EPA Uncertain When Coal Ash Rule Will Be Finalized

by Burr & Forman

A recent article in Bloomberg BNA reports that the U.S. EPA (Environmental Protection Agency) is currently unable to provide a definitive timeline for promulgating final regulations on the management of coal ash generated by power plants.  This continues a protracted rulemaking process, which has prompted an extraordinary number of public comments, approval of legislation by the House of Representatives to limit EPA’s options, and litigation to force a final decision.

The rulemaking history to date has been a mix of complexity, indecision, and contentiousness.  It has its origin in the December, 2008 failure of a coal ash impoundment at TVA’s Kingston power plant in Tennessee.  Over 5.4 million cubic yards of fly ash were released, inundating several homes and contaminating the Emory River.  After considerable internal deliberation, EPA was unable to decide exactly how to proceed, so, on June 21, 2010, it published alternative proposed rules under authorities in the Resource Conservation and Recovery Act (RCRA).  One alternative would regulate coal ash as a “special” (but not necessarily hazardous) waste using a classification authorized under Subtitle C of RCRA.  The other alternative would use Subtitle D of RCRA and classify the material as a solid, but not hazadous or special, waste.  A comparison chart prepared by EPA is available here: http://www.epa.gov/osw/nonhaz/industrial/special/fossil/ccr-rule/ccr-table.htm.

When EPA finally closed the public comment period on November 19, 2011, over 450,000 comments had been submitted.  EPA has posted links to the public docket for viewing individual documents and submissions. Two practical concerns emerged with respect to regulation under Subtitle C.  The first is that the sheer volume of ash would overwhelm the available capacity of existing disposal sites having Subtitle C permits.  The second is the anticipated stigma that would follow classification as a special waste under Subtitle C.  Since this Subtitle primarily regulates materials classified as hazardous wastes, there is a concern that regulation under Subtitle C, even as a “special’ waste, would  severely hamper or end the reuse of any significant amount of coal ash.  Currently, the material is used in a variety of products including wallboard, as an ingredient in concrete and bricks, and in roadbed construction.

Congress also got into the act.  During the last term, legislation sponsored by Representative David McKinley of West Virginia, passed the House in October, 2011, and similar legislation was introduced by Sen. John Hoeven of North Dakota.  These bills would have effectivley mandated management under Subtitle D as a nonhazardous waste.  The House also attached similar language as an amendment to the Transportation Authorization bill, but the proposal was removed in conference.  The separate bills then died with the adjournment of the last Congress, but expectations are that they will be introduced in the current Congress.

Finally, the long period of time since the publication of the competing optional rules has led to litigation.  On April 5, 2012, several environmental groups filed suit, in Appalachian Voices, et al. v. EPA ( Dkt. No. 1:12-cv-00523 RBW), in the United States District Court for the District of Columbia on April 5, 2012, primarily seeking to force EPA to promulgate a final rule. Cross motions for summary judgment have been filed and briefed.

EPA’s recent “update” indicates the collective weight of all the attention hasn’t prompted the Agency to proceed to make a hard choice.  Nor has it made the decision any easier.

For more information on environmental law topics, please contact one of the Burr & Forman team members for assistance. We are happy to answer any questions or concerns you may have.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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