EPA Regulates Coal Ash as Nonhazardous in First Federal Management Standards

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By Anthony Adragna

Dec. 19 — The Environmental Protection Agency announced the first-ever federal standards Dec. 19 for the management and disposal of coal ash, electing to regulate the material under the nonhazardous waste provisions of the Resource Conservation and Recovery Act.

The final rule, issued under a court-approved settlement, requires the closure of surface impoundments and landfills that fail to meet engineering and structural standards, mandates regular inspections of surface impoundments, limits where new structures can be built and requires immediate cleanup and closure of unlined impoundments that are polluting groundwater.

Promulgated under Subtitle D of RCRA, the rule also requires the use of fugitive dust controls to limit windblown coal ash dust, mandates liner barriers for new impoundments and calls for proper closure of structures that are no longer receiving coal ash.

According to the agency, the regulation will also require extensive public information disclosures and engagement so communities have access to information about nearby impoundments. The EPA said the regulation will set minimum federal standards while leaving enforcement of the standards to the states. States will be “strongly” encouraged to adopt the minimum federal standards, though the agency cannot compel them to do so.

Congress is expected to actively pursue a legislative solution to the management of coal ash in 2015, regardless of the final rule. Groups involved in the rulemaking process also anticipate significant legal battles over the regulation.

Record Didn't Support Subtitle C Option

The final rule falls far short of the regulation envisioned by environment advocates. Those groups had urged the agency to regulate coal ash under the hazardous waste provisions of RCRA Subtitle C in order to protect human health and ensure a federal enforcement role for the standards.

“EPA didn’t find the record at this time supports a Subtitle C regulation,” EPA Administrator Gina McCarthy told reporters. “But let’s keep in mind that this rule does essentially what we hoped to accomplish regardless of what subtitle we regulate under. This rule is going to ensure that the structural weaknesses that led to that Kingston failure and the failure in the Dan River are caught early and before the damage is done.”

According to the agency, average annual monetized benefits from the regulation are estimated to be between $232 million and $289 million. The agency anticipates annual costs of between $509 million and $735 million.

The regulation would go into affect six months after publication in the Federal Register.

Closure would be required for unlined facilities at active power plants found to be polluting groundwater, according to the EPA. The agency, however, concluded it does not have the authority under RCRA to regulate sites at inactive power plants.

“With respect to units that are at plants that are no longer operating, we don’t believe we have legal authority [to regulate] under that circumstance,” Mathy Stanislaus, EPA assistant administrator for solid waste and emergency response, told reporters.

The final rule caps a lengthy rulemaking process that began as one of the first initiatives under President Barack Obama's EPA. Coal ash, the second largest industrial waste stream, rose to national prominence following two high-profile spills: the December 2008 Kingston Fossil Plant spill in Tennessee and the February 2014 spill of 140,000 tons of coal ash and wastewater into North Carolina's Dan River.

Timeline of EPA Coal Ash Regulation
Dec. 22, 2008—Dike ruptures at the Kingston Fossil Plant in Harriman, Tenn., releasing 5.4 million cubic yards of coal ash slurry into surrounding area.
Jan. 14, 2009—At her Senate confirmation hearing, incoming EPA Administrator Lisa Jackson says the agency will review how it regulates coal ash.
June 21, 2010—The EPA proposes (75 Fed. Reg. 35,128) two possible ways for regulating coal ash—under the hazardous waste provisions of Subtitle C of RCRA or under the nonhazardous waste provisions of Subtitle D.
April 5, 2012—Frustrated with the slow pace of the rulemaking, environmental advocates sue the EPA over failure to complete a mandatory review of RCRA regulations every three years. They seek a deadline for final coal ash standards.
Jan. 31, 2014—Environmental advocates, coal ash recyclers, utilities and the EPA reach an agreement that requires the EPA to complete its coal ash regulations by Dec. 19.
Feb. 2, 2014—140,000 tons of coal ash and wastewater spill from a Duke Energy Corp. into North Carolina's Dan River.
Dec. 19, 2014—The EPA issues a final rule on the management and disposal of coal ash.

It was in response to the Kingston spill that then-EPA Administrator Lisa Jackson in 2009 pledged that the agency would reevaluate how it regulates coal ash. Following through on that pledge, the agency proposed in 2010 either regulating the material under the hazardous waste provisions of Subtitle C of RCRA or under the nonhazardous waste provisions of Subtitle D.

Before issuing the final rule, coal ash was considered an exempt material under RCRA. A patchwork of state regulations governed coal ash ponds and landfills, often relying on citizen lawsuits for enforcement.

Environmental Groups Slam Regulation

Environmental groups welcomed the first-ever minimum standards for coal ash management, but said the standards do not go far enough to protect human health and the environment.

“Because of the lack of federal oversight, the rule places a huge burden on local communities to make sure the power plants are doing the right thing,” Lisa Evans, an attorney with Earthjustice, told Bloomberg BNA. “We think EPA could have offered a much higher degree of protection for human health and communities.”

Evans, echoing other environmental groups, said the rule did leave communities “better off today than we were yesterday” and highlighted the importance of new mandatory groundwater monitoring, cleanup and closure requirements and public information disclosures in the rule.

Nevertheless, almost all of the groups faulted the agency's “weak” rule and said the EPA should have established stronger federal enforcement of the standards.

“Sierra Club has significant concerns about what has been omitted from these protections and how they will be enforced in states that have historically had poor track records on coal ash disposal,” Mary Anne Hitt, director of Sierra Club’s Beyond Coal Campaign, said in a statement. “Today’s announcement still leaves people to largely fend for themselves against powerful utility interests that have historically ignored public health in favor of delayed action.”

Subtitle D ‘No Cakewalk.'

Scott Sherman, a former top official in EPA's waste office and now senior counsel with Bracewell & Giuliani LLP, told Bloomberg BNA the Subtitle D nonhazardous waste provisions were “no cakewalk” and said the agency appeared to have developed a “very thoughtful suite of protections.”

“Subtitle D has the same goals in mind as Subtitle C, which is protection of the groundwater and protection of surrounding properties,” Sherman said. “This is not a pass, in essence, for anybody who has responsibility for impoundments.”

Representatives from the utility industry said they were pleased that the agency did not regulate coal ash as a hazardous waste, but expressed concern that the final rule did not provide permanent assurances the material would never be regulated that way.

“EPA made the proper determination that coal ash should be regulated as a non-hazardous waste in a way that will protect human health and the environment,” Tom Kuhn, president of the Edison Electric Institute, said in a statement. “However, we still have concerns with the self-implementing nature of the rule and the way in which EPA has left the door open to one day regulate coal ash as a hazardous waste, creating additional uncertainty for electric utilities.”

Coal ash recyclers voiced strong support for the final regulation and said the EPA's decision would pave the way for growth in their industry.

“The fact that we’ve gotten a Subtitle D rule is meeting our primary goal,” Thomas Adams, executive director of American Coal Ash Association, told Bloomberg BNA. “Right now, the number one thing is we’ve got some regulatory certainty again, which we haven’t had for a while and that will help reassure owners that everything is okay.”

Legislative Push Coming

Utilities and coal ash recyclers have voiced support for action in Congress to address coal ash management, irrespective of the rule’s final form, and advocates in both the House and Senate said they would move legislation in 2015.

“I fully expect we will bring out a coal ash bill,” Sen. John Hoeven (R-N.D.) told Bloomberg BNA Dec. 18. “I’ve got bipartisan support for that.”

Hoeven, the presumptive Senate sponsor of legislation, and Rep. David McKinley (R-W.Va.) have both said their approaches to coal ash management had support from the agency and said the measures would attract strong bipartisan support.

McKinley has repeatedly moved legislation that would grant states the lead role in regulating coal ash impoundments, but create a regulatory role for the EPA if required.

“Early next year we plan to introduce a similar bill to address this problem once and for all,” McKinley said in a Dec. 19 statement. “With new leadership in the Senate, we expect our common sense plan can finally pass the Senate and be signed into law.”

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