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The Insider

EPA is considering waste disposal and contaminated site cleanup policy changes to better integrate the Biden administration’s priorities on environmental justice and climate change, including weighing whether to change what uses of coal ash are deemed “beneficial reuse” and how to consider climate change at Superfund sites.

The Biden administration earlier this year reopened the comment period on whether to allow the beneficial reuse of coal combustion residuals (CCR) in a variety of products, and environmental groups are urging EPA to act quickly to strictly regulate CCR while industry groups want the agency to ease certain measures:

Environmentalists, Industry At Odds Over Scope Of EPA Ash Reuse Policy
EPA’s request for comment on whether to make changes to its policy on allowing beneficial reuse of coal ash in products such as wallboard is prompting competing comments, with environmentalists seeking fresh limits on reuse that consider environmental justice while industry groups urge the agency against any stricter requirements.

The environmental groups say EPA needs to fill gaps left by deficient state regulation of waste piles and to address environmental justice issues about storage. “EPA’s own analysis and additional analysis of disproportionate impacts on low-income communities and communities of color demonstrate that CCR waste piles at manufacturing sites pose important environmental justice concerns that EPA must address.”

But industry groups are seeking an easing of some requirements, saying the rulemaking record makes clear that CCR beneficially used in accordance with the rule’s beneficial use criteria and CCR accumulated in accordance with the rule’s landfill and “containerized” standards do not pose a reasonable probability of adverse effects on health or the environment.

While it is unknown what the Biden EPA will decide on coal ash reuse, the agency has reversed course from the Trump administration on addressing climate change at Superfund sites and is expected to soon issue new guidance:

EPA To Offer Direction On Integrating Climate Data Into Cleanup Decisions
EPA expects this month to release a memo directing staff on how to consider the potential impacts of climate change in risk assessments and cleanup decisions at Superfund sites, responding to a 2019 Government Accountability Office (GAO) report it originally disagreed with under the Trump administration.

The memo responds to two priority recommendations that GAO previously made calling on the agency’s Superfund office to direct staff on how to integrate climate change impact data into risk assessments and risk response decisions at Superfund sites.

The agency is also considering addressing a third priority recommendation, which had called on the EPA administrator to clarify how the agency’s actions to manage environmental and human health risks from the potential impacts of climate change at Superfund sites align with EPA’s goals and objectives.

The Trump EPA agreed with the recommendation but did not believe any additional action was necessary. The Biden EPA, in contrast, said in April that it is considering whether new action is needed.

The Biden administration is also moving closer to finalizing rules to curb methane emissions from landfills:

EPA Finalizes Long-Pending Federal Plan To Curb Landfills’ Methane
EPA is finalizing a long-pending proposal to implement federal requirements to curb methane emissions from hundreds of existing landfills, with the move coming just weeks after an appellate court vacated the Trump administration’s rule significantly extending deadlines for states to comply with the Obama-era standards.

The agency on May 17 floated a prepublication Federal Register notice announcing a final federal emissions plan that would impose requirements on the potent greenhouse gas methane for installation of gas collection systems at almost 1,600 facilities built before 2014 in 41 states and territories.

Waste issues are also pending before the Supreme Court, with companies continuing to seek review of Superfund contribution issues, although the respondents in the latest case are urging the justices to reject a petition for review, saying the case has little in common with one where the justices heard oral argument in April:

Companies Urge High Court To Deny Petition In California Superfund Case
Companies potentially responsible for contamination at a California Superfund site are asking the Supreme Court to reject a petition for review of a contribution case, arguing the litigation has nothing in common with another Superfund contribution case pitting Guam against the United States where a decision is pending from the high court.

The case, APC Investment Co., et al. v. Howmet Aerospace Inc., et al., pits one set of potentially responsible parties (PRPs) against another at the Omega Chemical Corporation Superfund site in Whittier, CA, and is the second petition from PRPs asking the high court to accept, but hold, a petition pending a decision in Guam v. United States. Atlantic Richfield Company in a separate case involving a Montana Superfund site also petitioned the Supreme Court earlier this year, to accept, but place on hold, its appeal of a case that parallels aspects of the Guam litigation.

But Howmet says the litigation over the California site is significantly different from Guam. While both cases examine the timeliness of actions under the Superfund law, Guam analyzed words in section (f)(3)(B) of the Comprehensive Environmental Response, Compensation and Liability Act, and the APC case involves section 113(f)(1), Howmet argues.