Federal judge gives EPA a deadline on coal ash rule schedule

A federal judge on Oct. 29 ordered the U.S. Environmental Protection Agency to report back soon on just when it plans to issue a long-delayed final rule, which was first proposed in 2010 in draft form, on coal ash disposal for power plants.

The ruling came from Judge Reggie Walton out of the U.S. District Court for the District of Columbia. He has been handling an April 2012 lawsuit filed by environmental groups like Appalachian Voices designed to force issuance of that ash rule, and two other lawsuits that have been combined into the environmental group lawsuit from coal ash recyclers Headwaters Resources and Boral Material Technologies.

The environmental groups are known collectively as the Environmental Plaintiffs, while Headwaters and Boral are known as the Marketer Plaintiffs.

“Upon careful consideration of the parties’ submissions, the Court concludes that it must grant summary judgment to the EPA on the Environmental Plaintiffs’ first and third claims, and grant summary judgment in part to the Environmental Plaintiffs and to the Marketer Plaintiffs on their shared claim,” the judge wrote.

The Environmental Plaintiffs filed this action asserting three claims for relief based on the EPA’s alleged failure to review and revise, as necessary, its solid waste disposal regulations at least every three years. They asserted that the EPA has failed to fulfill this obligation with respect to a federal regulation which provides that coal ash is not a hazardous waste, regulations under Subtitle D concerning coal ash and the toxicity characteristic for classification of hazardous wastes.

EPA offered two basic alternatives in 2010; to regulate coal ash as a regular waste, and the massively more expensive option of classifying it as a toxic waste.

The Environmental Plaintiffs requested that the court order the EPA to conclude its review and revision within six months of this court’s order. The EPA, on the other hand, asked that the court defer setting a deadline for the EPA’s completion of review and promulgation of any necessary revisions, and instead permit the agency to file a brief within six months of this court’s decision proposing a final deadline.

EPA said it is in the process of conducting its review of the regulations at issue, and insists that it needs additional time in order to “review these regulations in a manner that will result in an outcome that is scientifically sound and legally defensible.”

Judge says EPA has obviously made progress on this rule so far

Judge Walton said in his Oct. 29 ruling: “The Court is sensitive to the EPA’s desire to conduct its review and revision of the regulations at issue in a responsible fashion and is cognizant that the Agency is in the best position to assess the time in which it will be able to do so. However, the Court cannot permit the EPA to set its own schedule to the extent that the EPA’s non-discretionary duty is pursued in a manner dictated solely by the Agency’s discretion. In view of the competing considerations at stake here, the Court finds it prudent to require the EPA to submit a proposed scheduling order setting forth a proposed deadline by which it will comply with its statutory obligations, particularly given the progress that the Agency presumably would have already made while the motions that have been addressed in this opinion were being briefed and then were under consideration by the Court.”

The judge added: “For example, the EPA cites the need to review the 450,000 comments it received on its proposed rule as a primary objection to the plaintiffs’ proposed deadline. But given the time that has already elapsed and the EPA’s recognition of the need to revise its coal ash regulations, it is entirely possible that review of these comments has now been completed and no longer stands as a barrier to expedited completion of the process. The Court therefore requires updated information from the Agency regarding the status of its review and revision to properly fashion a schedule for the EPA’s compliance with its obligation to review and revise if necessary its Subtitle D regulations concerning coal ash. The EPA requests six months to make this determination, but considering the time that has elapsed since that request was made, the Court finds that sixty days is sufficient.”

The EPA must advise the court within sixty days of this Oct. 29 decision of when it proposes to complete its review and revision of its Subtitle D regulations concerning coal ash. The plaintiffs may then file a response to the EPA’s proposal.

About Barry Cassell 20414 Articles
Barry Cassell is Chief Analyst for GenerationHub covering coal and emission controls issues, projects and policy. He has covered the coal and power generation industry for more than 24 years, beginning in November 2011 at GenerationHub and prior to that as editor of SNL Energy’s Coal Report. He was formerly with Coal Outlook for 15 years as the publication’s editor and contributing writer, and prior to that he was editor of Coal & Synfuels Technology and associate editor of The Energy Report. He has a bachelor’s degree from Central Michigan University.