We have periodically updated the status of EPA’s long-running effort to decide whether and how to regulate coal ash generated primarily from electric power generation. Recent events have put EPA on a course to make a final decision and may also signal the substance of that decision.
As noted previously, in 2010 EPA sought public comment on alternative proposals to regulate coal ash, one being regulation as a hazardous waste under Subtitle C of the federal Resource Conservation and Recovery Act (“RCRA”) and the other would regulate the material as a solid, but not hazardous, waste under Subtitle D of RCRA. Although the comment period closed on November 19, 2010, EPA has continually delayed a final decision about which option to pursue. In 2012, the Agency was sued by a number of parties, including environmental and industry groups, in the District Court for the District of Columbia, (Appalachian Voices v. McCarthy, D.C., No. 1:12-CV-00523). The litigation, among other things, sought to force EPA to make a final decision regarding the classification of coal ash.
The issue has also been a focus of considerable effort on the part of the U.S. Congress, particularly the House of Representatives. The House, in the 112th Congress enacted legislation in October, 2011, that essentially would have provided for management of coal ash as a solid, non-hazardous, waste (i.e. a Subtitle D waste). The legislation itself was not considered in the Senate during that Congress, and an effort to include the provision in an appropriations bill failed to survive a conference committee. During the current Congress, the House has again enacted that legislation and forwarded it to the Senate. HR 2218 was approved by House action last July, but no action has yet been scheduled in the Senate.
Recently, on January 29, the parties in Appalachian Voices, filed a consent decree which committed EPA to take final action regarding the regulations pertaining to coal ash no later than December 19, 2014. While the settlement does not direct EPA with respect to which of the competing regulatory proposals it will select, there is a fair amount of speculation that the Agency is likely to favor the Subtitle D alternative. A report by the American Coal Ash Association notes that, in a related rulemaking concerning Effluent Limitation Guidelines, EPA signaled that regulation under Subtitle D is appropriate. Similarly a report by Waste360 quotes Kirk Benson, Chairman of Headwaters, Inc., a coal combustion products maker, as saying he is almost certain that EPA will move forward under Subtitle D.
However, Congressional leaders in the House do not appear to be so certain of the outcome. In a press release from the House Energy and Commerce Committee on January 30, the Committee Chairman, Fred Upton (R-MI) asserted that regulatory uncertainty continues to exist because, as they assert, “EPA may still choose to regulate coal ash as a hazardous waste . . . “. For this reason, the Committee urged the members of the Senate to take up the House-passed Bill HR 2218. At this time, however, that legislation, or a Senate counterpart, is not yet scheduled for action in the Senate.