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  4. Environmentalists and Utilities Defend Preferred Provisions of EPA Coal Ash Rule

Environmentalists and Utilities Defend Preferred Provisions of EPA Coal Ash Rule

Date: June 8, 2016

Source: News Room

In a case now before U.S. Court of Appeals (DC), environmentalists and utilities disagree about the legality of EPA's first-time coal ash disposal regulations under the Resource Conservation and Recovery Act (RCRA). In general, environmentalists argue that coal ash should be regulated as a hazardous waste subject to strict subtitle C rules rather than as a non-hazardous waste subject to less stringent subtitle D rules as advocated by industry. New filings in the consolidated litigation case Utility Solid Waste Activities Group (USWAG), et al., v. EPA reveals industry's argument that EPA's regulation of inactive surface impoundments that no longer receive coal ash is unlawful under RCRA Subtitle D which limits the EPA's regulatory authority to active units still receiving waste for "disposal." Environmentalists counter that the potential for ash leaks, seepage and other releases from inactive sites constitutes "passive migration" of contaminants which can be considered "disposal" under RCRA requiring EPA to step in to prevent adverse impacts on the environment.

Industry also argues that the rule's alternative closure provision, which applies if there is no new site "available", is arbitrary and capricious. They argue that without considering costs or inconvenience alternative closure is "effectively . . . a nullity," because another disposal site will always be available somewhere in the country. But environmentalists say considering costs or convenience "would render EPA's entire regulatory program for coal ash management meaningless" by allowing facilities that do not follow the rule to continue operating anyway.

The environmental groups also ask the D.C. Circuit to preserve EPA's decision not to allow engineers to set alternative, site-specific groundwater protection standards and certify facility compliance with those standards, a move industry claims is needed to account for unique hydrology conditions that will vary widely between sites.

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