Environmental Law Matters

Last December, EPA announced its final rule regarding the management of coal combustion residuals ("CCR" a/k/a "coal ash"). This came several years after initial alternative proposals were offered for public comment, and the Agency's subsequent review of over 450,000 written comments. The announcement reflected a decision to regulate CCR as a non-hazardous waste under Subtitle D of the Resource Conservation and Recovery Act ("RCRA"). Such a classification had been supported by the power industry and industry groups and businesses that use coal ash in manufacturing and construction. This meant, in turn, that the material would not be regulated as a hazardous waste under the more stringent requirements of Subtitle C of RCRA, a classification that had been urged by many environmental interest groups during the comment period and in subsequent lobbying with the Agency and the White House. Although the rule has not yet become final since it has not yet been published in the Federal Register, Congress appears to be moving quickly on legislation intended to limit certain aspects of the rule. As a result, the opposing sides in the original rulemaking process are at odds again, but now urging different positions regarding the merits of the rule announced by EPA. Environmental groups find themselves in a position of supporting the rule as announced by EPA while industry groups are seeking changes through the Congressional process. After urging EPA to adopt the less restrictive Subtitle D classification, utilities and coal ash recyclers are supporting a bill sponsored by Representative David McKinley (R-W.Va.) that would put into law a version of the rules, but with certain changes that would address industry concerns. The legislation is intended to formalize the process of regulating coal ash by focusing primarily on state enforcement authorities and requiring the states to develop enforceable permits for such units. In part, this is intended to address industry concerns that the EPA may impose more stringent regulations under the hazardous waste program at a later date. Rep. McKinley's bill appears to be on something of a fast track in the House. It was publicized in draft form in mid-March. (The Hill, March 12). Within two weeks, a House subcommittee of the Energy and Commerce Committee had conducted hearings and passed the legislation out of subcommittee to the entire committee. (The Hill, March 25). During committee hearings prior to the vote, Mathy Stanislous, EPA's Assistant Administrator for Solid Waste, voiced concern that the legislation eliminated certain key components of the regulations including the availability of information to the public. However, EPA did not take the position in opposition of the legislation, and three Democrats on the subcommittee supported it along with all of the Republican members. As noted, many in the environmental community are now supporting the EPA's rule even though it does not regulate coal ash as a hazardous waste. Thus, environmental groups are seeking to organize opposition to the McKinley legislation. (See for example: the Clean Energy.org website) The issue certainly has practical ongoing effects. A recent NPR report (here) about the coal ash spill into the Dan River in North Carolina reflects not only the substantial monetary penalty that the State has proposed for Duke Energy, but also the effort to identify and approve a location for a landfill to receive the CCR.