WASHINGTON (CN) — The Supreme Court on Wednesday refused to block an Environmental Protection Agency rule forcing old power plants to implement new measures to clean up toxic coal ash.
Over a month ago, the East Kentucky Power Cooperative asked the justices for emergency intervention to block “fatally flawed” regulations that will force a Kentucky power plant to shell out $16.5 million in updates.
The Supreme Court did not explain its order rejecting the application. There were no noted dissents.
Without the high court’s intervention, the cooperative will have to begin compliance work on a Biden administration’s rule forcing coal companies to control and clean up the contamination caused by coal ash disposal.
Each year coal plants produce around 75 million tons of coal ash, which contains pollutants like arsenic, boron and cobalt — toxins that are linked to cancer, heart and thyroid disease, reproductive failure and neurological harm.
In April, the EPA issued a rule under the Resource Conservation and Recovery Act to expand protections for communities around coal-burning power plants. While previous regulations exempted closed facilities from updating their coal disposal units that contaminate groundwater, the Biden administration retroactively applied its new rule to remediate pollution at disposal sites.
East Kentucky Power Cooperative’s William C. Dale Station falls under the new regulation. The plant was closed in 2015, but cleanup efforts began the year before. The utility company worked with Kentucky’s waste management agency to dispose of the ash, spending $27 million to receive a clean-closing certification for the site.
The company estimates it will have to spend an additional $16.5 million to bring Dale Station into compliance with the new rule.
“EKPC will have to undo, and then redo, much of the closure work that it performed years ago when it closed the Dale Station impoundments by dewatering them and removing all the CCR,” East Kentucky Power wrote. “And once groundwater-sampling wells are installed, then EKPC must begin the work of sampling and performing statistical analyses of results to establish background water quality.”
Claiming the retroactive application put the rule outside the EPA’s authority, rendering it unlawful, the company asked the justices to prevent its enforcement.
Under the Resource Conservation and Recovery Act, the EPA must prevent toxic waste from harming public health or the environment. The Biden administration said requiring plant owners to measure groundwater under the discarded coal ash falls within that authority.
“A regulation that targets a current threat to public health and the environment is not ‘retroactive’ in the relevant sense merely because past conduct, like the disposal of decades’ worth of coal ash in an unlined surface impoundment, contributed to that ongoing threat,” U.S. Solicitor General Elizabeth Prelogar wrote.
East Kentucky Power said it would have to begin construction on the Dale Station in March 2025, but the EPA noted that emergency action from the justices wasn’t necessary because relevant deadlines do not come until May 2028.