EPA eliminates plan to limit coal-fired power plant emissions

The First National Regulations

The EPA Administrator signed the Disposal of Coal Combustion Residuals from Electric Utilities final rule on December 19, 2014, and it was published in the Federal Register (FR) on April 17, 2015. This rule finalized national regulations to provide a comprehensive set of requirements for the safe disposal of CCRs, commonly known as coal ash, from coal-fired power plants.

The final rule is the culmination of extensive study on the effects of coal ash on the environment and public health. The rule establishes technical requirements for CCR landfills and surface impoundments under subtitle D of the Resource Conservation and Recovery Act (RCRA), the nation's primary law for regulating solid waste. The final rule makes a number of changes from the proposal including providing greater clarity on technical requirements in response to questions received during the comment period.

These regulations address the risks from coal ash disposal -- leaking of contaminants into ground water, blowing of contaminants into the air as dust, and the catastrophic failure of coal ash surface impoundments. Additionally, the rule sets out recordkeeping and reporting requirements as well as the requirement for each facility to establish and post specific information to a publicly-accessible website. This final rule also supports the responsible recycling of CCRs by distinguishing safe, beneficial use from disposal.

Extension of Compliance Deadlines and Response to Partial Vacatur

On July 26, 2016, the EPA Administrator signed a direct final rule and a companion proposal to extend for certain inactive CCR surface impoundments the compliance deadlines established by the regulations for the disposal of CCR under subtitle D of the RCRA and it was published in the Federal Register on August 5, 2016. These revisions were taken in response to a partial vacatur ordered by the United States Court of Appeals for the District of Columbia Circuit (D.C. Circuit) on June 14, 2016. The comment period for the direct final rule ended on August 22, 2016. Because no adverse comments were received, the rule became effective on October 4, 2016.

Amendments to the National Minimum Criteria Finalized in 2018 (Phase One, Part One)

EPA finalized certain revisions to the 2015 regulations for the disposal of CCR in landfills and surface impoundments to:

  1. Provide states with approved CCR permit programs under the Water Infrastructure Improvements for the Nation (WIIN) Act or EPA where EPA is the permitting authority the ability to use alternate performance standards;
  2. Revise the groundwater protection standard for constituents which do not have an established drinking water standard (known as a maximum contaminant level or MCL); and
  3. Provide facilities which are triggered into closure by the regulations additional time to cease receiving waste and initiate closure. 

More specifically, with this final rule, EPA finalized two types of alternative performance standards that were proposed in March 2018. The first one allows a state director (in a state with an approved coal ash permit program) or EPA (where EPA is the permitting authority) to suspend groundwater monitoring requirements if there is evidence that there is no potential for migration of hazardous constituents to the uppermost aquifer during the active life of the unit and post closure care. The second allows issuance of technical certifications in lieu of a professional engineer.

In addition, EPA revised the groundwater protection standards for four constituents in Appendix IV to title 40 of the Code of Federal Regulations (CFR) part 257 for which MCLs under the Safe Drinking Water Act have not been established. EPA also extended the deadline by which facilities must close coal ash units for two situations:

  1. Where the facility has detected a statistically significant increase above a groundwater protection standard from an unlined surface impoundment; or
  2. Where the unit is unable to comply with the location restriction regarding placement above the uppermost aquifer.

Provisions from the March 2018 proposed rule that are not finalized in this Federal Register notice will be addressed in a subsequent rulemaking.

Proposed Amendments to the National Regulations (Phase One)

On March 1, 2018, the EPA Administrator signed the first of two rules that proposes to amend the April 2015 final rule. The proposal:

  1. Addresses provisions of the final rule that were remanded back to the Agency on June 14, 2016 by the U.S. Court of Appeals for the D.C. Circuit;
  2. Provides states with approved CCR permit programs (or EPA where it is the permitting authority) under the WIIN Act the ability to set certain alternative performance standards; and
  3. Addresses one additional issue that has arisen since the April 2015 publication of the final rule. 

EPA is proposing six provisions that would allow states or EPA the ability to incorporate flexibilities into their coal ash permit programs. These flexibilities would also be available to facilities with U.S. EPA-issued CCR permits.

Additionally, the proposal:

  • Clarifies the type and magnitude of non-groundwater releases that would require a facility to comply with some or all of the corrective action procedures set forth in 40 CFR sections 257.96 through 257.98 in meeting their obligation to clean up the release.
  • Adds boron to the list of constituents in Appendix IV of 40 CFR part 257 that trigger corrective action.
  • Determines the requirement for proper height of woody and grassy vegetation for slope protection.
  • Revises the current regulations to allow the use of CCR in the construction of final cover systems for CCR units closing pursuant to 40 CFR section 257.101 that are closing with waste-in-place.
  • Adds a new paragraph to 40 CFR section 257.103 to allow facilities to qualify for the alternative closure provisions based on the continued need to manage non-CCR wastestreams in the unit. 

EPA accepted written comments on this proposal through Regulations.gov under Docket ID No. EPA-HQ-OLEM-2017-0286 as well as through the email address CCRPhase1@epa.gov for those commenters who wanted to email their comments to EPA. The comment period ended on April 30, 2018.

On April 24, 2018, EPA held a hearing on this proposed rule at the DoubleTree by Hilton Hotel in Arlington, Virginia. More information about the hearing can be found on the public hearing web page.

State Permit Programs

Congress passed and the President signed the WIIN Act in 2016. Section 2301 of the Act amends Section 4005 of the Resource Conservation and Recovery Act (RCRA) to provide for state CCR permit programs. The WIIN Act gives EPA the authority to review and approve state CCR permit programs.

After receiving this authority, EPA developed an interim final guidance document that provides information about the provisions of the 2016 WIIN Act related to CCR as well as the process and procedures EPA will generally use to review and make determinations on state CCR permit programs. EPA is currently working with a number of states on permit program submissions.

State Solid Waste Management Plan Approvals

Check out a chart comparing SWMPs and State Permit Programs

Early in the development of the waste management infrastructure, a process was created to encourage states to effectively plan for and manage their solid wastes through the development of Solid Waste Management Plans (SWMPs). Currently, most states have SWMPs that have been submitted to and approved by EPA. EPA recommends that states take advantage of this process, already in the regulations, by revising their SWMPs to address the issuance of the CCR rule and to submit revisions of these plans to EPA for approval.  Thus, the SWMP will serve as a mechanism where a state will be able to set out, as part of their overall solid waste program, how it intends to regulate CCR landfills and surface impoundments.

There are several ways in which a state can submit a SWMP for approval. If a regulatory agency wants to have their SWMP approved of before state CCR regulations have been adopted, they can submit the plan based on the expectation of the regulations being put in place. These SWMPs can receive approval conditioned on adoption of those state CCR regulations.  A state can also initially submit a plan dealing only with compliance schedules. This would be considered a partial approval and can be granted provided the state agrees to submit an entire plan in a timely fashion.

EPA recognizes that some states have already adopted requirements that go beyond the minimum federal requirements. The CCR rule will not affect these state requirements; moreover, the final rule does not preclude a state from adopting more stringent requirements where they deem that appropriate.

Kansas is the first state to receive conditional approval of their SWMP, which incorporates the federal CCR disposal regulations by reference. Read more about Kansas' SWMP approval.

Indiana has received conditional approval of their CCR SWMP Amendment. They intend to complete a process to revise their CCR regulations to be consistent with the federal minimum CCR requirements by December of 2018. Read more about Indiana’s CCR SWMP Amendment approval.

Compliance Data and Information Websites 

States and citizens perform a crucial role in the implementation and enforcement of this rule. EPA designed certain requirements, including Internet posting requirements, as part of the final rule to help ensure transparency and to assist those charged with playing this role.

Finalized Initial Open Dump Inventory

RCRA requires EPA to publish an open dump inventory to assist the states in complying with the directive that states that solid waste management plans shall provide for closure and upgrading of open dumps. After the final CCR rule was published, EPA developed an initial draft inventory and after public comment, finalized the inventory.  

Publicly-Accessible Internet Sites

The final rule requires facilities to develop and maintain a publicly available Internet site containing information on the facilities' actions to comply with the elements of the rule so that it would be readily available to the public. EPA organized the compliance websites and posted them online by state.

Rule History

On December 22, 2008, a large coal ash spill occurred at the Tennessee Valley Authority (TVA) power plant in Kingston, Tenn. flooding more than 300 acres of land and releasing coal ash into the Emory and Clinch rivers. This catastrophic spill prompted EPA to assess coal ash surface impoundments and gather information from facilities managing coal ash nationwide. On June 21, 2010 (75 FR 35128), EPA proposed regulations under RCRA to address the risks from the disposal of CCRs generated from the combustion of coal at electric utilities and independent power producers.

This proposal contained two regulatory options due to the significant and technical policy issues involved in regulating these wastes.

  • Under the first, EPA proposed to list these residuals as special wastes subject to regulation under Subtitle C of RCRA, when they are destined for disposal in landfills or surface impoundments.
  • Under the second option, EPA proposed to regulate disposal of such materials under Subtitle D of RCRA by issuing national minimum criteria.

Under both alternatives EPA proposed to establish dam safety requirements to address the structural integrity of surface impoundments to prevent catastrophic releases.  

After extensive study and examination of all comments received during the rulemaking process, EPA established regulations under Subtitle D of RCRA.

Tags