EPA's Coal Ash Rule: Implications for Regulated Entities, Results for the Environment

Date01 December 2015
12-2015 NEWS & ANALYSIS 45 ELR 11089
EPAs Coal Ash Rule: Implications
for Regulated Entities, Results
for the Environment
e disposal of coal ash, a combustion byproduct
from coal-red power plants, came to national atten-
tion when, on December 22, 2008, the Tennessee
Valley Authority Kingston power plant suered one of
the largest coal ash spills in history. e Duke Energy
Dan River spill on February 2, 2014, reignited the
focus on the handling of coal ash. In December 2014,
the U.S. Environmental Protection Agency Admin-
istrator signed a rule that, for the rst time, regulates
the disposal of coal ash. Under the new rule, coal ash
is to be regulated as a solid waste under Subtitle D of
the Resource Conservation and Recovery Act, not as a
hazardous waste. e rule also provides new national
minimum criteria for the coal ash disposal. On March
24, 2015, the Environmental Law Institute convened
a panel of experts to provide an in-depth examination
of the nal coal ash rule. Below we present a transcript
of the discussion, which has been edited for style, clar-
ity, and space considerations.
Tom Mou nteer (moderator) is a Partner at Paul H ast-
ings and a lecturer at George Washi ngton University
Law Sc hool.
Lisa W idawsky Hallowell is an attorney with the Envi-
ronmental Integrity Project.
Douglas H. Green is a Partner at Venable LLP.
Tom Mounteer: Today’s topic is the nal coal ash rule1
issued by the U.S. Environmental Protection A gency
(EPA) on December 19, 2014, pursuant to the Resource
1. U.S. EPA, Disposal of Coal Combustion Residuals From Electric Utilities,
80 Fed. Reg. 21302 (Apr. 17, 2015). At the time of this seminar, the rule
had not yet been published in the Federal Register. It was released on Decem-
ber 19, 2014, but it was not published in the Federal Register until April 17,
2015, which began the 90-day clock for ling a challenge. Several entities,
including both the Utility Solid Waste Activities Group and the Environ-
mental Integrity Project, challenged the rule in the U.S. Court of Appeals
for the District of Colulmbia (D.C.) Circuit in August. e r ule went into
eect 180 days after publication, on October 19, 2015.
Conservation and Recovery Act (RCRA).2e rule con-
cerns managing coal combustion residuals (CCRs). CCRs
are y ash trapped in air pollution control equipment, bot-
tom ash that collects on boilers’ oors, and scrubber sludge
generated by plants using wet limestone scrubbers for air
pollution control. We’re talking about t wo general types
of land-based management units for this material: land-
lls that receive dr y CCRs and can be located osite from
the coal-red power plant; and surface impoundments or
ponds typica lly on the power plant’s property into which
CCRs are sluiced with water.
Let me begin by introducing our two panelists. Lisa
Hallowell is an attorney with the Environmental Integrity
Project. Her focus is on reducing pollution from coal ash
disposal sites. Doug Green chairs Venable’s Environmental
Practice Group and is lead counsel for the Utility Solid
Waste Activities Group, which he ha s represented for 25
years on solid and hazardous waste management issues.
In our discussion today, we’re going to assume that
our audience members have a general familiarity with the
regulatory scheme of RCRA: its Subtitle C cradle-to-grave
regulation of hazardous wa ste; and its Subtitle D reg ula-
tion of solid waste such as municipal trash that is generally
left in the ha nds of states.3 For those of you who are look-
ing for more background information, let me refer you to
a few sources. First, EPA’s web page on coal ash regulation,
epa.gov/coalash. I pa rticularly call your attention to an
EPA PowerPoint slideshow available t here.4 I also recom-
mend the websites of our panelists’ organizations. If you
go to the coal issue area on the Environmental Integrity
Project’s website, environmentalintegrity.org, you’ll nd
the Ashtracker function, among other things. And if you
click on the public resources feature on the Utility Solid
Waste Activities Group, USWAG.org, they too have post-
ings regarding the CCR issue. Finally, I notice that a D.C.
2. 42 U.S.C. §§6901-6992k, ELR S. RCRA §§1001-11011.
3. RCRA Subtitle C, 42 U.S.C. §§6921-6939e, authorizes EPA to regulate
hazardous wastes from cradle to grave, including the generation, transporta-
tion, and treatment, storage, or disposal of hazardous wastes. Subtitle D,
42 U.S.C. §§6941-6956, addresses nonhazardous solid wastes, such as mu-
nicipal and household waste, as well as certain hazardous wastes that are
exempted from the Subtitle C regulations.
4. U.S. EPA, Coal Ash Final Rule Webinar Presentation Slides (Mar. 4, 2015),
Copyright © 2015 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.

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