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January 13, 2009 |
Schiff Hardin Environmental Update: In the wake of the much-publicized December 20, 2008 failure of a coal ash surface impoundment in Kingston, Tennessee, considerable attention has been paid to the management and regulation of coal ash surface impoundments (CASI). Nonprofit environmental organizations and members of the federal government are advocating that the Kingston impoundment failure exemplifies the need for federal regulation of coal combustion waste (CCW). Currently, CCW is not regulated by the U.S. Environmental Protection Agency (EPA) as a hazardous waste and the construction, operation and closure of CASIs is governed only by state regulations, if existing. On January 7, 2009, the Environmental Integrity Project, a nonprofit environmental group composed of former EPA enforcement attorneys, released a report entitled Disaster in Waiting: Toxic Coal Ash Disposal in Surface Impoundments. The report highlighted the disposal practices of coal-fired electric utilities with CASIs and requested that EPA promulgate regulations controlling the siting, design, operation and monitoring of CASIs. This report was issued in response to EPA's May 2000 Regulatory Determination that CCW not be regulated as a hazardous waste under subtitle C of the Resource Conservation and Recovery Act (RCRA). While EPA also determined that regulation was warranted for CCW disposed of in landfills or surface impoundments under subtitle D of RCRA, to date EPA has not promulgated any such regulation. Recent reports and government activity suggest that federal regulation regarding coal ash waste is likely. EPA issued a Notice of Data Availability in August 2007, requesting public comment on information and data collected by EPA, including a draft risk assessment on CCW as a follow-up to its May 2000 Regulatory Determination. Further, prominent government officials, including Senator Barbara Boxer (D-Calif.), chair of the Environment and Public Works Committee, have called for federal regulation of CCW and CASIs. Such regulation was discussed in a recent hearing called by the Committee shortly following the impoundment failure in Kingston. Schiff Hardin's Environmental practice group will continue to track any new attempt to regulate CCW and CASIs at the state or federal level. RECENT ENVIRONMENTAL PUBLICATIONS "California Mandatory Reporting Requirements for Greenhouse Gases," Environmental Update (January 9, 2009) ABOUT SCHIFF HARDIN LLP Schiff Hardin has worked with utilities and other large users of coal for years in managing coal ash issues. Schiff Hardin's diverse environmental practice advises clients engaged in a wide variety of industries and commercial endeavors such as electric generation, natural gas distribution and production, chemical manufacturing, auto and auto parts manufacturing, consumer goods manufacturing, real estate development and investments by financial institutions and equity investors. For more information, contact us. |