After court decision, EPA makes changes to coal combustion residuals rule

The U.S. Environmental Protection Agency with a notice to be published in the Aug. 5 Federal Register will take direct final action to extend for certain inactive coal combustion residuals (CCR) surface impoundments the compliance deadlines established by the regulations for the disposal of CCR under subtitle D of the Resource Conservation and Recovery Act (RCRA).

These revisions are being taken in response to a partial vacatur ordered by the U.S. Court of Appeals for the District of Columbia Circuit on June 14, 2016.

This rule is effective 60 days after publication of the Aug. 5 notice, without further notice, unless EPA receives adverse comment within 15 days. If EPA receives adverse comment, it will publish a timely withdrawal notice in the Federal Register informing the public that the rule will not take effect.

This direct final rule applies only to those owners or operators of inactive CCR surface impoundments that meet all three of the following conditions:

  • complied with a federal requirement  by placing in their facility’s written operating record a notification of intent to initiate closure of the CCR unit no later than Dec. 17, 2015;’
  • complied with a requirement by providing notification to the relevant state director and/or appropriate Tribal authority by Jan. 19, 2016, of the intent to initiate closure of the CCR unit; and
  • complied with a requirement by placing the notification of intent to initiate closure of the CCR unit on the owner or operator’s publicly accessible CCR Web site no later than Jan. 19, 2016.

EPA is publishing this rule without a prior proposed rule because it views this as a non-controversial action and anticipates no adverse comment. This direct final rule merely extends the deadlines for the owners and operators of those inactive CCR surface impoundments that had taken advantage of “early closure” provisions who became newly subject to the rule’s requirements for existing CCR surface impoundments on June 14 when the D.C. Circuit Court ordered the vacatur of those provisions.

This rule provides time for these owners and operators to bring their units into compliance with the rule’s substantive requirements, but does not otherwise amend the rule or otherwise impose new requirements on those units. However, in the “Proposed Rules” section of this Federal Register, EPA is publishing a separate document that will serve as the proposed rule to provide new compliance deadlines if adverse comments are received on this direct final rule. It will not institute a second comment period on this action. Any parties interested in commenting must do so at this time.

In April 2015 EPA finalized national regulations to regulate the disposal of coal combustion residuals (CCR) as solid waste under subtitle D of the Resource Conservation and Recovery Act (RCRA) titled, “Hazardous and Solid Waste Management System; Disposal of Coal Combustion Residuals from Electric Utilities.” The CCR rule established national minimum criteria for existing and new CCR landfills and existing and new CCR surface impoundments and all lateral expansions consisting of location restrictions, design and operating criteria, groundwater monitoring and corrective action, closure requirements and post-closure care, and recordkeeping, notification and internet posting requirements.

The rule also required any existing unlined CCR surface impoundment that is contaminating groundwater above a regulated constituent’s groundwater protection standard to stop receiving CCR and either retrofit or close, except in limited circumstances. It also established requirements for inactive CCR surface impoundments, i.e., those units that did not receive CCR after Oct. 15, 2015, but still contain water and CCR. Under the rule as promulgated, inactive CCR surface impoundments must comply with the same requirements as existing CCR surface impoundments, unless the owner or operator of the facility closes the units no later than April 17, 2018.

If an inactive CCR surface impoundment had completely closed by this date, no other requirements applied to that unit (i.e., the “early closure” provisions). The effect of these “early closure” provisions was that no groundwater monitoring or other post-closure care requirements (such as the requirement to take corrective action for any releases) would apply to these units.

On June 14, the D.C. Circuit ordered the vacatur of these “early closure” provisions. The effect of the vacatur is that all inactive CCR surface impoundments must now comply with all of the requirements applicable to existing CCR surface impoundments.

About Barry Cassell 20414 Articles
Barry Cassell is Chief Analyst for GenerationHub covering coal and emission controls issues, projects and policy. He has covered the coal and power generation industry for more than 24 years, beginning in November 2011 at GenerationHub and prior to that as editor of SNL Energy’s Coal Report. He was formerly with Coal Outlook for 15 years as the publication’s editor and contributing writer, and prior to that he was editor of Coal & Synfuels Technology and associate editor of The Energy Report. He has a bachelor’s degree from Central Michigan University.