EPA Issues Proposal to Regulate Coal Ash

May 8, 2010
by BRETT SLENSKY
Client Alert Newsletter May 2010

On May 4, 2010, the U.S. Environmental Protection Agency ("EPA") issued its long-awaited draft proposal to regulate the disposal of coal combustion residuals ("CCRs", more commonly referred to as coal ash) under the Resource Conservation and Recovery Act ("RCRA"). The proposal represents EPA's first effort to regulate the disposal of coal ash at the national level and includes two alternative regulatory approaches for these materials when destined for disposal in a landfill or surface impoundment: a regulatory scheme enacted under RCRA Subtitle C and one enacted under RCRA Subtitle D.

Under the Subtitle C proposal, the regulatory framework would generally entail the development of state or federal permit programs, include requirements for related storage, manifest, transport, and disposal activities, and include mechanisms for corrective action and financial responsibility. The Subtitle D proposal would generally be limited to the establishment of national performance standards for coal ash landfills and surface impoundments. Notably, as part of the proposed rule, EPA is not proposing to regulate the beneficial use of coal ash; however, the agency is seeking public comment on certain beneficial use issues and topics (e.g., the appropriate means to characterize beneficial uses that are both protective of human health and the environmental and provide benefits, information on successful state beneficial use programs, etc.), which could lead to future regulation of this important activity.

EPA released its proposed rule as an unofficial pre-publication version. The official draft proposal is expected to be published in the Federal Register in the near future. Given the numerous tensions and divisions between those on both sides of this issue and the important policy choices that EPA will weigh as it crafts a final rule, extensive public involvement and comment on the draft proposal is anticipated.