Coal Ash Rule: Rule Opponents Seek Immediate Closure of Existing Unlined Facilities
February 17, 2019
We have written about EPA’s Coal Ash rule before: EPA Will Not Regulate Coal Ash as Hazardous Waste, but Restrictions Nonetheless Apply: Coal Mine Disposal Unaffected; Utility Groups Ask EPA to Modify Coal Ash Rule and to Extend Compliance Deadlines; and EPA Issues Guidance for States to Develop Permitting Programs for Coal Ash Disposal.
In 2015, EPA issued its Coal Ash rule. 80 Fed. Reg. 21,302 (April 17, 2015). There, EPA chose to regulate coal ash as a “solid waste” under Subtitle D of the Resource Conservation and Recovery Act (“RCRA”) rather than as a “hazardous waste” under Subtitle C of that Act. In order to regulate ash under Subtitle D, EPA had to determine that ash facilities could be characterized as “sanitary landfills” rather than as prohibited “open dumps.” A facility may qualify as a “sanitary landfill” if “there is no reasonable probability of adverse effects on health or the environment from disposal of solid waste.” See 42 U.S.C. § 6944(a). The rule required synthetic liners at new facilities, but contained a number of lesser restrictions at existing and inactive facilities.
The rule was challenged by both anti-coal groups and industry. Anti-coal groups challenged portions of the rule that: a) allowed the continued use of unlined facilities so long as they conducted groundwater monitoring and did not cause groundwater contamination; b) allowed the continued use of existing impoundments without synthetic liners so long as they had compacted clay liners, and despite leakage so long as the leakage could be repaired and remediated; c) exempted “legacy” ponds (inactive ponds); and d) required operators to publish internet notice of prescribed information about designs and leaks, claiming that the information requirements were inadequate, especially for a rule which did not include a regulatory enforcement mechanism. Industry also challenged many parts of the rule, including EPA’s authority to regulate inactive ponds and its regulation of storage of ash destined for beneficial uses. And, finally, EPA sought a remand of much of the case after announcing that it had granted the petition of several industry groups to reconsider its 2015 rule.
In 2018, the D.C. Circuit Court addressed these challenges. Generally, it ruled in favor of the anti-coal groups on the exemptions for existing and legacy ponds after finding that EPA had inadequately explained how leaks could satisfactorily be addressed after the fact. See Utility Solid Waste Activities Group v. EPA, 901 F.3d 414 (D.C. Cir. 2018). It rejected their challenge to the internet information requirements as inadequate, however, because those groups had failed raise their concerns during rulemaking. The Court rejected industry’s challenge to EPA’s authority to regulate inactive facilities, and rejected some additional challenges but agreed to remand challenges to portions of the rule regulating ash bound for beneficial use and the rejection of alternative risk-based compliance alternatives.
Not long before the 2018 oral arguments, though, EPA issued a new rule extending some of the compliance dates for unlined facilities to 2020 (available at https://www.epa.gov/newsreleases/epa-finalizes-first-amendments-coal-ash-disposal-regulations-providing-flexibilities).
The 2018 rule, and its deadline extensions for closing existing unlined impoundments, were also challenged in the D.C. Circuit. See Waterkeeper Alliance v. EPA, No. 18-1289 (D.C. Cir.). There, EPA has moved for a voluntary remand of the rule, acknowledging that parts of the 2018 rule need to be revisited in light of the ruling in Utility Solid Waste Activities Group that the 2015 exemptions for existing unlined facilities were invalid. As a result, EPA has moved for a remand of the 2018 rule “to allow it to reexamine the rule to promulgate feasible closure regulations.” The rule challengers are having none of that. They oppose the remand unless it is accompanied by either a stay or a “vacatur” of the extension of closure deadlines to 2020. EPA has observed in response that the challengers’ position would require the immediate closure of many active ash disposal facilities.