Hazardous and Solid Waste, Regulatory Developments

EPA Proposes Changes to Coal Combustion Rule

The EPA has issued the first of two proposals that together will lessen the stringency of the Obama administration’s 2015 rule governing the disposal of coal combustion residuals (CCRs) generated by electric utilities. The Phase One proposal comprises a dozen changes, some that result from a remand of parts of the 2015 rule by the U.S. Court of Appeals for the D.C. Circuit; some that respond to requirements in the Water Infrastructure Improvements for the Nation (WIIN) Act; and one regarding the use of CCRs during certain closure operations, which was requested by commenters.

“Today’s coal ash proposal embodies EPA’s commitment to our state partners by providing them with the ability to incorporate flexibilities into their coal ash permit programs based on the needs of their states,” said EPA Administrator Scott Pruitt. According to the Agency, the proposal will save the industry between $31 million and $100 million per year.

Industry welcomed the action, which, it said, allows “site-specific tailoring of the groundwater monitoring and corrective action requirements of the original CCR rule.” (Edison Electric Institute)

Environmental groups, which called the 2015 rule too weak, assert that the Trump administration “is trying to pare back what already was the bare minimum.” (Waterkeeper Alliance)

Court Remand

The Agency is proposing four changes to the CCR final rule, which are associated with the judicial remand. One far-reaching change would clarify the type and magnitude of nongroundwater releases that would require a facility to comply with some or all of the corrective action procedures set forth in 40 CFR 257.96 to 257.98 in meeting their obligation to clean up the release. The 2015 rule required that facilities commence corrective action immediately upon detection of a nongroundwater release from a CCR unit. The EPA is proposing to establish that only subset of nongroundwater releases would require immediate corrective action.

Other proposed revisions would:

  • Add boron to the list of constituents in Appendix IV of part 257, which would trigger corrective action and potentially the requirement to retrofit or close the CCR unit.
  • Determine the requirement for proper height of woody and grassy vegetation for slope protection.
  • Modify the alternative closure provisions.


The Agency is proposing six alternative performance standards that would apply in participating states (i.e., those with an EPA-approved CCR permit program under the WIIN Act) or in those instances where the EPA is the permitting authority. Those alternative performance standards would allow a state with an approved permit program or the EPA to:

  • Use alternative risk-based groundwater protection standards for constituents where no maximum contaminant level (MCL) exists.
  • Modify the corrective action remedy in certain cases.
  • Suspend groundwater monitoring requirements if a no-migration demonstration can be made.
  • Establish an alternate period of time to demonstrate compliance with the corrective action remedy.
  • Modify the post-closure care period.
  • Allow states to issue technical certifications in lieu of the current requirement to have professional engineers issue certifications.

CCR and Closure

The proposal would revise the current regulations to allow the use of CCRs in the construction of final cover systems for CCR units that are closing with waste-in-place. The EPA is also proposing specific criteria that the facility would need to meet to allow for the use of CCRs in the final cover system.

Phase Two

Provisions the Agency plans to address in its Phase Two proposal include the regulation of inactive landfills; criteria for determining whether activities constitute beneficial use or disposal; and the use of risk-based standards for remediating constituents without an MCL.

The EPA says it plans to finalize the Phase One proposal by June 2019, issue the Phase Two proposal by September 2018, and finalize the Phase Two proposal by December 2010.

The prepublication version of the Phase One proposal is here.