The EPA has issued interim final guidance outlining the process and procedures the Agency generally intends to use to review and make determinations on state coal combustion residual (CCR) permitting programs.
In the guidance, the EPA proposes that review and approval of state CCR programs as well as the materials that the EPA is asking states to submit with their applications for permitting approvals will generally follow existing regulations at 40 CFR Part 239 (municipal solid waste programs) and will also be based on “our experience in reviewing and approving State programs in general.”
Fixing the 2015 rule
The guidance is one part of the current administration’s response to a rule the Obama EPA issued in 2015. Under that action, which is currently in force, CCRs are regulated under Subtitle D of the Resource Conservation and Recovery Act (RCRA). Subtitle D may not be implemented through state permit programs. Accordingly, the CCR rule is self-implementing. While any state may adopt the rule, the federal criteria still must be met by that state. Furthermore, under the rule, all affected facilities are required to comply with the federal criteria whether or not their states adopt the rule. Also, since some states already regulate CCR, the result can be dual and often inconsistent sets of regulations. The EPA, moreover, has no authority to enforce the CCR rule, which is subject to citizen suits; states are authorized to act as citizens. All these conditions make the 2015 CCR rule a compliance and enforcement challenge for states and regulated entities.
In its 2016 Water Infrastructure Improvements for the Nation (WIIN) Act, Congress addressed the difficulties inherent in the CCR rule by allowing—but not requiring—states to develop and submit an application for a CCR permit (“or other system of prior approval”) program for EPA’s approval. The submitted program does not have to be identical to the current CCR rule but must be “at least as protective.” The Act further requires that in states that do not have an approved permit program (nonparticipating states), the EPA must implement a permit program, “subject to the availability of appropriations specifically provided to carry out a program.”
“EPA intends to provide as much flexibility to the state programs as possible, consistent with the WIIN Act’s standard for approval of state programs,” the Agency says in the interim guidance.
According to the interim guidance, the information and procedures set forth therein are intended as a technical resource to states and may be useful in developing and submitting a state CCR permit program application to the EPA. Generally, the Part 239 regulations require that an application include:
- A transmittal letter signed by the director of the state agency with implementation responsibilities;
- A narrative description of the state permit program;
- A legal certification;
- Copies of all applicable state statutes, regulations, and guidance; and
- A completed 40 CFR Part 257 checklist (Part 257 comprises the federal CCR requirements).
The critical element here appears to be the narrative description. According to the interim guidance, such a description should be an explanation of how the state’s program works and, using Part 239 as a model, should include:
- A description of the jurisdiction and responsibilities of all state agencies and local agencies implementing the permit.
- An explanation of how the state will ensure that existing and new facilities are permitted or otherwise approved.
- A demonstration, along with any supporting evidence, that the state has for an adequate permit program. The demonstration would address the state’s requirements for compliance monitoring, enforcement, and intervention in civil proceedings.
- The number, type, size, and location of CCR units within the state’s jurisdiction, which received waste on or after October 19, 2015.
- A description of the state’s public participation procedures that create an inclusive dialogue, allowing interested parties to talk openly and frankly with one another about issues and search for mutually agreeable solutions to differences.
“As part of EPA’s ongoing commitment to cooperative federalism, we continue to consult with our state partners to find the best management strategy for the safe disposal of coal ash in each of their states,” said EPA Administrator Scott Pruitt. “We intend for this new guidance to help states by making the permit program approval process easier to navigate.”
The interim guidance is here.