Supreme Court Won’t Halt EPA’s Coal Waste Rule

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An electric utility claims the agency lacks legal authority to require new safety measures at coal ash storage facilities.

The Supreme Court denied an electric utility’s emergency request on Dec. 11 to block a federal rule requiring energy producers to prevent leakage of coal ash from storage facilities into groundwater.

The court issued an unsigned order denying the emergency application in East Kentucky Power Cooperative (EKPC) v. Environmental Protection Agency (EPA). No justices dissented. The court did not explain its decision.

The ruling allows litigation over the rule that is pending in the U.S. Court of Appeals for the District of Columbia Circuit to continue. The circuit court declined to stay the rule on Nov. 1, and it went into effect a week later.

The case could return to the Supreme Court in the future.

The EPA rule published in May would force coal plants that shut down before October 2015 to take measures to ensure that coal ash, also known as coal combustion residuals, or CCRs, does not leak out from so-called surface impoundments, or large ponds, where the agency previously allowed the material to be deposited.

Almost 130 million tons of coal ash were created in 2014, the EPA reports.

Coal ash includes various by-products such as fly ash, bottom ash, boiler slag, flue gas desulfurization material, fluidized bed combustion ash, scrubber residues, and cenospheres, which are small particles. Some power plants send coal ash to landfills or are given a permit to discharge it into waterways. Through recycling, it can also be made into concrete and wallboard.

The agency says coal ash must be regulated so that the contaminants it contains, such as arsenic, cadmium, and mercury, do not enter the air or drinking water.

The EPA argues that safety measures at surface impoundments must be improved because they run the risk of leaking dangerous chemicals.

The cooperative argued in its application filed with the court on Nov. 5 that the EPA rule is “yet another aggressive attempt by EPA to push the envelope of its regulatory authority” and that it “goes too far.”

The rule “will cause irreparable injuries to Applicant EKPC if not stayed.”

The application states that the rule is unlawful because the federal Resource Conservation and Recovery Act “does not give EPA a blank check to do whatever it desires regarding solid waste.” It allows the agency only to stipulate the location where solid waste may be “disposed of.”

The rule, says the cooperative, unlawfully reaches back in time to impose “new obligations on long-completed transactions” by regulating sites where coal ash was previously disposed of, along with the impoundments where it has been deposited.

This retroactivity is beyond the agency’s authority. It will compel the cooperative “to re-open long-closed sites” that were shut down with state approval “only to re-close them under burdensome new requirements,” according to the application.

“Had Congress intended EPA to exercise such sweeping retroactive power, it would have said so clearly. It has not,” the application reads.

The EPA argued in a Nov. 26 brief that the application should be refused because the cooperative’s challenge of the rule is not in the public interest, and is unlikely “to succeed on the merits.”

The cooperative also has not demonstrated that it will “suffer irreparable injury without a stay,” the agency said.

Even if the coal ash from an impoundment has been removed, harmful chemicals may still be present in nearby soil and groundwater.

“EPA’s 2014 risk assessment showed that impoundments generally, and unlined impoundments in particular, leak contaminants at levels that pose health and environmental risks and warrant regulation,” the brief stated.