Environmental groups are expected to be disappointed with a coming Environmental Protection Agency regulation for coal ash, a waste produced when coal is burned for electricity and which is used in many building materials.
The EPA appears poised to label the ash a solid waste, rather than “hazardous,” in a rule that could come as early as Friday. Environmental groups have pushed for the more stringent definition because they’re concerned about shoddy oversight at the state level playing a role in the toxics-laden waste leaking into waterways.
Under the plan the EPA is considering, the agency could set minimum standards for controlling the waste, but people wanting to challenge companies for violations would have to do so through civil lawsuits. It’s possible states also could file suit against companies that run afoul of the law, though it’s not clear what exactly EPA will propose.
“The environmental advocates will not be happy,” said May Wall, a partner in law firm Winston & Strawn’s environmental practice. “I think no matter what EPA comes out with, this is going to be challenged on either side. This is not going to be the end of the story.”
The rule is low on the EPA’s agenda, which has been dominated by climate change, and environmental experts believe the EPA doesn’t think it’s worth a fight with business groups. Friday is the court-ordered deadline for releasing the rule, which environmental groups sued the agency to finish.
The Obama administration has dallied for years on the effort, which began in earnest following a late 2008 coal ash spill at a Tennessee Valley Authority-operated site in Kingston, Tenn. The EPA signaled in a separate 2013 proposed rule that it intended to regulate coal ash under “Subtitle D” of the Resource Conservation and Recovery Act, rather than the stricter “Subtitle C” that would permit federal enforcement.
Environmental groups stormed the White House Office of Information and Regulatory Affairs in November and December as the EPA drew closer to its deadline. They have been trying to convince the EPA to issue the coal ash rule under the stricter regulations so the agency could be more aggressive in enforcing and monitoring the ash.
But industry groups lobbied hard against regulating coal ash as a hazardous waste, as that would have prohibited its use as a recycled material. Nearly half of the 130 million tons of coal ash produced by power plants annually is recycled into materials used in buildings, roads, highways and fertilizer.
“There has been a lot of last-minute lobbying effort underway by environmental groups and industry groups in an effort to sway the agency at the 11th hour,” said Josh More, a partner at Schiff Hardin who focuses on waste issues. “The expectation is that we will get a Subtitle D rule. A lot of the last-minute efforts have been focusing on the hazardous waste versus solid waste.”
Green groups say the system that the EPA appears ready to propose is too weak and gives too much deference to states. They point to a February coal ash spill into North Carolina’s Dan River that occurred partly because of lax oversight from the state.
“We will use all the resources we have to make sure that those communities are protected going forward,” said Dalal Aboulhosn, Washington representative with the Sierra Club. While she didn’t explicitly say the group would sue the EPA, she didn’t rule it out. “We have a lot of different tactics. … All those are on the table.”
Requirements for landfills and impoundments — called coal ash “ponds,” they operate as a kind of reservoir — that store more than half the coal ash produced by power plants will be where the EPA can have its most significant impact, Wall said. It’s not known, however, whether the agency will carve out exceptions for older impoundments.
Environmental groups want stronger standards for lining those impoundments to prevent leakage into waterways.
“We’re looking for very common-sense technologies to be put in place on the safe disposal of coal ash,” Aboulhosn said. “Sites to be lined, sites to be monitored, and we’re also looking for that type of information to be public.”
Some state officials who prefer the state-based approach have nonetheless worried the regulatory regime might be confusing.
That’s because states may choose to develop their own standards that would include the federal baseline. Some said that would make facilities responsible for meeting the state policies as well as federal standards.
“[A]bsent some type of U.S. EPA recognition of state programs that adopt the federal standards, owners-operators will be confronted with a dual state and federal regulatory regime,” Dick Pedersen, president of the Environmental Council of the States, and Ryan Benenfield, president of the Association of State and Territorial Solid Waste Management Officials, wrote the EPA in June.
On top of that, differences in court opinions stemming from civil lawsuits could make interpreting the rule difficult, More said.
“Some facets of industry would like the interpretation of how the rule would be applied to be made at the regulatory level,” he said.
