EPA Coal Ash Rule Will Foster Citizen Suits

EPA has issued its final rule regarding the disposal of coal combustion residuals (CCRs). After seeking comments on whether to regulate CCRs as a hazardous or solid waste, it decided to regulate CCRs as a solid waste under subtitle D of the Resource Conservation and Recovery Act (RCRA), issuing minimum national standards for new and existing surface impoundments and landfills. The rule was published April 17.

CCRs include fly ash, bottom ash, boiler slag and flue gas desulfurization materials — when destined for disposal — generated from combusting coal at coal-fired electric utility plants within North American Industry Classification System Code 221112. CCRs can be generated wet or have water added to them. If so, they are managed in a wet disposal system in which materials are sluiced via pipe to a surface impoundment. CCRs that are generated dry can be sent to landfills for disposal.

The minimum national standards include location restrictions; design and operating criteria; groundwater monitoring and corrective action; closure requirements and post closure care; and recordkeeping, notification and Internet posting requirements. The rule is effective six months from the date of publication in the Federal Register. For existing units, compliance deadlines range from six months to 42 months from the effective date. For new units, compliance must be achieved prior to the use of the unit.

Under subtitle D, a facility is classified as an “open dump” if it does not meet these standards within the deadlines set out in the rule. Thus, each minimum national standard must be met. If not, the facility will be classified as an open dump and be required to close or upgrade to meet the standards.

Existing surface impoundments seem to bear the brunt of the rule, especially with the location standards and the liner requirements. The owner must certify each unit meets each location standard. If the unit does not meet the specific standard, an alternative, equally effective standard is provided. For liners, an existing surface impoundment must certify whether or not the unit was constructed with a minimum of 2 feet of compacted soil with a specified hydraulic conductivity, a composite liner or an alternative composite liner.

The method of enforcement under the rule presents a challenge for owners or operators of CCR units. As there is no authority for EPA to enforce the standards under subtitle D, EPA encouraged the use of citizen’s suits under RCRA. There are many citizen groups opposed to the use of coal that will likely seek to vigorously enforce the standards under this provision. This may result in a flood of suits over a variety of potential areas of noncompliance.

Under the rule, a facility is required to post compliance-related information on the Internet, creating a wealth of information that may be utilized by citizens. Like a discharge monitoring report filed with a state agency, the information submitted to the agency and/or posted on the Internet by the company will be difficult, if not impossible, to refute. The citizen’s case is proven by the owner’s own information.

An owner can protect itself by taking at least two important steps. First, make sure the certification of compliance with the location or liner standard — or the alternative standard as the case may be — is certified by a respected professional engineer and is accurate, supported by reliable evidence, and fully and completely documented. Second, when a citizen suit notice is received (which must be sent 60 days prior to suit), arrange to meet with the group and applicable state agency to go over all of the evidence in an attempt to establish the standard has been met. Admittedly, this may be problematic for a number of reasons and may not dissuade the most ideological of groups, but the owner will have done what it can to avoid a suit.

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