The U.S. Environmental Protection Agency, while defending the bulk of its controversial coal combustion residuals (CCR) rule at an appeals court, on April 18 asked the court to let it take back some parts of the rule to be reworked.
Utility and environmental groups are challenging at the U.S. Court of Appeals for the D.C. Circuit differing provisions contained in the regulation promulgated by EPA under the Resource Conservation and Recovery Act entitled “Hazardous and Solid Waste Management System; Disposal of Coal Combustion Residuals From Electric Utilities.” It was published in April 2015).
The issues raised by the industry petitioners include:
- Although Congress expressly directed EPA to promulgate regulations designed to protect against what EPA determines are reasonably probable adverse effects to health or the environment resulting from the disposal of solid wastes such as CCR in surface impoundments, did Congress nevertheless unambiguously prohibit EPA from regulating those surface impoundments when the owner/operator ceases to add more CCR to the impoundment, even though the impoundments continue to contain CCR and may be structurally unsound or be actively leaking contaminants?
- Did EPA act arbitrarily in treating piles of CCR that remain on-site, where the CCR was generated by the coal-fired utility, differently than CCR temporarily stored at a user’s site (e.g., cement manufacturer’s facility), where it will promptly be put to a regulatory-sanctioned beneficial use?
- Did EPA act arbitrarily in requiring owners of large CCR piles, classified as those containing over 12,400 tons of CCR, to establish that those piles would not result in releases of contaminants in excess of health-based benchmarks, in order to qualify as a non-disposed “beneficial use” that entirely escapes regulation under the rule?
The issues raised by the environmental groups include:
- Was EPA’s decision to require closure of unlined impoundments when they actually leak contaminants above regulatory thresholds, as opposed to requiring the closure of all unlined impoundments regardless of whether they ever actually leak, arbitrary and capricious or beyond its authority?
- Was it arbitrary and capricious to define an impoundment that actually contains a liner as a “lined” impoundment?
- Was it arbitrary and capricious for EPA to address potential contamination from legacy impoundments, where the operator was no longer producing electricity as of the effective date of the Rule, on a site-by-site basis, i.e., to address contamination when and if it occurs?
Upon review of the briefs from both sides, EPA has now determined that a limited number of provisions warrant further administrative consideration or explanation. EPA on April 18 filed with the court an unopposed motion to remand those provisions. In a separate April 18 brief, the agency defended the disputed rule provisions that it plans to leave in place.
EPA seeks remand of the following provisions with vacatur:
- All aspects of certain subsections shall remain in place except that EPA seeks remand with vacatur only of the phrase “not to exceed a height of 6 inches above the slope of the dike.” These subsections require surface impoundment dikes to be maintained with vegetated slopes and include a requirement that the vegetation not exceed a height of six inches above the slope of the dike. EPA seeks remand with vacatur of just the portion of the cited provisions related to the height restriction of the vegetation. Remand with vacatur is appropriate because EPA did not provide meaningful notice and comment with regard to this requirement.
- One section, as written, exempts an inactive surface impoundment from certain post-closure requirements if it is closed under the rule’s required procedures no later than April 17, 2018. Because EPA did not provide notice or an opportunity to comment on this exemption during the rulemaking, EPA seeks remand with vacatur of this provision, except for a single sentence: “Inactive CCR surface impoundments are subject to all of the requirements of this subpart applicable to existing CCR surface impoundments.” The retention of this language is necessary to clarify that vacatur of the balance of section 257.100 does not affect other regulatory requirements throughout the Rule applicable to CCR surface impoundments, whether active or inactive.
EPA further seeks to remand the following provisions without vacatur:
- To allow EPA to propose to clarify the type and magnitude of non-groundwater releases that would require a facility to comply with some or all of the specific corrective action procedures in meeting their obligation to clean up the release, EPA seeks remand without vacatur of provisions including a sentence that provides: “The owner or operator of the CCR unit must comply with all applicable requirements in 257.96, 257.97, and 257.98.” EPA does not seek vacatur of these provisions or any portion thereof nor does this request for remand affect any other obligation under the challenged Final Rule to remediate, address, or otherwise take actions required under the rule in the event CCR constituent contaminants are released to the environment, e.g., detected at statistically significant levels exceeding groundwater protection.
- EPA seeks remand without vacatur of Appendix IV to the rule for the sole purpose of proposing that Boron be added to the list of constituents in Appendix IV that trigger assessment monitoring and corrective action. Because EPA would be proposing to add a specific contaminant to the constituents listed in Appendix IV, there is no provision to vacate.
- EPA seeks remand without vacatur of certain sections for further consideration of whether to expand these provisions to situations in which a facility needs to continue to manage waste streams other than CCR in the waste unit. These provisions establish Alternative Closure procedures that may be utilized in the event an impoundment required to be closed under the rule cannot locate suitable alternative capacity for disposal of CCR. Because EPA would be considering whether to extend the Alternative Closure temporary exemption to a new subclass of impoundments, there is no provision to vacate.
The environmental groups report that they have no objection to EPA’s requests for remand/vacatur. The Utility Solid Waste Activities Group, Edison Electric Institute, National Rural Electric Cooperative Association, and American Public Power Association report that they have no objection to EPA’s requests for remand/vacatur.