Coal Combustion Residuals (CCR) Litigation Outcome

September 19, 2018

A federal appeals court ruled that the Obama administration’s rule to regulate coal ash does not go far enough in some areas. However, the court did not give environmentalists everything they were seeking. The U.S. Court of Appeals for the District of Columbia Circuit’s Aug. 21 decision in the case, Utility Solid Waste Activities Group v. EPA gave neither side all it wanted.

The decision comes as the Trump administration seeks to revise the EPA’s 2015 rule intended to regulate coal combustion residuals (CCR) from coal-fired power plants—one of the largest waste streams in the U.S. In July, the EPA issued a final rule granting more flexibility to industry and states. Both the Obama and Trump administrations have sought to give states the ability to create their own standards, but according to the D.C. Circuit, neither set of rules satisfied the Resource Conservation and Recovery Act–a 1976 law that allows the federal government to regulate solid waste generation, storage and disposal.

In its ruling, the court agreed that the EPA erred when it failed to mandate unlined CCR surface impoundments be closed, and when it exempted inactive impoundments from the regulation. The court also ruled that EPA should not have classified clay-lined impoundments as being lined.

The court also ruled against industry groups. For example, it determined that EPA does have the authority to regulate inactive impoundments and that it did provide enough public notice that it intended to apply aquifer-location criteria to existing impoundments.

The court also found that EPA decision to prohibit certain unencapsulated beneficial uses of CCR in amounts 12,400 tons or greater was arbitrary and remanded that decision to the EPA. The Agency had previously acknowledged the error in setting the 12,400 ton threshold (the threshold using the Agency’s methodology should have been about 75,000 tons).

Several industry publications have provided coverage of the decision and reaction from industry leaders, including E&E News, APPA, Utility Dive,  Engineering News Record, and Courthouse News Service.

 

For questions or more information, please contact SCS Engineers’ staff.

 

 

 

 

 

 

 

Posted by Diane Samuels at 10:14 am
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