January 23, 2012

Environmental Groups Notify EPA of Planned Coal Ash Suit

On January 18, 2012, Earthjustice notified the EPA of its intent to sue the agency over an alleged failure to properly regulate coal ash under the Resource Conservation and Recovery Act (“RCRA”). Earthjustice sent the notice on behalf of eleven different environmental groups, including the Sierra Club, Kentuckians for the Commonwealth and Appalachian Voices.

In the written notice, Earthjustice alleges that EPA is required to review and revise RCRA regulations relating to coal ash every three years (note: RCRA actually requires only that regulations be reviewed and revised every three years “where necessary”). Earthjustice alleges that EPA has failed to fulfill this responsibility, noting that the agency has failed to follow through on proposed rulemaking aimed at coal ash. EPA is currently in the process of reviewing and evaluating more than 450,000 comments it has received regarding potential coal ash regulation by the agency.

On a related front, the US House of Representatives passed a bill in October 2011 that would prevent EPA from regulating coal ash as a hazardous waste. Supporters of that legislation note that coal ash has long been used beneficially in products such as concrete and wallboard. The coal industry often uses coal ash with alkaline properties in the reclamation process. Currently, the bill – which has been criticized by the Obama Administration -- remains stuck in committee in the US Senate.

According to Earthjustice, the EPA has failed to move forward on the regulation of coal ash due to “politics and pressure from corporate lobbyists.” Earthjustice did not comment on the lobbying efforts of the Sierra Club or other affiliated organizations opposed to coal or coal ash. In 2011, New York City Mayor Michael Bloomberg donated $50 million to the Sierra Club to be used for its anti-coal campaign.

RCRA requires citizens to provide 60 days’ notice of their intent to file suit. The letter from Earthjustice was issued to comply with RCRA’s notice requirement.

This article was authored by M. Shane Harvey, Jackson Kelly PLLC. For more information on the author see here.