The U.S. EPA’s efforts to develop a new regulatory path for coal ash (“Coal Combustion Residuals” or “CCR”) by regulating the material either as a hazardous waste or as a solid but non-hazardous waste, are nearing a conclusion. The deadline for EPA to announce a final decision is December 19. As we noted in February, this date was fixed by a consent decree filed in the U.S. District Court for the District of Columbia on January 29 of this year, and a press release at that time by the American Coal Ash Association provides a link to the consent decree. Statements by EPA Headquarters staff in a recent meeting with State officials at Region 4 offices in Atlanta indicate that EPA is intent on meeting the deadline.

In the run up to this deadline, interest groups on both sides of the issue have been making their cases. Advocates for classification of the material as either a non-hazardous waste regulated under Subtitle D of the Resource Conservation and Recovery Act and others who urge regulation as a hazardous waste under Subtitle C of the same Act have been diligently lobbying EPA and White House officials about their respective positions. In its most recent weekly report, Inside E.P.A. recounts the efforts of environmental side in this debate.

Interestingly, almost regardless of EPA’s final action, the leaders of both houses of the incoming Congress indicate that they are likely to emphasize legislation to address the issue. Both House Speaker Boehner and incoming Senate Majority Leader McConnell have indicated their intent to attempt to reign in several EPA actions, including those related to coal and CCR. (The Tampa Bay Times, and The Lexington Herald-Leader). If this proceeds, it is likely to focus on legislation sponsored in the House by West Virginia Representative, David McKinley (R. W.Va.) and Senator John Hoeven (R. N.D.) Both have previously introduced legislation intent on giving the States the authority to regulate coal ash as a non-hazardous waste with EPA becoming involved only in the event that an individual State fails to develop a regulatory program that is consistent with the federal legislation. McKinley and Hoeven have recently expressed renewed interest in pushing the legislation and expressed confidence that it will be taken up in both the House and the Senate during the 2014 Congress.