Appeals court orders EPA to toughen coal ash rule

In a move that affects hundreds of coal ash impoundments, a federal appeals court ruled that an Environmental Protection Agency rule setting requirement for coal ash ponds and impoundments is too lenient.

The issue centers on the EPA’s 2015 rule under the Resource Conservation and Recovery Act governing the disposal of coal combustion residuals produced by power plants. Parts of the rule were challenged by environmental and industry groups, including the American Public Power Association.

The rule establishes federal minimum operating criteria for landfills and surface impoundments containing coal combustion residuals, or coal ash. The rule is designed to ensure that human health and the environment face “no reasonable probability” of harm from coal residuals spilling, leaking, or seeping from their storage sites, the U.S. Court of Appeals for the D.C. Circuit explained in its decision released Tuesday.

There were at least 310 landfills and 735 surface impoundments in the United States receiving coal ash in 2012, according to the court.

In the decision, the court agreed with environmental groups that the rule’s provisions related to unlined surface impoundments, clay-lined impoundments, and “legacy” ponds were inadequate and needed to be rewritten by the EPA.

The court said allowing unlined surface impoundments to operate until they cause groundwater contamination was arbitrary and contrary to RCRA.

“This approach does not address the identified health and environmental harms documented in the record, as RCRA requires,” the court said. “Moreover, the EPA has not shown that harmful leaks will be promptly detected; that, once detected, they will be promptly stopped; or that contamination, once it occurs, can be remedied.”

Of the roughly 500 sites that the EPA had liner data on, 65 percent were unlined and only 17 percent had composite liners, the only liner type the agency has found to be effective in reducing leaks, the court said. Unlined sites have a 36 percent to 57 percent chance of leaking at a “harmfully contaminating” level, the court said.

Under the rule, once a leak is detected, operators must either retrofit or close the impoundment, a process that can take up to 15 years, the court noted.

The court said the EPA’s approach to clay-lined impoundments was similarly flawed. Under the rule, impoundment operators can try to repair clay-lined facilities after leaks are detected, delaying the start of the five- to 15-year retrofit or close clock.

“The EPA has failed to show how unstaunched leakage while a response is pending comports with the ‘no reasonable probability’ standard,” the court said. “The problem is compounded by the rule’s unsupported supposition that leaking clay liners, unlike leaking unlined impoundments, can be repaired.”

The EPA’s decision to exempt legacy ponds — inactive impoundments at inactive power plants — from preventative regulation was flawed. Under the rule, action at legacy ponds wouldn’t be taken until major environmental or human harm was “imminent” or contamination had occurred.

The court disagreed with the EPA that it is too hard to find owners or responsible parties for legacy ponds. “The record shows that the EPA knows where existing legacy ponds are and, with that and other information, the EPA already is aware of or can feasibly identify the responsible parties,” the court said.

The court rejected the environmental groups’ challenge to the rule’s public notice provisions, saying the groups failed to bring up the issue during the public comment period, making it out-of-bounds for appeal.

In its decision, the court dismissed challenges raised by industry groups that included the American Public Power Association, the Utility Solid Waste Activities Group, AES Puerto Rico, LP, the Edison Electric Institute, and the National Rural Electric Cooperative Association.

Among several challenges, the industry groups said the EPA exceeded its authority under RCRA by regulating surface impoundments that no longer receive coal residuals.

They also claimed the EPA failed to follow proper noticing procedure when the agency restricted placing new units and expansions of existing units near aquifers.

Finally, the groups challenged the rule’s location restrictions and structural integrity criteria governing units in seismic impact zones.

The court approved the EPA’s motion for a voluntary remand on provisions dealing with the definition of “coal residual piles,” a 12,400-ton beneficial use threshold, and alternative groundwater protection standards.

The court’s decision raises a variety of compliance questions, including when and how the CCR rule will be amended to reflect the Court’s ruling.