On August 21, 2018, a panel of three judges from the U.S. Court of Appeals for the District of Columbia Circuit vacated large parts of the Obama-era coal ash disposal rule because of its leniency. The court ordered the U.S. EPA to craft stricter disposal mandates for certain legacy sites – those that were constructed prior to the installation of composite liners (with high density polyethylene liners) used to prevent groundwater contamination.
The final rule (Disposal of Coal Combustion Residuals for Electric Utilities) was signed by the EPA administrator on December 19, 2014, and was published in the Federal Register on April 17, 2015. The final rule finalized national regulations to ensure that human health and the environment face “no reasonable probability” of harm from coal combustion residuals (CCRs or “coal ash”) leaking from their storage units and harming human health and the environment. The rule addressed leaking of contaminants into groundwater, blowing of contaminants into the air, and the catastrophic failure of coal ash surface impoundments. Industry filed suits claiming that the rule was too strict, and environmental groups filed suit claiming that the rule did not go far enough to protect human health and the environment.
There have been some changes to the rule since it became effective. In July 2016, the EPA administrator signed a revised rule and companion proposal to extend the compliance deadlines for certain inactive CCR impoundments. The revisions were written to address a partial set aside of the rule ordered by the U.S. Court of Appeals for the District of Columbia Circuit. Earlier this year, (in March of 2018), the EPA administrator signed the first of two rules that propose to amend the 2015 rule.
The August 21, 2018 decision of the D.C. circuit details the three judges opinions of the problems with the rule, stating in part, that requiring groundwater monitoring for contaminant levels greater than human health standards do not adequately protect surface water and the environment (i.e. ecological receptors) from harm. The decision states, “An agency’s failure to consider an important aspect of the problem is one of the hallmarks of arbitrary and capricious reasoning.”
The decision also states that “It is inadequate under RCRA for the EPA to conclude that a major category of impoundments that the agency’s own data show are prone to leak pose ‘no reasonable probability of adverse effects on health or the environment,’ simply because they do not already leak.”
Other statements made by the court:
In the conclusion of the decision, the court denied the EPA’s motion to hold the petitions in suspension pending the revision of the rule; held that “the EPA acted arbitrarily and capriciously and contrary to RCRA in failing to require the closure of unlined surface impoundments, in classifying so-called “clay-lined” impoundments as lined, and in exempting inactive surface impoundments at inactive power plants from regulation.” In response to the industry’s petitions, the court’s conclusion also stated that the EPA did have statutory authority to regulate inactive impoundments; the EPA provided sufficient notice of its intention to apply aquifer location criteria to existing impoundments; the EPA did not arbitrarily issue location requirements based on seismic impact zones; and the EPA did not arbitrarily impose temporary closure procedures.
In September, Hurricane Florence moved into the Carolinas and inundated the area with massive rainfall, resulting in flooding throughout many areas of the states. In North Carolina, environmentalists used the flooding to bolster their argument for stricter controls after the dam at the coal ash pond at Duke Energy’s L.V. Sutton power plant was breached by flood waters. In an unrelated action, environmental groups recently filed suit regarding EPA’s oversight of state coal ash programs, finding fault in particular with Oklahoma’s program and their delegated authority to administer their program. This follows the August 21, 2018 decision from the District of Columbia’s Circuit court that found that the EPA rule was too lenient. This suit claims that because Oklahoma’s program is based on the federal program, it also is too lenient.
At this time, it is unclear what the EPA and the administration will do with the court-required revision of the 2015 rule, but it appears that they have a lot of changes to make. It is also unclear what steps industry will have to take to address unlined CCR disposal units, but it looks to be an expensive undertaking, whether seeking relief from the courts, installing engineering controls to mitigate coal ash contaminants leaching to groundwater, or excavating and relocating CCR to lined ponds or landfills.
Published in Cox-Colvin’s October 2018 Focus on the Environment newsletter.
Steve Williamson is a Senior Scientist with Cox-Colvin & Associates, Inc. He holds a BS degree in Environmental Health and an MS degree in Hydrogeology from Wright State University. Mr. Williamson has over 30 years' experience working on brownfields, solid and hazardous waste, and groundwater contamination projects in Ohio and the Midwest.