On November, 4, the U.S. Environmental Protection Agency (EPA) Administrator Andrew Wheeler announced the latest proposal to amend the Coal Combustion Residuals (CCR) rule. Since its original promulgation in April 2015, the CCR rule has been the subject of extensive litigation and numerous rounds of proposed and final revisions. Many of the revisions have sought to address decisions made by the U.S. Court of Appeals for the D.C. Circuit (D.C. Circuit) and concerns raised by both industry and environmental groups. This latest round of proposed changes—entitled “A Holistic Approach to Closure Part A: Deadline to Initiate Closure”—includes the following three categories of proposed amendments to the CCR Rule.

First, EPA is proposing to reclassify clay-lined surface impoundments as “unlined” surface impoundments. This proposed revision reflects the D.C. Circuit’s decision in USWAG v. EPA, 901 F.3d 414 (D.C. Circuit 2018).

Second, EPA is proposing to revise the  deadline to initiate closure for all unlined impoundments (including clay-lined impoundments) or units that failed to meet the aquifer location restriction. The proposal would change the deadline from October 31, 2020 (which EPA recently set in its July 30, 2018 Phase One Part One rule) to August 31, 2020. EPA chose this date by adding 22.5 months to the date of the USWAG decision, which EPA considers “the fastest technically feasible timeframe needed to construct alternate capacity and for CCR surface impoundments to cease receipt of waste.”

Third, EPA is proposing to revise alternative closure provisions to provide additional time to develop alternate capacity to manage CCR and non-CCR wastestreams. EPA addressing the lack of disposal capacity for non-CCR wastestreams is significant. In its March 15, 2018 Phase One Proposal, EPA proposed revisions to address the lack of disposal capacity for CCR and non-CCR wastestreams. That proposal, however, was not finalized. This proposal similarly adds revisions addressing disposal capacity issues for CCR and non-CCR wastestreams, but does so in a more simplified and streamlined manner.

This portion of the revised rule proposes three types of extensions that units might receive in the event they cannot meet the August 31, 2020 deadline. The first proposed extension mechanism is a self-implementing, short-term extension to initiate closure for surface impoundments that need slightly more time to cease receipt of waste due to the lack of alternate disposal capacity or technical infeasibility. This proposed extension is for up to three months—until November 30, 2020 or when alternative capacity is available (whichever is sooner).

The second proposed extension is a site-specific extension of up to five years after the USWAG decision (no later than October 15, 2023) to initiate closure for surface impoundments that demonstrate the development of alternate disposal capacity is infeasible. To obtain this extension, the owner/operator would need to submit a demonstration that includes documentation that alternative disposal capacity is not available on-site or off-site and that it was infeasible to obtain such capacity by November 30, 2020. Under this extension, the owner/operator would have until October 15, 2023—at the latest—to initiate closure.

The third proposed extension is for surface impoundments at a facility where the coal-fired boiler is permanently ceasing operation by a date certain—by either October 17, 2023 or October 17, 2028 depend on the size of the surface impoundment at issue. Surface impoundments 40 acres or smaller would have until October 17, 2023 to complete impoundment closure, and surface impoundments greater than 40 acres would have until October 17, 2028 to complete closure. To obtain this extension, the owner/operator would need to document that no alternative disposal capacity exists on-site or off-site and that boiler cessation and impoundment closure will be completed by the dates listed above.

Comments on the proposal are due sixty days after its publication in the Federal Register, which is anticipated soon. EPA will also hold a public hearing on the proposal in January 2020. For more information, please contact Holly Hill or Buck Dixon.