On December 16, 2016, President Obama signed the Water Infrastructure Investment for the Nation Act (WIIN) (S. 612).  As one of the last pieces of legislation by Congress this session, the Act gives the Environmental Protection Agency (EPA) authority to approve state permitting programs for coal combustion residuals units (CCR units).  The Act also affects other areas of water resources, ranging from the remediation of lead piping in Flint, Michigan to studies addressing the California drought.

The Act requires EPA to approve state CCR permitting programs that are at least as protective as the federal CCR Rule (40 CFR 257). The Act gives EPA authority to implement a federal permitting program in nonparticipating states. Under the Act, EPA must review state programs at least every 12 years, within 3 years after changing the applicable federal requirements, and one year after a “significant release” in a state.  EPA must also review a state’s program if requested to do so by a state that asserts their soil, groundwater, or surface water is being affected or is likely to be affected by a release or potential release from a CCR unit located in a state with an approved program.

The Act grants EPA authority to commence a judicial and/or administrative enforcement action under certain circumstances. Before commencing such an action, EPA must give notice to the state with the allegedly non-compliant unit.  Under the Act, CCR units will be considered sanitary landfills if the unit is operating in accordance with 40 CFR 257 or a state or federal permit.

EPA’s process for reviewing and approving state CCR permit submissions will be subject to a public notice and comment period. However, it is unclear if EPA will go through rulemaking to establish this process. While the Act does not eliminate citizen suits, compliance with a permit through a federal delegated program should offer some presumption of compliance with the federal CCR Rule.

The full text of the Act may be found here. For more information on the Act or its implications, please contact Holly Hill, Hahnah Williams, or Rich Pepper.