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Environmentalists’ lawsuit seeks to resurrect EPA-tabled coal ash rule

On behalf of 11 environmental and community groups, Sierra Club counsel Earthjustice has filed suit in U.S. District Court for the District of Columbia to force completion of an Environmental Protection Agency rulemaking on power plant coal ash handling and disposal.

Plaintiffs contend the Resource Conservation and Recovery Act (RCRA) requires EPA to update safeguards to waste-rooted public health threats. They attach urgency to a rulemaking based on purported agency data indicating 29 newly identified instances of groundwater contamination from coal ash storage. Stiff opposition from construction and engineering interests concerned with a proposed rule’s effect on the marketability of concrete-grade fly ash has helped prolong review of “Identification and Listing of Special Wastes: Disposal of Coal Combustion Residuals (CCR) from Electric Utilities,” a notice of proposed rulemaking EPA issued in June 2010. A six-month public comment period on the notice drew more than 450,000 responses from individuals and industry or government groups.

The document offers two paths to tighten handling and disposal of landfill-bound CCR. The first would see the agency designate such material as hazardous waste under RCRA Subtitle C; Earthjustice and Sierra Club have championed the option, while insinuating the hazardous waste designation would have no bearing on the viability of fly ash in concrete or other applications where it is routinely recycled.

A second option in “Identification and Listing” would have the EPA defer much regulation and oversight of landfill-bound CCR to state agencies via a RCRA Subtitle D designation. The American Coal Ash Association and other proponents of fly ash recycling have endorsed aspects of the second option, especially in light of its absence of hazardous waste designation and stigma.

The Earthjustice lawsuit would force the EPA to set deadlines for review and revision of relevant solid and hazardous waste safeguards to address coal ash and “long-overdue” changes to the test that determines whether a waste is hazardous under RCRA. As the District Court reviews the merits of the suit and plaintiffs’ standing, separate versions of a bill, The Coal Residuals Reuse and Management Act, preempting EPA designation of a CCR as a hazardous waste remain before the U.S. House and Senate.