On April 20, the Supreme Court of the United States reversed the Montana Supreme Court’s decision in Atlantic Richfield Co. v. Christian, limiting restoration damages claims beyond Environmental Protection Agency-approved cleanups at Superfund sites, while affirming the right of private parties to seek other kinds of damages under state law. The majority decision, penned by

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.


Continue Reading EPA Issues Part B to its Holistic Approach to CCR Unit Closure Proposal

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.
Continue Reading EPA Proposes Additional Round of CCR Rule Revisions

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.
Continue Reading EPA Proposes Second Round of CCR Rule Amendments

On June 28, EPA proposed to partially approve Georgia’s coal combustion residuals (CCR) state permit program.  If finalized, Georgia’s program will become the second to receive EPA’s approval and will operate in place of the federal CCR requirements.

In its proposal, EPA determined that—with the exception of four provisions—Georgia’s program meets the standard for EPA approval.  EPA proposed to partially approve Georgia’s program since it does not incorporate certain endangered species provisions and because it includes now-vacated provisions that exclude inactive surface impoundments at inactive facilities from regulation, allow unlined surface impoundments to continue receiving CCR unless they leak, and classify clay-lined surface impoundments as lined.  Georgia’s CCR rule has not been revised to reflect the vacatur of these provisions because EPA has not yet finalized those changes at the federal level.  EPA plans to issue proposals to address these topics in 2019.  Once finalized, Georgia EPD can amend its regulations to align with EPA’s changes and then apply for approval of those amendments at a later date.
Continue Reading EPA Proposes Approval of Georgia’s CCR Permit Program

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