Coal Ash Issue Flashcards
Significance of Coal Ash Problem
- b/c of West Virginia v. EPA, EPA trying to figure out ways to make coal combustion more costly so it goes out of business
Why worry about coal ash?
- HUGE amount of it (more than 100 million tons per year) and it contains really hazardous chemicals (in burning, you often get breakdown into the chemicals themselves, now concentrated in ash)
- BUT also has useful products - incentive on the other side not to go after the coal ash too intensely b/c if you call it hazardous waste you lose the beneficial parts of the industry (not sham recycling, the products are legit useful)
Disposal Options for Coal Ash
- vast majority disposed of in landfills/surface impoundments (not automatically in Subchapter C of RCRA b/c a congressman from a coal state added a provision to RCRA specifically saying the ash isn’t automatically in C but can be put there if EPA studies and decides it should be)
- 70% of landfills and 65% of surface impoundments lack liners
- even those with liners can suffer catastrophic structural failures
- legacy ponds: located at inactive power plant sites
Why is coal ash not in Subchapter C of RCRA?
- Representative Bevill of Alabama - added a provision on coal ash saying not automatically in subchapter C, but the administrator of EPA can study and decide if they should be (Section 3001(b)(3)(A) and (C))
- Section 8002(n) - says the administrator shall publish a report within 24 months of the 1980 amendments - needs to study adverse effects of coal ash on human health and environment
Applicable Env Laws
- Clean Air Act
- RCRA
- Clean Water Act
- also Safe Drinking Water Act and broader env justice issues
Clinton Administration and Coal Ash
- 1993 - studied the issue and decided subchapter D was best for regulation of coal ash
- 2000 - final rule on the coal ash -> says no regulation under Subchapter C, national regulation under Subchapter D warranted for when its disposed of in landfills or surface impoundments, + no regulations warranted for coal combustion wastes that are used beneficially (says doesn’t want to create unnecessary barriers to beneficial use)
Kingston Coal Ash Spill
- December 2008 in Tennessee
- destroyed 80 acres of aquatic systems
- TVA spent 4 yrs and $1.2 billion to remove CCR and sediment, and construct new disposal unit
Obama Admin and Coal Ash
- 2010 - proposed rule that sets out two different proposals (one for Subchapter C and one for Subchapter D regulation)
- think they wind up going with the subchapter D rule b/c they’re concerned about the market for coal combustion residuals
Earthjustice Lawsuit - Coal Ash
- April 2012
- sues EPA to establish first-ever coal ash protections under RCRA -> finally gets issued in 2015, but winds up being under Subchapter D
Obama Admin - Coal Ash Final Rule
- goes with subchapter D
- beneficial use has significant environmental benefits (GHG reduction, energy conservation, reduction in land disposal)
Minimum national criteria for coal ash landfills and surface impoundments:
- location restrictions (aquifers, wetlands)
- linear design criteria (liners, leachate collection systems)
Utility Solid Waste Activities Group v. EPA
- 2018
- involves challenges to the 2015 final rule on coal ash
- Waterkeeper Alliance, et al. = intervenors
Utility Solid Waste - Legal Issues for Environmentalists
-unlined surface impoundments: the EPA’s final rule says existing, unlined surface impoundments CAN continue to operate until they cause groundwater contamination -> Waterkeeper says this conflicts with RCRA’s baseline req that any solid waste disposal site pose “no reasonable probability of adverse effects on health or environment”
- clay-lined surface impoundments: get to stay open subject to groundwater monitoring, like the unlined surface impoundments, but EPA said they don’t need to begin closure when discovered to be leaking -> also runs into no reasonable probability issue
- legacy ponds: basically, these are exempt from preventative regulations if they’re inactive impoundments at inactive facilities - EPA said could wait to intervene when substantial harm imminent or try to remediate damage after harm occurs (env people didn’t buy the difficulty of locating the owners/operators responsible)
Utility Solid Waste - Decision
- DC Circuit vacated the reg that allowed for continued operation of unlined impoundments and a provision that treated clay-lined units as if lined
- also found the legacy ponds exemption unreasoned and arbitrary
- rejected industry claims that EPA only has the authority to regulate active impoundments
Trump Admin - Coal Ash
- August 2020 final rule - allows for postponement of closure of coal ash disposal sites
- November 12, 2020 final rule - permits coal ash disposal sites to continue to operate, even if lacking composite liners, based on showing “no reasonable probability” of groundwater contamination
Trump Admin - Significance of August 2020 Rule
Prior Obama rule allowed companies to self-certify compliance with requirements for extension
- no EPA role in admin + enforcement, no required State enforcement, just left to citizen suits
New Trump rule required companies to apply to EPA for extension by demonstrating compliance with regulatory requirements for extension
- gave all unlined ponds until April 2021 to secure extension
