12/15/2017 - Regulatory Rollback

Coal Ash Rule

by Caitlin McCoy, Laura Bloomer

The Environmental & Energy Law Program is tracking the environmental regulatory rollbacks of the Trump administration. Click here for the list of rules we are following. If you’re a reporter and would like to speak with an expert on this rule, please email us.

Why it Matters

Coal ash, or coal combustion residuals (CCR), is produced whenever coal is burned at coal-fired power plants and is one of the largest forms of industrial waste. While over one-third of coal ash is beneficially reused, often to manufacture cement or wallboard, the rest is disposed of in landfills or surface impoundments. Because coal ash contains many contaminants, including mercury and arsenic, unsafe and unregulated management of coal ash disposal units poses serious environmental and health risks. These risks were realized during a major coal ash spill in Tennessee in 2008 and again in North Carolina in 2014.

Current Status

In response to petitions from industry, EPA is reconsidering certain provisions of the final rule, promulgated in 2014, that aimed to ensure the safe management of coal ash disposal sites. Both industry and environmental groups have also challenged the rule in the U.S. Court of Appeals for the D.C. Circuit. The court held oral argument for the consolidated case, Utility Solid Waste Activities, et al v. EPA, Docket No. 15-01219, on Nov. 20, 2017. The EPA and industry argued that the court should postpone adjudication until EPA completes the reconsideration process for affected provisions, remanding certain subsections of the final rule to EPA for revisions, and a number of challenges to EPA’s rulemaking process and authority.

July 30, 2018 EPA finalizes its final “phase one” rule that weakens some of the requirements for managing coal ash storage areas. The new rule delays closure deadlines, allowing some existing coal ash ponds to continue accepting more coal ash and stay open longer. It also allows EPA or the state authority to suspend groundwater monitoring if the state determines that there is no potential for hazardous material to contaminate nearby aquifers.

Aug. 21, 2018 The D.C. Circuit holds that “EPA acted arbitrarily and capriciously and contrary to RCRA (Resource Conservation and Recovery Act) in failing to require the closure of unlined surface impoundments, in classifying so-called “clay-lined” impoundments as lined, and in exempting inactive surface impoundments at inactive power plants from regulation.” The court struck down the provisions of the 2015 rule that that allowed unlined and clay-lined impoundments to receive coal ash and exempted inactive impoundments, finding that EPA’s approach “does not address the identified health and environmental harms documented in the record.”

May 7, 2019 EPA sends its proposed “phase two” rule on coal ash disposal to the White House Office of Management and Budget for review.

History

Dec. 22, 2008 At the Tennessee Valley Authority’s coal plant in Kingston, Tennessee, one of the coal ash impoundment walls breaks and spills more than one billion gallons of coal ash slurry. The slurry and its contaminants affect more than 300 acres, polluting nearby rivers and destroying local infrastructure. The area is designated as a Superfund site in 2009.

March 2009 In response to the spill, EPA initiates the CCR Assessment Program, which assesses the structural integrity of over 500 impoundments at coal-fired power plants across the nation. While no impoundments were rated as “unsatisfactory,” 152 units were rated as “poor.”

June 21, 2010 EPA publishes a proposed rule, “Disposal of Coal Combustion Residuals from Electric Utilities,” for regulating the disposal of coal ash. EPA requests comments on whether coal ash should be regulated as a “hazardous waste” under Subtitle C of the Resource Conservation and Recovery Act (RCRA) or as a “non-hazardous solid waste” under Subtitle D of RCRA. Designating coal ash as a hazardous waste would allow EPA to directly enforce the regulations, whereas regulating it under Subtitle D would restrict EPA’s enforcement authority.

Aug. 20, 2010 EPA extends the comment period for the proposed rule until Nov. 19, 2010.

Dec. 19, 2014 EPA Administrator Gina McCarthy signs the Disposal of Coal Combustion Residuals from Electric Utilities final rule (“final rule”). The final rule authorizes EPA to regulate coal ash disposal under Subtitle D of RCRA. The rule establishes regulations regarding: structural integrity requirements for coal ash impoundments, groundwater monitoring and corrective action standards, operating criteria for coal ash units, and record keeping and public disclosure requirements. The rule also includes post-closure requirements for inactive impoundments that stopped receiving coal ash prior to the effective date of the rule but that still contain water and coal ash, unless those impoundments were closed by April 17, 2018.

The standards in the final rule apply directly to facilities and are not enforceable by state or federal agencies, because the rule was promulgated under Subtitle D of RCRA, as opposed to Subtitle C, which would have designated the coal ash as a hazardous waste. Instead, the main enforcement mechanism would be citizen suits brought against individual sites that were not in compliance.

April 17, 2015 The rule is published in the Federal Register, with an effective date of Oct. 14, 2015. The implementation deadlines range from six months after the effective date of the rule to 42 months.

July 15 – 16, 2015 Seven petitions for review of the final rule are filed in the U.S. Court of Appeals for the D.C. Circuit. Utility Solid Waste Activities Group (USWAG) and other industry groups file five of the petitions. A coalition of environmental groups and a municipality each file one.

July 17, 2015 The court consolidates the seven cases as Utility Solid Waste Activities, et al v. EPA, Docket No. 15-01219.

Aug. 14, 2015 The coalition of environmental groups submits a motion to intervene on behalf of EPA, making environmental groups both petitioners and respondent-intervenors in the case.

April 18, 2016 EPA files an unopposed motion to remand certain provisions back to the agency in order for EPA to revise or remove those provisions. This motion is in response to objections both environmental and industry petitioners have raised.

June 14, 2016 The court grants EPA’s motion and voided the provisions affecting inactive impoundments that were closed by April 17, 2018. As a result, previously exempted surface impoundments will now be required to comply with the post-closure requirements for existing impoundments.

July 26, 2016 The EPA Administrator McCarthy signs a direct final rule to extend compliance deadlines for owners and operators of the affected, inactive impoundments in order to provide them adequate time to comply. Because there are no adverse comments received, the extension goes into effect on Oct. 4, 2016.

Dec. 16, 2016 President Obama signs the Water Infrastructure for Improvements to the Nation (WIIN) Act into law. Section 2301 of The WIIN Act authorized EPA-approved state permitting programs to regulate coal ash disposal. Because EPA was limited in its enforcement abilities under Subtitle D of RCRA, this legislation is necessary to allow states and the federal government to directly enforce the regulations. Pursuant to the WIIN Act, states may develop and operate their own permitting programs that adhere to, or are at least as protective as, EPA’s promulgated standards in the final rule. EPA is required to regulate coal ash disposal in states that choose not to implement permitting programs or that have inadequate programs. 

Trump Era

May 12, 2017 USWAG petitions EPA to reconsider specific provisions of the final rule, citing the WIIN Act as one of the primary reasons to reconsider.

May 31, 2017 AES Puerto Rico LLP, one of the original petitioners consolidated in Utility Solid Waste Activities, et al v. EPA, also petitions EPA to reconsider specific provisions.

Aug. 3, 2017 The court schedules oral argument for Utility Solid Waste Activities, et al v. EPA for Oct. 17, 2017.

Aug. 15, 2017 EPA publishes interim final guidance for state permit programs for coal ash disposal. Comments on the guidance are due by Sep. 14, 2017.

Sep. 13, 2017 EPA Administrator Scott Pruitt sends a letter to USWAG and AES announcing that EPA will reconsider the provisions addressed in their petitions.

Sep. 18, 2017 EPA files a motion to continue oral argument and puts the case on hold due to EPA’s decision to reconsider certain provisions.

Sep. 27, 2017 Oral argument is postponed to Nov. 20, 2017, in response to the motion from EPA. The court also orders EPA to provide a status report by Nov. 15, 2017, explaining the provisions EPA plans to reconsider.

Nov. 7, 2017 EPA files a motion to remand to the agency six provisions of the final rule. If the motion is granted, the remanded provisions will stay in effect until EPA decides to revise or remove them.

Nov. 15, 2017 EPA files a status report detailing the provisions it seeks to reconsider. The list includes provisions that are not being challenged in court.

Nov. 20, 2017 Oral arguments by industry, environmentalists, and EPA, are heard in the U.S. Court of Appeals for the D.C. Circuit for more than two hours.

Jan. 16, 2018 EPA publishes a preliminary approval of Oklahoma’s application to regulate coal ash, in lieu of the federal program. Oklahoma is the first state to seek this approval; Georgia is the only other state so far to submit an application.

March 1, 2018 EPA releases what it says will be one of two proposals to amend coal ash disposal regulation. The proposed amendments will “incorporate flexibilities” in regulation to utilities and states, and are being condemned by environmental groups as far less protective of water resources than the Obama-era rule. The proposal is open for public comment until April 30, 2018.

June 18, 2018 EPA approves Oklahoma’s coal ash disposal program and Oklahoma becomes the first state to operate its own program of this kind. A final rule created under the Obama administration in 2016 allows states to assume control of coal ash disposal if they meet certain minimum federal requirements.

July 30, 2018 EPA finalizes its final “phase one” rule that weakens some of the requirements for managing coal ash storage areas. The new rule delays closure deadlines, allowing some existing coal ash ponds to continue accepting more coal ash and stay open longer. It also allows EPA or the state authority to suspend groundwater monitoring if the state determines that there is no potential for hazardous material to contaminate nearby aquifers.

Aug. 21, 2018 The D.C. Circuit holds that “EPA acted arbitrarily and capriciously and contrary to RCRA (Resource Conservation and Recovery Act) in failing to require the closure of unlined surface impoundments, in classifying so-called ‘clay-lined’ impoundments as lined, and in exempting inactive surface impoundments at inactive power plants from regulation.” The court strikes down the provisions of the 2015 rule that allowed unlined and clay-lined impoundments to receive coal ash and exempted inactive impoundments, finding that EPA’s approach “does not address the identified health and environmental harms documented in the record.” Utility Solid Waste Activities Group (USWAG) v. EPA, No. 15-1219 (D.C. Cir.).

Sep. 26, 2018 A coalition of environmental groups file a lawsuit challenging EPA’s approval of Oklahoma’s coal ash program. The groups argue that Oklahoma’s regulations have provisions that are nearly identical to provisions that were struck down by the D.C. Circuit in the USWAG v. EPA case. The groups also argue that EPA has not published minimum guidelines for public participation in the state coal ash programs, which it is required to do. Waterkeeper Alliance v. EPA, No. 18-2230 (D.C. Cir.). 

Oct. 22, 2018 A coalition of environmental groups files a petition for review of EPA’s phase one rule following the D.C. Circuit’s August ruling in USWAG v. EPA. The petition argues that the D.C. Circuit should immediately vacate the unlawful provisions of the EPA’s new phase one rule in light of the USWAG v. EPA decision, rather than leaving the closure deadline extensions in place while EPA addresses the August ruling. Waterkeeper Alliance v. EPA, No. No. 18-1289 (D.C. Cir.).

Dec. 14, 2018 Earthjustice reports on admissions from major utility companies that contaminants like arsenic, chromium, lead, and radioactivity from 67 coal-fired power plants across 22 states have polluted groundwater in excess of state and/or federal standards. See complete list of sites and plants here. Earthjustice reports that the data suggests contamination at all 67 sites is sufficiently severe to require cleanup pursuit to the 2015 Coal Ash Rule.

Jan. 29, 2019 EPA files a submission in response to the October petition for review and argues that the petition would “require the impossible” and might even “compromise the reliability of the electric grid on which the public depends.” Waterkeeper Alliance v. EPA, No. 18-1289 (D.C. Cir.).

March 4, 2019 The Environmental Integrity Project releases a report detailing extensive groundwater pollution at coal-fired power plants across the United States due to coal ash. The report covers more than 90 percent of all plants required to publicly report monitoring data, per EPA’s 2015 Coal Ash Rule. Unsafe levels of contaminants are found in the groundwater at 242 of the 265 plants surveyed.

March 13, 2019 The D.C. Circuit remands the phase one rule back to EPA to reconsider it in light of the USWAG v. EPA decision in August. The court declined to vacate the rule, leaving the phase one rule in place, including the extension it provides for closing unlined coal ash ponds. The 2015 Coal Ash Rule gave power producers six months to close or retrofit unlined ash ponds if they exceed certain pollution limits and the Trump administration’s phase one rule provides an extension until late 2020 for closure or retrofitting. Waterkeeper Alliance v. EPA, No. 18-1289 (D.C. Cir.)

March 20, 2019 Virginia adopts new laws that require the state’s largest electric utility, Dominion Energy Inc., to clean up unlined coal ash pits holding 27 million cubic yards of coal ash across the state. Dominion is required to excavate the coal ash and then recycle it or store it in lined landfills.

March 25, 2019 Missouri is moving forward with developing its own coal ash management program, even though EPA  warned the Missouri Department of Natural Resources that several provisions in its plan are weaker than EPA’s 2015 Coal Ash Rule. Missouri is still accepting comments on its plan and expects its regulations to be effective by Sept. 30, 2019.

April 1, 2019 North Carolina orders Duke Energy to excavate all remaining coal ash impoundments in the state and store the coal ash in lined landfills. The North Carolina Department of Environmental Quality reviewed proposals for managing the coal ash and determined that “…the science points us clearly to excavation as the only way to protect public health and the environment.” Duke Energy must submit final excavation closure plans for all six remaining sites by August 1, 2019.

May 7, 2019 EPA sends its proposed “phase two” rule on coal ash disposal to the White House Office of Management and Budget for review.

Thank you to Harvard student Laura Bloomer, JD/MPP 2019, for her assistance with this rule.

For More Information

See Save EPA’s website.