On March 13, 2019, a three-judge panel for the D.C. Circuit Court of Appeals granted EPA’s motion for voluntary remand without vacatur of the Agency’s recent revisions to the Coal Combustion Residuals (CCR) rule, commonly referred to as “Phase One, Part One.”  The D.C. Circuit’s Order comes in response to dueling arguments EPA and a coalition of environmental groups presented regarding Phase One, Part One’s future in light of the Court’s recent vacatur and remand of portions of the CCR rule in USWAG v. EPA, 901 F.3d 414 (D.C. Cir. 2018).

Significantly, the D.C. Circuit’s Order leaves in place Phase One, Part One’s October 2020 deadline for CCR surface impoundments to stop receiving CCR after triggering closure.  In granting EPA’s motion, the Court stated that EPA demonstrated that disruptive consequences would have resulted from  vacatur. 

EPA argued in its December 2018 motion that vacatur would have significant detrimental impacts, would require certain surface impoundments to immediately begin closing, and would require entities to immediately arrange for alternative disposal capacity for CCR and non-CCR wastestreams.  EPA further argued in its response to the environmental groups’ motion that immediate compliance would not be feasible in many instances, and that vacating Phase One, Part One would require many power plants to cease operating for at least some period of time, which may have led to grid destabilization.

The D.C. Circuit’s decision is a significant victory for electric utilities.  It allows them to continue closing surface impoundments based on the currently-in-place timeframe while EPA revisits the rule.

The D.C. Circuit expressed its confidence in EPA to “expedite its rulemaking proceedings on remand to the fullest extent possible.”  We will provide updates regarding the remand process as they become available.  For more information regarding the D.C. Circuit’s Order or other issues related to CCR, please contact Holly Hill or Buck Dixon.

On November 7, EPA filed a motion asking the D.C. Circuit to remand certain provisions of the CCR Rule for the Agency’s reconsideration.  As background, on September 13, EPA granted USWAG’s and AES Puerto Rico’s petitions for reconsideration of the CCR Rule stating that it was “appropriate and in the public interest” for the Agency to reconsider parts of  the regulation.  EPA’s decision was largely based on the Water Infrastructure Improvements for the Nation (WIIN) Act, which alters the self-implementing nature of the Rule to one implemented through enforceable permit programs.

Continue Reading EPA Asks Court to Remand Certain CCR Rule Provisions

On August 15, 2017, EPA issued non-binding guidance providing insight of EPA’s expectations for states to assume regulation authority over coal combustion residuals (CCRs).   Comments on this guidance are due September 14, 2017. Under the Water Infrastructure and Improvements for the Nation Act, states may develop their own CCR permit programs that are “at least as protective” as the federal CCR rule.  EPA must review these programs at least every 12 years.  Upon the submission of a program application by a state, EPA will have 180 days to act, which includes a period of public notice and comment.  States may choose not to submit such a program, and instead opt to remain under the federal scheme.

Continue Reading Environmental Protection Agency Issues Guidance on Approving State Permit Programs under the WIIN Act

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.

Continue Reading Congress Gives EPA Authority To Approve State CCR Permitting Programs

The Georgia Department of Environmental Protection (“EPD”) released a draft “Coal Combustion Residuals” rule on May 12, 2016 (“draft State CCR Rule”).  EPD solicited comments on the draft rule until May 24, 2016.  The draft State CCR Rule builds on the federal Coal Combustion Residuals Rule (“federal CCR Rule”), which was released by the U.S. Environmental Protection Agency (“EPA”) last spring.  Continue Reading Georgia’s Draft Proposal to Regulate Coal Combustion Residuals

As reported by Law360, Troutman Sanders LLP and members of its Environmental and Natural Resources Practice Group assisted Safeway Inc. regarding its recent settlement of retail and pharmaceutical waste issues in California.  The Alameda County District Attorney’s office, along with 43 other California jurisdictions, filed a Complaint and Stipulation of Final Judgment resolving the case for payments of penalties, investigative costs and Supplemental Environmental Projects valued at $9.87 M. Prosecutors alleged that Safeway and its approximately 500 grocery stores and pharmacies, as well as two distribution centers, had improperly disposed of hazardous and medical wastes under state laws regulating the disposal of these materials. Continue Reading Troutman Sanders Team assists Safeway Inc. with Retail and Pharmaceutical Waste Issues in California

Today the U.S. House of Representatives passed a bill that would preclude EPA regulation of coal ash as a “hazardous waste,” with the bipartisan support of 39 Democrats.  The bill would require states to regulate coal ash as a “solid waste” instead, which would make it easier for utilities to continue recycling the ash for a number of uses, such as cement production and construction material.  In addition, the bill establishes minimum federal requirements that include criteria for design, groundwater monitoring, financial assurance, emissions control, closure and post-closure care for ash landfills and impoundments.  Continue Reading The House Votes to Curtail EPA Authority Over Coal Ash

This week, the Court in the Coal Combustion Residuals (CCR) deadline litigation postponed the status conference scheduled for July 26, and the conference is now set for October 11, 2013.   This is the third time the court has postponed the status conference, leaving little hint of what this could mean for the CCR proposed rule.  The Court said that the July 26 conference was unnecessary given pending motions for summary judgment.  The lawsuit involves environmental groups suing EPA over the failure to finalize a federal rule regarding disposal of CCRs.