On March 3, 2020, the United States Environmental Protection Agency (EPA) published its most recent proposed revisions to the federal Coal Combustion Residuals (CCR) rule. The proposal, which EPA has coined “Part B” to its “Holistic Approach to Closure,” is a follow-up to the Part A proposal, which EPA published in November 2019. Part of a flurry of CCR-related activity, the Part B proposal comes just days after EPA issued its proposed federal CCR permit program.
As we previously reported, the purpose of EPA’s Part A proposal was to align the Agency’s regulations with the D.C. Circuit Court of Appeals’ August 2018 decision in USWAG v. EPA, 901 F.3d 414 (D.C. Circuit 2018). To that end, Part A proposed to (1) classify clay-lined surface impoundments as unlined, and (2) require all unlined surface impoundments to close.
After the USWAG decision (and before the promulgation of the Part A proposal), EPA received reports from industry groups and companies stating that there were clay-lined surface impoundments that would be required to retrofit or close, despite having liners that are equivalent or even superior to the liners the CCR rule requires. In response to these reports, EPA published its Part B proposal, which, if finalized, would establish procedures for impoundments to continue to operate by making alternate liner demonstrations. In addition, the Part B proposal would also allow for the use of CCR during closure, add an additional option for units being closed by removal of CCR, and require the submittal of annual progress reports. Each of these proposed changes to the CCR rule are discussed in turn below.
Alternate Liner Demonstration
EPA’s Part B proposal seeks to provide a pathway for surface impoundments not meeting the CCR rule’s liner requirements to continue to operate if they can demonstrate that their continued operation “pose[s] no reasonable probability of adverse effects on human health or the environment.” To make this demonstration, owners and operators of these units would need to provide EPA (or a Participating State Director) with site-specific data through a two-step process.
The first step would require an initial application “to ensure that a unit meets minimum requirements before embarking on a comprehensive alternate liner demonstration.” This would entail the owner/operator submitting a letter to EPA within 30 days of the final rule’s effective date declaring its intent to submit a demonstration. With the letter, the owner/operator would also be required to submit documentation of compliance with the CCR rule, including its location restrictions. The owner/operator would also have to show that a facility has a sufficient groundwater monitoring well network and that there is no groundwater data indicating that a CCR unit has or will adversely impact groundwater. Upon the receiving this information, EPA will evaluate the submittal and determine whether the surface impoundment is eligible to submit an alternate liner demonstration.
If EPA determines a surface impoundment is eligible, the owner/operator would then need to prepare a demonstration that the unit’s continued operation poses “no reasonable probability of adverse effects to human health or the environment in the future.” The demonstration would require, at a minimum, a demonstration that the unit has not and will not cause exceedances of relevant groundwater protection standards. To make such a demonstration, EPA proposal would require the owner/operator characterize site-specific hydrogeology and assess the potential for infiltration through the liner and soils. A professional engineer would need to certify all data, analyses, and conclusions included in the demonstration.
The Part B proposal would require owners and operators to submit site-specific demonstrations within one year of the deadline for submitting the initial application (thirteen months after the final rule’s effective date). If EPA approves the demonstration, it is effective for the unit’s remaining life. If EPA denies the demonstration, the unit would need to cease receipt of waste and initiate closure within six months.
Use of CCR During Unit Closure
Part B’s second primary proposal addresses the use of CCR in units subject to closure for cause. Specifically, EPA is proposing two options that would allow for the use of CCR during the closure process. Under the first option, EPA would maintain its prohibition on the addition of CCR after a unit triggers closure but would allow for the use of CCR “for the purposes of supporting closure of the CCR unit.” This option would allow, for example, an owner or operator to consolidate CCR from one or more units to a single unit, even though the unit receiving the CCR was already required to cease receipt pursuant to the CCR rule’s closure deadlines. In proposing this option, EPA stating that allowing such consolidation “would result in an overall smaller CCR unit footprint.” To take advantage of this option, the owner or operator would need to conduct the project under an approved written closure plan delineating how CCR would be used during the closure process.
Under the second proposed option, EPA would allow CCR to be used to support closure, so long as the CCR use meets the CCR rule’s “beneficial use” definition. As an example, EPA stated that CCR could be used as fill beneath a final cover system to achieve needed subgrade elevations to ensure proper drainage. As with the first option, the second option would require the unit’s written closure plan to document how the CCR will be beneficially used.
Closure by Removal Alternative
Part B also proposes an additional closure by removal alternative. EPA has recognized that meeting the CCR rule’s current stringent closure by removal requirements includes corrective action deadlines that may be impossible for owners and operators to meet. To address this issue, the Part B proposal would allow an owner or operator that cannot complete groundwater corrective action by the time that all other closure activities are completed to finish groundwater corrective action during a post-closure care period. This method would allow an owner or operator to certify that a CCR unit is closed, while continuing ongoing efforts to monitor groundwater.
Annual Progress Reporting
The last major revision the Part B proposal offers relates to documenting closure activities. In an effort to promote transparency surrounding the closure process, the proposal would require owners and operators to submit annual closure progress reports. Under this proposal, owners or operators that have provided notice of intent to close a CCR unit would be required to provide certain annual updates on the status of the closure. The updates include (1) a summary of the unit’s current stage of closure (i.e., dewatering of the unit, CCR removal, testing soil and sediments for complete removal, etc.), (2) an updated closure schedule that includes the dates of major closure milestones and any changes to the closure schedule, and (3) information related to any issues experienced during closure which may impact the scheduled closure of the unit and how those problems are being addressed. Under EPA’s proposal, annual progress reports would be due by January 31 of each year.
Comments on the Part B proposal must be submitted to EPA by April 17, 2020. For more information on this proposal or other rulemakings related to CCR, please contact Holly Hill or Buck Dixon.