Bergeson & Campbell, P.C.

Legal lookout: competing coal ash proposals

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Courtesy of Courtesy of Bergeson & Campbell, P.C.

Depending upon comments the EPA gathers, industry may have to or not have to close out their coal ash containment ponds within five years.

On May 4, 2010, EPA issued its long-awaited proposal to manage coal ash – the byproduct of burning coal to generate power. The agency proposed two quite different approaches for regulating coal ash, somewhat to the consternation of critics, who had hoped for more stringent regulation.


Coal ash contains, among other substances, mercury, cadmium and arsenic. According to EPA's risk assessment, these contaminants could leach into groundwater and migrate to drinking water sources. The proposed rule is intended to prevent the type of disaster that occurred in 2008, when a coal ash containment pond at the Tennessee Valley Authority's Kingston Fossil Plant in eastern Tennessee ruptured and spilled more than 5 million cu. yards of ash across approximately 300 acres. The cleanup is estimated to cost $1.2 billion.

Different regulatory approaches

The proposal presents two options and calls on the public for comments to address the risks of coal ash management under the Resource Conservation and Recovery Act (RCRA). The first option from RCRA Subtitle C creates a comprehensive program of federally enforceable requirements for materials designated as hazardous waste. The second option includes remedies under Subtitle D, which gives EPA authority to set performance standards for waste management facilities and would be primarily enforced through citizen suits.

Under either approach, the so-called Bevill exemption for beneficial uses of coal ash could be applied. EPA acknowledges that large quantities of coal ash are used today in concrete, cement, wallboard and other contained applications.

There are key differences between RCRA Subtitle C and Subtitle D regulation. For example, under Subtitle C, stringent regulations apply to the storage of materials in containers, tanks and containment buildings. For surface impoundments built before the final rule is issued, solids would need to be removed and the impoundment would need to meet land disposal restrictions and be retrofitted with a liner within five years of the effective date. For impoundments built after the effective date of the rule, they must meet land disposal restrictions and liner requirements and would eventually phase out the use of new surface impoundments. Federally enforceable permits also would be required.

In contrast, under Subtitle D, surface impoundments not retrofitted with a composite liner would need to cease accepting coal combustion residuals within five years of the rule's effective date and be closed. In addition, no requirements would apply for storage in containers, tanks, or containment buildings. No permit would be required.


Differences between RCRA Subtitle C and Subtitle D have long been recognized as significant, the latter being substantially less costly and stringent. Some public interest groups, including the Natural Resources Defense Council, expressed disappointment with EPA's decision to propose both approaches as options, believing the Subtitle C regulation is plainly required. Industry groups, on the other hand, praised EPA for keeping an open mind.

EPA allowed 90 days for comment, seeking remarks on how best to frame the continued exemption of beneficial uses in the regulation, and particularly on whether the exemption should exclude certain non-contained applications where contaminants in coal ash could pose risks to human health. Stakeholders on both sides of the debate are expected to comment, leaving the agency another opportunity to select the final approach. PE

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