Environmental Law Matters

Updating an ongoing issue related to options for new ash regulations, the U.S. House of Representatives passed the Coal Residuals Reuse and Management Act (H.R. 2218) on July 25, 2013. The legislation would regulate the ash from coal-fired power plants by classifying it as a solid waste under Subtitle D of the federal Resource Conservation and Recovery Act. The prospect of some form of enhanced regulation of coal ash has been a contentious issue for several years. Following a 2008 breach of a coal ash impoundment operated by TVA in Kingston, Tennessee, the Environmental Protection Agency proposed alternative regulatory options, one that would classify the ash as a hazardous waste and the other that would regulate the material as a solid waste. After alternative draft regulations were published, EPA received over 450,000 comments, many of which focused on various problems with regulation of the material as a hazardous waste. Such regulation would necessitate management of the materials in permitted hazardous waste landfills or disposal units, and the existing permitted disposal capacity would be overwhelmed in such an event. The prospect of attempting to permit and build new hazardous waste disposal facilities is likely to meet substantial opposition (and delay) from communities where such facilities are proposed. Finally, but significantly, much of the ash is currently used in a number of products including concrete, wallboard, and roadbed construction. Classification of the ash as hazardous waste would almost certainly end these beneficial reuses out of concern over litigation and potential liability issues. Thus, since the public comment period ended in November, 2010, EPA has apparently been unable to select one of the two options and issue final regulations. Arguably, part of this delay has been due to the attention the issue received during the last Congress, and which has carried over to the current session that began in January. The bill passed by the House would settle the regulatory question without EPA action. It also is an indication that prospects for overall Congressional approval appear to be good. The House bill as approved is very similar to a bill introduced previously in the Senate with strong bipartisan support. Furthermore, EPA officials formally signaled a willingness to work with Congress on such legislation during a hearing on the issue held by a House subcommittee in April. EPA has been unwilling to commit to a definitive schedule to issue a final rule, and the delay indicates that the Agency has recognized that Congress is likely to act and is giving that prospect every opportunity to develop. For more information on environmental law topics, please contact one of the Burr & Forman team members for assistance. We are happy to answer any questions or concerns you may have.