A federal court has ordered the EPA to take final action on the EPA’s proposed revision of the Resource Conservation and Recovery Act (RCRA) subtitle D regulations pertaining to coal combustion residuals (CCRs) by December 19, 2014, four and a half years after the proposed rules were published. On June 21, 2010, the EPA published proposed rules for regulating CCRs, also referred to as coal ash. The comment period ultimately closed November 19, 2010, after receiving over 400,000 comments, but other than two Notices of Data Availability, one on October 12, 2011 and another on August 2, 2013, the proposed rule has languished.
The consent decree was filed in federal district court in a case that is the result of the consolidation of three different lawsuits seeking to compel the EPA to issue is final rules regulating CCRs. Eleven environmental groups sued the EPA to finalize its CCR rule in April 2012. Subsequently, two CCR marketers, Headwaters, Inc. and Boral Material Technologies, brought separate citizen suits under RCRA against the EPA seeking similar relief. The lawsuits were consolidated, and plaintiffs and intervenor-defendants filed a flurry of motion seeking summary judgment. See Appalachian Voices, et al. v. McCarthy, __ F.Supp.2d __, 2013 WL 5797633, *1 fn3 (D.D.C 2013).
The Court granted plaintiffs’ motions for summary judgment, ruling in October that the EPA had failed to complete the RCRA subtitle D mandate that coal combustion residual regulations must be reviewed every three years and revised if necessary, but the Court reserved ruling upon a specific deadline until now. Id. at *15.
What Will the Final Regulations Be?
The Court ruled unequivocally that the EPA had violated RCRA subtitle D, and accordingly, the final rules filed by December 19, 2014 will be regulations under Subtitle D. One industry plaintiff immediately hailed the consent decree as a victory for industry. http://www.headwaters.com/data/upfiles/pressreleases/1.29.14%20Headwaters%20Applauds%20EPA%20Action.pdf. The environmental groups’ statement struck a slightly different tone, foreshadowing possible future contention over the scope of the rule with the joint statement released after the Court’s order that focused on the EPA finalizing a rule that will regulate CCRs and clean up the environment. http://content.sierraclub.org/press-releases/2014/01/epa-agrees-deadline-first-ever-us-coal-ash-regulations
Summary of Subtitle D Proposed Regulations
The proposed regulations under the Subtitle D impose minimum standards for CCRs as solid waste and provides technical assistance to states for their solid waste management programs.
The directions and management of solid waste occurs at the local and state level. Subtitle D does not require permits, and enforcement is by states or citizen suits. The minimum standards cover location, composite liner requirements, groundwater monitoring, closure and post-closure care, and impoundment requirements. The focus of the proposed Subtitle D regulations is landfills and surface impoundments. See Hazardous and Solid Waste Management System; Identification and Listing of Special Waste; Disposal of Coal Combustion Residuals from Electric Utilities, 75 Fed. Reg. 35, 128 (June 21, 2010).
The EPA’s proposal sites new landfills away from the water table, wetlands, fault areas, seismic impact zones and unstable areas. Location standards already in place for floodplains, endangered species, and surface waters continue to apply. Existing landfills would be required to comply with floodplain and unstable areas. Lateral expansions of existing landfills would be treated as new sites. The proposed regulations require composite liners at new landfills and impoundments and the retrofit of existing surface impoundments within five years. Existing landfills are not required to have composite liners, but would have to groundwater monitoring, corrective action, and other requirements.
The EPA provided specific criteria to address the day-to-day operation of a landfill or surface impoundment, including controls relating to run-on and runoff from the surface of facilities, discharges to surface waters, pollution caused by windblown dust, and recordkeeping.
The rules require a system of monitoring wells be installed at new and existing landfills and surface impoundments to evaluate groundwater. The closure plans require public notice of the closure and schedule for implementation of plans. Post-closure care is required for 30 years unless the owner meets certain criteria for a proposed reduced period.
The proposed regulations are designed, in part, to encourage the beneficial use of CCRs because the cost of disposing them is going to increase if the states adopt and implement increased regulation. Beneficial use is any use of coal combustion products that that provides a function benefit, such as inclusion for soil enhancing properties or fill projects, provided that all relevant specifications and regulations are met.
But What of Subtitle C Regulations?
The EPA’s proposed coal ash regulations were actually a two alternative regulatory theories of CCR regulation, “driven in part by the failure of a surface impoundment retaining wall in Kingston, TN in December 2008.” 75 Fed. Reg. 35, 128. The first proposal was to reverse the Bevill determination that (CCRs) were not hazardous waste, and therefore, not regulated under subtitle C of RCRA. Id. CCRs were to be reclassified as “special waste” and “regulated from the point of their generation to the point of their final disposition.” Id. Subtitle C is generally considered to be more restrictive as it creates federal oversight and federal enforcement. Under the second proposal, the EPA would regulate CCRs under subtitle D of RCRA by issuing national minimum criteria. Id.
In its ruling on the motions for summary judgment, the Court carefully explained the difference between the regulatory scope and requirements under Subtitle C and Subtitle D. Appalachian Voices, et al. v. McCarthy, at *2-*3. The environmental plaintiffs sought relief under Subtitle C, as well as Subtitle D, claiming that Subtitle C applied to CCRs because a new testing procedure demonstrated toxicity. Id. at *10. Accordingly, one of the issues before the Court was whether or not Subtitle C applied to CCRs. Id. at *3.
Subtitle C of RCRA regulates hazardous waste from creation, treatment, storage, and disposal. Id. at *2. A waste is hazardous if it exhibits any of four characteristics: ignitability, corrosivity, reactivity, or toxicity. Id. Toxicity is characterized by leaking toxic residues into liquid determined using the EPA’s Toxicity Characteristic Leaching Procedure. Id. The Bevill Amendment required the EPA to complete and submit a study of mining wastes to Congress and then ultimately determine whether mining wastes were regulated by Subtitle C or not. Id. at *3. Ultimately, in 2000, the EPA concluded that CCRs were not hazardous waste subject to Subtitle C. Id.
The Court ruled that Subtitle C did not apply to CCRs, but the EPA did not concede in the federal litigation that Subtitle C could not apply to CCRs. The Court did not address whether or not the EPA has the ability to review a Belvill determination and regulate CCRs under Subtitle C as a “special waste” or otherwise. Id. at *12. While any regulation under Subtitle C, if possible, will not be final by December 19, 2014, the EPA clearly believes that it can re-evaluate CCRs and possibly regulate them under Subtitle C. Id. Accordingly, it is possible that the final rules published by December 19, 2014 may not be the final word on coal ash regulation.
This article was authored by Kelley M. Goes, Jackson Kelly PLLC. For more information on the author, see here.
 Coal Combustion Residuals is defined as “fly ash, bottom ash, boiler slag, or flue gas desulfurization materials destined for disposal. . . [and] are also known as coal combustion wastes (CCWs) and fossil fuel combustion (FFC) wastes, when destined for disposal.” See Hazardous and Solid Waste Management System; Identification and Listing of Special Waste; Disposal of Coal Combustion Residuals from Electric Utilities, 75 Fed. Reg. 35, 128 (June 21, 2010).
 The Utility Solid Waste Activities Group and the National Mining Association are Intervenor-Defendants in the Appalachian Voices case.