Federal Court Orders EPA to Move on Final Coal Ash Rule

A federal court on Monday said it would issue a memorandum opinion by the end of this month on a lawsuit filed by several environmental groups to force the Environmental Protection Agency (EPA) to promulgate a final coal ash rule.

At least 11 environmental groups, including the Sierra Club and the Southern Alliance for Clean Energy, sued the EPA in April 2012 to address what they said are the “serious and widespread risks that unsafe disposal of coal combustion waste or ‘coal ash’ poses to human health and environment.” The EPA’s failure to act on “well-documented risks associated with irresponsible disposal of coal ash” violates the Resource Conservation and Recovery Act (RCRA), the groups argued.

The U.S. District Court for the District of Columbia agreed in its two-page order issued on Sept. 30 to grant summary judgment to the environmental groups.

The EPA in June 2010 published alternative proposed coal ash rules under RCRA in large part due to the December 2008 failure of a coal ash impoundment at the Tennessee Valley Authority’s (TVA’s) Kingston coal-fired power plant. That disaster released 5.4 million cubic yards of fly ash that inundated several homes and contaminated the Emory River in Tennessee. One of the EPA’s alternatives would regulate coal ash as a “special” (but not necessarily hazardous) waste using a classification authorized under Subtitle C of RCRA. The other alternative would use Subtitle D of RCRA and classify the material as a solid, but not hazardous or special, waste. This August, in a Notice of Data Availability, the EPA invited comments about new information obtained in conjunction with the agency’s draft June 2010 coal ash rule.

However, the EPA has not indicated when it expects to issue a final coal ash disposal rule, but observers believe it will be issued after the related effluent limitations guidelines rule is finalized, which is expected in the first half of 2014. The EPA told POWERnews that the target date for release of a final coal ash rule will be determined once EPA has made a full evaluation of all the timely submitted comments received to date.

Meanwhile, the U.S. House of Representatives for the second timepassed coal ash legislation this July that would protect the recycling of coal ash and gives states the authority to set their own standards for the disposal of fly ash with oversight from the EPA. That bill has stalled in the Senate, however.

The case is Appalachian Voices, et al. v. EPA (Docket No. 1:12-cv-00523 RBW).  

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

 

 

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