April 16, 2018

Revisions Proposed to Coal Combustion Residue Rule

On April 17, 2015, EPA promulgated national minimum criteria for existing and new coal combustion residue (CCR) landfills and surface impoundments. [80 FR 21302] When challenged, the U.S. Court of Appeals for the DC Circuit remanded four of those provisions back to the agency on June 14, 2016. [Utility Solid Waste Activities Group et al. v. EPA, Docket No. 15-1219] EPA issued a proposed rule on March 15, 2018 [83 FR 11584] that would address those remanded provisions by:

Clarifying the type and magnitude of non-groundwater releases that would require a facility to comply with some or all of the corrective action procedures in §§257.96–257.98 when meeting their obligation to clean up the release;
Adding boron to the list of constituents in Part 257, Appendix IV whose detection would trigger corrective action and, potentially, the requirement to retrofit or close the CCR unit;
Establishing requirements for the proper height of woody and grassy vegetation used as slope protection on CCR surface impoundments; and
Allowing facilities to qualify for the alternative closure provisions of §257.103(a) if they have an ongoing need to manage non-CCR waste streams (in addition to CCRs) in a CCR unit located at a facility that will cease operation of its coal-fired boilers within time frames specified in the rule.

In the 2016 Water Infrastructure Improvements for the Nation Act (WIIN Act), Congress modified Section 4005 of the RCRA law so that states are now authorized to manage CCRs under their own permit programs. As long as EPA determines (i.e., approves) that the state’s requirements are at least as protective as the federal standards in Part 257, these state programs will operate in lieu of the federal regs. EPA is proposing six alternative performance standards that would apply in participating states (i.e., those which have an EPA-approved CCR permit program under the WIIN Act) or in those instances where EPA is the permitting authority. Those alternative performance standards would allow a state with an approved permit program or EPA to:

Use alternative risk-based groundwater protection standards for constituents where no maximum contaminant level exists;
Modify the corrective action remedy such that remediation of a release of an Appendix IV constituent from a CCR unit into groundwater is not necessary under certain conditions;
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 and post-closure care of the unit;
Establish an alternative period of time to demonstrate compliance with a corrective action remedy;
Modify the post-closure care period; and
Issue technical certifications that the regulatory criteria have been met in lieu of the current requirement to have professional engineers issue such certifications.

Finally, the agency is proposing one additional revision based on comments received since the 2015 final CCR rule was promulgated. The use of CCR would be allowed in the construction of final cover systems for CCR units closing per §257.101 that are closing with waste in-place. EPA is also proposing specific criteria that the facility would need to meet in order to allow this use of CCR in final cover systems.

EPA has provided a summary of the proposed rule, and the agency is accepting comments on the proposal until April 30, 2018.

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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.