EPA Not Likely to Issue Coal Ash Rule Until 2014

Date: October 19, 2012

Source: News Room

The EPA is now saying that it cannot rule on how it will regulate coal ash until at least 2014 and that it will take that long to take comment and review recent data. That is according to recent testimony in a case where environmental groups are seeking a six-month deadline. EPA is also arguing in Appalachian Voices, et al., v. EPA, a case pending before the U.S. District Court for the District of Columbia, that the scope of the review will require "substantial additional time" to conduct the actual rulemaking. The agency is seeking a dismissal of the suit on the grounds that there is no statutory requirement for it to even revise the rules in the first place.

The delay will likely give Congress the time it needs to pass legislation meant to preempt an EPA decision. EPA in June 2010 proposed to regulate CCR as either hazardous waste subject to strict disposal controls under RCRA subtitle C or under less-stringent subtitle D solid waste rules, but the agency has not yet issued a final measure. Environmentalists favor strict subtitle C regulation while industry and many states favor a subtitle D approach. Both sides want clarification of the issue sooner rather than later. For industry, the uncertainty has stalled many projects. Companies that recycle ash in products like cement worry that designating ash as hazardous will give it a "stigma" that will discourage its recovery and reuse.

Suzanne Rudzinski of EPA's Office of Resource Conservation and Recovery in the Office of Solid Waste and Emergency Response in an Oct. 11 declaration says that a six-month schedule "would force EPA to take procedural and analytical shortcuts that I believe could seriously jeopardize both the soundness of the action and its legal defensibility. In part, this is because it fails to allow the time needed to address all of the extremely complex technical issues raised by commenters, as well as comply with the Administrative Procedure Act's requirements for public comment."

Sign up to receive our free Weekly News Bulletin