Regulations on Disposal of Toxic Coal Ash
On April 17, 2015, EPA finalized national regulations on the disposal of coal ash under the Resource Conservation and Recovery Act. Coal ash, the residue left after burning coal, can contain mercury, arsenic and other toxins. Coal ash is disposed in surface impoundments where it mixes with water, also known as "coal ash ponds," which can leak without proper lining. The 2015 rule required any existing unlined coal ash ponds that were causing groundwater contamination above certain levels to stop receiving ash, and also considered ponds with a compacted soil liner to be “lined” for purposes of the rule, and therefore able to continue receiving ash.
Litigation: In August 2018 the D.C. Circuit Court of Appeals vacated the portion of the 2015 rule that permitted unlined coal ash ponds to continue to operate until they caused groundwater contamination, and vacated the portion of the rule that defined ponds with clay linings as “lined” (“USWAG decision”). Prior to the USWAG decision, EPA had promulgated a final rule, in July 2018, extending the deadline for leaking unlined coal ash ponds to stop receiving waste until October 31, 2020. Following another legal challenge, the D.C. Circuit remanded the rule to the EPA for further consideration in light of the USWAG decision.
Deregulatory actions: On July 29, 2019, EPA proposed a rule under which an environmental demonstration would be required when uncapped coal ash is placed within five feet of an aquifer, within 50 feet of a body of water, or within a 100-year flood plain, among other places. On November 4, 2019, EPA also proposed to amend the coal ash rules to accurately reflect the USWAG decision by requiring the closure of all unlined coal ash ponds, including ponds lined with clay and regardless of whether they are currently contaminating groundwater. The proposal would also move the deadline for closing unlined ponds up to August 31, 2020, from October 31. However, the proposal would provide a three-month extension to November 30, 2020, for units that need a bit more time to complete the necessary measures. The proposed rule would also set a deadline of October 15, 2023 for operators who can show a lack of capacity for finding an alternative for their coal ash streams. Finally, the proposal would grant extensions to facilities that plan to shut down coal-fired burners by a certain date: to October 17, 2023 for coal ash ponds 40 acres or smaller, and to October 17, 2028 for coal ash ponds that are larger than 40 acres.
On February 19, 2020, EPA proposed further revising current rules to allow coal ash pond operators to escape the lining requirement by showing that they are using an alternative method to prevent leaks. The proposed revisions would also allow coal ash ponds that are closing to continue to receive coal ash, so long as the operator receives EPA approval. On October 16, 2020, EPA finalized the portion of the proposal allowing operators to use alternate liners. EPA states that it will address the other portion of the proposal in a separate action.
Litigation: On November 24, 2020, environmental groups challenged the final rule in the D.C. Circuit.