September 14, 2016

More Requirements for Closing Ash Ponds—but More Time Too

The coal combustion residues (CCR) rule was published in the April 17, 2015 Federal Register with an effective date of October 19, 2015. [80 FR 21302, 37988] The final rule establishes a comprehensive set of requirements for the disposal of CCR from power plants under the RCRA Subtitle D solid (nonhazardous) waste regulations. The plan was for the new requirements for CCR disposal units to be phased in over a 3.5-year period.

One of the provisions of the 2015 rule was an expedited closure of inactive CCR surface impoundments (SIs—those units that have not received CCR since October 19, 2015). If a facility closed an inactive SI no later than April 17, 2018, then that unit did not have to comply with ground water monitoring or other post-closure care requirements. On June 14, 2016, the U.S. Court of Appeals for the DC Circuit ordered the vacatur of these ‘‘early closure’’ provisions. The effect of the vacatur is that all inactive CCR SIs must now be closed under all of the requirements applicable to closure of operating CCR SIs, including ground water monitoring and other post-closure care requirements.

EPA used an August 5, 2016 direct final rule [81 FR 51802] to implement the provisions of the DC Circuit’s vacatur. Because of the more-extensive requirements that will now apply to the closure of inactive SIs, the agency is extending the compliance deadlines associated with these newly applicable standards to allow owners/operators of these units adequate time to come into compliance; the applicable compliance deadlines are extended by 1.5 years.

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Disclaimer

Considerable care has been exercised in preparing this document; however, McCoy and Associates, Inc. makes no representation, warranty, or guarantee in connection with the publication of this information. McCoy and Associates, Inc. expressly disclaims any liability or responsibility for loss or damage resulting from its use or for the violation of any federal, state, or municipal law or regulation with which this information may conflict. McCoy and Associates, Inc. does not undertake any duty to ensure the continued accuracy of this information.

This document addresses issues of a general nature related to the federal RCRA regulations. Persons evaluating specific circumstances dealing with the RCRA regulations should review state and local laws and regulations, which may be more stringent than federal requirements. In addition, the assistance of a qualified professional should be enlisted to address any site-specific circumstances.