The D.C. Circuit Court of Appeals has ruled on multiple challenges from industry and environmentalists to the Obama Administration’s 2015 Coal Ash Rule, holding that, in many respects, the environmentalists were correct to challenge the Rule as insufficiently protective of health and the environment.
The 2015 Coal Ash Rule is a rule issued under the under the Resource Conservation and Recovery Act (RCRA) regulating the disposal and storage of coal ash from electric utility power plants. It was issued following public outrage over a catastrophic 2008 coal ash spill in Kingston, Tennessee, and further prompted by a 2013 D.C. District Court order that it complete a review and revision of coal ash regulation under RCRA. Up until that point, coal ash from power plants—which is most commonly stored in large, unlined pits or sludge ponds—was in essence unregulated on the federal level, despite its toxic qualities. (For further background, see the SciPol Full Brief, here.)
When the 2015 Rule was finalized, both industry and environmental groups filed immediate challenges in the D.C. Circuit, which were consolidated inUtility Solid Waste Activities Group v. EPA. After the Trump Administration came into power, in May 2017, industry groups filed a petition for reconsideration with the EPA, which was granted in September 2017. EPA fast-tracked new, replacement coal-ash disposal regulations, which were first issued in March 2018 and finalized on July 17, 2018 (the 2018 Coal Ash Rule). Although the Trump EPA asked the D.C. Circuit to hold the case in abeyance while the new rules were proposed and finalized, the court declined to do so and nonetheless ruled on the merits of the 2015 Coal Ash Rule.
In its ruling, the D.C. Circuit determined that the EPA’s 2015 Coal Ash Rule did not go far enough to protect the public from groundwater contamination. It ruled that:
1. The EPA rule must require the closing or retrofitting with composite liners of all unlined coal ash pits even when no leak has been detected from the coal ash pit into surrounding ground or surface water. Under the 2015 Coal Ash Rule, unlined pits were allowed to continue to receive deposits until a leak was detected. This affects most existing coal ash ponds: of the 504 pits on which the EPA has data, 65% of them are unlined.
2. The EPA rule must classify clay-lined pits classified as unlined, and order them either closed or retrofitted. Under the 2015 Coal Ash Rule, clay-lined pits could continue to operate even if they were discovered to be leaking. The D.C. Circuit has held that clay-lined pits must either be retrofit with composite liners or closed entirely, whether they are leaking or not, thus treated the same as completely unlined pits.
3. The EPA rule must apply to coal ash ponds at inactive power plants which are no longer receiving new coal ash. Under the 2015 Coal Ash Rule, the EPA only required action on such “legacy ponds” when disaster was “imminent”. The D.C. Circuit ruling holds that these inactive coal ash ponds must be subject to the same regulations as all other ponds, requiring either retrofitting or closure.
Although the D.C. Circuit only directly considered the 2015 Coal Ash Rule, to the extent it passes judgment on either (a) language that remains in the 2018 Coal Ash Rule from the 2015 Rule, or (b) substance of the 2015 Rule that was weakened in the 2018 Coal Ash Rule, it will be binding precedent in any court challenge to the 2018 Rule. For example, the 2018 Rule allows unlined coal ash pits to continue to operate until leaks are detected; allows clay-lined pits to continue to operate and receive waste even if they are detected to be leaking; and exempts legacy ponds from regulation. Because the D.C. Circuit ruling strikes down all of these provisions in the 2015 Rule as contrary to RCRA, it will be cited in pending challenge to the 2018 Rule.