EPA Final Rule on Coal Ash Not Expected Within Next 12 Months, Barring Court Action

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By Anthony Adragna

Dec. 3 --The Environmental Protection Agency has shifted its rulemaking on the management of coal ash to its “long-term action” list, meaning a final regulation is unlikely in the next 12 months unless a federal court intercedes.

Placing a regulation on the long-term action lists means the agency “does not expect to have a regulatory action within the 12 months after publication.”

A federal judge in October ordered the agency to submit a proposed schedule to complete its review and revision of coal ash regulations by Dec. 29, which could speed the regulation's promulgation (Appalachian Voices v. McCarthy, 2013 BL 299598, D.D.C., No. 12-00523, 10/29/13; 44 ER 3249, 11/1/13).

The EPA told Bloomberg BNA it is “working to comply with the court order” and would promulgate a final regulation on the management of the residue from coal-fired power generation “pending a full evaluation of all the information and comments received.”

In 2010, the EPA proposed regulating coal ash, currently an exempt waste, under either the hazardous waste provisions of Subtitle C of the Resource Conservation and Recovery Act or under the nonhazardous waste provisions of Subtitle D.

The agency said it “could be adequate” to regulate coal ash under Subtitle D in its April 2013 proposed rule on effluent guidelines from power plants (44 ER 1229, 4/26/13).

Unlikely Until 2015

Thomas Adams, executive director of the American Coal Ash Association, told Bloomberg BNA moving the rule to the long-term action list likely means the agency will not finalize a regulation until 2015.

Adams said the move by the agency could also signify the White House would prefer for Congress to address coal ash management issues, rather than having the EPA complete its rulemaking.

The House passed legislation (H.R. 2218) July 25 that would grant the states the primary regulatory role over coal ash but would allow the EPA to step in if necessary. It is considered unlikely the Senate will take up a version of the legislation (44 ER 2214, 7/26/13).

Earthjustice, which represents the environmental plaintiffs in the lawsuit, and the Utility Solid Waste Activities Group, which represents the electric utility industry on solid and hazardous waste issues, were unavailable for comment.

To contact the reporter on this story: Anthony Adragna in Washington at aadragna@bna.com

To contact the editor responsible for this story: Larry Pearl at lpearl@bna.com