EPA Suggests Less-Stringent Approach On Coal Ash, Bolstering Industry

(Clean Energy Report 04-23-2013) EPA says it is leaning toward regulating coal ash as a “solid waste” rather than as a “hazardous waste” subject to strict waste management rules, a move that is winning praise from industry groups concerned about the likely cost of stringent requirements and the uncertainty created by the agency's lengthy rulemaking process.
According to its recently proposed effluent limitation guideline (ELG)for power plants, EPA says it has been able to significantly refine its estimate of the risks posed by the facilities' releases such that its “current thinking” indicates that the regulation of the waste under weaker subtitle D requirements of the Resource Conservation and Recovery Act (RCRA) “would be adequate.”
The agency's statement could tamp down efforts by industry groups and many lawmakers who are concerned about possible regulation under subtitle C and have been pushing legislation that would preempt EPA's authority over CCR and instead giving the power to states.
Further undermining the legislative effort, the bill's chief sponsor in the Senate, Sen. Max Baucus (D-MT), announced April 23 that he will not be running for re-election in 2014.
The Edison Electric Institute (EEI), which has long advocated for regulation of the waste under subtitle D, as well as legislative efforts to preempt EPA, said in a statement that it “expects the agency to follow through on this positive signal in the final rule.”
The proposed ELG, which EPA issued April 19, seeks to set new Clean Water Act (CWA) standards for coal- and steam-fired power plants, a regulation that the agency is hoping to coordinate with its pending RCRA rule governing coal combustion residuals (CCR).
The two pending measures are expected to curb high levels of contaminants in solid and liquid wastes given that those concentrations are expected to increase due to emissions controls required by recent air rules.
The ELG will revise discharge standards for coal- and gas-fired power plants for the first time since 1982 -- a revision that is expected to include limits for flue gas desulfurization units, more commonly known as "scrubbers, which have been installed on many coal-fired power plants to reduce sulfur dioxide and other pollutants.
EPA is also still weighing a pending final rule to regulate CCRs either as hazardous waste under RCRA subtitle C, or as solid waste under subtitle D -- a measure the agency proposed in 2010 but is yet to be finalized.
Environmentalists say both rules are necessary in order to create a more comprehensive regulatory structure for power plants' releases. The CWA requirements are needed, they say, to limit liquid discharges while the RCRA provisions are needed to address transport, handling and storage of the wastes.
But electricity generators are increasingly concerned that the water and waste rules will impose a new set of regulatory requirements just as they are beginning to implement the agency's recently released air rules.
While industry groups are concerned about the rules' potential costs, they have welcomed earlier EPA statements that the agency is seeking to coordinate the two measures' potentially overlapping requirements. The agency is even pointing to the need to coordinate the rules in opposing environmentalists' call for a federal court to set a speedy timetable to finalize the CCR rule.
Currently, the two rules are on a similar timetable. EPA is required by a court order to issue a final ELG by May 2014 while EPA says it expects complete the CCR rule no sooner than 2014, if not later.
Risk Estimates
According to the proposed ELG, agency efforts to coordinate the two rules are already allowing officials to significantly refine estimates of the risks posed by facilities' releases.
While the agency notes that it has yet to complete its final risk assessment, it says in the ELG proposal that “reliance on the data and analyses [for the ELG]. . . may have the potential to lower the CCR rule risk assessment results by as much as an order of magnitude. If this proves to be the case, EPA’s current thinking is that, the revised risks, coupled with the ELG requirements that the Agency may promulgate, and the increased Federal oversight such requirements could achieve, could provide strong support for a conclusion that regulation of CCR disposal under RCRA Subtitle D would be adequate.”
The agency statement is winning praise from both EEI, as well as coal ash recyclers, who have long raised concerns that regulating CCR as a hazardous waste under subtitle C would ruin the industry. In an April 21 statement, John Ward, chairman of Citizens for Recycling First, called the indication in the ELG “a positive message to recycling markets,” but warned that the agency needs to be firmer in its commitment.
“We hope the Agency will follow through with even more definitive statements,” he said. “We can’t help but notice that EPA’s key paragraph contains two ‘mays,’ two ‘coulds,’ a ‘potential,’ an ‘if,’ and a ‘current thinking is.’ What coal ash recyclers need from Washington is regulatory certainty, which means statements of what will happen rather than what might happen.”
EPA in its proposal also details how a final disposal rule will be coordinated with the ELG while ensuring adequate environmental protection and avoiding duplicative rules. In particular, the agency is aiming to integrate the regulations “through coordinating the design of any final substantive CCR requirements regulatory requirements, and (2) through coordination of the timing and implementation of final rule requirements to provide facilities with a reasonable timeline for implementation that allows for coordinated planning and protects electricity reliability for consumers.”
However, EPA is limiting its coordination efforts given the different scope of the two rules, by for example looking specifically at requirements for surface impoundments that would be governed by both regulations and not landfills, which only fall under the disposal rule, according to the proposal.
And the agency is aiming to ensure that, “consistent with its statutory requirements, the implementation dates for each rule would not require facilities to make decisions without understanding the implications that such decisions would have for meeting any requirements of each rule.”
ELG Deadline Suit
Meanwhile, the U.S. Court of Appeals for the District of Columbia in an April 23 ruling rejected industry efforts to intervene in the agreement between EPA and environmentalists that set the deadlines for proposing and finalizing the ELG. The appellate court ruled in Defenders of Wildlife, et al. v. EPA that the Utility Water Act Group (UWAG), which is seeking to intervene in the settlement agreement, lacked Article III standing to intervene.
The court also rejected UWAG's arguments that it is entitled to intervene permissively under Rule 24(b) of the Federal Rules of Civil Procedure, and that the appellate court should consider arguments regarding the district court’s subject matter jurisdiction.
Environmentalists lauded the decision, arguing that industry in its appeal was seeking only to further delay the rule.
“Power companies have been successful in evading needed regulation for more than three decades, but we are heartened that they have not succeeded in this latest effort to derail critically important clean water standards for arsenic, mercury, and other toxic pollutants,” Earthjustice attorney Abigail Dillen said in an April 23 statement. “The court has put to rest any question whether a final rule will be required next year.” -- Jenny Hopkinson & Lara Beaven
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