Increased Regulation Coming for Coal Ash

The decision of the U.S. Court of Appeals for the District of Columbia Circuit on August 21 in Utility Solid Waste Activities Group (USWAG), et al v. EPA, No. 15-1219, likely will lead to more stringent regulation of coal ash disposal at both active and inactive power plants.  In a per curiam opinion, the D.C. Circuit agreed with challenges asserted by environmental plaintiffs that the Obama-era coal ash rule did not establish stringent enough controls on coal ash disposal and management.  The Court ruled that EPA’s failure to require protective measures for coal ash disposal sites without composite liners, and its failure to regulate closed “legacy sites” of coal ash disposal were illegal under the Resource Conservation and Recovery Act (RCRA).

The Court noted that, per EPA’s record, there are 735 coal ash impoundments known to EPA, of which only 504 have data available on their liner technology, and that only 17% of those have the composite liners that EPA determined to be the only effective method of reducing leaks from the impoundments.  The Court described EPA’s decision not to require upgrades or shutdown of the impoundments that lack composite liners unless a leak is detected as the “one free leak” rule, and held that “it is inadequate under RCRA for the EPA to conclude that a major category of impoundments that the agency’s own data show are prone to leak pose ‘no reasonable probability of adverse effects on health or the environment’ simply because they do not already leak.”

The opinion also found that EPA’s justification for not addressing the legacy coal ash disposal sites “does not hold water”.  EPA had determined that it would be impractical to identify the current owners of closed power plants.  However, the Court found that “EPA knows where existing legacy ponds are and, with that and other information, the EPA already is aware of or can feasibly identify the responsible parties.”

Finally, the Court rejected industry arguments that EPA lacks authority to regulate ash sites where disposal is not ongoing, and that EPA erred in refusing to consider cost in determining when a disposal site qualifies for the alternative closure process that extends the deadline to shut down if there is no other site where a power plant can send its waste.

The Court issued its mandate on October 15, denying a motion that the mandate be held in abeyance.  The Court granted EPA’s motion for voluntary remand of the provisions in the rule pertaining to (i) the definition of Coal Residuals Pile, (ii) the 12,400 ton beneficial use threshold, and (iii) the alternative groundwater protection standard, and remanded those matters to EPA.  The Court denied the motion for voluntary remand with respect to the provisions of the rule pertaining to inactive surface impoundments and landfills at active power plants, and inactive surface impoundments at inactive power plants, and ordered that the rule be vacated and remanded with respect to the provisions that permit unlined impoundments to continue receiving coal ash unless they leak, and that exempt from regulation inactive impoundments at inactive facilities.

For more information on the Coal Ash Rule, contact Steve O’Day or Phillip Hoover.

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