I have had a number of clients ask me recently about the status of EPA’s efforts to regulate coal combustion residuals under RCRA. It turns out that some environmental groups have been asking themselves the same question. Being environmental groups, however, they did more than ask about it. They sued.
As most readers know, EPA published two separate proposals for regulating coal ash – one under Subtitle C and one under Subtitle D – on June 21, 2010. Since then, there has been mostly radio silence from EPA, aside from a Notice of Data Availability and request for additional comment last October. Notwithstanding my occasional reluctance to speculate, one could easily infer that, in the absence of a court order, and in the presence of a firestorm of opposition from utilities, coal ash recyclers and, perhaps most importantly, coal state politicians, EPA has been content to let sleeping dogs lie.
Unlike EPA, however, the environmental groups were not content. Last week, 11 groups filed suit against EPA, requesting an order that EPA “issue necessary revisions of [the RCRA] regulations … as soon as possible.” It will be interesting to see how EPA defends the law suit, but I would be willing to make a small wager that EPA will not issue CCR regulations before the election.
The law suit is noteworthy even for those not focused on the CCR issue, because the plaintiffs also allege that EPA needs to revise its toxicity characteristic leaching procedure. The TCLP test is broadly used under CERCLA and in state superfund programs. Any revision to the TCLP test could thus have significant impacts on cleanup standards. Superfund lawyers, pay attention.
When EPA proposed two different ways to regulate coal ash, I compared it to Hamlet. Plaintiffs would seem to prefer Macbeth
"If it were done when 'tis done, then 'twere well It were done quickly":