March 01, 2015

EPA’s coal ash rule relies on unique enforcement framework

Steven A. Burns and David W. Mitchell

On December 19, 2014, the Environmental Protection Agency (EPA) issued a prepublication version of its much-anticipated final rule for the management and disposal of coal combustion residuals (CCRs). (At the time this article went to press, the final rule had not yet been published in the Federal Register.) EPA’s final rule regulates CCRs as non-hazardous solid waste under Subtitle D of the Resource Conservation and Recovery Act (RCRA). The final rule establishes national standards for location restrictions, design and operating criteria, inspections, groundwater monitoring, corrective action, closure, and various reporting and recordkeeping requirements. The final rule also provides regulatory clarity for the beneficial use of CCRs. EPA, however, deferred action on its previous Bevill regulatory determination, leaving open the possibility that CCRs could be regulated as hazardous waste in the future.

Enforcement in final rule compared to proposed rule

EPA made a notable shift from the proposed rule in its discussion of the role of the states and how their role affects enforcement. In 2010, EPA indicated that the disposal standards for CCRs would be “self-implementing,” which means that individual facilities would be responsible for implementation of the standards. Enforcement would be primarily through citizen suits and also possible with EPA’s imminent and substantial endangerment authority. The preamble to the proposed rule provided little discussion of the role for states under Subtitle D and, in fact, was highly critical of the states’ efforts as of that time to regulate CCRs. Of course, at that time, EPA had not provided standards to guide state and private sector implementation, despite having possessed statutory authority to do so for decades.

State implementation

Although the standards in the final rule are self-implementing, the preamble to the final rule clarifies that states may implement the federal standards under their own state-specific solid waste management plans, which EPA must approve:

Specifically, for those states that choose to submit revised state SWMPs that incorporate the federal criteria, EPA intends to rely on the existing processes in 40 CFR Part 256 relating to approval of state solid waste management plans.

Final rule (prepublication version) at 113. Once a state adopts the federal regulations and EPA approves the state’s solid waste management plan, the state assumes primary responsibility for enforcement. EPA acknowledges in the preamble to the final rule that “states can also continue to enforce any state regulation under their independent state enforcement authority.” Id. at 19.

Citizen suits

Thus, upon adoption and approval of a solid waste management plan, a state agency may enforce state standards that mirror federal requirements. But that does not mean that state enforcement is the only option. Citizen suits remain a possibility; the question is how and under what circumstances. For example, last year a federal district court asserted that “[i]t would be contrary to that intention for Congress to include a citizen-suit provision, but allow states to opt out of it upon adopting their own EPA-approved regulatory programs.” City of Hattiesburg v. Hercules, Inc., No. 2:13-208, 2014 WL 1276459, at *4 (S.D. Miss. Mar. 27, 2014).

Diligent prosecution

With this enforcement approach, there are a couple of issues to consider. First, the diligent prosecution bar in section 7002 of RCRA may operate to preclude a citizen suit where the state is already undertaking an enforcement action, in a fashion similar to the citizen suit provisions of the Clean Water Act and other major environmental programs. Like other statutes, RCRA provides that a citizen is barred from filing suit “if the Administrator or State has commenced and is diligently prosecuting a civil or criminal action in a court of the United States or a State to require compliance with such permit, standard, regulation, condition, requirement, prohibition, or order.” 42 U.S.C. § 6972(b)(1)(B). The case law discusses whether this bar applies if the state does not commence an action before the citizen suit is filed; the state has an opportunity to do so by virtue of a requirement to notify the state 60 days prior to filing the citizen action.

State compliance

Second, there is the question of how to address a citizen suit allegation of noncompliance with federal standards when the facility is complying with the state regulations. EPA has taken the position that compliance with an EPA-approved state program will suffice as compliance with the federal criteria. In the preamble, EPA explained that a “facility that operates in accord with an approved [solid waste management plan] will be able to beneficially use that fact in a citizen suit brought to enforce the federal criteria; EPA believes a court will accord substantial weight to the fact that a facility is operating in accord with an EPA-approved [solid waste management plan].” Final rule (prepublication version) at 470.

EPA’s role in enforcement

The broad outline of this enforcement scenario bears a strong resemblance to other environmental programs. Citizen suits are possible, as they are under other statutes, and states typically have the lead on program implementation and enforcement, as long as EPA approves. However, RCRA Subtitle D is unique in that EPA lacks the “backstop” enforcement authority typical of other major programs, such as the hazardous waste program under Subtitle C of RCRA. For purposes of the CCR rule, EPA’s duties are complete upon promulgating federal standards and approving state solid waste management plans, other than RCRA’s provision for an EPA response in the event of an imminent and substantial endangerment to health or the environment.

The big news

Aside from these legal considerations, in the real world, the big news is that the CCR rule will trigger substantial changes to prevent CCRs and their constituents from entering the environment. The rule’s preference toward dry handling, liners, groundwater monitoring, and public reporting will provide important information to assess the performance of CCR disposal facilities.

Steven A. Burns and David W. Mitchell


Steven Burns and Davod W. Mitchell are attorneys in the environmental section of Balch & Bingham, LLP, in Birmingham, Alabama.