EPA Ordered To Move Forward With Coal Ash Waste Rule

On October 29, 2013, a federal district court judge ordered EPA to submit to the court within 60 days a plan and schedule for finalizing coal ash rules under the Resource Conservation and Recovery Act (RCRA). Appalachian Voices v. McCarthy, No. 12-cv-00523 (D.D.C. Oct. 29, 2013) [enhanced version available to lexis.com subscribers]. Coal ash, also called coal combustion residuals (CCRs), is created as a byproduct of coal combustion at power plants. Coal ash is generally disposed of in either liquid form in surface impoundments or in solid form at landfills and is largely exempt from hazardous waste and solid waste regulations under RCRA.

Recent interest in regulating coal ash waste was prompted by the December 2008 spill at a coal ash storage facility for the Tennessee Valley Authority’s Kingston Fossil Plant. An estimated 1 billion gallons of coal ash slurry was released from the Kingston facility after a retaining wall in the surface impoundment failed. In response to the coal ash spill, in June 2010, EPA proposed to regulate coal ash to address the risks from the disposal of coal ash waste. The 2010 proposed rules provided two options for regulating coal ash: (1) regulate coal ash as a special waste under RCRA’s hazardous waste regulations; or (2) regulate coal ash under RCRA’s non-hazardous solid waste regulations. EPA has received approximately 450,000 comments on these proposed rules and has published additional data on the proposed rules, but has yet to finalize any regulations. Under the solid waste proposed rule, current surface impoundments would have to be retrofitted with new composite liners or cease operations within five years. Existing landfills would not need new liners, but would require groundwater monitoring. In the event that EPA were to elect to regulate coal ash as a special waste, coal ash impoundments or landfills would need RCRA permits and surface impoundments would effectively be phased out of use due to land disposal restrictions. Although EPA has indicated that the second option - regulating coal ash as a non-hazardous solid waste - is the most likely outcome, it has yet to issue final regulations.

After almost four years of inaction on the regulatory front, several environmental organizations sued EPA under the citizens’ provisions of RCRA for failure to finalize its RCRA regulations for coal ash. The environmental groups argued that under the statutory language in RCRA, EPA is required to review and, if necessary, revise hazardous waste and solid waste regulations every three years. Thus, they argued that EPA was required to review its decision not to regulate coal ash as a hazardous waste or solid waste at least every three years, which it has failed to do. In his October 29th Memorandum Opinion, District Court Judge Walton ruled in favor of EPA on a number of counts, holding that coal ash is exempted from RCRA’s general review and revision process for hazardous wastes. Nevertheless, Judge Walton ruled in favor of the environmental groups on the issue of non-hazardous solid waste regulations. Judge Walton held that EPA has a non-discretionary duty to review and, if necessary, revise solid waste regulations concerning coal ash at least every three years. Judge Walton declined to provide a set deadline for EPA to issue its review or regulations. Instead, he ordered EPA to submit a proposed scheduling order setting forth a proposed deadline by which it will comply with its statutory obligations under RCRA. EPA must submit this proposed schedule within 60 days (by December 30, 2013), at which point the environmental groups will have an opportunity to file a response to EPA’s proposed schedule.

    By Allison Torrence, Associate, Jenner & Block

Read more at Corporate Environmental Lawyer Blog by Jenner & Block LLP.

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