EPA weighs ‘flexibility’ for critical mineral recovery at coal waste sites

Industry groups and Republican state officials say a proposed Environmental Protection Agency rule to ease requirements for cleaning up coal waste at power plants would be a boon for efforts to harvest critical minerals from the disposal sites, but environmental groups are threatening to sue if the rulemaking goes forward. Public comments closed June 30 on EPA’s proposal to overhaul site-cleanup deadlines and other elements of its rules for disposal of coal ash, also known as coal combustion residuals -- the latest step in a decade-long sequence in which the Obama and Biden administrations enacted strict controls through the Resource Conservation and Recovery Act, which governs many forms of waste disposal, while Trump officials have loosened them. For the first time in that sequence, though, EPA asked stakeholders to weigh in on how its latest rulemaking should consider critical minerals -- specifically whether planned “flexibility” on timelines for shutting down disposal sites “can also be applied to allow adequate time to complete extraction of CCR for critical mineral recovery activities.” Mineral recovery from coal waste is a novel discipline, the proposal said, but there are technologies “at an early stage in development” that could extract lithium, cobalt, nickel, graphite, manganese, neodymium, praseodymium and dysprosium from CCR. Several commenters are now urging the agency to let facilities extend their deadlines for closure -- which can include sealing stored ash to prevent leaks or removing it from the site altogether -- to allow time for mineral extraction. For instance, the National Mining Association wrote that it “agrees that these closure timeframe flexibilities should also apply to the extraction of CCR for critical mineral recovery activities. As EPA states, and the NMA agrees, this resource recovery activity, ‘has the potential to play a crucial role in maintaining technology advancement, economic growth, and national security.’” The mining group argued that EPA’s “flexibility” should let facilities extend their closure deadlines for as long as it takes to complete not just the physical process of harvesting waste ash, but even development of mineral-extraction technologies that are not yet ready for commercial use. “Allowing sufficient time for these technologies to develop will encourage continued innovation and promote the commercialization of critical mineral recovery technologies. Such extended closure timeframes can be achieved in a manner that meets the RCRA ‘protectiveness’ standard. The NMA urges EPA not to limit the time allowed for extended closure for CCR harvesting or critical minerals recovery,” the letter continues. Likewise, a coalition of 24 Republican state attorneys general wrote that they “support specifying that the flexibilities over closure timeframes can also be applied to allow adequate time to extract CCR for critical mineral recovery activities. Critical mineral recovery is important to America’s economic and security interests, and CCR has an important role to play.” The American Coal Ash Association, a trade group representing companies that harvest waste ash for reuse, wrote a letter that not only supports flexibility for mineral extraction as a policy choice but offers a more detailed argument for why the practice qualifies for special treatment under RCRA. “The Agency is correct that, while such [mineral] recovery is not a direct beneficial use per se, it is nonetheless a resource recovery activity, which falls squarely into RCRA’s resource recovery statutory objective,” ACAA wrote. “Further, and importantly, the recovery of critical minerals from CCR has the potential to play ‘a crucial role in maintaining technological advancement, economic growth, and national security.’ Given this, there is absolutely no reason not to encourage and promote these important activities. Every measure should be taken to promote and encourage these activities and regulatory barriers that hinder these practices should be removed including, in this case, the accelerated closure of CCR units that hinders the development of technologies for critical minerals recovery from CCR,” the letter continues. It also agrees with NMA that “flexible” closure deadlines should consider future development of mineral-extraction methods. “These technologies are, however, according to EPA still in the early stage of development and there remain barriers to overcome before full-scale commercial critical mineral extract activities are feasible. Time and opportunities must be provided to allow these emerging technologies to be developed on a reliable and commercial scale for the extraction of critical minerals from CCR,” ACAA says. But environmental groups and Democratic state officials are warning EPA that many elements of the planned rule violate RCRA, including “flexibilities” for closure deadlines -- signaling the claims they could raise in legal challenges to a final version. “Clearly, EPA has abandoned the fundamental mandate established by Congress in RCRA -- to prevent harm from the mismanagement of dangerous waste. The Proposed Rule demonstrates complete disregard for preserving the present and future use of groundwater, for protecting the health and economic well-being of fenceline communities, and for ensuring the long-term safety and vitality of our rivers, lakes, and streams,” reads a joint letter from 196 citizen groups. Their letter does not specifically mention the rule’s approach to mineral recovery, but it says the overall approach to deadlines EPA is proposing would allow industry to “[a]void or delay the monitoring, closure and cleanup of hundreds of legacy coal ash ponds.” Similarly, a group of nine Democratic AGs wrote that “Rather than improving the program, more ‘flexibilities’ threaten to leave the environmental risk from massive quantities of CCR ignored under federal requirements, leaving states with the administrative burden of cleaning up the mess.” They argue that “[b]ecause EPA ignores these harms, the Proposal, if adopted, would be arbitrary and capricious under the Administrative Procedure Act ... and violate statutory requirements under” RCRA. -- David LaRoss ( dlaross@iwpnews.com )