EPA Proposes Overhaul of 2015 Final Coal Ash Rule

The Environmental Protection Agency (EPA) has proposed more than a dozen significant changes to the Obama administration's final 2015 rule governing disposal of coal combustion residuals (CCR) by the nation's power generators.

EPA Administrator Scott Pruitt on March 1 signed the first of two rules that propose to amend the 2015 rule, saying the changes are expected to save industry between $32 million and $100 million per year.

While the proposal seeks to address four provisions that the D.C. Circuit remanded to the EPA in June 2016, it also factors in comments received since the final rule went into effect along with considerations contained in an industry petition for rulemaking it received in May 2017. "Many of the proposed changes are based on the environmental protections and regulatory flexibilities contained in EPA's longstanding rules governing disposal of municipal solid waste," the agency said in a statement.

However, the proposal also revises the 2015 rule to reflect the EPA's new CCR enforcement authority under amendments to the Resource Conservation and Recovery Act (RCRA) as part of the 2016-enacted Water Infrastructure Improvements for the Nation Act (WIIN Act). The amendments authorize states to operate CCR permit programs "in lieu of the federal regulations," as long as the EPA determines that the state's requirements are at least as protective as the standards in the 2015 final rule or successor regulations.

A Spate of Changes

Among four changes proposed in "Hazardous and Solid Waste Management System: Disposal of Coal Combustion Residuals from Electric Utilities; Amendments to the National Minimum Criteria (Phase One)" to address the D.C. Circuit's June 2016 remand in USWAG et al. v EPA (No. 15-1219) are a clarification of the type and magnitude of non-groundwater releases that would require a coal plant to comply with corrective action procedures. Significantly, the rule also adds boron to the list of constituents in Appendix IV of part 257 that trigger corrective action, potentially requiring a retrofit or closure of a CCR unit. The proposed rule also sets the height of woody and grassy vegetation for slope protection and modifies alternative closure provisions.

Changes associated with the WIIN Act apply only to states that have an EPA-approved CCR permit program-and Oklahoma is the only state that has preliminary EPA approval so far. In the proposal, the EPA notes that while the WIIN Act allows the EPA to serve as a permitting authority for CCR units located in nonparticipating states, Congress has not provided appropriations to the agency that lets it carry out that responsibility.

Citing the WIIN Act, however, the proposal sets "alternative performance standards" to allow states to use alternative risk-based groundwater protection standards for constituents where no Maximum Contaminant Level exists; modify corrective action remedies; suspend groundwater monitoring requirements if no migration is demonstrated; establish an alternate period to demonstrate compliance with corrective actions; modify the post-closure care period; and allow states to issue technical certifications instead of a current requirement that professional engineers issue certifications.

As significantly, the EPA has proposed to revise the 2015 rule to allow coal ash to be used in construction of final cover systems for CCR units that are closing with waste in place.

The EPA will be accepting written comments on the proposal through Regulations.gov under Docket ID No. EPA-HQ-OLEM-2017-0286 for 45 days after the proposed rule is published in the Federal Register, and it plans to hold a public hearing to receive additional feedback on the proposal during the public comment period.

Notably, the EPA also said it plans to propose additional changes to the CCR rule later this year, a move that will likely involve signature of a second proposed rule.

A Long History

The March 1 proposal is a significant development in the EPA's decade-long effort to regulate coal ash. In March 2009, after the Obama administration initiated the CCR Assessment Program in response to the December 2008 coal ash spill at the Tennessee Valley Authority's coal plant in Kingston, Tennessee, it found that the structural integrity of 152 units (out of more than 500 U.S. coal plant impoundments assessed) were "poor."

In June 2010, the EPA published a proposed rule, and the agency published its final rule, "Hazardous and Solid Waste Management System; Disposal of Coal Combustion Residuals from Electric Utilities," in the Federal Register on April 17, 2015. The rule, which stands today, regulates coal combustion residuals-fly ash, bottom ash, as well as boiler slag and flue gas desulfurization materials-that contain unsafe contaminants such as mercury, cadmium, and arsenic. The federal rule sets out specific minimum criteria for the safe disposal of CCR in landfills and impoundments.

Measures include location restrictions, liner design criteria, structural integrity requirements, operating criteria, groundwater monitoring and corrective actions, closure and post-closure requirements, and record-keeping and notification requirements. If a facility does not comply with these criteria, the unit may be deemed an "open dump" and is therefore potentially subject to closure, the agency has said.

Industry and state agencies have lamented the rule's complexity, and the rule has faced legal challenges from environmental groups as well as from industry groups, including the Utility Solid Waste Activities Group, the Edison Electric Institute, the National Rural Electric Cooperative Association, and the American Public Power Association. In July 2015, the D.C. Circuit consolidated seven petitions for review of the final rule in USWAG et al. v EPA, No. 15-1219.

But after the EPA in April 2016 filed an unopposed motion to remand certain provisions back to the agency for revision or removal, the D.C. Circuit granted the EPA's motion in June 2016. The court effectively voided provisions affecting inactive impoundments that were closed by April 2018, requiring previously exempted surface impoundments to comply with post-closure mandates for existing impoundments.

The Trump administration, which has touted "cooperative federalism," has been taking steps to implement its new authority for authorizing state CCR management permit programs under Section 2301 of the WIIN Act.

The WIIN Act, which was signed by President Obama in December 2016, largely aims to restore watersheds, improve waterways and flood control, and improve drinking water infrastructure. Section 2301, which had the backing of utility groups, amends subtitle D of the 1976 RCRA to establish a permit program for CCR allowing states-after gaining the EPA's approval-to administer the activity in lieu of a federal regulatory program. The amendment also requires the EPA to review state programs at least once every 12 years, or on the request of a state.

But the amendment doesn't annul the Obama administration's 2015 CCR rule, which set the first-ever minimum federal standards for the disposal of coal ash under RCRA. While Section 2301 allows states to adopt different technical standards from the EPA's CCR rule, they must still be as protective as the federal rule. If not, the EPA has the authority to adopt a permit program that meets the federal rule.

Notably, the EPA's March 1 proposal incorporates issues raised by industry, represented by the Utility Solid Waste Activities Group (USWAG), which on May 12, 2017, petitioned the EPA to reconsider specific provisions of the final rule, citing the WIIN Act as one of the primary reasons to reconsider the 2015 rule.

Meanwhile, litigation at the D.C. Circuit has continued. On November 20, 2017, the court heard oral arguments by industry, environmentalists, and the EPA.

Earlier this year, the EPA also moved to grant draft approval of Oklahoma's application to regulate coal ash in lieu of the federal program, making the state-where EPA Administrator Pruitt formerly served as attorney general-the first in the nation to seek this approval. Georgia is the only other state to have submitted an application.

-Sonal Patel is a POWER associate editor (@sonalcpatel, @POWERmagazine)

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