On December 22, 2008, a disposal cell at the TVA Kingston Fossil Plant ruptured, releasing an estimated 5.4 million cubic yards of fly ash in eastern Tennessee. Fly ash is one of a variety of coal combustion residuals (CCR), collectively referred to as coal ash and stored in more than 500 disposal facilities across the country. The Kingston spill prompted an EPA effort to reassess how coal ash is regulated.

In the initial rule proposal, two different options for regulating coal ash were included, under the Resource Conservation and Recovery Act (RCRA), which regulates solid waste. The central question was whether to regulate coal ash as a hazardous or non hazardous waste; this decision would significantly impact the stringency of the final rule. Hazardous waste is federally regulated from cradle to grave, whereas regulation of non-hazardous waste is largely left to states and localities. The final rule, issued on December 19th, 2014, followed the later path and will regulate the more than 100 million tons of coal ash produced annually as non-hazardous. This decision leaves much to the states, though it still includes a number of baseline federal regulations. The rule will establish standards for new and existing containment facilities, place restrictions against construction of facilities in sensitive areas and require new monitoring and reporting to state and local governments. The rule also supports recycling, which utilizes roughly 40% of all coal ash produced annually.

Several environmental groups, including the Natural Resources Defense Council and the Sierra Club have expressed disappointment in the final rule, arguing that strict oversight is necessary to protect the public from future incidents. Industry response has been mixed as groups like the Edison Electric Institute (EEI) have praised the non-hazardous finding, yet expressed concerns about EPA reserving the right to reverse this decision down the road. Others, including the American Coal Ash Association, have lauded the support shown for recycling in the rule. EEI has called for legislation to remove the uncertainty that remains and several policymakers, including Sen. Jim Inhofe, R-Okla., and Rep. Shelley Capito, R-W.Va have expressed interest in pursuing such legislation in the next Congress.

Did the EPA get it right on coal ash? Should Congress pass legislation to address this issue? What is the appropriate role for states in regulating coal ash?