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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.
On July 30, 2018, EPA finalized its final “phase one” rule that weakens some of the requirements for managing coal ash storage areas. The new rule delays closure deadlines, allowing some existing coal ash ponds to continue accepting more coal ash and stay open longer. It also allows EPA or the state authority to suspend groundwater monitoring if the state determines that there is no potential for hazardous material to contaminate nearby aquifers.
On August 21, 2018, the D.C. Circuit held that “EPA acted arbitrarily and capriciously and
contrary to RCRA [Resource Conservation and Recovery Act] in failing to require the closure of unlined surface impoundments, in classifying so-called “clay-lined” impoundments as lined, and in exempting inactive surface impoundments at inactive power plants from regulation.” The court struck down the provisions of the 2015 rule that that allowed unlined and clay-lined impoundments to receive coal ash and exempted inactive impoundments, finding that EPA’s approach “does not address the identified health and environmental harms documented in the record.”
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.
Thank you to Harvard student Laura Bloomer, JD/MPP 2019 for her assistance with this rule.