On Thursday April 5th, eleven environmental groups filed suit against the U.S. Environmental Protection Agency (EPA), arguing the agency has violated the Resource Conservation and Recovery Act (RCRA) for failing to promulgate new rules governing the disposal of coal ash at coal-fired power plants. Suit was filed in the U.S. District Court of D.C. by Appalachian Voices, Sierra Club, Environmental Integrity Project, Physicians for Social Responsibility, and several other groups.
In 2010, EPA co-proposed two options for regulating coal combustion residuals (CCRs): one option would regulate CCRs under Subtitle D of RCRA (the same framework under which municipal garbage is regulated); under the second option, CCRs would be subject to stringent Subtitle C requirements which govern the management and disposal of hazardous waste. Both options require that coal ash be stored in dry landfills or lined surface impoundments, and groundwater be monitored for potential contamination. Due to more restrictive land disposal requirements, the Subtitle C option would effectively phase out (over a period of seven years) disposal of CCRs in ponds. Further, the Subtitle C option would impose requirements on the management of CCRs prior to disposal and ban some types of coal ash recycling. Environmental groups favor the Subtitle C approach since it will ban the disposal of coal ash in ponds.
Despite misleading headlines that this issue is about “big coal” vs. “public health”, stakeholders against the hazardous waste option include numerous construction organizations including as the Associated General Contractors of America, National Association of Home Builders, Portland Cement Association, American Road and Transportation Builders Association, and the National Association of Manufacturers; environmental regulatory agencies in 26 states; the Association of State and Territorial Solid Waste Management Officials and the Environmental Council of States; as well as numerous companies that recycle CCRs into construction and building products such as concrete, wallboard, and shingles.
The environmental groups filing suit claim that EPA has delayed promulgating a final CCR rule, allowing suspected groundwater contamination from unlined coal ash ponds, and the potential failure of impoundments similar to the December 2008 coal ash pond breech in Kingston, Tennessee that spilled 5.4 million cubic yards of coal ash slurry into the Emory River. The public comment period for the proposed coal ash rule closed in November 2010. EPA subsequently issued a request for additional comments in an October 2011 Notice of Data Availability. Congress has been working on legislation to prevent EPA from moving forward with the hazardous waste designation and authorize states to regulate coal ash under existing Subtitle D rules. Legislation was passed by the full House with bipartisan support, but is still being debated in the Senate.
So what is the delay with EPA producing a final coal ash rule? Does it have to do with politics? Yes…and no.
Should coal ash legislation pass the full Congress, the measure would effectively preempt EPA rules as states would gain the legal authority to regulate coal ash under current statutes. However, the legislative path forward remains uncertain, and EPA is likely not sitting around waiting for someone else to make their regulatory decision. EPA received over 450,000 comments on the proposed CCR rule. Of those, over 10,000 are deemed substantive, meaning they were accompanied by supporting analyses and studies that require further investigation. EPA scientists and economists need time to thoroughly review these analyses before making a final regulatory determination. In the past, EPA has made a regulatory determinations on coal ash (the last being in 2000) that CCRs do not warrant regulation as hazardous waste. EPA’s regulatory history shows long gaps due to study and the preparation of regulatory determinations. While the lawsuit is intended to force EPA into a regulatory determination, an imposed timeline does not help EPA make a scientifically-based decision.