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Brunswick Business Journal Staff Report

October 23, 2018 - Earthjustice is among environmental groups that filed a petition for review in the U.S. Court of Appeals for the D.C. Circuit challenging a U.S. Environmental Protection Agency rule that is designed to gut coal ash disposal regulations that provide environmental safeguards for communities living near toxic coal ash waste dumps.

In March of 2018, the EPA proposed the rollbacks in response to an industry petition to the Trump Administration. The rule was finalized in July, and modifies the Obama-era Coal Ash Rule from 2015.

Under the Trump Administration changes, power plant owners have more time to clean up leaking coal ash disposal sites that have been shown to have contaminated groundwater. The new rule also allows state-run coal ash permit programs to include loopholes such as allowing states to waive groundwater monitoring requirements under certain circumstances.

“The risk that legacy impoundments and insufficiently lined coal ash ponds pose is too great to let another hurricane season go by without addressing the problem,” said Thomas Cmar, deputy managing attorney for the coal program at Earthjustice. “The dam breach at the Sutton Plant that spewed toxic coal ash into the Cape Fear River in the wake of flooding from Hurricane Florence should make it clear that there’s no time to waste.”

A recent court decision casts serious doubt on the legality of these rollbacks. In August, the D.C. Circuit ruled in favor of environmental groups’ lawsuit challenging that the original Obama-era rule was unlawfully weak in several key respects.  In particular, the court struck down provisions of the 2015 Coal Ash Rule that exempted impoundments at closed coal plants and allowed coal ash impoundments that are unlined or only underlain by inadequate clay liners to continue to operate. The EPA must now draft rules to address more than 100 “legacy” coal ash ponds at retired coal plant sites. The EPA is also now required to address the closure of over 600 unlined or clay-lined coal ash ponds in response to the court’s decision.

"Throughout the country, in the absence of adequate regulation by EPA, coal ash has been irresponsibly disposed of," said Larissa Liebmann, staff attorney at Waterkeeper Alliance. "This leaves communities and waterways vulnerable to long-term contamination, as well as spills like we saw in North Carolina with Hurricane Florence. EPA needs to stop catering to industry and start protecting the public."

The petition was filed by Earthjustice, The Environmental Integrity Project, and Sierra Club, on behalf of Clean Water Action, Hoosier Environmental Council, Prairie Rivers Network, HEAL Utah, and Waterkeeper Alliance.

"It's clear that former coal lobbyist and current acting EPA Administrator Andrew Wheeler has an open door policy when it comes to the coal industry," said Mary Anne Hitt, Senior Director of the Sierra Club's Beyond Coal Campaign. "Coal ash is a dangerous, widespread problem, but instead of safeguarding the public from its devastating effects, Wheeler is once again ignoring the issue in order to placate his former clients. Without strong federal coal ash regulations, polluters will continue to dump their toxic coal ash waste in unlined pits that will continue failing, endangering drinking water and public safety. The courts have already agreed the risks posed by coal ash can no longer be ignored, and that's why we're fighting this most-recent Wheeler roll back."     


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