coal

Coal Ash

Coal ash is a byprod­uct of burn­ing coal, and includes tox­ic chromi­um, arsenic, lead, alu­minum, boron, iron, sul­fate, sele­ni­um and man­ganese. Coal ash is dan­ger­ous to human health, con­tribut­ing to can­cer, car­dio­vas­cu­lar effects and neu­ro­log­i­cal effects, and can also pose a threat to the health of wildlife and plants. Pow­er plants typ­i­cal­ly dis­pose of coal ash in sur­face impound­ments, often unlined, which leak into sur­round­ing soil, ground­wa­ter and sur­face water. 

In 2015, the Envi­ron­men­tal Pro­tec­tion Agency (EPA), act­ing pur­suant to its author­i­ty under the Resource Con­ser­va­tion and Recov­ery Act (RCRA) to reg­u­late the dis­pos­al of non­haz­ardous” sol­id waste, issued a final rule gov­ern­ing the dis­pos­al of coal ash in land­fills and sur­face impound­ments. The rule required unlined impound­ments to close or retro­fit with­in six months of the detec­tion of coal ash leak­ing into ground­wa­ter. Addi­tion­al­ly, sur­face impound­ments that would oth­er­wise be required to cease receiv­ing coal ash may con­tin­ue to receive coal ash past the clo­sure date, under an alter­na­tive clo­sure pro­vi­sion, if cer­tain con­di­tions are met. 

Envi­ron­men­tal orga­ni­za­tions and indus­try groups chal­lenged var­i­ous pro­vi­sions in the 2015 RCRA rule in the Dis­trict of Colum­bia Cir­cuit Court of Appeals. 

2017-2021

  • August 2018

    In August 2018, the D.C. Cir­cuit released its deci­sion, vacat­ing as arbi­trary and capri­cious under the Admin­is­tra­tive Pro­ce­dure Act (APA) the pro­vi­sion that allowed unlined sur­face impound­ments to con­tin­ue receiv­ing coal ash unless they leak. This pro­vi­sion was remand­ed back to the agency. The court also reject­ed industry’s con­tention that the agency in devel­op­ing the alter­na­tive clo­sure pro­vi­sion was required under RCRA to take into account the cost and the incon­ve­nience asso­ci­at­ed with clo­sure of sur­face impoundments.

  • Decem­ber 2019

    On remand back to the agency, the EPA in Decem­ber 2019, released the first part of its pro­posed changes to clo­sure reg­u­la­tions for land­fills and sur­face impound­ments. The pro­posed rule allows plant own­ers to con­sid­er cost and con­ve­nience in the alter­na­tive clo­sure pro­vi­sion as long as the own­ers also con­sid­er oth­er fac­tors. Fur­ther, the pro­pos­al allows all coal ash sur­face impound­ments, includ­ing unlined impound­ments, required to close under the 2015 rule to qual­i­fy for the expand­ed alter­na­tive clo­sure provision.

  • Jan­u­ary 2020

    In Jan­u­ary 2020, Mary­land Attor­ney Gen­er­al Bri­an Frosh led a coali­tion of five attor­neys gen­er­al in sub­mit­ting com­ments in oppo­si­tion to the EPA’s Decem­ber 2019 pro­posed weak­en­ing of the 2015 rule (“Coal Ash Pro­pos­al”) and a relat­ed pro­pos­al to weak­en Clean Water Act lim­its on the dis­charge of coal ash into pro­tect­ed waters (“ELG Pro­pos­al”). More infor­ma­tion about the oppo­si­tion of the attor­neys gen­er­al to the ELG Pro­pos­al is avail­able here.

    The com­ments not­ed that allow­ing for the con­sid­er­a­tion of cost and con­ve­nience in the alter­na­tive clo­sure pro­vi­sion vio­lates both RCRA and the D.C. Circuit’s August 2018 deci­sion that bar the agency from allow­ing cost and con­ve­nience to be con­sid­ered in clo­sure deci­sions. The attor­neys gen­er­al also point­ed out that the expand­ed alter­na­tive clo­sure pro­vi­sion arbi­trar­i­ly and capri­cious­ly vio­lates the APA in pro­vid­ing the own­ers and oper­a­tors of coal ash sur­face impound­ments more time to com­ply with their oblig­a­tion to close the impound­ments despite hav­ing been aware of their oblig­a­tion since EPA’s pro­mul­ga­tion of the coal ash RCRA rule in 2015.

  • March 2020

    In March 2020, the EPA released the sec­ond part of its weak­ened clo­sure reg­u­la­tions for tox­ic coal ash sur­face impound­ments. The pro­posed rule would allow cer­tain coal ash sur­face impound­ments, includ­ing those with a his­to­ry of leak­ing, to poten­tial­ly remain open indef­i­nite­ly. In addi­tion, the pro­pos­al would per­mit addi­tion­al coal ash to be added to sur­face impound­ments that are closing.

  • April 2020

    In April 2020, Mary­land Attor­ney Gen­er­al Frosh led Illi­nois Attor­ney Gen­er­al Kwame Raoul and Michi­gan Attor­ney Gen­er­al Dana Nes­sel in fil­ing com­ments oppos­ing the EPA’s roll­back. The coali­tion high­light­ed that by allow­ing inad­e­quate­ly lined coal ash sur­face impound­ments to remain open, the EPA is ignor­ing the evi­dence of the envi­ron­men­tal and pub­lic health dan­gers of leak-prone coal ash dumps, which have a 9.1 per­cent chance of con­t­a­m­i­nat­ing near­by drink­ing water wells. Con­se­quent­ly, the pro­pos­al also vio­lates RCRA as the statute requires that sur­face impound­ments pose no rea­son­able prob­a­bil­i­ty of adverse effects on health or the envi­ron­ment from sol­id waste disposal.

  • August 2020

    In August 2020, EPA pub­lished the final rule for the first part of its pro­posed changes to clo­sure reg­u­la­tions for land­fills and sur­face impoundments. 

  • Octo­ber 2020

    In Octo­ber 2020, the EPA pub­lished the final rule for the sec­ond part of its roll­back of clo­sure reg­u­la­tions, allow­ing cer­tain unlined impound­ments to remain open indefinitely.