12/15/2017 - Power Plant Regulation - Regulatory Tracker

Coal Ash Rule

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Quick Take

The Biden administration has implemented two Trump-era coal ash rules for the closure process for unlined coal ash ponds. EPA is conducting a unit-by-unit assessment of coal ash containment ponds and making determinations about their closures as well as whether to update the rules.

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 types 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.

For a detailed comparison of the coal ash rule changes, read our blog post: The Coal Ash Rule Trilogy Spanning Obama, Trump, and the D.C. Circuit.

Current Status

The two rules currently in effect include: (1) the Trump administration’s Part A rule, that responded to a remand by the D.C. Circuit of a 2018 rule and addressed the court’s vacatur of portions of the 2015 Coal Ash Rule, and (2) Part B rule, that allowed facilities to request approval to operate some unlined coal ash ponds as equally safe as lined ponds.

While both rules weakened the regulatory requirements, the Biden administration determined that it will implement the two rules finalized by the Trump administration, while it considers any future regulatory efforts.

Timeline of Events

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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.

obama administration
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March 2009 In response to the 2008 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.

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 October 14, 2015. The implementation deadlines range from six months after the effective date of the rule to 42 months.

July 15 – 17, 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. The court consolidates the seven cases as Utility Solid Waste Activities Group v. EPA, Docket No. 15-01219 (D.C. Cir).

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. Utility Solid Waste Activities Group v. EPA, Docket No. 15-01219 (D.C. Cir).

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. Utility Solid Waste Activities Group v. EPA, Docket No. 15-01219 (D.C. Cir).

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. Utility Solid Waste Activities Group v. EPA, Docket No. 15-01219 (D.C. Cir).

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 October 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 Administration
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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 Group v. EPA, also petitions EPA to reconsider specific provisions.

Aug. 15, 2017 EPA publishes interim final guidance for state permit programs for coal ash disposal.

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. Utility Solid Waste Activities Group v. EPA, Docket No. 15-01219 (D.C. Cir).

Sep. 27, 2017 Oral argument is postponed to November 20, 2017, in response to the motion from EPA. The court also orders EPA to provide a status report by November 15, 2017, explaining the provisions EPA plans to reconsider. Utility Solid Waste Activities Group v. EPA, Docket No. 15-01219 (D.C. Cir).

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. Utility Solid Waste Activities Group v. EPA, Docket No. 15-01219 (D.C. Cir).

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. Utility Solid Waste Activities Group v. EPA, Docket No. 15-01219 (D.C. Cir).

Nov. 20, 2017 Oral arguments by industry, environmental groups, and EPA, are held in the U.S. Court of Appeals for the D.C. Circuit. Utility Solid Waste Activities Group v. EPA, Docket No. 15-01219 (D.C. Cir).

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.

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 v. EPA, No. 15-1219 (D.C. Cir.).

Sep. 26, 2018 A coalition of environmental groups files 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 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. 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 moves 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 September 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.

June 28, 2019 EPA proposes partial approval of Georgia’s coal ash program. The proposed approval is open for comment until Aug. 27, 2019. The only other state to obtain approval for a state coal ash permit program is Oklahoma (see June 18, 2018), but that approval is still being challenged at the U.S. District Court for the District of Columbia.

Aug. 14, 2019 EPA releases a new set of proposed changes to the 2015 coal ash regulations. EPA is proposing to modify a requirement from the Obama-era rules where companies and utilities had to prove that a deposit of recycled coal ash above a certain size threshold (12,400 tons or more) wouldn’t harm the environment. Under the proposed rule, EPA will focus only on the location of the coal ash- companies need only demonstrate safety if it is being dumped in a sensitive location like a floodplain, seismic zone, or unstable area. The proposal also revises regulations for temporary coal ash piles and groundwater monitoring requirements. There is a 60 day comment period that ends on Oct. 15, 2019 and comments may be submitted here.

Aug. 6, 2019 EPA sends another proposed rule modifying the 2015 coal ash regulations to the Office of Management and Budget for review. This rule is said to propose a new deadline for electricity producers to close or retrofit unlined coal ash storage ponds. EPA previously granted an extension of that deadline until October 2020, far beyond what the 2015 rules provided.

Sep. 6, 2019 EPA sends an additional proposed rule to the Office of Management and Budget for review. The rule is related to a federal permitting program for coal ash facilities in Indian Country and in states without state programs.

Dec. 2, 2019 EPA releases another proposed rule that seeks to respond to and implement changes in accordance with two recent D.C. Circuit decisions, Utility Solid Waste Activities Group v. EPA and Waterkeeper Alliance v. EPA. The proposed rule would create a new deadline of August 31, 2020 for unlined impoundments, now including clay-lined impoundments, to stop accepting additional coal ash. Under the 2015 rule, all unlined coal ash ponds were to begin closing in 2018. For certain other impoundments, the deadline for closure in the proposal can be as late as 2028. The rule is open for public comment until Jan. 31, 2020 with a virtual public hearing on Jan. 7, 2020. Comments may be submitted here.

Dec. 19, 2019 EPA releases a proposed rule to establish a federal coal ash permit program in Indian Country and in states without state programs. It is published in the Federal Register on Feb. 20, 2020 and open for comment until July 19, 2020 after being extended 90 days. Comments may be submitted here.

Dec. 19, 2019 EPA approves Georgia’s coal ash management program, making it the second state to operate its own program.

Jan. 2, 2020 North Carolina announces a settlement agreement with Duke Energy to excavate nearly 80 million tons of coal ash at six facilities, more than 76 million tons of which will come from open, unlined impoundments. The coal ash will be deposited in dry, lined industrial or municipal landfills or could be used to manufacture concrete or in other industrial processes that are “at least as environmentally protective,” according to the agreement. This agreement settles litigation between the state, Duke Energy, and community groups. The settlement was approved by North Carolina’s Superior Court for Wake County on Feb. 5, 2020.

March 3, 2020 EPA releases a proposed rule that would allow facilities to demonstrate that their unlined coal ash impoundments are as safe as lined impoundments and continue operating. It is open for comment until April 17, 2020 and comments may be submitted here.

March 13, 2020 Dominion Energy settles a case with the State of Virginia and EPA, agreeing to pay $1.4 million and improve environmental monitoring in order to address alleged violations of the federal and state environmental laws due to releases of wastewater from coal ash impoundments at two of its coal-fired power plants.

April 15, 2020 A judge rules that EPA’s approval of Oklahoma’s state coal ash program in June 2018 improperly allowed continued use of unlined impoundments and sends that portion of the state program back to EPA to review. Waterkeeper Alliance v. Wheeler, No. 1:18-cv-02230-JDB (D.D.C.).

July 6, 2020 Five environmental organizations file a lawsuit against EPA, alleging the agency violated the public participation mandate in the Resource Conservation and Recovery Act by only holding one virtual, audio-only public hearing on Jan 7 (pre-COVID) for its proposed rule providing new closure deadlines for certain coal ash impoundments. The groups allege the hearing suffered from technical difficulties and did not provide a meaningful opportunity for participation, yet EPA declined to hold another hearing or extend the comment period. Labadie Envtl. Org. v. Wheeler, No. 1:20-cv-01819 (D.D.C.).

July 29, 2020 EPA finalizes the rule proposed in Dec. 2019 with the addition of two elements of the Aug. 2019 proposal. This final rule makes five amendments to the coal ash regulations. First, EPA finalizes the classification of soil or clay-lined impoundments from “lined” to “unlined,” in accordance with the USWAG v. EPA decision. Second, EPA finalizes a new deadline of April 11, 2021 for impoundments to stop receiving waste and begin closure because the unit is either unlined or failed the aquifer location standard. Third, EPA finalizes revisions to the alternative closure provisions, granting facilities additional time to find storage solutions for both coal ash and non-coal ash waste in order to stop receiving waste and begin the closure process. Finally, EPA is finalizing a requirement to add an executive summary to the annual groundwater monitoring and corrective action reports; and amended requirements for publicly accessible coal ash websites. This rule is published in the Federal Register on Aug. 28, 2020 and goes into effect Sep. 28, 2020.

Oct. 1, 2020 EPA announces it is considering a new rule to regulate inactive (closed) coal ash impoundments. EPA is requesting information like the names and locations of former power plants that may have old coal ash ponds. EPA is also requesting comments on which coal ash regulations should apply to these impoundments and possible compliance timelines. This rulemaking would continue to implement the USWAG v. EPA decision

Oct. 15, 2020 EPA finalizes the rule it proposed in March 2020 that will allow facilities to demonstrate that their unlined coal ash impoundments are as safe as lined impoundments and continue operating. The rule affects about 523 unlined impoundments at 229 facilities. EPA published the rule in the federal register on Nov. 12, 2020.

Nov. 3, 2020 The environmental organizations challenging EPA’s virtual public hearing process drop their lawsuit, planning instead to pursue their claims as part of a challenge to the final rule in the DC Circuit. Labadie Envtl. Org. v. Wheeler, No. 1:20-cv-01819 (D.D.C).

Nov. 24, 2020 A coalition of nine environmental groups files a lawsuit against EPA, challenging the most recently finalized coal ash rule. Labadie Envtl. Org. v. EPA, No. 20-01467 (D.C. Cir.).

Biden Administration
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Mar. 5, 2021 The D.C. Circuit grants EPA motion to hold Labadie Envtl. Org. v. EPA in abeyance while EPA reviews the rulemaking consistent with Executive Order 13990 and directs parties to file motions governing proceedings by Sept. 21, 2021.

July 2021 EPA states that it “completed review of the three coal combustion residuals rules in response to Executive Order 13990” and determined that it would implement the Trump administration’s two rules.

Jan. 11, 2022 EPA announces that it received and reviewed 57 applications from facilities requesting deadline extensions to the cease receipt of waste deadline under Part A. EPA determined that 52 were complete, four were incomplete, and one is ineligible for an extension. Of the 52 complete applications received, EPA is conducting technical analyses and proposes for comment determinations on four applications, with additional determinations expected soon. Additionally, under Part B, EPA allowed facilities to request approval to continue to operate unlined coal ash ponds, and on Jan 11, EPA determines that the eight applications are complete. EPA will now work to propose decisions on those 8 applications. 

Apr. 8, 2022 The Utility Solid Waste Activities Group files suit challenging the procedural process for EPA’s determination regarding facilities’ submissions for continued operation of unlined ponds. Utility Solid Waste Activities Group v. EPA, et al, No. 22-01058 (D.C. Cir.). On the same day, Electric Energy, Inc., and a group of other utilities file a separate petition with the DC Circuit. The cases are consolidated. Electric Energy, Inc., et al v. EPA, et al., Docket No. 22-01056 (D.C. Cir.).

May 6, 2022 Altamaha Riverkeeper, Chattahoochee Riverkeeper, Coosa River Basin Initiative and environmental groups motion for leave to intervene in support of EPA’s rule, arguing that they are harmed by any hindrance of EPA’s enforcement of the rule.

June 14, 2022 A leaked EPA list indicates that the agency is considering closure of over 160 unlined coal ash lagoons. Those facilities, which span the country from New York to Arizona, may pose a risk to groundwater and nearby waterways given the high levels of toxins in coal ash. EPA says that the list is intended to “initiate conversations” with states on their closure plans. EPA has said that coal ash impoundments cannot be closed when coal ash is in contact with groundwater, explaining that “[t]his conclusion is based on both the general performance standards and the specific technical standards in the regulations, which collectively operate to limit liquids going into the unit and migration of contaminants out of the unit after closure.” 

May 6, 2022 Comité Diálogo Ambiental, Inc., Hoosier Environmental Council, and Sierra Club file motion to intervene in support of the EPA. They state that they are environmental organizations with members personally harmed from coal ash pollution.

July 12, 2022 EPA proposes new deadlines for two power plants, Calaveras Power Station in Texas and Mountaineer Power Plant in West Virginia, to comply with coal ash regulations designed to prevent contamination from coal ash ponds by improving groundwater monitoring. The initial deadline for compliance was in April 2021. The extensions are subject to public comment for 30 days.

July 26, 2022 The DC Circuit holds that environmental groups, including Waterkeeper Alliance, Local Environmental Action Demanded Agency, and Sierra Club, lacked standing to challenge EPA’s approval of Oklahoma’s permitting program for coal ash disposal facilities. Waterkeeper Alliance, Inc. v. Regan, No. 20-5174, 2022 WL 2920981 (D.C. Cir.)

Aug. 25, 2022 A group of environmental, community, and civil rights organizations files a lawsuit against EPA that asks the agency to regulate the 280 “inactive” landfills holding coal ash that are currently exempt from federal requirements. The plaintiffs argue that these landfills contaminate groundwater and should be regulated to better protect communities. Statewide Organizing for Community Empowerment, et al. v. EPA, No. 1:22-cv-02562-JDB (D.D.C.)

Oct. 27, 2022 The parties in Statewide Organizing for Community Empowerment, et al. v. EPA have filed a joint motion to stay until February 2023 pending settlement negotiations between the parties. Statewide Organizing for Community Empowerment, et al. v. EPA, No. 1:22-cv-02562-JDB (D.D.C.)