EPA’s Coal Ash Rules: Part 1 (The Basics)

December 23, 2014. Staring down a court-ordered deadline, EPA released a final coal ash rule on Friday. Happy Holidays!

Some basic things to know about the federal rule:

♦ This  federal rule sets minimum standards for disposal of  coal combustion residuals (more commonly called “coal ash”), but other state and federal regulations will continue to apply to coal ash disposal as well. The most significant may be the federal Clean Water Act and state water quality standards; the federal Comprehensive Environmental Response, Compensation and Liability Act  (“CERCLA”) which addresses liability for remediation of contaminated property; state landfill regulations; state groundwater protection standards; and requirements of North Carolina’s 2014 Coal Ash Management Act.

♦ As expected, EPA decided to regulate coal ash as solid waste rather than hazardous waste. “Solid waste” covers everything from household trash to nonhazardous industrial waste and discarded construction materials. Although coal ash often contains toxic heavy metals such as selenium, EPA  concluded that the low concentration of hazardous substances in coal ash did not justify applying  hazardous waste regulations to coal ash disposal.  

♦ The federal rule has been adopted under sections of the Resource Conservation and Recovery Act (RCRA) that authorize EPA to adopt minimum standards for disposal of solid waste. As interpreted by EPA, those sections of RCRA do not authorize federal permitting requirements or federal enforcement.  So while the EPA rule sets minimum federal standards for disposal of coal ash,  EPA will  not enforce the standards or require states to adopt and enforce the standards.  If a state choses to incorporate the federal standards into state rules, the state can take enforcement action under state law. Otherwise, the only enforcement of the new federal standards will be through citizen suits. As EPA acknowledged, reliance on self-enforcement and citizen suits creates a higher than usual level of regulatory uncertainty for the electric utilities.  Without a federal or state agency as intermediary, utilities may find it difficult to predict either the filing or the outcome of an enforcement case.

Note:  Existing N.C. laws and rules already incorporate many of the minimum federal design and location standards for coal ash landfills.  N.C. has also long required permits for those landfills. As a result, N.C. already has a regulatory structure that, with only minor amendments, could be used to enforce the new federal standards.

♦ Unlike N.C.’s 2014 Coal Ash Management Act, the federal rule does not directly require electric utilities to phase out the use of  surface impoundments for disposal of coal ash. Instead, the rule sets location and design standards for new, expanded and existing coal ash impoundments. New impoundments and expansions of existing impoundments will require liners. Although the EPA rule does not require existing impoundments to be retrofitted with liners, an unlined impoundment must stop receiving coal ash and move toward final closure within six months after groundwater monitoring detects an exceedence for a listed contaminant. (The rule allows 30 months to install a groundwater monitoring system and gather sample data, so a closure based on groundwater impacts may come only after several years of continued use.)

The rule seems to give the owner of an existing impoundment the option of avoiding the new standards by ending coal ash disposal in the impoundment within six months after publication of the final EPA rule in the Federal Register. Ending disposal within the six-month window makes the impoundment an “inactive impoundment” category under the rule. Inactive impoundments do not have to meet the new standards, but must close within 30 months after publication of the final EPA rule. (But see the next bullet point on uncertainty about how broadly the EPA rule applies to inactive impoundments.)

♦ The EPA rule clearly applies to inactive impoundments at facilities still generating electricity (even if the power plant no longer burns coal).  It is not clear whether the rule also applies to inactive impoundments still maintained by an active electric utility on the site of a shuttered electric generation plant. The Dan River Steam Station impoundment would fit into that category. Some EPA statements suggest the rule only applies to inactive impoundments located at active electric generation plants. That would mean the closure requirements in the rule would not apply to impoundments at idled electric generation facilities like the Dan River plant.  But conflicting statements in the rule preamble and the wording of the rule itself could also support an interpretation that the rule applies to inactive impoundments owned by an active electric utility without regard to the location of the impoundment. Some additional clarification by EPA would be helpful.

♦ The EPA rule treats placement of coal ash in surface mines (such as sand pits, gravel pits and quarries) as solid waste disposal — not as a beneficial use. As a result, disposal in a surface mine will have to meet the federal standards for a coal ash landfill. The rule also  casts a somewhat jaundiced eye on other large-scale uses of coal ash for structural fill and landscaping. With the exception of use in road construction, the rule would not consider use of more than 12,400 tons of un-encapsulated coal ash to be a beneficial use unless it presents no greater risk of release to the environment than use of other materials or will meet  all benchmarks for protection of the environment and public health.  Without those assurances, the application of coal ash would be regulated under the federal rule as solid waste disposal rather than beneficial use.

♦ The EPA rule does not set any performance standards for projects that qualify as beneficial use under the federal definition. Instead, EPA has deferred to the states and to federal agencies that have already adopted technical standards for use of coal ash in federally-funded projects (such as highway construction).

The EPA rule includes detailed standards for design and location of coal ash landfills and impoundments; groundwater monitoring; remediation; structural integrity; and final closure of landfills and impoundments. Part II will look at the effect of the EPA rule on implementation of N.C.’s Coal Ash Management Act.