On October 19, 2015, U.S. Environmental Protection Agency (EPA) regulations applicable to the disposal of coal combustion residuals (CCR) went into effect. CCR, commonly known as "coal ash," is generated when power plants burn coal to produce electricity. (See EPA's Coal Ash website.) EPA promulgated the standards under its existing authorities in the Solid Waste Disposal Act (more commonly referred to by the title of its 1976 amendment, the Resource Conservation and Recovery Act, or RCRA). Codified at 40 C.F.R. 257 Part D, the regulations establish minimum national standards that must be implemented by owners and operators of new and certain existing landfills and surface impoundment ponds that contain CCR.
During its rulemaking process, EPA identified a number of risks associated with the improper management of CCR destined for disposal. Those risks primarily involve contaminants in CCR (e.g., lead, selenium, arsenic, and other heavy metals) leaching from the disposal site and migrating to ground water, contaminants blowing away from landfills when dried ash becomes airborne, and the catastrophic failure of surface impoundment ponds containing coal ash slurry. Requirements intended to address those risks include the following:
Additionally, the final rule set out recordkeeping and reporting requirements as well as the requirement for each facility to establish and post specific information to a publicly accessible website. The final rule also supports CCR recycling by distinguishing the differences between disposal and safe, beneficial use.
To comply with the new standards, owner/operators of all new and existing landfills and surface impoundments are required to ensure that their facilities meet applicable requirements. While the rule became effective October 19, 2015, compliance deadlines for individual requirements may extend beyond that date. EPA established deadlines based on its determination of how long it would take owner/operators to implement them. For example, EPA assumed that most daily operating criteria could be met by the October 2015 effective date but that it could take years for owner/operators to determine whether location restrictions were met and to establish a groundwater monitoring program.
During its rulemaking process, EPA considered regulating CCR as a hazardous waste under its broad authorities in RCRA Subtitle C. Instead, EPA chose to promulgate the CCR regulations in accordance primarily with directives and authorities in RCRA Sections 1008(a)(3) and 4004(a). Those authorities pertain to RCRA's prohibition on open dumping specified in Section 4005(a) included under RCRA Subtitle D. EPA has long claimed limited authority to enforce the open dumping prohibition and, hence, limited opportunity to enforce owner/operator compliance with applicable standards. As a result, EPA designed the CCR disposal standards with the expectation that facility owners/operators could self-implement them without the need to interact with a regulatory authority (e.g., EPA or a state regulatory agency).
Under RCRA Section 4005(a), the open dumping prohibition is enforceable under RCRA's citizen suit provisions. That is, EPA is authorized to promulgate but not directly enforce regulations needed to implement RCRA's prohibition on open dumping. Given the limits to EPA's authority to directly enforce the federal standards, the agency has encouraged states to adopt and implement them. By doing so, EPA argues, states could minimize risks associated with improper CCR disposal and limit the potential for energy producers in that state to be subject to citizen suits. More specifically, EPA encourages states to revise their existing Solid Waste Management Plans (SWMPs) to show how they would regulate CCR disposal. EPA approval of revised SWMPs signals the agency's determination that a state's SWMP meets or exceeds minimum federal requirements regulating CCR. Further, in its responses to Frequent Questions on the CCR rule, EPA stated that it
anticipates that a facility that operates in accord with an [EPA-]approved SWMP will be able to positively use that fact in a citizen suit brought to enforce the federal criteria. A court will likely accord substantial weight to the fact that a facility is operating in accord with an EPA-approved SWMP.
That is, in EPA's opinion, facilities in states with EPA-approved programs to regulate CCR disposal in accordance with federal standards would be less vulnerable to citizen suits than facilities in states that do not have EPA-approved programs.
As required under RCRA Section 4005(b), to assist states in complying with RCRA's prohibition on open dumping, EPA is required to establish an inventory of open dumps. When EPA finalized the CCR disposal requirements, the agency began to prepare a draft initial inventory of utilities that appear to be operating in violation of the CCR disposal standards. (See EPA's website listing the draft initial open dump inventory.) To date, seven facilities in six states and territories are listed on the open dump inventory. At this point, it is uncertain how the data gathered by EPA might be used in possible citizen suits.