On July 29, EPA Administrator Andrew Wheeler signed a long-anticipated proposal to amend EPA’s 2015 Coal Combustion Residuals (CCR) rule.

EPA’s proposal includes a number of changes, including the establishment of an alternate risk-based groundwater protection standard for boron, revisions to the annual groundwater monitoring and corrective action report requirements, and revisions to the CCR website requirements. The proposal also includes changes in response to the U.S. Court of Appeals for the D.C. Circuit’s August 21, 2018 remand of certain CCR rule provisions. These amendments address the “beneficial use” definition and CCR pile requirements.

The amendments that would likely have the most significant practical effects are the changes to the “beneficial use” definition and the CCR pile requirements, as well as the proposed standard for boron if boron is added as an Appendix IV constituent. Regarding beneficial use, the proposal would revise the “beneficial use” definition’s fourth criterion. Currently, when a beneficial use involves the non-roadway application of 12,400 tons or more of unencapsulated CCR, the user must demonstrate “that environmental releases to groundwater, surface water, soil and air are comparable to or lower than those from analogous products without CCR, or that environmental releases . . . will be at or below relevant regulatory and health-based benchmarks for human and ecological receptors during use.” 40 C.F.R. § 257.53. EPA’s proposal would replace this mass-based threshold with location-based criteria largely derived from the location criteria for CCR disposal units. The proposal would require an environmental demonstration if a beneficial use involved placement of unencapsulated CCR in a wetland, an unstable area, the 100-year floodplain, a seismic zone, within five feet of the uppermost aquifer, or within 200 feet of a fault area. In addition to these criteria, EPA also considered adopting and requested comments on incorporating additional location criteria involving distance from a water body and from a water supply well.

EPA also proposed substantial revisions to provisions addressing CCR piles. The CCR rule currently defines “CCR Piles” as any “non-containerized accumulation of solid, non-flowing CCR that is placed on the land.” 40 C.F.R. § 257.53. The definition further states that “CCR that is beneficially used offsite is not a CCR pile.” Id. (emphasis added). Under the current CCR rule, non-containerized CCR that is temporarily piled onsite at an electric utility is therefore considered a CCR pile subject the CCR landfill disposal requirements, even if it may someday be beneficially used.

In its proposal, EPA states that it believes such temporary placement is better characterized as “storage,” regardless of the whether the CCR is destined for disposal or beneficial use. It accordingly proposed to remove the onsite/offsite distinction and the beneficial use requirement for CCR piles by establishing a new term—CCR Storage Pile—which it defines as “any temporary accumulation of solid, non-flowing CCR placed on the land that is designed and managed to control releases of CCR to the environment.”

To demonstrate accumulation is temporary, there must be a record in place (e.g. a contract, purchase order, facility O&M or fugitive dust control plan) documenting that the CCR will be completely removed pursuant to a specific timeline. For controlling releases, the proposed definition lists the examples of control measures to control CCR releases. These measures include periodic wetting, application of surfactants, tarps or wind barriers to suppress dust, tarps or berms to prevent precipitation contact and to control run-on/runoff; and impervious storage pads or geomembrane liners for protecting soil and groundwater. In addition, the proposed “CCR Storage Pile” definition states that CCR contained in enclosed structures are not CCR storage piles.

Regarding boron, EPA proposed to adopt a boron groundwater protection standard of 4,000 micrograms per liter (µg/L). This standard, however, would only be finalized if boron is ever added to the list of Appendix IV constituents in 40 C.F.R. Part 257.

With respect to annual groundwater monitoring and corrective action reports, EPA’s proposal seeks to make the reports more understandable and user-friendly by requiring facilities to include an introductory summary of the status of their groundwater monitoring and corrective action programs. The proposal would require these summaries to include:

  • A statement of whether the CCR unit was operating pursuant to the detection monitoring program or the assessment monitoring program;
  • Identification of any constituents and corresponding wells for which the facility identified a statistically significant increase (SSI) over background levels;
  • The date, if applicable, when the assessment monitoring program was initiated; and
  • A description of any corrective measures initiated or completed.

In a similar vein, EPA’s proposed changes to the CCR website requirements aim to improve public availability of information on facilities’ websites. Specifically, the proposal would disallow requirements that the public wait to be “approved” to obtain documentation or provide information to be granted access. In addition, the proposal would require facilities to notify EPA within fourteen days of changing their website addresses. This would allow EPA to better update its website with correct URLs.

EPA is accepting public comments on its proposal until 60 days after its publication in the Federal Register, which is anticipated any day. In addition, EPA is holding a public hearing on the proposal on October 2 in Washington, D.C.

For more information regarding EPA’s proposal or other CCR-related issues, please contact Holly Hill, Karlie Webb, or Buck Dixon.