Coal Ash Rule Update: Will Citizen Groups Be Able To Use RCRA To Second-Guess Utilities' Closure Plans?

The recent surge in Resource Conservation and Recovery Act private citizen suits poses a concern for utilities who are diligently working through coal ash pond closure in compliance with complex and sometimes conflicting state and federal regulations.The author of this article discusses the Act, the coal ash rule, and recent case law on the issue.

According to recent reports, the number of citizen suits filed under the Resource Conservation and Recovery Act ("RCRA") has risen sharply in the past three years. Commentators have suggested that the recent surge in private RCRA enforcement litigation is in response to a perceived lack of enforcement activity by U.S. Environmental Protection Agency ("EPA"). Many of these cases have been filed by non-profit public interest organizations that have been established for the specific purpose of protecting some environmental resource. These organizations have purportedly seen huge increases in private donations in recent years and