The U.S. Environmental Protection Agency will regulate coal ash as solid waste rather than the more strictly controlled hazardous waste. This is a big win for both the coal and the power industries. By choosing to regulate coal combustion residuals under Subtitle D of the Resource Conservation and Recovery Act, the EPA has put it to states to decide if they want to establish permit programs. The Subtitle D listing also means the EPA has no enforcement authority. States will have some enforcement authority and citizen suits can still be filed. The designation also does not establish extensive management requirements for coal ash destined for disposal as there would have been under a stricter hazardous waste listing.
Gina McCarthy, EPA Administrator, said the rule sets structural integrity requirements for both new and existing surface impoundments, and requires the installation of effective groundwater monitoring systems. It also restricts the location of new surface impoundments and landfills so they cannot be built in sensitive areas like wetlands, aquifers or earthquake zones, and new impoundments and landfills must also be designed with liners. The rule also requires the immediate cleanup of current contamination, as well as the closure of unlined surface impoundments that are already identified as polluting groundwater above health based standards. In addition, facility operators must post detailed information online for public review.
Under the new rule, only impoundments at facilities that are actively producing electricity will be affected. If impoundments on those premises are found to violate standards, Ms. McCarthy said they will be closed down. Impoundments at inactive power generating stations are outside of the EPA’s authority, said Mathy Stanislaus, the assistant administrator for the Office of Solid Waste and Emergency Response. The rule had been under construction since 2010. The EPA was under a court-ordered deadline to finish it by Dec. 19th. A federal judge in Washington, D.C., in May had approved an agreement between the EPA and environmentalists. As we have previously written, coal ash is produced when finely ground coal is burned to fuel electrical power plants and can be reused in wallboard, concrete, roofing materials and bricks, or as fill in sand and gravel pits.
The EPA said the product contains contaminants like mercury, cadmium and arsenic associated with cancer and various other serious health effects. And without proper protections, the contaminants can leach into groundwater and often migrate to drinking water sources, posing public significant health concerns. As you will recall, coal ash pollution received widespread attention in 2008 when a massive spill at the Tennessee Valley Authority’s Kingston Fossil Plant in Harriman, Tennessee, dumped more than 5 million cubic yards of toxic coal ash sludge into a nearby river. Former EPA Administrator Lisa P. Jackson called it “one of the largest and most serious environmental releases in our history.” That debacle has cost more than $1 billion to clean up. Our firm was heavily involved in litigation over the spill.
The EPA proposed regulations two years later, but never moved ahead with a final rule after receiving 450,000 public comments. Environmental groups sent the agency notice of intent to sue in January 2012 and mounted litigation three months later in an effort to force the agency’s hand. Currently, state environmental agencies are primarily responsible for regulating the beneficial use of coal ash. Coal ash that is being beneficially used is currently excluded from federal regulations. Under the RCRA, federal action could be taken if there were a finding of imminent or substantial endangerment in a specific circumstance.
Source: Claims Journal
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