Question

How do you think that the Environmental Protection Agency (EPA) should proceed with regulating coal ash? Who are the major stakeholders that need to be involved in regulating coal ash? Do new policies need to be written and implemented related to the management of coal ash?

Answer 1

Ans) The environmental Protection Agency’s just released final ruling on the handling of coal ash, four years in the making, satisfies none of the stakeholders.

And even the EPA acknowledges its final ruling is not final.

It is “a common sense path forward” and “a smart, very large step,” according to EPA Administrator.

- The rule creates requirements and standards for the management of coal combustion residuals (CCRs or coal ash) under Subtitle D of the federal Resource Conservation and Recovery Act (RCRA).

- That subtitle governs solid waste. There is not yet adequate data, the EPA said, to justify managing coal ash under Subtitle C of RCRA, which pertains to hazardous waste.

- “Coal ash is a toxic soup of heavy metals,” said NC WARN Energy Expert Nancy LaPlaca. “Pretending it is not hazardous waste is outrageous.”

- But “EPA is pretty explicit this is not their final determination. They are continuing to evaluate what the appropriate regulatory regime should be for coal ash.”

- This is an attempt to provide a uniform national system for coal ash regulation, More said. “But it failed because it does not mandate that states implement it. It is a self-implementing program.”

- In that sense, it leaves both the utility industry and environmental groups equally dissatisfied.

- Utilities would generally have preferred the EPA put in place a state permitting regime with state enforcement powers.

- Because the rule sets up no official permitting authority, More said, concerned citizens and citizen groups can review the public data, decide a facility did not comply with the rule, and sue.

“- They are providing mechanisms for greater citizen involvement and relying on citizens to enforce environmental regulations and putting in place the mechanisms to effectuate that enforcement,” he acknowledged. “But the courts will interpret how the law should be applied rather than a state regulatory agency. That creates uncertainty.”

- Because the rule is self-implementing, it could create a dual regulatory regime for facilities, More added. “Sierra Club could sue in federal court for violation of the RCRA law. NRDC may sue the same utility in state court for violating state laws. It could result in two conflicting opinions or two penalties.”

This will lead to a waste of judicial resources and could result in a challenge to the rule by the utility industry is already “aggressively taking action to improve coal ash management,” it announced in reaction to the rule, and it “will adjust its existing ash management plans, as necessary, to comply with all state and federal regulations.”

“- The balancing act we need to strike,” said Duke VP in charge of coal ash John Elnitsky, is between solutions “that consider environmental impact and stakeholder interests.”

- The rule “will make states and utility companies vulnerable to new regulatory costs and expensive litigation,” coal supporting Republican Senators said in a joint statement. Because it could cost $22.8 billion and 64,700 jobs, “it is nothing more than a continuation of the president’s war on fossil fuels and another attack on America’s most abundant, affordable and reliable source of energy: coal.”

“- With these common sense standards in place, coal will remain an important part of our national energy mix, but the public will have greater protection,” Purchia responded. “EPA does not project significant retirements of coal plants as a result of this rule.”

“Regulators are finally catching up,” concluded CEO Andrew Behar of shareholder advocates As You Sow. But “the EPA’s new coal ash rules do not solve the coal ash problem.” By delegating enforcement, he said, it "gives state regulators numerous opportunities to avoid strict enforcement.”

It also, everyone interviewed agreed, gives attorneys and advocacy groups numerous opportunities to attend to enforcement