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Update on Coal Ash Waste Rule

11.22.2013

A federal judge recently ordered EPA to provide a report on its progress toward finalizing rules regarding the disposal of coal ash waste.  On October 29, Judge Reggie Walton of the U.S. District Court for the District of Columbia ordered EPA to provide a schedule as to when it proposes to complete its review of existing coal ash regulations within 60 days.  The order was entered as part of a federal lawsuit by various environmental and other interest groups seeking to force EPA to take action to complete its review of coal ash disposal regulations under the Resource Conservation and Recovery Act (RCRA).

EPA’s most recent review of its coal ash disposal regulations has been ongoing since 2010, when it announced that it was considering two potential options for regulating coal ash.  Under one approach, EPA would continue to regulate coal ash under “subtitle D” of RCRA, which applies to non-hazardous solid waste.  Under the other approach, EPA announced it was considering regulating coal ash as a hazardous waste subject to subtitle C of RCRA.  Subtitle C imposes a costly “cradle to grave” regulatory system on hazardous waste, and it is widely believed that regulation under subtitle C would have a significant negative financial and operational impact on coal-fired electric generating facilities.  In 1993 and 2000, EPA reviewed the existing subtitle D (non-hazardous) regulations for coal ash and declined to regulate coal ash as subtitle C hazardous waste. EPA’s 2010 proposal to potentially apply subtitle C regulation to coal ash resulted in hundreds of thousands of public comments on the proposed rule, and the agency has engaged in significant additional research and review of public comments.

Because EPA took no final action to finalize its 2010 proposal, environmental interest groups filed suit in the federal district court for the District of Columbia seeking to force EPA to complete its review of the coal ash regulations.  EPA has argued to the Court that it needs more time to consider hundreds of thousands of public comments and reach a decision on its coal ash regulations.  EPA has also announced that it hopes to coordinate its final decision on the coal ash disposal regulations with its planned revisions to the Clean Water Act effluent limitation guidelines (ELGs) for the steam electric generating facility category, as both the ELGs and the coal ash disposal regulations will have a significant impact on regulated facilities and may require similar planning and activity to implement.  The ELG revisions are currently scheduled to be finalized by mid-2014 (For more on the ELG revisions, See the March/April 2013 issue of the Environmental Letter).  Although the D.C. court recognized that these concerns were valid, it ultimately determined that it was required to order EPA to demonstrate some progress toward finalizing its review of the regulations, and therefore it entered the October 29 order requiring EPA to provide a timetable for completion of the process.

The D.C. court’s recent order means that within 60 days, industry will have a better understanding of when EPA’s coal ash disposal rules will be finalized, although it is still uncertain whether EPA will proceed with subtitle C or D regulation.  We will continue to monitor the status of EPA’s coal ash rule in future editions of the Environmental Letter.


To view a complete PDF of the September/October 2013 issue of the Environmental Letter, click HERE.

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