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December 19, 2014

Finally a Win for Coal: Coal Ash to be Managed as Solid Waste

In a December 19, 2014 pre-publication release, EPA announced that it would not regulate coal ash as a hazardous waste, and instead allow coal ash to be regulated as a solid waste under Subtitle D of the Resource Conservation and Recovery Act (“RCRA”). Issuance of this final rule brings long-awaited certainty to the electric power sector for the disposal of coal ash as well as provides clarity for the disposition of the many coal ash impoundments throughout the country.

Since promulgating its “co-proposal” in 2010, EPA has been mulling over whether to regulate coal combustion residuals (“CCR”) as either a hazardous waste under Subtitle C or as a solid waste under Subtitle D of RCRA. On May 5, 2014, a D.C. Circuit Court judge approved a consent order between the U.S. Environmental Protection Agency (“EPA”) and environmental groups to mandate finalization of the EPA’s proposed rule by December 19, 2104. This final rule marks the first federal standard for coal ash management.

Had the EPA chosen to regulate coal has a hazardous waste, every phase of CCR management would have been strictly regulated – from the point of generation to its final disposition. Strict requirements avoided by the new rule include rigorous compliance with accumulation standards, land disposal restrictions, and transportation requirements. Beyond the physical requirements, regulation of CCR as a hazardous waste would have also implicated potential liability under the Comprehensive Environmental Recovery, Compensation, and Liabilities Act (“CERLA”) as well as meant tighter restrictions for beneficial reuse.

Now, generators of coal ash will be able to dispose of CCR as solid waste, but with minimum criteria for management and disposal. Going forward, EPA’s new rule will restrict the location of new surface impoundments and landfills, require groundwater monitoring, and mandate closure for non-compliant impoundments. Plant owners and operators also will be required to disclose impacts to the public including annual groundwater monitoring results, correction action, fugitive dust control, and closure notifications.

EPA’s decision to regulate CCR under Subtitle D means that states will have the option whether to adopt the program, and it is expected that most states will as many already have similar programs in place. Operating requirements under the new rule will go into effect in June 2015, six (6) months after rule publication, with closure and post-closure requirement to start eighteen (18) after publication, in June 2016.

EPA’s Press Release: http://yosemite.epa.gov/opa/admpress.nsf/d0cf6618525a9efb85257359003fb69d/8d1b001db717edbf85257db3006b2747!OpenDocument

Final Rule: http://www2.epa.gov/coalash/coal-ash-rule

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