Court Stems Tide of EPA Rules on Toxic Waste

By William Vogeler, Esq. on August 23, 2018 | Last updated on March 21, 2019

In a battle against toxic waste, some federal judges may feel like the boy who put his finger in a dike to save his country.

The little Dutch boy, in the novel by Mary Mapes Dodge, sees a leak and stops it with his finger. It ends well after townspeople see him and make the necessary repairs.

But United Solid Waste Activities Group v. Environmental Protection Agency is no fairy tale. The DC Circuit Court of Appeals ruled to save the environment, but it may be too late.

Toxic Coal Ash

Coal ash is toxic waste from coal-burning industries. According to reports, the industry produces about 100 million tons of coal ash in a year. The sludge is deposited at sites across the United States.

That includes about 310 landfills, typically covering 120 acres and going more more than 40 feet deep. Another 735 surface impoundments, also used for coal ash storage, are about 50 acres and 20 feet deep.

The lawsuit stemmed from regulations promulgated by the Environmental Protection Agency in 2015. Environmentalists said they were inadequate; industry representatives said they were too strict.

The DC Circuit largely agreed with the environmentalists, saying the agency had not addressed health and environmental harms nor shown that "harmful leaks will be promptly detected." The appeals court cited a report that found hundreds of impoundments have a 36.2 percent to 57 percent chance of leaking in the near future.

"Makes No Sense"

In one case, the appeals panel noted, a surface impoundment leaked 5.4 million yards of sludge into Tennessee's Emory River. It ruptured a natural gas line, damaged or destroyed dozens of homes and left high levels of arsenic and lead in the water.

The appellate judges also took aim at the EPA's exemption for "legacy ponds," which remain at coal-fired power plants that have closed. They said it "makes no sense."

"Notably, this very Rule was prompted by a catastrophic legacy pond failure that resulted in a 'massive' spill of 39,000 tons of coal ash and 27 million gallons of wastewater into North Carolina's Dan River," the court said. "Nevertheless, the EPA chose to leave legacy ponds on the regulatory sidelines."

The court ruling does not end the controversy because the agency recently published new regulations that give states more flexibility in dealing with coal ash. Attorneys for the plaintiffs said they expect to be back in court again over the toxic waste issue.

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