New Requirements Governing the Beneficial Use of Coal Ash Anticipated This Year

January 8, 2010
by BRETT SLENSKY
Client Alert Newsletter Forecast 2010

As discussed in our December 2009 Client Alert in late 2009, the Pennsylvania Environmental Quality Board ("EQB") issued extensive proposed changes to Pennsylvania's residual waste regulations governing the beneficial use of coal ash while the U.S. Environmental Protection Agency ("EPA") was considering a new federal regulatory approach, including possibly regulating coal ash as a hazardous waste. This year we expect both of these efforts to continue and anticipate the issuance of EQB's final coal ash regulations, as well as EPA's draft rule, in the near future.

With regard to EQB's proposed regulations, the EQB received a wide array of comments from numerous stakeholders (e.g., trade and industry associations, coal ash generators, environmental interest groups, individuals, and Pennsylvania's Independent Regulatory Review Commission) during the public comment period, which closed on December 22, 2009. These comments, which the EQB is expected to address as part of the final regulatory package, included requests for EQB to further assess the need for the regulations in light of the existing regulatory framework, to further justify the content and placement limitations contained in the new regulations and to address how the transition of previously approved coal ash sites and operations will be handled. When final, Pennsylvania's new expanded requirements are likely to have a significant impact on those that generate coal ash as well as those that beneficially use coal ash for a variety of purposes.

At the federal level, the White House reportedly held more than twenty meetings with EPA and various stakeholders in late 2009 to discuss the potential impact of treating coal ash and other coal byproducts as hazardous waste. In the wake of these meetings, EPA announced on December 17, 2009, that it intended to delay publication of the draft rule for a short period of time due to the "complexity of the analysis" and to allow the agency more time to clarify and refine parts of the proposal. Many of those in the regulated community continue to be strongly opposed to the potential regulation of coal ash as a hazardous waste while other stakeholders favor this approach. Given this tension and other divisions between those on both sides of this issue, a protracted public comment period is expected to follow EPA's issuance of the draft rule.