EPA Agrees to Act on Final Rule by December 2014
A federal court has approved a resolution between EPA and several environmental groups relating to the Agency’s regulation of coal ash.
Under the resolution, EPA must take final action on its proposed revision of the Resource Conservation and Recovery Act (RCRA) subtitle D regulations pertaining to coal combustion residuals (CCRs) by December 19, 2014.
On June 21, 2010, the EPA published proposed rules for regulating CCRs, also referred to as coal ash. EPA received over 400,000 comments on the proposed rule, but never took action.
Eleven environmental groups sued the EPA to finalize its CCR rule in April 2012. The Court subsequently granted plaintiffs’ motions for summary judgment, ruling in October 2013 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. Appalachian Voices v. McCarthy, No. 12-cv-00523 (D.D.C. Oct. 29, 2013).
The EPA and plaintiffs subsequently agreed to a deadline for EPA to take final action: December 19, 2014. The Court approved the resolution, in the form of a consent decree, on May 2, 2014. Appalachian Voices v. McCarthy, No. 12-cv-00523 (D.D.C. May 2, 2014)
The remaining question is this: what will EPA do on December 19, 2014? As described below, the Agency has previously proposed regulating CCRs as a solid waste, but it is possible for the Agency to change course.
Summary of Subtitle D Proposed Regulations
The regulations EPA had previously proposed, but not acted on, were under RCRA Subtitle D. The proposed regulations imposed minimum standards for CCRs as solid waste and provided technical assistance to states for their solid waste management programs.
The direction 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 prior 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 proposed 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 one of 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. Indeed, it is entirely possible that EPA will elect to scrap its proposed rule regulating CCRs under Subtitle D when it takes action on December 19, 2014, leaving it free to pursue new rulemaking under Subtitle C.
This article was authored by M. Shane Harvey, Jackson Kelly PLLC. For more information on the author, see here.