North Dakota to sue EPA after waiting years for coal regulation decision
More than four years after first applying to the Environmental Protection Agency (EPA) for approval for the state to regulate coal waste, North Dakota authorities will go to court in an attempt to get the federal agency to do its job and make a decision. The announcement by North Dakota Attorney General Drew Wrigley comes after years of working with the EPA to gain approval for the state Department of Environmental Quality to oversee the regulation of coal waste.
But InForum notes the drawn-out process and feds’ lack of responsiveness finally forced state officials to take legal action.
According to a release from Wrigley’s office, the North Dakota Department of Environmental Quality regulates the storage, treatment and disposal of coal combustion residuals, known as CCR, in the state.
In 2020, the EPA announced that states could apply for program primacy to regulate activities surrounding residuals. Primacy for regulation means the state agency would be considered the primary enforcement authority and would be responsible for implementing and enforcing federal regulations within the state, the release said. The Department of Environmental Quality has been responsible for coal combustion residuals regulation for the past 50 years, according to the release.
After applying to the agency in 2020, the state made some changes in response to EPA concerns. State officials also asked state legislators to tweak the language in applicable laws to satisfy the feds.
In 2023, the state Legislature held an emergency vote to change the wording of its coal combustion residuals laws to mirror the definitions used at the federal levels, a recommendation the EPA asked for as part of the Department of Environmental Quality’s application, according to a memo Wrigley sent to U.S. Attorney General Merrick Garland and EPA Administrator Jane Nishida. The department submitted its final application on March 10, 2023.
Since then, the EPA has effectively gone dark. State officials maintain the feds’ radio silence violates the requirement for the agency to respond within 180-days.
“Since the final submission in 2023, EPA has continually and inexplicably delayed its decision on NDDEQ’s application,” Wrigley said in a statement. “As an energy-producing state, the regulation of the coal industry and specifically CCR is vital to North Dakota. North Dakota has now placed the EPA on notice of intent to sue, in an attempt to compel EPA to approve NDDEQ’s CCR permit program and let the state continue regulating its CCR activities as it has successfully done for many years.”
The state technically filed a notice of intent to sue, which gives the agency 60 days to respond before going to court. With the EPA administrator named in the notice, Jane Nishida, now out of office, perhaps North Dakota officials will get a more timely response from her replacement in the Trump administration, Lee Zeldin.
Photo: North Dakota Lignite Council