EPA fail to get public input before approving state coal ash disposal program

Jan. 21—Appellate court judges peppered lawyers with questions this week during the presentation of oral arguments as Waterkeeper Alliance and its allies challenged the U.S. Environmental Protection Agency's approval of Oklahoma's coal ash disposal program.

The coalition of environmental organizations contend EPA failed to provide a level of public participation required by law before approving the state program. Its lawyers also cited problems they see with a program that issues "permits for life" to coal ash storage or disposal sites.

Jennifer Cassel, staff lawyer for the national environmental law organization Earthjustice, said permits issued for the life of a coal ash unit conflicts with federal law. She said it also deprives Oklahomans of increased protections provided by federal rules as they are strengthened over time.

"One of the things that really struck us were these permits Oklahoma was calling administrative that had been issued — all of them with with no public review," Cassel said Thursday, a day after her appellate court arguments, during a telephone interview. "These landfills are not closed — they plan to put more coal ash in there for a good long while — but they have given a forever permit to a facility that plans to close in place when monitoring shows there are problems with groundwater pollution."

Erin Hatfield, communications director for Oklahoma Department of Environmental Quality, said the state agency has carried out its permitting program in accordance with a 2018 appellate court opinion that found the "EPA acted arbitrarily and capriciously and contrary" to the law when it failed to require the closure of unlined coal ash disposal sites.

Hatfield said the agency has been working with EPA "on program re-authorization" since 2020, when U.S. District Judge John D. Bates of the D.C. District Court struck down a portion of Oklahoma's permitting program. Those efforts, she said, include updates to the rules that reflect changes made at the federal level.

Oklahoma Solicitor General Mithun Mansinghani rejected arguments presented by Cassel on behalf of Waterkeeper, Local Environmental Action Demanded Agency Inc. and Sierra Club. Mansinghani, during the presentation of his oral argument, said any upgrades made to EPA's program that have made it "more stringent have been mirrored in Oklahoma's program."

Cassel said while that might be the case, she questioned whether future rule improvements would apply to "permits granted for life." She said coal ash disposal sites that were granted permits based on outdated standards for an indefinite period remain a real concern for residents who live near these contaminated sites.

Mansinghani, in an appellate brief co-signed by intervenor Oklahoma Gas & Electric Co., disputes that assertion. He said coal ash facilities remain "subject to Oklahoma's permit requirements throughout the life of the unit," and permit requirements are "subject to the laws and rules ... as they exist on the date of filing an application and afterwards as changed."

Arguments were presented days after EPA officials ordered utilities in some states to stop dumping waste into unlined storage ponds and accelerated plans to close coal ash sites with known contamination problems. EPA cited groundwater monitoring deficiencies, cleanup issues and other problems as reasons for its decision.

Coal-fired power plants generate on an annual basis about 110 million tons of coal ash, a byproduct known to contain carcinogens like arsenic, cadmium and hexavalent chromium, and neurotoxins such as lead and lithium. EPA estimates there are about 1,000 coal ash pits or ponds across the United States, more than 400 landfills, and thousands of unregistered coal ash fill sites.

"Coal ash is one of the nation's most abundant sources of toxic waste, which threatens our groundwater in our communities in Oklahoma," said Earl Hatley, president of LEAD Agency Inc., one of the plaintiffs in the lawsuit. "The state must work with the EPA to ensure that the public is protected by establishing appropriate rules for public participation and placing five-year renewal limits on all permits."

Cassel said the state program also fails to provide a meaningful level of public engagement required by law. She said the EPA failed to adequately issue guidelines for public participation as required by law while also failing to respond to significant concerns that concerned citizens were able to file.

Public participation, Cassel said, is a critical component of the permitting process. The level of participation must be meaningful, she said, and Oklahoma's coal ash program lacks what the law requires and what her clients deserve.