Federal environmental law governing coal ash ponds used by many regulated electric utilities remains uncertain after a flurry of recent activity at the Environmental Protection Agency and in the courts. This update addresses the recent controversies surrounding the EPA’s regulation of coal ash ponds, disagreements among the federal district and appellate courts on which environmental laws apply, and how coal ash pond owners can best insulate themselves from this uncertainty and the associated increased regulatory costs.
EPA Rules Regulating CCRs Under the Resource Conservation and Recovery Act
On the regulatory front, the EPA issued final rules in April 2015 regulating coal combustion residuals (CCR) under Subpart D of the Resource Conservation and Recovery Act. Put simply, RCRA Subpart D prohibits “open dumps,” which RCRA defines as sites where solid waste is disposed of in a way that does not ensure “no reasonable probability of adverse effects on health or the environment from disposal of solid waste at such facility.”[1] In August 2018, the U.S. Court of Appeals for the District of Columbia Circuit vacated much of the EPA rule, finding that it failed to meet the RCRA standard of “no reasonable probability of adverse effects.”
Prior to the court’s ruling, on July 30, 2018, the EPA issued a revised final rule concerning CCR which would, among other things: (1) allow states with approved CCR programs to use alternate performance standards; (2) revise the groundwater protection standards for four constituents that do not have an established Maximum Contaminant Level under the Safe Drinking Water Act; and (3) provide facilities that would be triggered into closure by the regulations with additional time to cease receiving waste and initiate closure.[2] In October 2018, environmental groups filed a petition for review in the D.C. Circuit,[3] claiming the new rule is designed to gut the EPA’s 2015 coal ash disposal regulations that the D.C. Circuit found did not go far enough toward meeting the RCRA standard of “no reasonable probability of adverse effects.”
Rather than fight the lawsuit, EPA requested a voluntary remand so that the agency could reconsider its new CCR rule in conjunction with its reconsideration of the prior 2015 rule. On March 13, 2019, the D.C. Circuit granted EPA’s request.
Environmental Groups’ Report on Leaking Coal Ash Ponds
On March 4, 2019, the Environmental Integrity Project and Earthjustice jointly published their analysis of groundwater monitoring data posted on power companies’ websites in 2018 pursuant to the CCR rule requiring that such data be reported and posted. This environmental group report received widespread publicity for its conclusion that the vast majority of the ponds and landfills were leaking unsafe levels of contaminants into the groundwater. According to the report, the contamination at a site typically involves multiple chemicals, and the majority of coal plants had unsafe levels of at least four toxic coal ash constituents in the groundwater.
This report follows other widely reported concerns raised last year regarding flooding at coal ash sites in the wake of Hurricane Florence. Given the published groundwater monitoring data and the publicity surrounding the vulnerability of some coal ash ponds and landfills to weather-related events, coal power plant owners clearly face renewed risks of lawsuits seeking to recover damages for exposure to coal ash constituents.
Status of Contractor Remediation Litigation Against the Tennessee Valley Authority
The risk to coal power plant owners is illustrated by a recent Tennessee federal court decision involving injuries and illnesses suffered by remediation workers who participated in the cleanup of a 2008 coal ash spill at the Tennessee Valley Authority’s...
