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Environmental Blog

  • 09
  • May
  • 2014

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Judge Approves EPA’s Coal Ash Consent Decree, but Environmentalists Urge Stricter Water Discharge Permits

In June 2010, the Environmental Protection Agency (“EPA”) published a proposed rule to regulate coal combustion residuals (“coal ash”) under Resource Conservation and Recovery Act (“RCRA”). Coal ash refers to the material that remains after burning coal for electricity and includes fly ash, bottom ash, boiler slag, and flue gas desulfurized gypsum. According to EPA, coal ash raises environmental concerns when disposed of in unlined or inadequately lined surface impoundments, landfills, structural fills, and mines, because the heavy metals and other polluting substances in coal ash could leach into groundwater when coal ash is not disposed of properly. Current federal regulations do not impose specific controls, such as liners, groundwater monitoring systems and leachate collection systems.

In its 2010 proposal, EPA considered two possible options for the regulation of coal ash. Under the first option, EPA would classify coal ash as hazardous waste subject to regulation under subtitle C of RCRA. Under the second, EPA would regulate coal ash as non-hazardous wastes under subtitle D of RCRA.  However, the proposed rule received 450,000 comments and was never finalized. 

In April 2012, eleven environmental groups sued EPA, urging it to finalize the pending ash disposal rule.1 According to their complaint, the environmental groups sought “to compel EPA to undertake long overdue action to address the serious and widespread risks that unsafe disposal of coal combustion waste or “coal ash” poses to human health and the environment.”

In January 2014, in a Consent Decree with the environmental plaintiffs, EPA agreed to “sign for publication in the Federal Register a notice taking final action regarding EPA’s proposed revision of RCRA subtitle D regulations pertaining to coal combustion residuals” by December 19, 2014. Although the Consent Decree contemplated regulation under subtitle D rather than subtitle C, it further states that nothing in the agreement should be construed to limit or modify the discretion accorded EPA by RCRA or general principles of administrative law.

U.S. District Court Judge Reggie Walton rejected the agreement on April 25, because it allowed the parties to unilaterally extend EPA’s deadline for final action. The parties promptly submitted a revised consent decree requiring court approval of any deadline extension negotiated by the parties to the case, and on May 2, 2014, Judge Walton approved the agreement. Extension of the time deadline now requires court approval. 

Environmental groups are urging EPA to act in the interim by requiring states to update National Pollutant Discharge Elimination System permits for coal ash impoundments. They argue that current rules regulating discharges from utilities to surface waters are outdated and inadequate. They assert that one such deficiency is that “coal ash wastestream now contains growing amounts of soluble and often toxic pollutants such as arsenic, selenium and mercury [and that b]ecause they are dissolved, settling action does nothing to remove them.” These groups further argue that state permits often set “lax” maximum allowable levels of some soluble toxic pollutants in the wastewater that can be released (and that for some toxins, the regulations are nonexistent).  Moreover, they argue that more stringent regulation of water discharges would help ensure that controls are in place to govern coal ash impoundments until the RCRA rule is finalized in December. It is unclear how EPA will respond to these requests.  Meanwhile, we are expecting a waste rule on coal ash by December 19, 2014, unless extended with court approval.

1Appalachian Voices et al. v. McCarthy, Case No. 1:12-cv-00523.

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