Wyoming Sues EPA For Not Acting On Its Coal Ash Plan

Wyoming sued the Environmental Protection Agency on Wednesday, asking a federal judge to make the agency act on the state's plan for disposing of coal ash.

Clair McFarland

October 19, 20233 min read

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(Cowboy State Daily Staff)

Wyoming is asking a federal judge to make the Environmental Protection Agency do its job, according to a lawsuit the state filed Wednesday in federal court.  

The controversy is about coal ash, a waste product from burning coal.  

The Wyoming Solid Waste Disposal Act requires the EPA administrator to approve, in whole or in part, a state’s permitting plan for disposing of coal ash within 180 days of the state submitting that plan to the federal agency, says Wyoming’s petition for legal review filed in the U.S. District Court for Wyoming.  

The Wyoming Department of Environmental Quality (DEQ) sent the federal government its coal-ash disposal permitting plan Feb. 6, says the petition.  

That would have given the EPA until Aug. 5 to make a determination on it.  

An adequate state plan is supposed to act as a substitute for a federally tailored plan under the law, the petition notes.  

Wyoming’s plan proposes to send coal combustion residuals (coal ash) to landfills and surface impoundments.  

Other than acknowledging that Wyoming sent the plan, the EPA did nothing, the petition alleges. On Aug. 10, five days after the EPA’s deadline passed, Wyoming warned the EPA it was bracing to sue the agency after 60 days more.  

We Did The Thing 

While EPA can unleash federal regulations on “nonparticipating states,” Wyoming is arguing that it made a good-faith effort to participate in EPA’s permitting approval process and therefore is immune to that kind of intervention.  

“Because Wyoming is no longer considered a nonparticipating state, there are consequences to the EPA’s delay,” reads the petition. “The EPA may only implement a federal permit program in nonparticipating states, which no longer includes Wyoming.”  

Now Make Them Do It 

Wyoming asserts two claims against the EPA.  

The first is declaratory relief — for the federal judge to proclaim EPA in the wrong under these laws for failing to act within its statutory deadline.  

The second claim asks the judge to make the EPA act within 90 days of the court’s declaratory order, as requested in the first claim. 

Wyoming also is asking for reimbursement of its litigation costs and any other relief the court may deem proper.  

State Deputy Attorney General D. David DeWald and Assistant Attorney General Shannon Leininger filed the action on Wyoming’s behalf.   

Clair McFarland can be reached at clair@cowboystatedaily.com.

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Clair McFarland

Crime and Courts Reporter