Federal Judge Mandates USEPA Set Schedule for Final Rule-Making Regarding Coal Ash Residue

A federal court has now ordered USEPA to set a deadline for finalizing federal coal ash regulations.  Pursuant to the court order, USEPA has 60 days to set a schedule for the final publication of regulations concerning how we will treat coal ash residue in this country. The order was the result of a lawsuit filed by a coalition of environmental groups against the agency for what they say is the agency’s failure to finalize federal coal ash rules.

The environmental groups claim USEPA has a “mandatory duty” to review and revise its waste regulations every three years under the Resource Conservation and Recovery Act (RCRA). These waste regulations include a review of the manner in which coal ash is regulated, including its handling and disposal. 

In 2010, USEPA proposed two options to regulate coal ash: One that would regulate it as a hazardous waste under Subtitle C of RCRA; and one that would regulate it as non-hazardous waste, under Subtitle D of RCRA. USEPA further held a series of public hearings across the nation and received approximately 450,000 comments in response to its initial rule-making, but has not taken further action since that time.

While Tuesday’s court decision doesn’t specify which option EPA should adopt or the exact time frame for a final rule to be adopted, it does set the stage for a final decision to be made by USEPA regarding the future of how coal fly-ash will be regulated.  While environmental groups are hoping that USEPA adopts the position that the material should be treated as a hazardous waste, the consequences of such a rule would be far-reaching for one of the largest waste streams produced in the country potentially impacting the price for generating electricity into the future.  USEPA has traditionally regulated coal ash as a non-hazardous waste.

A rule which requires the treatment of the material as a hazardous waste could greatly impact the ability of producers to beneficially re-use the material and thus force more of this material into landfills and disposal areas.  The rule would further increase cost associated with the transportation and eventual disposal of the material and limit disposal sites which could accept the material as well.

This December marks five years since a dam adjacent to a coal ash impoundment burst in Kingston, Tennessee, sending a billion gallons of coal ash into a nearby river valley and covering nearly 300 acres.

Since that time, the issue of how USEPA will balance the interests of environmental protection with the interests of energy producers already being forced to meet ever tighter environmental rules and regulations regarding the generation of electricity has remained a mystery. We now know that in 60 days, USEPA will be forced to announce to all what its plans are and when we can expect a final answer to this crucial question.

Armando Benincasa concentrates his practice in the areas of energy law, environmental law, environmental litigation, administrative law, government affairs and lobbying. His practice consists of cases involving permitting and regulatory requirements for natural resources, including coal and oil and gas, solid waste, water resources, underground storage tanks, voluntary remediation, and the drafting of rules and statutes related to the environment.
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