U.S. Environmental Protection Agency Issues Final Regulations Addressing Coal Combustion Residuals from Electric Utilities Under Subtitle D of Resource Conservation and Recovery Act

December 29, 2014

On December 19, 2014, the United States Environmental Protection Agency (“EPA”) issued its final rule governing the storage and disposal of coal combustion residuals (“CCRs”)–commonly known as “coal ash”–from electric utilities.  This long-awaited rule was developed pursuant to Subtitle D of the Resource Conservation and Recovery Act (“RCRA”) and establishes comprehensive requirements for the disposal of coal ash at both existing and new CCR landfills and surface impoundments.  A prepublication draft of the final rule can be found here:  https://www.epa.gov/coalash/coal-ash-rule.

A.    Background to New Coal Ash Regulations

CCRs are industrial waste streams generated by the combustion of coal in the production of electricity.  While CCRs may be recycled or applied to beneficial uses, nearly 60 percent of CCRs are disposed in surface impoundments and landfills.  Disposal may occur either off-site or on-site.  EPA estimates that disposal “currently occurs at over 310 active on-site landfills, averaging over 120 acres in size with an average depth of over 40 feet, and at over 745 active on-site surface impoundments, averaging over 50 acres in size with an average depth of 20 feet.”[1]

Public scrutiny of CCR disposal has intensified in recent years, stemming from a number of well-publicized incidents in which coal ash disposal units failed, resulting in the release of coal ash to surrounding communities and water bodies.  One such incident–the 2008 coal ash spill at a Tennessee Valley Authority power plant in Kingston, Tennessee–was a catalyst behind EPA’s rulemaking effort.  The Kingston event spurred EPA to assess the adequacy of coal ash disposal units nationwide.[2]

EPA’s proposed regulations (published in June 2010) presented two alternatives for regulating coal ash disposal under RCRA.[3]  The first alternative provided for strict and direct federal oversight of CCR disposal units under Subtitle C of RCRA.  Under Subtitle C, coal ash would be designated as a hazardous waste, and strict, federally enforceable standards would regulate the generation, transport, storage, and disposal of CCRs.  States would be required to maintain standards that are at least as stringent as federal standards.  Certain types of coal ash waste ponds (i.e., those that contain “wet ash”) would have been phased out over seven years.  Inactive disposal units would have been monitored and corrective actions would have been required to stem the leaching of coal ash.  Operators of CCR disposal units would have had to post financial assurances to address future contamination response actions.  Most critically, the Subtitle C option would have imposed permitting requirements on all CCR disposal units.

The second alternative would regulate coal ash as a non-hazardous solid waste under Subtitle D of RCRA.  Unlike Subtitle C regulations, the Subtitle D option would not address the generation, storage, or treatment of CCRs prior to disposal.  Furthermore, under Subtitle D, EPA lacks the legal authority to require states to adopt the federal standards, to issue federal permits, or to commence administrative actions to enforce Subtitle D criteria.  Enforcement would be largely achieved through citizen suits commenced by states or citizens groups.

EPA’s proposed rule languished in uncertainty and inaction from 2010 until 2013, when several environmental organizations sued the Agency for its failure to act on the proposal.  The environmental groups and EPA eventually settled the suit and the Agency agreed in a consent decree to finalize its coal ash regulations by December 19, 2014.

B.    Summary of Final Subtitle D Coal Ash Rule

The final rule regulates the disposal of CCRs as a solid waste under Subtitle D of RCRA.  The rule establishes national minimum criteria for existing and new CCR landfills, and for existing and new CCR surface impoundments.  These criteria include location restrictions, design and operating criteria, groundwater monitoring and corrective action, closure requirements, and post- closure care, and recordkeeping, notification, and internet posting requirements.

Location Restrictions:  The final rule establishes restrictions for CCR disposal units that relate to their location (1) over aquifers; (2) near wetlands; (3) near geological fault lines; (4) in seismic impact zones; and (5) at sites classified as “unstable areas” (i.e., locations that are susceptible to natural or human-induced forces capable of impairing the integrity of the structural components responsible for preventing the releases from a CCR disposal unit, such as areas with poor soils, for foundations are natural unstable areas).  Existing CCR landfills must meet only the requirements related to “unstable areas;” new and expanded CCR landfills, and new, expanded, and existing CCR surface impoundments must meet all of the criteria.

Design and Operating Criteria:  The rule also establishes minimum requirements for the design and operation of CCR disposal units.  These requirements include (1) use of a composite liner system (or an equally effective alternative) in all CCR disposal units except for existing landfills (existing CCR surface impoundments may meet this requirement with two feet of compacted soil of a specified hydraulic conductivity); (2) minimum structural integrity requirements which vary depending on the size and features of the disposal unit; and (3) periodic assessments of structural stability, potential hazards, and safety factors.  Certain CCR disposal units will be required to adopt emergency action plans and some may be closed if minimum safety standards are not achievable.

Groundwater Monitoring and Corrective Actions:  Owners or operators of CCR disposal units will be required to install systems of monitoring wells and develop protocols for groundwater sampling and monitoring programs.  If detected monitoring parameters are measured at a “statistically significant level over the established background concentrations,” the owner or operator of the CCR disposal unit must notify the relevant state regulatory authority, conduct assessment monitoring, and, if necessary, initiate corrective action responses.[4]

Closure Requirements and Post Closure Care:  The final rule establishes requirements for the closure of existing CCR disposal units (a) in the event of the failure to meet technical criteria; (b) after receipt of the known final waste shipment or removal of the final volume of CCRs from the unit for beneficial use; or (c) two years after the most recent receipt of CCRs or two years after the most recent removal of CCRs for the purpose beneficial use.  Closure must be achieved by removing the CCRs and decontaminating the unit or by leaving the coal ash in place and installing a final cover system.  Groundwater monitoring programs and corrective actions (if necessary) are required to continue after closure.

Recordkeeping, Notification and Internet Posting Requirements:  The final rule requires the owner or operator of a CCR disposal unit to maintain files of all required information (e.g., demonstrations, plans, reports, etc.) in an operating record located at the facility, and to maintain a publicly accessible internet site which hosts each unit’s CCR compliance data and information.

Significantly, EPA retained its prior determination that beneficial uses of coal ash–such as use as an ingredient in cement and wallboard, as stabilized base course in highway construction, and for agricultural purposes–should not be subject to regulation under either Subtitle C or Subtitle D of RCRA.[5]  EPA reached this determination in recognition of the fact that these uses of CCR provide environmental benefits and raise minimal health or environmental concerns.[6]  Additionally, the final rule does not require that wet coal ash ponds be phased out within a five- to seven-year period–a provision that had been advocated by environmental groups.

EPA’s Subtitle D rules are considered “self-implementing,” meaning that owners and operators must comply with the aforementioned requirements without any action–such as a permit application review–by a state or federal regulatory authority.  Additionally, Subtitle D does not provide EPA with a formal role in implementing the regulations and does not authorize EPA to undertake any affirmative enforcement actions in support of the regulations.  Enforcement, therefore, will be achieved through citizen suits.[7]  States may–but are not required to–undertake compliance and enforcement efforts by incorporating the federal requirements into state solid waste management plans.[8]

C.    EPA’s Decision to Regulate Coal Ash Under Subtitle D May Spark Litigation from Environmental Organizations

EPA’s decision to regulate coal ash under Subtitle D and not under Subtitle C can be viewed as a significant concession to the electric-generating industry.  Environmental groups such as Sierra Club and Earthjustice argued strenuously that “EPA unequivocally must regulate coal ash under subtitle C of RCRA in order to protect human health and the environment,” claiming that such strict regulation is necessary in light of what they perceive to be a growing number of incidents related to releases of coal ash.[9]

Regulating coal ash under Subtitle C, however, would have significantly increased the costs and regulatory burdens of handling this waste.  A waste that is regulated under Subtitle C is subject to the detailed regulations found in 40 C.F.R. parts 260 through 268, parts 270 to 279, and part 124.  In contrast to Subtitle D–which applies only to the disposal of solid wastes–regulations under Subtitle C apply to parties that generate, transport, treat, store, or dispose of hazardous waste, and establish rules governing every phase of the waste’s management–from its generation to its final disposition and beyond, i.e., from the “cradle to the grave.”

For instance, facilities that treat, store, or dispose of hazardous wastes require a permit which incorporates all of the design and operating standards established by EPA rules.[10]  Therefore, regulating coal ash under Subtitle C would have required disposal in permitted commercial hazardous waste disposal facilities, which might be located long distances from the generator.  Moreover, there is currently limited capacity in licensed hazardous waste facilities, and requiring that coal ash be disposed in such facilities could overwhelm that capacity.[11]  Without a location to store their wastes, facilities that generate coal ash would be required to curtail production or shut down.

The fact that environmental groups previously sued the EPA for its delay in finalizing its rule shows their level of interest in this issue.  Consequently, it is likely that some environmental groups that are dissatisfied with the EPA’s decision to regulate coal ash under Subtitle D instead of Subtitle C will challenge the final rule.

However, even if the final rule survives challenge, environmental groups may use the citizen suit provisions to pursue entities disposing of coal ash.  As discussed above, the Subtitle D regulations expose owners and operators of CCR disposal units to substantial risks of citizen suit litigation.  Because EPA will not have any enforcement authority over CCR disposal units, citizens groups–already upset with EPA’s rejection of the more burdensome Subtitle C regulations–will likely take an aggressive litigation posture.  Indeed, an attorney for Earthjustice has stated to the press: “We had to go to court to force EPA to issue this first-ever coal ash rule, and unfortunately, we will be back in court to force coal plants to clean up their ash dumps and start disposing of their toxic waste safely.”[12]

Subtitle D encourages public monitoring and citizen enforcement.  Owners and operators are required to post compliance data and all documents in the operating record (e.g., sampling results, monitoring reports, design criteria, etc.) to a publicly accessible internet site.  Citizens groups and their allies at public interest law firms will be able to monitor those sites at low cost and immediately identify instances of noncompliance.  Citizens groups will be able easily ascertain if a facility is (1) complying with recordkeeping and reporting requirements; (2) satisfying substantive criteria (such as pH or concentration of pollutants); and (3) undertaking corrective actions.  Experience under the Clean Water Act storm water discharge permit program–which requires submittal of compliance documents that are made publicly available by state regulators and EPA–has shown that environmental groups monitor public reporting and will initiate citizen suits for perceived violations of environmental laws.[13]

   [1]   See Hazardous and Solid Waste Management System; Disposal of Coal Combustion Residuals from Electric Utilities (prepublication draft) (the “Coal Ash Rule”) at 7.

   [2]   Id. at 34.

   [3]   See Hazardous and Solid Waste Management System; Identification and Listing of Special Wastes; Disposal of Coal Combustion Residuals From Electric Utilities, 75 Fed. Reg. 35,128 (June 21, 2010) (the “Proposed Coal Ash Rule”).

   [4]   Coal Ash Rule at 684-685; 40 C.F.R. § 257.94(e).

   [5]   Coal Ash Rule at 85-97.

   [6]   Id. at 94-96.

   [7]   See 42 U.S.C. § 6972.

   [8]   See 42 U.S.C. § 6943.

   [9]   See Comments of Earthjustice, et al., Docket EPA-HQ-RCRA-2009-0640-6315 at 7.

  [10]   See 42 U.S.C. § 6925(a).

  [11]   See Proposed Coal Ash Rule, 75 Fed. Reg. at 35,158.

  [12]   See Dylan Loven et al., EPA coal ash standards a setback for environmental groups, Associated Press (Dec. 20, 2014).

  [13]   See, e.g., Clean Water Action v. Safety-Kleen Systems, Inc., Case No. 14-13606 (D. Mass.) (Citizen suit brought under Clean Water Act alleging defendant’s failure to comply with reporting, monitoring, and sampling requirements of stormwater discharge permit).

Gibson, Dunn & Crutcher lawyers are available to assist in addressing any questions you may have about these developments.  To learn more about the firm’s Environmental Litigation and Mass Tort Group, Energy and Infrastructure Group or Energy, Regulation and Litigation Group, please contact the Gibson Dunn attorney with whom you usually work, or the authors in the firm’s Washington, D.C. office:   

Raymond B. Ludwiszewski (202-955-8665, [email protected])
William S. Scherman (202-887-3510, [email protected])
Charles H. Haake (202-887-3581, [email protected])
Jason J. Fleischer (202-887-3737, [email protected])
Rohan K. Pai (202-887-3772, [email protected])

Please also feel free to contact the following practice group leaders:

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Peter E. Seley – Washington, D.C. (202-887-3689, [email protected])

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