Today, the Supreme Court denied a requested stay of the Environmental Protection Agency’s (EPA) legacy coal ash rule by Eastern Kentucky Power Cooperative. This matter will now return to the U.S. Court of Appeals for the District of Columbia to decide on the validity of the rule.

The EPA’s Legacy Coal Combustion Residuals (CCR) Surface Impoundment Rule, issued earlier this year, addressed gaps in the 2015 Coal Ash Rule and extended safeguards to hundreds of coal ash dump sites that had been left unregulated. The rule settled a lawsuit between the agency and public interest groups, represented by Earthjustice.

This is the second stay of the legacy coal ash rule requested by industry and denied. On November 1, 2024, the D.C. Circuit also denied the Cooperative’s request for a stay. Earlier this year, the Eighth Circuit also denied a stay of the Effluent Limitation Guidelines for coal-fired power plants on October 10, 2024.

Statement from Gavin Kearney, deputy managing attorney of Earthjustice’s Clean Energy Program:

“As a result of regulatory loopholes, coal-fired power plants that dumped coal ash in hundreds of unlined coal ash ponds and landfills for decades have evaded cleanup responsibilities, even after safeguards were passed in 2015. Across the U.S., coal ash dump sites are leaking dangerous levels of toxic pollutants, contaminating soil, groundwater, and surface waters, threatening communities like those of the groups we represent. At numerous sites, toxic coal ash has contaminated drinking water supplies.

“We opposed this stay because with the recently adopted legacy rule, EPA took action to close these loopholes and address the dangers associated with leaving coal ash in unlined pits for decades. The coal power industry must clean up its toxic coal ash and address soil, groundwater, and surface water contamination.

“We are confident that the D.C. Circuit will ultimately uphold these critical safeguards, as the rule is compelled by EPA’s statutory duty to protect human health and the environment from the risks of the unsafe disposal of coal ash and other wastes. The longer industry delays, the more toxic waste enters our water, and the more difficult cleanup becomes.”

Background

Earthjustice represents communities across the U.S. that have fought for years to hold coal-fired power plant operators responsible for their reckless disposal and storage of coal ash. View the Earthjustice map of coal ash dumpsites across the U.S.

An Earthjustice lawsuit compelled the EPA to adopt its first-ever safeguards to protect people from toxic coal ash in 2015, but the rule excluded landfills and waste piles that stopped receiving coal ash before the rule went into effect. The Legacy CCR Surface Impoundment Rule extend federal monitoring and cleanup requirements to hundreds of older coal ash landfills and ponds across the country that have been leaking toxic pollution into groundwater.

The EPA reports that many plants are illegally closing coal ash ponds without removing toxic ash from the water table, threatening groundwater and human health. Water weaponizes coal ash, carrying its toxic pollutants to nearby streams, rivers, and drinking water aquifers.

Coal ash is a toxic mix of hazardous pollutants, metals, carcinogens, and neurotoxins, including arsenic, boron, cobalt, chromium, lead, lithium, mercury, molybdenum, radium, selenium, and other heavy metals. These have been linked to cancer, heart and thyroid disease, reproductive failure, and neurological harm. Coal ash is disproportionately located in low-income communities and communities of color.

In this litigation, Earthjustice is co-counseling with the Southern Environmental Law Center, Environmental Integrity Project, and Sierra Club and representing Altamaha Riverkeeper, Chattahoochee Riverkeeper, Clean Power Lake County, Coosa River Basin Initiative, Hoosier Environmental Council, Just Transition Northwest Indiana, Sierra Club, and Waterkeeper Alliance.