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Final Coal Ash Disposal Rule Released

US EPA’s final coal ash disposal rule, released December 19, 2014, regulates ash as a solid waste under Resource Conservation & Recovery Act (RCRA) Subtitle D – a positive development for industry and states but a clear loss for environmentalists who wanted to regulate the ash as a hazardous waste under Subtitle C of RCRA.

Early reactions are mixed. Even with the decision, some utility officials and lawmakers are criticizing provisions in US EPA’s final coal ash disposal rule that they say constrain a state’s options for implementing the rule and opens the door wide open to citizen suits. Republicans are claiming that the GOP-led 114th Congress must approve legislation to block the state-limiting provisions of the federal regulation.

The December 19 Rule still allows citizen-enforcement suits against storage facilities, clearing the path for potential litigation from environmental organizations against ash pond operators for alleged rule violations. Many insiders warned that the proposed rule and approach would be burdensome and create inconsistent requirements across separate jurisdictions.

Regulated industries and states asked US EPA to develop a plan where states could submit coal ash rules to the US EPA for review, and after receiving approval from federal officials would enforce those rules directly. Under US EPA’s December 19 rule, states will adopt federal standards for coal ash management into their solid waste management plans, but even after approval from US EPA, facilities will still be subject to citizen suits in addition to enforcement actions from state officials, prompting concern from industry and some states.

In contrast to industry groups perspective, environmental groups and other regulators are opposing the rule as too weak to protect environmental quality and public health, partially due to the lack of direct federal enforcement authority.

Despite the criticisms, the US EPA did grant environmentalists some of their requests in the new rule. US EPA in its rule is applying the standards to legacy sites (no “grandfathering clauses”) – but importantly, only when the impoundments are located at active power plants. The US EPA believes they have no authority to regulate the impoundments at closed plants.