Coal combustion residuals (CCR) – more commonly known as coal ash – are a multimedia pollutant, with significant impacts on air, land, and waterways that can pose a serious threat to human and environmental health if improperly managed.^[1] Worse, many coal ash disposal sites are located near environmental justice communities that are already disproportionately burdened by pollution.^[2] After cajoling from environmental groups,^[3] EPA seems more serious than ever about regulating CCR. The agency’s enforcement arm recently announced that coal combustion residuals would be one of six National Enforcement and Compliance Initiatives through 2027.^[4] Coupled with two final rulemakings expected next year and a likely rejection of Alabama’s proposal for its own enforcement program, the Biden EPA appears to be making up for lost time in addressing coal ash’s legacy.

EPA’s early attempts to regulate pollution from coal combustion implemented limits on emissions of mercury and other toxic pollutants under the Clean Air Act. Those limits incentivized coal-fired power plants to use pollution control techniques such as scrubbers that prevent many of the toxic compounds from releasing into the air and instead trap them in solid residuals that we know colloquially as coal ash. This not only increased the amount of CCR produced and disposed of by coal-fired power plants, it also rendered CCR more laden with toxic metals^[5] and, according to some industry groups, more difficult to recycle into beneficial use.^[6]

Coal combustion residuals as a solid waste stream were not nationally regulated until 2015.^[7] Before this, the nation’s second largest stream of industrial waste^[8] was left to states to handle. The Resources Conservation and Recovery Act (RCRA), a federal statute that regulates the generation, storage, transportation and disposal of solid and hazardous waste, initially included a temporary exemption for CCR pending further study by EPA.^[9] The agency determined as recently as May 2000 that CCR was not warranted to be regulated as a hazardous waste.^[10] However, two devastating disasters from coal ash impoundment failures in the Southeast and outcry from the environmental community drove EPA to act.^[11] The agency revisited its previous regulatory determinations and promulgated regulations to address CCR’s pollution potential.^[12]

In April 2015, the agency finalized its first rule to regulate the disposal of CCR.^[13] However, it made the controversial decision to regulate it under subtitle D of RCRA as simply a solid waste, rather than subtitle C, which oversees hazardous waste. Subtitle D lacked a true enforcement mechanism the agency could wield and its regulations were thus enforceable mainly through citizen suits.^[14] The following year, Congress remedied this with passage of the Water Infrastructure Improvements for the Nation (WIIN) Act, which allowed EPA to set national standards for CCR disposal with states responsible for enforcing the standards through their own regulatory programs, subject to EPA approval.^[15] To date, however, only three states–Georgia, Oklahoma, and Texas–have successfully submitted plans for approval, leaving enforcement of coal ash regulations to EPA for most of the country.^[16]

The 2015 coal ash rule also faced a bigger challenge. The rule applied only to unlined coal ash pits at facilities that were still in operation and effectively ignored CCR at retired facilities due primarily to difficulties in determining ownership and liability. The rule also mandated closure of leaking unlined disposal pits, but allowed unlined pits that were not yet leaking to continue operating.^[17] Industry and environmental groups both petitioned for review of the rule in USWAG v. EPA, a 2018 case in which the D.C. Circuit deemed both exemptions arbitrary and capricious and remanded those provisions to EPA for revision.^[18] The agency dragged its feet responding to the court’s mandate, leading several environmental groups to file suit against EPA to compel a reissuance of the regulation.^[19] As part of that suit’s settlement, the agency finally issued a new proposed rule in May 2023 that would close the loophole for legacy CCR sites.^[20]

Shortly before it rolled out its updated CCR rule, EPA also proposed more stringent standards for wastewater discharges from coal-fired power plants related to CCR pollution, an update to another of its 2015 rules which had implemented national pollution limits on wastewater discharges from power plants for the first time.^[21] In its most recent move, EPA issued a proposed denial of Alabama’s permitting program application because it was not as protective as federal standards,^[22] another first for the agency that could help force the hand of the only major utility in the southeast that hasn’t attempted to clean up any of its unlined waterfront coal ash lagoons.^[23]

With the denial of the Alabama program and the stricter rules governing how power plants must handle solid CCR waste andwastewater, EPA shows that it is taking seriously its national enforcement and compliance initiative to regulate one of the largest streams of industrial waste in the US, and it can’t come too soon. With two major disasters in the last two decades due to poorly managed coal ash pits and dozens still unregulated, the legacy of coal ash looms large.

^[1] See U.S. Env’t Prot. Agency, Coal Ash Basics, https://perma.cc/H8SD-RRSQ; Lisa Evans, et al., Earthjustice, Coal Ash Primer, https://earthjustice.org/document/coal-ash-primer.

^[2]See U.S. Env’t Prot. Agency, Off. of Enforcement and Compliance Assurance, Memorandum on FY 2024 – 2027 National Enforcement and Compliance Initiatives (Aug. 17, 2023); U.S. Comm’n on Civil Rights, Statutory Enforcement Report: Environmental Justice: Examining the Environmental Protection Agency’s Compliance and Enforcement of Title VI and Executive Order 12,898 (2016); Earthjustice, Mapping the Coal Ash Contamination, https://perma.cc/668A-MZS4; Brian Bienkowski, Toxic Coal Ash Hits Poor and Minority Communities Hardest, Scientific American, Jan. 14, 2016, https://perma.cc/2EVR-5YSV.

^[3] See Press Release, Earthjustice, EPA Publishes Draft Rule to Expand Regulation of Toxic Coal Ash (May 17, 2023) https://perma.cc/AF2L-WLFC.

^[4] Memorandum on FY 2024 – 2027 National Enforcement and Compliance Initiatives, supra note 2.

^[5] EPA Coal Ash Rule, 40 C.F.R. § 257, 261 (2023); Coal Ash Primer, supra note 1.

^[6] American Coal Ash Association, Frequently Asked Questions, https://perma.cc/RDQ7-2ATB.

^[7] 40 C.F.R. § 257, 261.

^[8] Stephen K. Ritter, A New Life For Coal Ash, Chemical & Engineering News, Feb. 15, 2016, https://perma.cc/P2GP-AFRW.

^[9] Resources Conservation and Recovery Act, 42 U.S.C. §§ 6901-6992; Linda Luther, Cong. Rsch. Serv., R43149, Background on and Implementation of the Bevill and Bentsen Exclusions in the Resource Conservation and Recovery Act: EPA Authorities to Regulate “Special Wastes” (2013).

^[10] Luther, supra note 9.

^[11] See Press Release, Earthjustice, 82,000 Reasons Why Federal Coal Ash Regulations Are Needed (Feb. 6, 2014) https://perma.cc/FP6N-TCPR.

^[12] Luther, supra note 9.

^[13] 40 C.F.R. § 257, 261.

^[14] Id.; see also Jeff Turrentine, NRDC, Coal Ash Is Hazardous. Coal Ash Is Waste. But According to the EPA, Coal Ash Is Not “Hazardous Waste.” Sept. 6, 2019, https://perma.cc/JG6Y-AXJW.

^[15] Water Infrastructure Improvements for the Nation Act, § 2301, 42 U.S.C. § 6945.

^[16] U.S. Env’t Prot. Agency, Permit Programs for Coal Combustion Residual Disposal Units, https://perma.cc/RML3-T7GY.

^[17] 40 C.F.R. § 257, 261, supra note 5.

^[18] Utility Solid Waste Activities Group, et al. v. EPA, 901 F.3d 414 (D.C. Cir. 2018).

^[19] Complaint, Statewide Organizing for Community Empowerment, et al., v. U.S. Env’t Prot. Agency., No. 22-cv-2562 (D.D.C. Aug. 25, 2022).

^[20] Hazardous and Solid Waste Management System: Disposal of Coal Combustion Residuals From Electric Utilities; Legacy CCR Surface Impoundments, 88 Fed. Reg. 31982 (proposed May 18, 2023)(to be codified at 40 C.F.R. pt. 257).

^[21] Supplemental Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category, 88 Fed. Red. 18824 (proposed Mar. 29, 2023)(to be codified at 40 C.F.R. pt. 423).

^[22] EPA proposed denial of Alabama’s state permitting program in part because it would allow groundwater infiltration at closed surface impoundments, which is currently prohibited by the federal standards. Press Release, U.S. Env’t Prot. Agency, EPA Proposes to Deny Alabama’s Coal Ash Permit Program and Better Protect Local Communities from Pollution, Aug. 3, 2023, https://perma.cc/8TXR-CA4Y.

^[23] Dennis Pillion, EPA rejects Alabama coal ash plan; utilities could be forced to dig out massive ponds, AL.com (Aug. 3, 2023), https://perma.cc/Q387-LF66; Southern Environmental Law Center, Mobile Baykeeper, SELC sue Alabama Power to stop coal ash pollution in the delta (Nov. 11, 2022), https://perma.cc/Z832-BRBV.