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Thursday, June 20, 2024 | Back issues
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Coal Ash Regulation Delays Coming to a Head

(CN) - The Environmental Protection Agency has 60 days to decide whether it will revise its regulations on coal ash after years of delay, a federal judge ruled.

Appalachian Voices and 11 other environmental groups joined together last year in a challenge to the old regulations on the disposal of coal ash, "one of the largest and most toxic solid waste streams in the nation" that the groups said should be considered hazardous waste.

Congress first mandated that the EPA regularly assess mining waste in 1976 with the Resource Conservation and Recovery Act, known as the RCRA. Dissatisfaction with the agency's progress in 1980 spurred passage of the Bevill Amendment, which temporarily exempted various forms of mining waste - including coal ash - until further studies could be completed.

After more delays and several lawsuits, the EPA finally concluded studies in 1993 and 2000, and both times determined that coal waste should not be regulated as hazardous. The agency also agreed, however, to continue its assessments and promised to add coal ash to the regulatory list when necessary.

The agency took no further action - despite congressional requirements that it reassess the list at least every three years - until 2010, when it proposed increase coal ash regulation. But it also announced it would not regulate so-called "beneficially used" coal residuals, which currently enjoy an exemption.

Environmental groups sued over the EPA's continued failure to study the effects of coal ash in 2012. Within weeks of that suit, two marketers of coal products - Headwaters Resources and Boral Material Technologies - also sued on the same grounds, but asked the court to have the agency make a final determination on the regulation of coal ash once and for all.

Meanwhile, the coal industry intervened with claims that the suits were filed well outside the six-year statute of limitations and that the environmental groups lacked standing to bring their claims. All parties then moved for summary judgment, with the EPA dropping its earlier concession that it had a duty to regularly reassess the regulation of coal ash.

In his ruling Tuesday, U.S. District Judge Reggie Walton rejected the coal industry's call to dump the suit as time-barred. He noted that, despite wildly divergent case law when it comes to government agencies, continuing violations and the six-year deadline, the RCRA allows plaintiffs to sue for the EPA's present failure to act while barring action on previous violations or anything the agency has already fixed.

Walton also declined, however, to address the environmentalists' primary argument - that the EPA had a duty to add coal ash to its toxic waste list.

"It is true, as the environmental plaintiffs point out, and the EPA admits, that there is no 'bright line between hazardous waste and solid waste, where the leaching procedure test applies only to hazardous waste and is irrelevant for solid wastes,' to the extent that some wastes are excluded from regulation as hazardous because they do not exhibit toxicity as defined by the RCRA," Walton wrote. "But this argument ignores the Bevill Amendment's express exemption of coal ash from regulation. If the court granted the environmental plaintiffs' requested relief on this claim and the EPA undertook a revision the plaintiffs' alleged harms would remain because coal ash would continue to be exempted from regulation regardless of whether it exhibited toxicity under a new testing procedure."

But the EPA did violate a nondiscretionary duty from Congress to review the regulations contained within the RCRA at least every three years, the judge ruled. He also acknowledged that lawmakers did not specify how the EPA should do its job, and he declined to do anything outside of ordering the review.

"The court is sensitive to the EPA's desire to conduct its review and revision of the regulations at issue in a responsible fashion and is cognizant that the agency is in the best position to assess the time in which it will be able to do so," Walton wrote. "However, the court cannot permit the EPA to set its own schedule to the extent that the EPA's nondiscretionary duty is pursued in a manner dictated solely by the agency's discretion."

He continued: "The court therefore requires updated information from the agency regarding the status of its review and revision to properly fashion a schedule for the EPA's compliance with its obligation to review and revise if necessary its regulations concerning coal ash. The EPA requests six months to make this determination, but considering the time that has elapsed since that request was made, the court finds that sixty days is sufficient."

The environmentalists will be able to respond to the EPA's proposed plan of action as well, Walton concluded.

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