November 12, 2018

Coal Combustion Residues Program in Limbo After Court Decision

An August 21, 2018 decision by the U.S. Court of Appeals for the District of Columbia Circuit has sided largely with environmental interest groups regarding EPA’s 2015 coal combustion residues (CCR) rule. [80 FR 21302] The decision in Utility Solid Waste Activities Group et al. v. EPA [Docket No. 15-1219] has multiple components, which generally find the Obama-era rule as not being sufficiently protective of human health and the environment. This action places existing Part 257 federal rules and state CCR program approvals in limbo.

The conclusions drawn from the court’s decision can be separated into four groups. First, the court granted EPA’s motion for a voluntary remand of:

Second, in favor of environmental petitioners, the court vacated and remanded the provisions that:

Third, the court found against environmental groups who had sought review of existing notification regulations requiring owners of CCR units to “maintain a publicly accessible Internet site” on which they disclose specified information about their compliance with the CCR regulations. [§257.107(a)] The court’s decision noted that since the environmental petitioners stood silent during the notice-and-comment rulemaking process, they may not now raise their complaints for the first time in their petition for judicial review.

Finally, siding against industry petitioners, the court found EPA:

The court’s vacatur of parts of the CCR rule has three immediate consequences. To begin with, EPA is now unable to enforce the vacated provisions. In addition, because the court ruled the pre-existing CCR rules were not stringent enough, EPA’s current attempts to relax these rules must now be reevaluated and likely reversed. Last, the impacts on the development and approval of state CCR programs are fairly problematic, so this may slow or stop state program development pending EPA’s actions on the remanded regs.

 


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This document addresses issues of a general nature related to the federal RCRA regulations. Persons evaluating specific circumstances dealing with the RCRA regulations should review state and local laws and regulations, which may be more stringent than federal requirements. In addition, the assistance of a qualified professional should be enlisted to address any site-specific circumstances.