May 12, 2014

D.C. Judge Approves Consent Decree Requiring Publication of USEPA Rule

Holland & Knight Regulatory Litigation Blog
Rafe Petersen

On May 2, 2014 the United States District Court for the District of Columbia approved a consent decree in Appalachian Voices et. al. v McCarthy, 12 cv-00254 (RBW), setting December 19, 2014 as the date by which the United States Environmental Protection Agency ("EPA") must issue a final rule regarding EPA's proposed revision of the Resource Conservation and Recovery Act (RCRA) Subtitle D regulations pertaining to coal combustion residuals. 

Coal combustion residuals from combustion of coal in power plants (also referred to as coal ash), are currently considered exempt wastes under an amendment to RCRA. Coal ash is used in various ways including manufacture of concrete and cement. In 2012, Headwaters sued EPA to force a deadline for finalizing coal ash disposal regulations that were initially proposed in 2010. The coal combustion products companies alleged that the lack of final regulations created regulatory uncertainty that has dampened the beneficial use of coal combustion products.  In turn, on the same day Appalachian Voices filed a suit pressing for classification of coal ash as a regulated hazardous waste under Subtitle C of RCRA.

The final rule will address disposal of the coal ash as a solid waste (under Subtitle D) and would require the states to adopt regulations. 

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