On Wednesday, the 4th Circuit Court of Appeals reversed a District Court ruling and rejected the Sierra Club’s citizen suit against Virginia Electric Power alleging that releases of arsenic from a coal ash landfill and settling ponds at its Chesapeake Energy Center power plant violated the Clean Water Act and the plant’s NPDES permit. Notably, the issue that most concerned me at the time of the District Court opinion,… More
Tag Archives: Coal Ash
When Is a Discharge to Groundwater Subject to the Clean Water Act? Can You Say “Significant Nexus”?
Whether the Clean Water Act regulates discharges to groundwater has been a topic of significant debate. At this point, there seems to be something of a trend in the cases towards concluding it does, but it remains true that all of the courts of appeal that have addressed the issue have concluded that it does not. As I have noted, the problem with the “yes” answer is that pretty much all groundwater eventually discharges to surface water,… More
CCRs Dodge a Hazardous Waste Bullet: EPA Regulates under RCRA Subtitle D
On Friday, EPA finally released its final rule regulating coal combustion residuals. Facility owners breathed a sigh of relief, as EPA chose to regulate under Subtitle D of RCRA, rather than under the cradle-to-grave provisions of Subtitle C. Given the extensive beneficial reuse of CCRs, EPA clearly made the right call.
The rule is obviously lengthy. EPA provided a Fact Sheet to summarize the rule,… More
Wondering About the Status of EPA’s CCR Rule? So Are 11 Environmental Groups
I have had a number of clients ask me recently about the status of EPA’s efforts to regulate coal combustion residuals under RCRA. It turns out that some environmental groups have been asking themselves the same question. Being environmental groups, however, they did more than ask about it. They sued.
As most readers know, EPA published two separate proposals for regulating coal ash – one under Subtitle C and one under Subtitle D – on June 21,… More
Will EPA’s “Train Wreck” Affect Reliability? At Least One FERC Commissioner Is Still Concerned
There has already been significant attention devoted to whether EPA’s “train wreck” of rules affecting coal-fired power plants would affect electric system reliability. The Congressional Research Service analysis looked at the coming rules more broadly, but did touch on reliability, noting that most of the coal plants likely to be retired as a result of EPA regulations are small and inefficient, and already run infrequently. As we noted last June,… More
This Week’s Air/Climate Smorgasbord
After a relatively quiet period, there were a number of items of interest on the air/climate front this week. First, AEP announced that upcoming pollution controls would result in shutting down 6,000 megawatts of coal-fired capacity, or 25% of its coal fleet. AEP also announced that it would spend $6 billion to $8 billion in bringing the rest of its fleet into compliance.
On the flip side of this issue,… More
Another Bullet Aimed at Coal; Another Argument For Multi-pollutant and Multi-media regulation
On Tuesday, EPA announced its intention to issue new effluent guidelines for the Steam Electric Power Generating industry by sometime in 2012. The announcement follows an EPA study in 2008 which indicated that toxic metals, particularly those collected as part of flue gas desulfurization processes, can pose a problem in facility effluent. EPA’s announcement is not particularly surprising, given the ongoing study and given that EPA has not revised the guidelines since 1982. Indeed,… More
Regulation of Coal Ash: The Ball’s In EPA’s Court For Now
Although it appeared initially as though Congress might be the first to move towards greater regulation of coal ash following the TVA spill, EPA has seized the initiative. Yesterday, Administrator Jackson announced a two-pronged initiative. First, EPA has issued information requests to facilities maintaining coal ash impoundments in order to gather information necessary to support new regulations. Second, she confirmed that EPA will indeed then promulgate regulations designed to prevent future spills.… More
Regulatory Fallout from the TVA Coal Ash Release
The magnitude of the recent release of coal ash from the TVA dam is hard to fathom, though the pictures certainly give some sense of its magnitude. Now, as regulators and Congress attempt to get their collective arms around the import of the release, some of the regulatory implications of the release are starting to emerge. According to a report in yesterday’s Greenwire, Congressional hearings this week may include a discussion regarding whether coal ash should continue to be exempt from regulation as a hazardous waste under RCRA
The exemption of coal ash is critical to coal-fired power plants. … More