On December 19, 2014, the U.S. Environmental Protection Agency (EPA) issued a 745-page prepublication version of its final rule governing the landfill and surface impoundment management of coal combustion residuals (CCR) from coal-fired power plants. The rule is to become effective six months from the date of its publication in the Federal Register (expected to occur by the end of the year). Important features of the rule include the following:
- Ending several years of speculation whether EPA would attempt to regulate CCR as a hazardous waste under the Resource Conservation and Recovery Act (RCRA) Subtitle C’s “cradle to grave” regulatory scheme, the final rule instead re-affirms EPA’s prior regulatory determinations (EPA’s 1993 and 2000 Bevill regulatory determinations) and regulates CCR as a solid waste under RCRA Subtitle D.
- According to its preamble to the rule, EPA does not have the authority to enforce the requirements of the rule. Instead, EPA will rely on states and the public to enforce the requirements of the rule through citizen suits. In addition, EPA (or others) may take action under RCRA if the management of CCRs gives rise to “an imminent and substantial endangerment”. To facilitate state and citizen oversight and enforcement, the rule requires owners and operators of CCR landfills and surface impoundments to certify compliance and provide state agencies and the public with information regarding compliance.
- The rule will not be implemented through a federal or state permitting program. The rule is self-implementing, meaning it sets “minimum” federal criteria which facilities must comply with without engaging state or federal agencies. States are not required to adopt regulations, develop a permitting program, or submit a program to EPA for approval. Instead, EPA is strongly encouraging states to voluntarily implement the requirements of the rule through amendments to their Solid Waste Management Programs.
The final rule’s lack of a traditional enforcement mechanism and established permitting program may create confusion as to how the rule is to be implemented and could, if states adopt their own regimes, lead to competing requirements and dual enforcement.
While the rule does not establish CCR as RCRA regulated “hazardous waste”, it does impose extensive management requirements for existing and new CCR landfills and surface impoundments, including but not limited to the following:
- The retrofit or closure of existing surface impoundments and landfills that fail to meet certain location standards;
- The closure of existing surface impoundments and landfills at active facilities that no longer receive coal ash (disposal units at closed facilities – facilities that no longer produce electricity – are outside the scope of the rule);
- The closure of existing unlined surface impoundments with releases of constituents to groundwater in excess of a groundwater protection standard;
- Weekly inspections of the structural safety of surface impoundments;
- Restrictions on the location of new surface impoundments and landfills;
- Extensive groundwater monitoring;
- Remediation of releases from a lined surface impoundment or landfill;
- Implementation of fugitive dust controls; and
- Liner barriers for new units.
Many in the coal ash beneficial use industry have largely welcomed the final rule because it brings certainty to the market. Nearly half of all CCR is used in buildings, roads, and agriculture. EPA explicitly recognized the benefits of these uses and acknowledged, that when used as an input into a production process (i.e., as a product), CCR is not a waste and is not subject to the rule.
The EPA webpage on the CCR rule is at http://www2.epa.gov/coalash/coal-ash-rule. Please contact any member of Schiff Hardin’s Environmental Group with questions about the final CCR rule.
Schiff Hardin partner partner Joshua More will present “Update on Coal Ash Remediation Regulations” and will moderate a panel titled “Evaluation of Coal Ash Remediation Solutions“during the pre-summit workshop of the Fourth Annual Plant DDD: Managing the Power Plant Decommissioning, Decontamination & Demolition Process on January 13 in Charlotte, NC.