EPA Urges States to Submit CCR Programs Even as Coal Ash Regulatory Overhaul Continues

The Environmental Protection Agency (EPA) on June 24 proposed to partially approve Georgia's permit program for the disposal of coal combustion residuals (CCR). As it did so, it gave other states some advice: Follow Georgia's lead and assume oversight of coal ash that power plants dispose within your borders.

The preliminary approval marks another important step in the Trump administration's efforts to overhaul the federal coal ash regulatory structure under the Water Infrastructure Improvements for the Nation (WIIN) Act. That law, enacted in 2016, grants the EPA the authority to approve state CCR permit programs in lieu of broad federal CCR regulations established under the agency's final 2015 coal ash rule, the agency said on Monday.

However, only two states have so far submitted CCR permit programs to the EPA for review: Georgia and Oklahoma. Virginia, North Carolina, and Illinois have meanwhile moved to address power plant coal ash disposal through state-level legislation.

EPA: Georgia's Program Covers a 'Broader Universe of CCR Units'

The EPA's proposal to partially approve Georgia's program comes a year after the agency approved Oklahoma's CCR permit program. Former EPA Administrator Scott Pruitt, a former Oklahoma attorney general, signed the June 2018 approval for Oklahoma's program about 11 months after it was first submitted for review, saying the state had incorporated all elements of the federal rule.

Georgia submitted its initial CCR state permit program application to the EPA in April 2018, but in February 2019, the state revised its application and asked the EPA to approve part of it. After it submitted more revisions in March and May 2019, the EPA determined the application was "complete." On Monday, the agency proposed to approve all of Georgia's program except four key provisions; one relates to protections for threatened and endangered species, while the others are provisions in the 2015 federal coal ash rule that the D.C. Circuit vacated in its pivotal August 2018 decision in Utility Solid Waste Activities Group, et al. v. EPA.

The vacated federal provisions excluded inactive impoundments at retired facilities, they allowed unlined impoundments to continue receiving coal ash unless they leak, and they classified "clay-lined" impoundments as lined.

The EPA's partial approval of the state program will mean Georgian power plant owners and operators will need to comply with federal requirements for threatened and endangered species, the EPA said.

Because the provisions relating to unlined and clay-lined impoundments aren't yet federal requirements, facilities will need to comply with them "once established by the EPA," it said. However, even if the EPA promulgates "future regulations" governing these types of impoundments, they likely won't impact Georgian generators because "all unlined impoundments in the state are scheduled to cease receiving CCR by 2020 and because no clay-lined impoundments exist in Georgia," it noted.

To comply with the court's decision, Georgia already addressed the vacated inactive impoundment provision in its CCR program, effectively covering a "broader universe of CCR units than are covered under the federal CCR regulations," the EPA said.

The state's definition of "CCR Unit" matches the federal definition, it said. But, unlike the federal rule, the state's definition of "CCR landfills" and "CCR surface impoundments" encapsulates so-called "legacy units"-including dewatered surface impoundments, National Pollutant Discharge Elimination System (NPDES) surface impoundments (which are inactive but not dewatered facilities at retired coal plants), and inactive CCR landfills.

EPA to Address Provisions in Future Rulemakings

CCR-commonly known as "coal ash"-are generated from coal combustion of anthracite, bituminous, sub-bituminous, and lignite, for the purpose of generating steam to power, and they include fly ash, bottom ash, boiler slag, and flue gas desulfurization materials.

In response to the disastrous spill at the Tennessee Valley Authority's Kingston Fossil Plant in December 2008, and another spill from a Duke Energy plantinto North Carolina's Dan River in 2014, the Obama administration issued a broad final coal ash rule in April 2015, which created 40 CFR part 257, subpart D, and encoded a comprehensive set of minimum federal requirements for the disposal of CCR in landfills and surface impoundments. The 2015 rule essentially created a self-implementing program governing the location, design, operating criteria, and groundwater monitoring and record keeping for CCR disposal, as well as corrective action, and closure and post-closure management of CCR units.

The WIIN Act, however, amended Section 4005 of the Resource Conservation and Recovery Act (RCRA) to allow states to submit permit programs to the EPA for approval in lieu of federal requirements. Once approved, the EPA must review the state program at least once every 12 years.

On Monday, the EPA noted major portions of the Obama administration's 2015-finalized rule remain in effect and are unchallenged in court, though it also claimed it will be addressing a "limited number of provisions in future rulemakings." But "this need not delay states seeking approval now. The WIIN Act contains provisions for how and when states must update their approved programs when changes are made on the federal level," it added.

However, according to a regulatory agenda the agency released this May, it is scheduled to issue several proposals over the next few weeks that could affect state and power plant decisions about the future of their coal ash management.

Actions will affect a two-part rule the EPA promulgated last year to overhaul the national minimum criteria contained in the 2015 CCR Rule to better align it to potential revisions to the effluent limitation guidelines (ELGs). According to the agency's agenda, the EPA will likely issue a proposed revision of the ELGs over the coming days.

The agency signed the first part CCR overhaul in July 2018-a month before the D.C. Circuit's August 2018 decision. The Phase 1 rule weakens requirements for managing coal ash storage areas, allows states to suspend groundwater monitoring if no leaks are detected, and it delays pond closure deadlines until October 2020-about 18 months later than the 2015 rule required. The EPA is now planning a revision of Phase 1 to take into account the federal court's remanded provisions. Among issues the revised rule will likely address is when owners and operators of CCR surface impoundments should cease the receipt of CCR and initiate closure.

As part of the second phase, the EPA will likely propose additional "targeted" changes to the 2015 CCR rule, including actions remanded back to the agency by the D.C. Circuit in August 2018 as they relate to clay impoundments and exempted inactive impoundments. The EPA sent Phase 2 to the White House Office of Management and Budget (OMB) for review on May 7. Both rules will likely appear in July.

Also in July, the agency plans to address the court's remanded provision that addresses whether unlined surface impoundments meeting strict criteria would be allowed to continue to operate. "This rule would address a provision in that court decision and provide a mechanism where unlined surface impoundments meeting strict criteria would be allowed to continue to operate. This rule also addresses a necessary modification to the timeline of closure by removal and requests comments on inactive units at inactive facilities also known as 'legacy units,' " the EPA's agenda says.

Finally, next month, the EPA is also likely to propose a rule to limit its federal CCR permitting to tribal lands and non-participating states. Remaining CCR facilities would be regulated by approved state programs, which means they would not be subject to federal permitting requirements.

Despite the uncertainty, EPA Administrator Andrew Wheeler has signaled that the agency will be flexible. "EPA encourages other states to follow Georgia's lead and assume oversight of coal ash management within their borders," he said on Monday.

"EPA is committed to working with the states as they establish coal ash programs tailored to their unique circumstances that are protective of human health and the environment," he said.

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

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