Across America, millions of tons of toxic waste are sitting in pits next to coal plants. But whether they will get cleaned up has come down to a legal debate over the definitions of words.
In 2015, following a pair of disastrous spills at coal plants in North Carolina and Tennessee, the Environmental Protection Agency issued a rule that required power companies to dispose of toxic waste at coal plants safely. The EPA’s rule required that coal ash, a byproduct of the coal power process which contains heavy metals like arsenic and mercury, cannot be left in contact with a “free liquid” — one that could move in and out of the ash itself — and it had to be stored in a manner that prevented “infiltration” by a liquid.
A group of utility companies sued the EPA and argued that rule’s prohibition of “infiltration” of a coal ash impoundment refers only to infiltration from above, by rainwater. They also claimed that the rule didn’t classify groundwater as a “free liquid” — although they acknowledged in their opening brief that “it may be true in a simplistic sense that ‘groundwater’ is a ‘liquid.’” By enforcing the rule using the common-sense definitions of these terms, the utilities argued, the EPA was effectively changing the rule itself.
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