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:

The regulations applicable to CCR piles.
The arbitrary limit of 12,400 tons in regulating CCR destined for beneficial use. [§257.53 definition of “beneficial use of CCR”]
The alternative groundwater protection standards of §257.95(h)(2)—These provisions were revised on July 30, 2018. [83 FR 36435]

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

Allow unlined impoundments to continue receiving CCR unless they leak [§257.101(a)]—The court found that EPA acted in an arbitrary and capricious manner as the agency did not consider potential harm to the environment before leakage is detected, nor the harm from continued leakage during the years before leakage is ultimately halted by retrofit or closure.
Classify “clay-lined” impoundments as lined [§257.71(a)(1)(i)]—The court found that evidence shows that clay-lined units are likely to leak and that the existing regs fail to ensure the RCRA statutory requirement of “no reasonable probability” of adverse effects to the environment.
Exempt from regulation inactive impoundments (legacy ponds) at inactive facilities [§257.50(e)]—The court found that risks posed by legacy ponds are at least as substantial as inactive impoundments at active facilities; thus, the legacy pond exemption is unreasoned, arbitrary, and capricious.

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:

Has RCRA statutory authority to regulate inactive impoundments.
Provided sufficient notice of its intention to apply aquifer location criteria to existing impoundments—The court found that the aquifer requirements in the final rule are a “logical outgrowth” of the proposed rule thereby inviting industry’s comment on the topic.
Did not arbitrarily issue location requirements based on seismic impact zones [§257.63]—The court found that EPA’s operating life timeline and 2,500-year earthquake standard are not arbitrary and capricious but were fully explained and supported by the rulemaking record.
Did not arbitrarily impose alternative closure procedures [§257.103]—The court found that EPA is not required to consider costs in developing alternative closure regulations and, in fact, doing so may violate the RCRA statute.

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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