Coal Ash Regulations: EPA Speaks--Sort of...

Author:Mr J. David Brittingham and Thomas P. Doyle
Profession:Dinsmore & Shohl

On Tuesday May 4, 2010, EPA started the process of federal regulation over the disposal and storage of coal combustion residuals, commonly referred to as coal ash. Coal ash has been largely exempt from federal regulation, leaving oversight to individual states. The December 2008 breach of a coal ash storage facility and the subsequent massive spill in Kingston, Tennessee brought coal ash storage and disposal national attention. On one side, many people and environmental groups are calling for action from the federal government. Conversely, many people are worried about additional oversight and duplicative regulatory controls in an area where state law exists. Many of the arguments against federal regulation concern the continued ability to recycle coal ash waste. Coal ash is used in concrete, cement, roadways, and other materials. Both sides of the debate argue in the context of the possible re-classification of coal ash as a hazardous waste. Solid Waste is federally regulated under the Resource Conservation and Recovery Act1 (RCRA), which gives EPA the authority to control all aspects of hazardous waste. Subtitle C governs the generation, transportation, treatment, storage, and disposal of hazardous waste. Subtitle D sets forth a framework for the management of non-hazardous solid wastes. Subtitle D leaves the majority of regulation to each individual state. Coal ash has been exempt from federal regulation since the inception of the "Bevill Exclusion." In October 1980, RCRA was amended by adding section 3001(b)(3)(A)(ii), to exclude "solid waste from the extraction, beneficiation, and processing of ores and minerals" from regulation as hazardous waste under Subtitle C of RCRA. This exclusion held pending completion of a study and a Report to Congress, required by section 8002 (f) and (p), and pending a determination by the EPA Administrator either to promulgate regulations under Subtitle C or to declare such regulations unwarranted. In 1993 and 2000, EPA published regulatory determinations stating that coal ash waste does not warrant regulation under Subtitle C and should remain excluded from the definition of hazardous waste. However, in 2000, EPA determined that national non-hazardous waste regulations under RCRA Subtitle D were needed for coal combustion wastes disposed in surface impoundments and landfills and used as fill in surface or underground mines (minefill). EPA further determined that beneficial uses of these wastes, other than for minefilling,...

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