On March 3, 2020, the Illinois Environmental Protection Agency (IEPA) filed with the Illinois Pollution Control Board (Board) proposed regulations establishing standards for coal combustion residue (CCR) surface impoundments, commonly referred to as coal ash ponds, at power generating facilities. The Board published the rules for First Notice on April 16, 2020. The first public hearing was on August 11, and continued on August 12, 13 and 25. Due to the COVID-19 pandemic, virtual participation in the hearings was allowed by WebEx or by telephone. The second public hearing, which will allow testimony from the regulated community and other interested parties, is set for 9 a.m. on September 29, and continue as necessary on September 30 and October 1. The hearings are planned to be held in-person at the Board’s offices in Chicago, with virtual participation again allowed via WebEx or telephone. The hearing officer’s order scheduling the hearing dates and providing access information can be found here.

The proposed regulations would establish comprehensive standards governing the design, construction, operation, closure and post-closure care of, and corrective action at, CCR-containing surface impoundments associated with power generating facilities. CCR is defined to include several different waste streams, including “fly ash, bottom ash, boiler slag, flue gas desulfurization materials generated from burning coal for purpose of generating electricity by electric utilities and independent power producers.” 35 Ill.Adm. Code 845.120; 415 ILCS 5/3.142. The regulations would mandate completion of a closure alternatives analysis for each surface impoundment, which would necessarily include an analysis of the potential for completing a clean closure by removal of CCR. The regulations also would impose public notice requirements, including a requirement for a regulated facility owner to hold two public meetings before submitting a permit application. The proposal further mandates consideration of potential public health impacts and environmental justice concerns and imposes financial assurance requirements.

The Illinois regulations are being proposed to fulfill a statutory mandate under Illinois P.A.101-171, adopted on July 30, 2019, which required the IEPA to file proposed rules no later than March 20, 2020, and requires the Board to adopt final rules no later than one year after the proposal was filed. IEPA has identified 73 CCR surface impoundments associated with 23 power plants in Illinois which now use or previously used coal as a fuel source.

The Illinois regulations are intended to be at least as stringent as USEPA’s regulations governing CCR surface impoundments. USEPA initially adopted final rules establishing standards for CCR surface impoundments on April 17, 2015. Several challenges were brought to the regulations by both citizen groups and the regulated community. In December 2016, President Obama signed the Water Infrastructure Improvements for the Nation (WIIN) Act, amending RCRA, and requiring USEPA to develop a federal permitting program for CCR surface impoundments. As a result of these regulatory challenges, three proposals to amend the federal CCR regulations remain pending and have not yet been finalized.

Under WIIN, USEPA’s authority to enforce the CCR regulatory program can be delegated to a state if the state’s program is at least as stringent as the federal regulations. 42 USC 6945(d)(1)(B). The state program will then operate in lieu of the federal program. As directed by P.A. 101-171, IEPA intends that its proposed regulations will be approved for this delegation of federal authority.

As set forth in Section 22.59(g) of the Environmental Protection Act, as amended by Public Act 101-171, the Illinois CCR program must achieve the following objectives:

  • be at least as protective and comprehensive as the federal CCR rule in Subpart D of 40 CFR 257 or any amendments thereto;
  • establish construction and operating permit requirements and procedures, including requiring a closure alternatives analysis;
  • specify meaningful public participation procedures,
  • prescribe the types and amounts of financial assurance;
  • specify procedures to identify areas of environmental justice concern;
  • establish a method for prioritizing facilities required to close under the federal rule, including prioritizing areas of highest risk to public health and areas of environmental justice concern;
  • establish standards for removal of CCR from surface impoundments, and define metrics for what constitutes complete removal; and
  • set forth the process and standards for identifying alternative sources of groundwater pollution.

The first round of hearings focused primarily on IEPA’s witnesses, and questions from interested parties directed at those witnesses. The second round of hearings will address all additional testimony and public comment. Pre-filed testimony for the second hearing was due by August 27. Pre-filed questions on that testimony must be filed by September 10, and pre-filed responses to those questions must be filed by September 24. The Board’s docket for the rulemaking, R20-19, can be accessed here.

Troutman Pepper will continue to follow developments in this rulemaking. For more information, please contact Kevin Desharnais, Brooks Smith or Todd Fracassi.