue.” Coal ash, also known as coal combustion residuals, is a byproduct of burned coal. And it is a problem in parts of the country. An environmental group called Earthjustice issued a report in December, for example, that asserts numerous utilities have disclosed environmental issues involving coal ash in 22 different states, although utilities operating in Oklahoma or Oklahoma sites weren’t among those listed. Oklahoma’s DEQ regulated coal ash for more than two decades, under federal oversight. The Water Infrastructure Improvements for the Nation Act of 2016, however, gave the EPA the authority to authorize a state to enforce coal ash disposal rules without that oversight if the state’s rules are at least as stringent as federal regulations. The EPA’s decision to approve the Oklahoma Department of Environmental

Quality to become the primary regulatory agency for coal ash disposal here, issued in June, allowed the state agency to fully take over the permitting process, issue notices, assess penalties and suspend or revoke permits.

After the decision, the federal agency was sued by Waterkeeper Alliance Inc., Local Environmental Action Demanded Agency and the Sierra Club.

The environmental groups assert in their suit that key provisions of Oklahoma’s program mirrors federal rules that were struck down by a ruling issued by a federal appeals court in the District of Columbia shortly after the EPA granted Oklahoma regulatory authority.

They also brought up other issues they have with Oklahoma’s monitoring program as part of the litigation.

The suit doesn’t list DEQ as a defendant. On Tuesday, state officials said they are aware of and are monitoring the case while carrying out their ongoing oversight responsibilities, which they assumed in July.

Patrick Riley, who manages DEQ’s coal ash management program as the agency’s environmental programs manager for solid waste and sustainability, said Oklahoma had previously regulated coal ash disposal facilities using solid waste and water quality rules.

Before taking the program over from EPA, he said the state agency developed more specific coal ash rules to match federal standards on groundwater monitoring, impoundments and reporting requirements for regulated operations.

Riley said that coal ash in Oklahoma typically is disposed of in landfills adjacent to the power plants that generate the product, but didn’t have an estimate Tuesday on how much of the ash is disposed annually in the state.

He said the product typically is placed into landfills with engineered liner systems to protect groundwater from contamination and also said that it forms a hard shell top after being exposed to air that prevents dust from being carried away by wind.

Riley said DEQ both requires reporting on disposal activities and also sends inspectors into the field to make sure the process is done safely, and added Oklahoma doesn’t currently have any ongoing enforcement cases related to the issue.

He also stated Oklahomans worried about potential coal ash problems can report those to DEQ, either by phoning 800522-0206 or by clicking the make a complaint link on the agency’s internet home page at deq.state.ok.us.

“Oklahoma has regulated the disposal of coal ash for a long time, and we believe we are the appropriate regulator under federal law,” Riley said.

“It benefits both EPA and Oklahomans, because we are familiar with the facilities, and we are local.”