For months, environmental lawyers have been waiting for the government to come out with proposed rules on the disposal of coal ash. But what the Environmental Protection Agency did today took some by surprise.
Rather than issue one proposed rule, the EPA laid out two options for public comment. One would classify coal ash as a hazardous waste, subject to a heavier regulatory regime with enforcement by state and federal regulators.
The other option, favored by industry, classifies it as a non-hazardous waste and leaves enforcement to citizen’s suits. Still, Bracewell & Guiliani partner Lisa Jaeger cautioned that option “doesn’t mean government disappears. It means states take a primary role as opposed to the EPA.”
Wilmer Cutler Pickering Hale and Dorr partner Kenneth Meade said that “there was never any Congressional intent in any environmental laws to leave enforcement to citizen’s suits.” But he also said there would be “serious repercussions” if coal ash was regulated as a hazardous waste.
Coal ash is the byproduct of coal burned at power plants. It’s disposed of as a liquid, forming coal ash ponds, or as a solid, and contains contaminants such as mercury, cadmium and arsenic. But it can also be recycled in a variety of products, including concrete, drywall and asphalt.
In December 2008, a 5 million cubic yard spill at the Tennessee Valley Authority’s facility in Kingston, Tenn. flooded adjacent waterways and properties. The TVA has spent $1.2 billion in clean-up and purchased 70 contaminated properties.
More than 560 plaintiffs have filed 57 lawsuits against the TVA, according to J. David Brittingham of Dinsmore & Shohl in Cincinnati. As of September 2009, the TVA already paid out more than $69 million in settlements.
Brittingham praised the EPA in the coal ash proposals for “trying to balance the interests of all the various parties and stakeholders.”
The EPA under either approach will require new coal ash ponds and landfills to have liners. Both new and existing facilities will be required to monitor groundwater. There are also incentives to transition to storing ash in safer, dry form. Both proposals also allow for coal ash to continue to be used in recycled in products.
The key difference is whether the ash is regulated under Subtitle C or D of the Resource Recovery and Conservation Act.
The Subtitle C proposal creates a comprehensive program of federally enforceable requirements for waste management and disposal.
Under the Subtitle D version, the EPA has “authority to set performance standards for waste management facilities” and the regulations “would be enforced primarily through citizen’s suits,” according to the EPA press release.
“The time has come for common-sense national protections to ensure the safe disposal of coal ash,” said EPA Administrator Lisa Jackson in a statement. “We’re proposing strong steps to address the serious risk of groundwater contamination and threats to drinking water and we’re also putting in place stronger safeguards against structural failures of coal ash impoundments. The health and the environment of all communities must be protected.”
The EPA is seeking public comment on both proposals for the next 90 days.