EPA Motions Court for Weighty Changes to Final Coal Ash Rule


A recent motion filed by the Environmental Protection Agency (EPA) asking a federal court to remand parts of its final coal combustion residuals (CCR) rule could have major new consequences for the power sector if upheld, an expert has said.

In its 16-page motion filed on April 18, the agency asked the U.S. Court of Appeals for the D.C. Circuit to remand parts of the rule without vacatur so as to remediate, address, and otherwise take impactful actions on the rule.

One aspect that could have big implications for coal power generators is the EPA’s request for the remand of Appendix IV, which it said is for the “sole purpose of proposing that Boron be added to the list of constituents in Appendix IV that trigger assessment monitoring and corrective action.”

According to Nathan Higgerson, a project manager for consulting firm Hanson Professional Services Inc., the addition of boron to the Appendix IV list would add a parameter that utilities would need to include in their assessment monitoring for groundwater impacts.

“Boron is a very common element that is present all around us, including in much of the food that we eat, and it is highly soluble in groundwater. Treatment options for boron are limited and expensive,” he told POWER on April 22.

Another major issue is that the EPA is seeking remand with vacatur of a provision (40 C.F.R. §257.100) that, as written, exempts an inactive surface impoundment from certain post-closure requirements if it is closed under the rule’s required procedures before April 17, 2018. The EPA has proposed to vacate the entire provision except a single sentence: “Inactive CCR surface impoundments are subject to all of the requirements of this subpart applicable to existing CCR surface impoundments.”

“This means that inactive impoundments scheduled for closure by April, 2018, that were not included under the final rule, as published last year in the Code of Federal Regulations, would be subject to the same rules and regulatory deadlines as active impoundments,” Higgerson explained. “This would have a large impact on the industry for planning and financial modeling at the facilities.”

In its motion, the EPA called on the court to stay the effectiveness of its order for at least 120 days—until after the agency could issue a new final rule revising deadlines affected by the vacatur of the inactive surface impoundment provision. “The new final rule will provide facilities that become subject to post-closure requirements as a result of the vacatur of the exemption in 40 C.F.R. §257.100 with adequate time to come into compliance, and all parties agree that it is appropriate for this new rulemaking to be completed before vacatur of 40 C.F.R. §257.100 takes effect, provided that the new rulemaking can be completed in a timely manner,” it said.

Other Proposed Changes

The EPA also sought remand without vacatur of certain provisions (40 C.F.R. §257.103[a] and 40 C.F.R. §257.103[b]) to further consider whether to expand those provisions to situations in which a facility needs to continue to manage waste streams other than CCR in the waste unit. “These provisions establish Alternative Closure procedures that may be utilized in the event an impoundment required to be closed under the Rule cannot locate suitable alternative capacity for disposal of CCR,” the agency explained.

One aspect of the rule for which the EPA has sought remand with vacatur includes a provision that requires surface impoundment dikes be maintained with vegetated slopes not exceeding a height of six inches above the slope of the dike. The agency said that the remand was appropriate because it did not “provide meaningful notice and comment” with regard to the height requirement.

An Already Complex Rule

The EPA published its final rule, “Hazardous and Solid Waste Management System; Disposal of Coal Combustion Residuals from Electric Utilities,” in the Federal Register on April 17, 2015. The rule regulates coal combustion residuals—fly ash, bottom ash, as well as boiler slag and flue gas desulfurization materials—that contain unsafe contaminants such as mercury, cadmium, and arsenic. The federal rule sets out specific minimum criteria for the safe disposal of CCR in landfills and impoundments.

Measures include location restrictions, liner design criteria, structural integrity requirements, operating criteria, groundwater monitoring and corrective actions, closure and post-closure requirements, and record-keeping and notification requirements. If a facility does not comply with these criteria, the unit may be deemed an “open dump” and is therefore potentially subject to closure, the agency has said.

According to Higgerson, however, the regulation is self-implementing, which essentially means “utilities must implement with no oversight by federal or state agencies. Enforcement comes through citizen suits.”

Industry and state agencies have lamented the rule’s complexity, and the rule has faced legal challenges from environmental groups as well as from industry groups, including the Utility Solid Waste Activities Group, the Edison Electric Institute, the National Rural Electric Cooperative Association, and the American Public Power Association.

What Happens Now

A decision in the case filed with the U.S. Court of Appeals for the D.C. Circuit—Utility Solid Waste Activities, et al. v. EPA (No. 15-1219)—is expected in early 2017. Briefs have been filed and oral arguments are expected this fall. However, the rule may be modified by the court but not overturned, Higgerson told attendees at a “big picture” CCR session at the ELECTRIC POWER 2016 conference and exhibition in New Orleans, La., on April 20.

How the final rule will play out is “hard to say at this time,” Higgerson told POWER. “The industry groups and the environmental groups have yet to make their final comments. With the current rule in place, it is important to have consistency for the industry to plan and finance the required activities.”

Meanwhile, Congress may still pass federal coal ash legislation, he noted in a presentation on April 20. Senators John Hoeven (R-N.D.) and Joe Manchin (D-W.Va.) on January 20, 2016, introduced an updated coal ash recycling bill that they say creates a “states-first approach” to regulating coal ash. But that measure, too, faces much uncertainty because it may not get the 60 votes needed for passage or the president’s signature, Higgerson said.

On April 18, the EPA also filed a 128-page brief in the case, responding to issues raised separately by industry and environmental petitioners. Among a number of pointed issues raised, power sector groups have contested the EPA’s authority to promulgate the rule and alleged that the agency did not provide adequate notice of certain regulatory criteria promulgated in the final rule. Environmental petitioners, on the other hand, have challenged the EPA’s decision to require closure of unlined impoundments that leak contaminants above regulatory thresholds, as opposed to required closure of all unlined impoundments, regardless of whether they leak or not.

The agency’s brief notes that “neither industry nor environmental petitioners challenge the rule as a whole,” and that challenges are limited to “select regulatory requirements.” To that end, the EPA “crafted the rule such that any specific regulatory requirement deemed to be improperly promulgated would be severable from the remaining provisions,” it says.

The EPA declined to comment on the matter because it is ongoing litigation, it told POWER on April 21.


Sonal Patel, associate editor (@POWERmagazine, @sonalcpatel)