Coal Ash Proposed Rules Expected by Year's End

May 8, 2009
by BRETT SLENSKY
Client Alert Newsletter May 2009

The U.S. Environmental Protection Agency ("EPA") is currently working with the regulated community, states and other federal agencies to gather information on coal ash storage practices and related issues, which EPA will then use to formulate its proposed regulations expected to be issued by year's end. In light of EPA's action, the House Natural Resources Committee announced that it will not pursue its legislation introduced earlier this year (H.R. 493, the Coal Ash Reclamation, Environment and Safety Act of 2009) which would have given the Interior Department the authority to regulate coal ash. One divisive issue likely to be addressed by EPA in its proposed rules will be the continued classification of coal ash as a non-hazardous waste.

The Pennsylvania Department of Environmental Protection ("PADEP") is also working on draft coal ash regulations and on March 19, 2008, PADEP’s Solid Waste Advisory Committee ("SWAC") voted to forward draft regulations to the Environmental Quality Board ("EQB") for proposed rulemaking. The current formulation of the draft regulations (proposed Chapter 290 of the Pennsylvania Code) address coal ash beneficial use and storage, and incorporates, with modifications, PADEP's existing regulations found at 25 Pa. Code § 287.662-.666, as well as a number of the requirements presently found in PADEP's other pertinent policy documents. The EQB is anticipated to act on the draft regulations later this year, and significant public comment is anticipated following EPA's and EQB's issuance of proposed rules.