Introduction

Sabrina Mislevy is tired of the odors, the way they “hit” her as she drives by the blue-tinted lake, the way they burn her nose. Like many of her neighbors, Mislevy has grown weary of living near the nation’s largest coal ash pond, Little Blue Run, which straddles the Pennsylvania, West Virginia and Ohio state lines.

In Little Blue Run and beyond, coal ash, waste from the production of electricity, has fouled water supplies and endangered public health. “We want action,” said Mislevy, of Georgetown, Pa., explaining why she has joined some 200 other area residents in launching legal challenges against FirstEnergy Corp., the owner of Little Blue Run.

Her community is just one across the country pursuing legal challenges against coal-ash ponds, landfills and pits — a grassroots onslaught stoked, in part, by slow regulatory action by the Environmental Protection Agency.

Last May at Little Blue Run, residents laid the groundwork for a potential citizens’ suit against FirstEnergy, sending a notice of intent to sue. Calling themselves the Little Blue Regional Action Group, they accused the company of operating its 1,000-acre ash pond “in a manner that may present an imminent and substantial endangerment to human health and the environment.” In December, residents sent another notice to FirstEnergy alleging “additional significant and ongoing violations,” including dirtying a creek that flows into the Ohio River with arsenic and selenium — toxic constituents found in coal ash.

A FirstEnergy spokesman, Mark Durbin, calls the residents’ claims “wholly without merit.”

The pending action and others come as the federal government weighs how to regulate coal ash, one of the nation’s largest refuse streams at 136 million tons a year. Two years after unveiling a plan to regulate coal ash disposal for the first time, the EPA has delayed the rules.

As the agency studies the issue, lawyers and citizens are filing toxic torts and regulatory appeals targeting specific ash sites. More than two dozen such challenges have surfaced in the past year, from Illinois to Nevada to West Virginia. Most of the litigation alleges unlined or partially lined dumps have leaked boron, uranium, chromium, thalium, manganese and other metals, tainting water sources and harming property and health.

“What we need is federal rules,” said Lisa Widawsky, a lawyer at the non-profit Environmental Integrity Project, who represents the Little Blue Run residents. “Until then, we’ll use whatever tools we’ve got.”

EPA Delay, Resident Lawsuits

Some places, like Montana, have encountered a history of litigation. Last fall, environmentalists filed two new suits over coal-ash ponds surrounding the town of Colstrip. There, the ponds have caused such widespread damage to aquifers that they fueled years of claims by residents and ranchers, The Center for Public Integrity reported in 2009. Other places, including Georgia, are witnessing their first coal-ash cases. Still others, such as South Carolina, have seen a wave of legal action targeting ash ponds, some leaching arsenic at levels 300 times safety standards.

“We didn’t want to wait for EPA to act,” said Frank Holleman, who handles the South Carolina suits and who, working with colleagues at the Southern Environmental Law Center, has launched an initiative devoted to the issue.

In the Southeast, he explains, nearly every ash lagoon sits beside a river that serves as drinking water for residents. Yet each has some record of seeping the ash’s dangerous pollutants. “The problems are real,” adds Holleman, who has overseen eight cases in 12 months. “It’s an important time for somebody to start taking action.”

Environmentalists have even mounted a challenge to the EPA. Last April, on behalf of 11 other groups, Earthjustice sued the agency over its stalled process, seeking court intervention to force it to act. Under federal waste law, the groups argue, the EPA has a mandatory duty to review and, if necessary, revise rules every three years. But the agency has not done so for rules governing coal-ash disposal since 2000.

“We’ve seen a real uptick in legal actions over coal ash in the vacuum left by EPA,” said Lisa Evans, the Earthjustice lawyer suing the agency. “Despite inaction on the part of EPA, the damage keeps mounting.”

The EPA announced its proposal to begin regulating the disposal of coal ash in June 2010, presenting two alternatives in a 563-page draft. Under the first option, the agency would classify coal ash as “hazardous” — triggering a series of strict controls for its dumping. The second option would deem coal ash “non-hazardous,” and subject it to less stringent national standards that amount to guidelines for states.

Asked why a decision has yet to be made 32 months later, the EPA, in a one-paragraph statement, said it has received more than 450,000 comments on its proposal. “EPA is following long-established rulemaking procedures and requirements,” the agency wrote, and “will finalize the rule pending a full evaluation of all the information.”

In court records, the EPA maintains it cannot predict when that will happen. “It is not feasible, given the current state of the Agency’s knowledge, to propose a rulemaking schedule,” Suzanne Rudzinski, EPA’s director overseeing the process, said in a filing in the Earthjustice case.

Agency officials intend to consider new, unpublished data, gathered from 495 coal-fired power plants nationwide, for their rulemaking. Obtained by Earthjustice through a public-records request, the data shows hundreds more ash ponds and landfills than previously estimated: The total number of ponds rose more than 60 percent to 1,161, up from 710 in 2010. Imposing a court-ordered deadline to finish reviewing this information, the EPA’s Rudzinski argues, would be “neither scientifically sound, nor legally defensible.”

The utility industry, intervening in the case, echoes the sentiment. “We certainly want regulatory certainty,” said Jim Roewer, of the Utility Solid Waste Activities Group, “but we want to have a good rule that actually works.”

Many lawyers say that, if the EPA had already issued its rules, they would not need to sue now. In some cases, they say, contamination may never have happened.

Take the toxic torts pending in Chesapeake, Va., where a golf course constructed out of coal ash, recycled as “structural fill,” has leaked arsenic and uranium onto nearby properties. Or the notice-of-intent-to-sue letter sent over ash similarly used in about 36 construction sites in Puerto Rico. The EPA’s proposal would ban such un-encapsulated “beneficial uses” without proper protections.

For cases involving ash ponds and landfills, lawyers say, federal regulations would have at least stopped ongoing pollution. The EPA’s proposal features preventative requirements such as composite liners and regular monitoring at these sites. Its toughest option would prohibit wet ponds altogether, the same type of impoundment at issue in lawsuits filed on January 31 by 23 residents in Juliette, Ga.

The mass-tort litigation involves two ash ponds — one 750 acres; the other 300 — at the sprawling Robert W. Scherer coal plant, operated by Georgia Power Co. Residents allege the company’s coal ash has “invaded” their homes and exposed them to “extremely toxic and hazardous substances released to the air, soil, and groundwater.” They are suing Georgia Power and additional plant owners for negligence, nuisance and trespass, claiming the ash has made them sick.

Kristal Smith, one of the resident-plaintiffs, says she cannot see Georgia Power’s big ash pond from her yard, “but I know it exists.” Her lawn abuts the plant’s property line. For six years, she has witnessed what she suspects is coal ash: A grayish material often settles onto her porch, her car and her kids’ toys, turning them black.

More than a year ago, Smith, 35, noticed something even more troubling: Her hair was falling out. She changed shampoos and bought over-the-counter medication, but nothing helped. When her scalp grew “really, really red,” as she recalls, she went to a doctor, who performed blood tests. He has ruled out thyroid problems and vitamin deficiencies, but, she said, cannot explain her hair loss.

“It certainly crossed my mind that my hair loss was connected to the . . . coal ash,” said Smith, who uses a steroidal shampoo to stop the thinning. She has learned her next-door neighbor, a vibrant woman in her late ‘20s, has also lost her hair. Other neighbors suffer from a host of health ailments, according to the suits, including nosebleeds, lung cancer, muscle spasms, kidney abnormalities and reproductive problems.

Last year, the state conducted water tests at the community’s request, revealing uranium in the area’s groundwater. Brian Adams, the lawyer representing 100 total residents, says his own testing has shown “alarming” levels of arsenic, lead and boron in many drinking water wells.

Georgia Power disputes the contamination claims. In a two-paragraph statement, the company notes that its testing of drinking water at Plant Scherer, evaluated by state regulators in 2008, has confirmed local water supplies are “safe.” The state’s more recent tests, it wrote, “do not indicate that humans are being or have been exposed to levels of contamination that would be expected to cause adverse health effects.”

The company stresses it is in full compliance with federal and state regulations.

Yet those living near its coal-ash ponds “are really unprotected,” Adams said. Like the EPA, Georgia lacks stringent rules for coal-ash disposal.

In Greene Township, Pa., home to most of Little Blue Run’s 1,700 permitted acres, state regulators boast some of the country’s most comprehensive coal dumping rules. That has not stopped the contamination. In their first legal notice, residents rely on FirstEnergy’s data to allege “widespread” pollution in ground and surface water sources, tracing high levels of arsenic, boron and other toxic constituents to the pond. Their second notice hinges on several samples collected by a resident from a creek, which show pollutants at levels that can pose harm to fish or human health.

Durbin, the FirstEnergy spokesman, said the citizen issues raised “have historically been addressed and are continuing to be addressed by the Pennsylvania Department of Environmental Protection.”

Yet only after the threat of a citizens’ suit emerged did state officials act. Last summer, on the eve of a legal deadline, the state DEP sued FirstEnergy in federal court. The agency then filed a consent decree requiring closure of Little Blue Run. In its court filing, the DEP has characterized its agreement with the company as a proactive step to ensure the ash pond “will not create an imminent and substantial endangerment to health or the environment.”

Under the July 27, 2012, settlement, FirstEnergy must shutter its pond by the end of 2016, and pay an $800,000 fine. The company has agreed to increase its existing monitoring of area water sources; measure air emissions coming off the pond; identify any new seeps creeping off-site; and offer 22 residents an alternate water supply. A federal judge approved the consent decree last December.

Durbin, who describes the agreement as years in the making, suggests it renders moot any future litigation from the residents’ second notice. “FirstEnergy takes its environmental obligations very seriously,” he said.

Environmentalists paint the Little Blue Run case as proof their lawsuits can fill the federal regulatory gap. Already, citizen suits have precipitated shutdowns of polluting coal-ash ponds in South Carolina, Maryland and Illinois. While some of these cases ended in settlements with utilities, others, as with Little Blue, prompted state regulators to act.

Such state actions, industry representatives say, show the current system for regulating coal-ash disposal is working. State regulators are doing their jobs, they say, tightening rules and going after problematic dumpsites. “The states aren’t waiting . . . for EPA and its rule to take action,” asserts USWAG’s Roewer.

The sentiment would likely rankle Sabrina Mislevy, who believes her “life would be easier if there were federal regulations.” For her and her neighbors, it does not matter that Little Blue Run will shutter in three years. They still must deal with its well-water contamination and rotten-egg stench. Some residents have grown so tired of living beside the ash pond, they are hiring lawyers and seeking buyouts from FirstEnergy in hopes of fleeing today.

As long as Little Blue Run remains open, Mislevy said, “The future is not bright.”