On January 29, 2014, the U.S. Environmental Protection Agency (US EPA) entered into a Consent Decree committing to take final action by December 19, 2014 on coal ash disposal regulations under the Resource Conservation and Recovery Act (RCRA). In 1993 and 2000 US EPA commenced and completed Bevill Amendment determinations regarding the regulation of the disposal of coal ash. In both 1993 and 2000 US EPA determined that it would continue to assess whether increased regulation of coal ash is appropriate. Some 10 years after its last determination, US EPA on June 21, 2010 announced that it was considering two alternative options to increase regulation of coal ash. The first option was to revise the 1993 and 2000 Bevill Regulatory Determinations and regulate coal ash as a special waste subject to RCRA under Subtitle C. The second option “would leave the Bevill determination in place and regulate disposal” under Subtitle D of RCRA. After waiting more than three years for US EPA to take action on the proposed rule, 11 environmental groups and two ash marketers in Appalachian Voices et at v. Gina McCarthy sued seeking a deadline, among other issues, for US EPA to complete its review of the proposed coal ash regulation. On October 29, 2013 the court concluded that US EPA has a non-discretionary duty to review certain regulations promulgated under RCRA, including those relating to coal ash, and ordered EPA to propose a deadline by which it will comply with its statutory obligations. According to the Consent Decree, “The EPA Administrator shall, by December 19, 2014, sign for publication in the Federal Register a notice taking final action regarding EPA’s proposed revision of RCRA subtitle D regulations pertaining to coal combustion residuals.” Please contact any member of the Schiff Hardin LLP Environmental Group with questions regarding the deadline or the proposed coal ash regulation. A copy of the complete consent decree can be found here.
