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Little Blue Stops Running: Largest Coal Ash Dump in the Country May Cost Owner $150 Million to Clean Up, While EPA Ordered by D.C. Circuit to Craft Disposal Rules

Little Blue Stops Running: Largest Coal Ash Dump in the Country May Cost Owner $150 Million to Clean Up, While EPA Ordered by D.C. Circuit to Craft Disposal Rules

Little Blue RunBy Richard Webster, Power-Cotchett Attorney, Environmental Enforcement Project
Over the last month, three major events occurred that our victory at Little Blue Run either caused or encouraged that show how successful citizen suits against polluters have implications beyond the immediate relief obtained.
This week, a D.C. Judge ordered the EPA to set a firm schedule for completion of its coal ash disposal rule within 60 days.  The rule, which has been in the making for more than five years, was initiated after a dam collapse at a wet coal ash impoundment in Tennessee caused a huge spill. It has since become bogged down in a tussle between the coal industry, which claims that—absent a dam collapse—coal ash impoundments are benign, and environmentalists who think coal ash should be treated as hazardous waste. 

While the EPA was answering to the D.C. Circuit Court, another coal ash case involving the Little Blue Run coal ash disposal impoundment was wrapping up. Thanks in part to our efforts, Little Blue Run has become a poster-child for the consequences of lax regulation and the need for strong federal rules governing this area—especially the financial liability energy companies may suffer when they fail to consider environmental damage.

Two weeks ago, 53 residents who live within a mile of the impoundment filed a tort action against owner FirstEnergy demanding compensation for property damage caused by pollution from Little Blue Run.  This lawsuit used the evidence we produced, which included evidence that the drinking water to become too dangerous to consume, killed local wildlife, and saturated the yards of local residents threatening the structural stability of their homes.
A year and a half ago, we threatened to file a lawsuit on behalf the residents to stop the ongoing health and environmental harms the impoundment is causing.  We scored a major victory when FirstEnergy chose to avoid our lawsuit by settling a similar lawsuit by the state of Pennsylvania, where they agreed to close the impoundment and clean up the widespread pollution. In this case, our work broke through 30 years of denial on the part of PA DEP that there was any pollution problem.
In more bad news for FirstEnergy, at around the same time it was hit with a tort lawsuit, the $133M clean up plan that it had proposed under the terms of the settlement with the State received an unceremonious thumbs down from Pennsylvania Department of Environmental Protection.  PA DEP found hundreds of deficiencies in the current plan, prompted by vigorous comments from the public and our partners at the Environmental Integrity Project.  It is likely that fixing the plan will raise those costs to well over $150M, making it the most expensive coal ash clean up to date. 
Little Blue Run and similar cases should serve as a warning to other companies that doing a slip-shod job on coal ash disposal can create significant liabilities that can come home to roost at any time. Not only can they lead to clean ups that force corporations to recognize that polluting the environment is fraught with financial peril, but they can also serve to pave the way for tort suits that get damages for local residents to compensate them for the decimating impact on their lives that pollution causes, add liability on polluters balance sheets deterring future similar conduct, and show regulators why loop holes need to be closed.  In addition, it shows that wet coal ash impoundments need to be explicitly outlawed by EPA when the forthcoming rule finally goes into effect.