January 17, 2020

EPA Proposes Three More Changes to CCR Rule

EPA is proposing three revisions [December 2, 2019; 84 FR 65941] to its 2015 coal combustion residues (CCR) rule as a result of recent court challenges:

  1. Reclassify compacted-soil lined or “clay-lined” surface impoundments from “lined” to “unlined.” In the 2018 USWAG decision (Utility Solid Waste Activities Group et al. vs. EPA, 901 F.3d 414), the DC Circuit Court of Appeals ruled the term “clay-lined” surface impoundments means “unlined” not “lined.” (See McCoy’s November 2018 write-up of the USWAG decision.) EPA’s proposed rule would amend the applicable language in §257.71 to meet this court interpretation. Consequently, the 28 existing active surface impoundments certified as “clay-lined” would need to comply with more-stringent monitoring and closure requirements of §257.101(a), since they would be considered “unlined.”
  2. Revise the initiation of closure deadlines for unlined CCR surface impoundments and units that don’t meet the aquifer location restrictions. EPA proposes to require that, by August 31, 2020, facilities cease placement of both CCR and non-CCR wastes in surface impoundments that are “unlined” or have failed the aquifer location restrictions in §§257.101(a) and (b)(1). EPA’s technical feasibility analysis found that owners/operators of each affected surface impoundment will likely undertake the same fundamental steps to cease receipt of waste and initiate retrofit/closure—establishing alternative disposal capacity being the first step.
  3. Revise the alternative closure provisions, granting facilities additional time to develop alternative capacity to manage their CCR and non-CCR waste streams. Due to the USWAG decision, owners/operators of “clay-lined” surface impoundments now find themselves having to comply with looming closure deadlines in §§257.103(a), (b), (e), and (f), even though it may not be technically feasible to do so. To address this previously unforeseen issue, EPA is proposing to establish 1) a short-term extension to the proposed deadline for ceasing receipt of waste, and 2) the process and criteria for facilities to obtain a site-specific extension based on a demonstration that additional time is needed to cease receipt of waste in the unit. The short-term extension would be self-implementing and provide an additional 3 months before initiation of closure. The site-specific extension could be granted for a maximum of 5 years following a successful demonstration to EPA or the authorized state administrator.

The table below summarizes the deadlines proposed in the December 2, 2019 proposal.

Proposed requirement for CCR surface impoundments

Proposed compliance deadline

Cease receipt of waste in unlined and clay-lined surface impoundments [§257.101(a)(1)]

August 31, 2020

Cease receipt of waste in surface impoundments that fail the minimum depth-to-aquifer location standard [§257.101(b)(1)(i)]

August 31, 2020

Short-term extension to initiate closure (up to 3-month extension to cease receipt of waste) [§257.103(e)]

No later than November 30, 2020

Site-specific extension to initiate closure due to lack of capacity [§257.103(f)(1)]

No later than October 15, 2023 (maximum of 5 years after USWAG decision mandate date)

Site-specific extension to initiate closure due to permanent cessation of a coal-fired boiler(s) [§257.103(f)(2)]

  • Surface impoundments ≤40 acres in size—No later than October 17, 2023
  • Surface impoundments >40 acres in size—No later than October 17, 2028

Source: Adapted from 84 FR 65942.

Public comment on the three proposed revisions discussed above will be accepted through January 31, 2020 and can be submitted under Docket ID No. EPA-HQ-OLEM-2019-0172.


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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.