The EPA’s Coal Combustion Residuals (CCR) Rule is structured in such a way that the EPA itself has no authority to enforce compliance. Instead, the rule allows for enforcement through state governments and citizen lawsuits under certain requirements. The EPA strongly encourages state governments to amend their regulations to align with the CCR Rule requirements; however, it has no authority to force states to do so. Therefore, the CCR Rule was designed to facilitate citizen-driven enforcement by requiring transparency.
The CCR Rule requires owners/operators of coal ash disposal units to post specific compliance data within a structured timeframe on a publicly accessible website. This data includes the coal ash unit’s operation and management plans, groundwater monitoring results, annual reports, inspection results and corrective action reports. As a result, such information as groundwater monitoring exceedances, high hazard potential classifications and fugitive dust complaints will be easily accessible to determine if legal action is warranted.
A state is able to enforce compliance of the rule by revising its solid waste management plan (SWMP) to include the CCR Rule requirements. If a state does not amend its SWMP, any person is able to sue the owner/operator for non-compliance under RCRA’s citizen suit provision (Section 7002(a)(1)(A)), even if the coal ash unit is in compliance with state regulations. However, even if a state government does amend its SWMP to align with the CCR Rule and the coal ash unit is in compliance with state regulations, any person may still sue the owner/operator to enforce federal criteria.
Most of the lawsuits will be brought forth by non-governmental, environmental groups. However, state governments are also allowed to sue the owner/operator of coal ash units for non-compliance under RCRA’s citizen suit provision. Therefore, even if a coal ash disposal unit is in full compliance with a state’s SWMP, that state government may legally take action against the owner/operator for non-compliance with the CCR Rule.
Although the EPA is unable to enforce the CCR Rule specifically, it is still able to take action against the owner/operator of coal ash disposal units under RCRA Section 7003 if an imminent hazard to human health or the environment exists as a result of past or present coal ash management. Conceivably, non-compliance with the CCR Rule could bolster the classification of imminent hazard.
Although the CCR Rule strongly promotes lawsuits against coal ash disposal unit owners/operators, enforcement actions must be justifiable and advanced notice must be given prior to litigation. Citizens seeking to sue must first pass certain statutory prerequisites and constitutional requirements to bring forth legal action. They must also issue a notice of intent to sue, which allows the owner/operator a period of time to correct any alleged violations. Although the EPA has no power to enforce the law that it created, the CCR Rule is well designed to keep coal ash disposal units compliant with the regulations.