The Environmental Policy Initiative is tracking the environmental regulatory rollbacks of the Trump administration. Click here for the list of rules we are following.
Why it Matters
Coal ash, or coal combustion residuals (CCR), is produced whenever coal is burned at coal-fired power plants and is one of the largest forms of industrial waste. While over one-third of coal ash is beneficially reused, often to manufacture cement or wallboard, the rest is disposed of in landfills or surface impoundments. Because coal ash contains many contaminants, including mercury and arsenic, unsafe and unregulated management of coal ash disposal units poses serious environmental and health risks. These risks were realized during a major coal ash spill in Tennessee in 2008 and again in North Carolina in 2014.
In response to petitions from industry, EPA is reconsidering certain provisions of the final rule, promulgated in 2014, that aimed to ensure the safe management of coal ash disposal sites. Both industry and environmental groups have also challenged the rule in the U.S. Court of Appeals for the D.C. Circuit. The court held oral argument for the consolidated case, Utility Solid Waste Activities, et al v. EPA, Docket No. 15-01219, on November 20, 2017. The EPA and industry argued that the court should postpone adjudication until EPA completes the reconsideration process for affected provisions, remanding certain subsections of the final rule to EPA for revisions, and a number of challenges to EPA’s rulemaking process and authority.
EPA has published a preliminary approval of Oklahoma’s application to regulate coal ash, in lieu of the federal program. Oklahoma is the first state to seek this approval; Georgia is the only other state so far to submit an application. The preliminary approval for Oklahoma is open for comment until March 2, 2018.
On December 22, 2008 at the Tennessee Valley Authority’s coal plant in Kingston, Tennessee, one of the coal ash impoundment walls broke and spilled more than one billion gallons of coal ash slurry. The slurry and its contaminants affected more than 300 acres, polluting nearby rivers and destroying local infrastructure. The area was designated as a Superfund site in 2009.
In March 2009 in response to the spill, EPA initiated the CCR Assessment Program, which assessed the structural integrity of over 500 impoundments at coal-fired power plants across the nation. While no impoundments were rated as “unsatisfactory,” 152 units were rated as “poor.”
On June 21, 2010, EPA published a proposed rule, “Disposal of Coal Combustion Residuals from Electric Utilities,” for regulating the disposal of coal ash. EPA requested comments on whether coal ash should be regulated as a “hazardous waste” under Subtitle C of the Resource Conservation and Recovery Act (RCRA) or as a “non-hazardous solid waste” under Subtitle D of RCRA. Designating coal ash as a hazardous waste would allow EPA to directly enforce the regulations whereas regulating it under Subtitle D would restrict EPA’s enforcement authority.
On August 20, 2010, EPA extended the comment period for the proposed rule until November 19, 2010.
On December 19, 2014, EPA Administrator Gina McCarthy signed the Disposal of Coal Combustion Residuals from Electric Utilities final rule (“final rule”). The final rule authorized EPA to regulate coal ash disposal under Subtitle D of RCRA. The rule established regulations regarding: structural integrity requirements for coal ash impoundments, groundwater monitoring and corrective action standards, operating criteria for coal ash units, and record keeping and public disclosure requirements. The rule also included post-closure requirements for inactive impoundments that stopped receiving coal ash prior to the effective date of the rule but that still contained water and coal ash, unless those impoundments were closed by April 17, 2018.
The standards in the final rule applied directly to facilities and were not enforceable by state or federal agencies, because the rule was promulgated under Subtitle D of RCRA, as opposed to Subtitle C, which would have designated the coal ash as a hazardous waste. Instead, the main enforcement mechanism would be citizen suits brought against individual sites that were not in compliance. The rule was published in the Federal Register on April 17, 2015 with an effective date of October 14, 2015. The implementation deadlines ranged from 6 months after the effective date of the rule to 42 months.
On July 15 and 16, 2015, seven petitions for review of the final rule were filed in the U.S. Court of Appeals for the D.C. Circuit. Utility Solid Waste Activities Group (USWAG) and other industry groups filed five of the petitions. A coalition of environmental groups and a municipality each filed one.
On July 17, 2015, the court consolidated the seven cases as Utility Solid Waste Activities, et al v. EPA, Docket No. 15-01219.
On August 14, 2015, the coalition of environmental groups submitted a motion to intervene on behalf of EPA, making environmental groups both petitioners and respondent intervenors in the case.
On April 18, 2016, EPA filed an unopposed motion to remand certain provisions back to the agency in order for EPA to revise or remove those provisions. This motion was in response to objections both environmental and industry petitioners had raised.
On June 14, 2016, the court granted EPA’s motion and voided the provisions affecting inactive impoundments that were closed by April 17, 2018. As a result, previously exempted surface impoundments would now be required to comply with the post-closure requirements for existing impoundments.
On July 26, 2016, the EPA Administrator McCarthy signed a direct final rule to extend compliance deadlines for owners and operators of the affected, inactive impoundments in order to provide them adequate time to comply. Because there were no adverse comments received, the extension went into effect on October 4, 2016.
On December 16, 2016, President Obama signed the Water Infrastructure for Improvements to the Nation (WIIN) Act into law. Section 2301 of The WIIN Act authorized EPA-approved state permitting programs to regulate coal ash disposal. Because EPA was limited in its enforcement abilities under Subtitle D of RCRA, this legislation was necessary to allow states and the federal government to directly enforce the regulations. Pursuant to the WIIN Act, states may develop and operate their own permitting programs that adhere to, or are at least as protective as, EPA’s promulgated standards in the final rule. EPA is required to regulate coal ash disposal in states that choose not to implement permitting programs or that have inadequate programs.
On May 12, 2017, USWAG petitioned EPA to reconsider specific provisions of the final rule, citing the WIIN Act as one of the primary reasons to reconsider.
On May 31, 2017, AES Puerto Rico LLP, one of the original petitioners consolidated in Utility Solid Waste Activities, et al v. EPA, also petitioned EPA to reconsider specific provisions.
On August 3, 2017, the court scheduled oral argument for Utility Solid Waste Activities, et al v. EPA for October 17, 2017.
On September 13, 2017, EPA Administrator Scott Pruitt sent a letter to USWAG and AES announcing that EPA would reconsider the provisions addressed in their petitions.
On September 18, 2017, EPA filed a motion to continue oral argument and put the case on hold due to EPA’s decision to reconsider certain provisions.
On September 27, 2017, oral argument was postponed to November 20, 2017 in response to the motion from EPA. The court also ordered EPA to provide a status report by November 15, 2017 explaining the provisions EPA planned to reconsider.
On November 7, 2017, EPA filed a motion to remand to the agency six provisions of the final rule. If the motion is granted, the remanded provisions will stay in effect until EPA decides to revise or remove them.
On November 15, 2017, EPA filed a status report detailing the provisions it seeks to reconsider. The list includes provisions that are not being challenged in court.
On November 20, 2017, oral arguments by industry, environmentalists, and EPA, were heard in the U.S. Court of Appeals for the D.C. Circuit for more than two hours.
On January 16, 2018, EPA published a preliminary approval of Oklahoma’s application to regulate coal ash, in lieu of the federal program. Oklahoma is the first state to seek this approval; Georgia is the only other state so far to submit an application. The preliminary approval for Oklahoma is open for comment until March 2, 2018.
Thank you to Harvard student Laura Bloomer, JD/MPP 2019 for her assistance with this rule.