Regulatory Developments

EPA Administrator to Reconsider Coal Ash Rule

EPA Administrator Scott Pruitt has informed several industry stakeholders that he will grant their requests to reconsider provisions of the Agency’s December 2014 final rule imposing Resource Conservation and Recovery Act (RCRA) Subtitle D requirements on the disposal of coal combustion residuals (CCRs) generated by fossil-fuel power plants.

In his brief letter to the two petitioners—the Utility Solid Waste Activities Group (USWAG) and AES Puerto Rico, a coal-fired power plant in Guayama—Pruitt writes that the issues raised in the petitions as well as “new authorities” provided by the 2016 Water Infrastructure Improvements for the Nation (WIIN) Act warrant reconsideration of the provisions, which include compliance deadlines.

Pruitt also notes that the EPA expects to request that litigation affecting the CCR rule be held in abeyance by the U.S. Court of Appeals for the D.C. Circuit while the Agency reconsiders the rule. Oral argument in that case is scheduled for October 17, 2017.

Self-implementing regulation

The CCR rule was written to address risks of contamination to surface water and drinking water posed by landfills and impoundments containing CCR generated by utilities. Among its provisions, the rule requires location restrictions, groundwater monitoring, minimum landfill/impoundment design and operating criteria, and recordkeeping requirements. Also, the rule established specific time frames for both beginning and completing closure of landfills and impoundments. The rule is self-implementing, meaningaffected utilities must comply with the requirements even if they are separately regulated under any state requirements for CCR disposal sites.

State implementation

The WIIN Act amended RCRA Subtitle D to authorize states to implement the CCR rule through state permitting programs. Specifically, the Act authorizes states to submit an application requesting EPA’s approval to administer the CCR rule through a state permitting program in lieu of the self-implementing CCR rule. The petitioners argue that the WIIN Act reduces the necessity of inflexible requirements of the CCR rule.

“With the WIIN Act’s change to the implementation of the CCR rule, EPA’s original rationale for excluding the site-specific, risk based tailoring provisions from the final rule—it’s concern for ‘abuse’ by entities operating under the self-implementing regime—no longer exists,” wrote the USWAG. “Therefore the rule should be amended as soon as possible to incorporate the risk-based management options contained in state and other EPA solid waste programs, eliminating the burdensome one-size-fits-all approach of the current rule.”

Coordination with effluent limits rule

The petitioners were particularly concerned with their obligations under the rule to meet deadlines to complete compliance actions to protect groundwater, undertake cleanup, and control waste piles, among others.

“First, owners/operators of CCR units are now facing decisions on whether to make large capital expenditures to comply with central requirements of the CCR rule—requirements that will be evaluated for potential modification or replacement pursuant to this reconsideration petition,” wrote the USWAG. “Second, many of these requirements also may change or be implemented differently with the transition to state permit programs. Finally, an extension is necessary to ensure alignment of the CCR rule with EPA’s recent postponement of the compliance dates for implementation of the Final Effluent Limitations Guidelines and Standards Rule for the Steam Electric Power Generating Point Source Category (ELG rule). Coordination of the CCR and ELG rule’s compliance time frames has been one of the overarching objectives of the Agency to ensure that owners/operators of CCR units are not forced to make decisions affecting these units under the CCR rule without first understanding the ELG requirements.”

No decision yet to revise

Pruitt states that his letter to the petitioners does not address the merits of the petitions.

“If the EPA decides to begin the process of potentially revising provisions of the final rule, the Agency will promptly inform the court of the portions of the final rule, if any, that it will seek to have remanded to the Agency,” Pruitt wrote.

The USWAG petition is here.