March 17, 2020

EPA Proposes Federal CCR Permit Program

On February 20, 2020, EPA proposed a rule to establish a federal coal combustion residues (CCR) permit program. [85 FR 9940] The rule would create a new Part 257, Subpart E with which facilities operating CCR units in Indian country and nonparticipating states would need to comply. States may submit a CCR permit program to EPA for approval to operate in lieu of this proposed federal program. The agency will hold a virtual hearing on the proposal on April 15, 2020. Information on how to provide testimony during the hearing can be found on EPA’s public hearing website. EPA is also accepting comments on the proposed rule until April 20, 2020. Comments may be submitted under Docket ID No. EPA-HQ-OLEM-2019-0361.

The proposed CCR permit program incorporates many elements from existing EPA permit programs, including those found in RCRA, CAA Title V, SDWA UIC, and CWA NPDES. Proposed permit requirements include compliance deadlines, application requirements, specific content and durations, and modification requirements and procedures. The permit program would require each CCR unit located in Indian country and nonparticipating states to achieve compliance with applicable Part 257, Subpart D requirements. Once a permit is issued, compliance with the permit would constitute compliance with Subpart D and act as a “permit as a shield.”

Types of permits

Three types of permits are being proposed: individual, general, and permit by rule. An owner/operator could apply for an individual permit, which would be issued for one or more CCR units at the same facility and would contain terms and conditions tailored to the site-specific circumstances at that facility. EPA could issue a general permit for a defined category of similar CCR units, such as surface impoundments undergoing corrective action, which would contain all applicable requirements of Subpart D. The agency would promulgate such general permits in the Federal Register. Owners/operators could then request coverage. This approach would help create permit uniformity among the relatively limited number of CCR unit types. A permit by rule would allow owners/operators to avoid submitting a permit application provided they comply with certain conditions. The proposed permit by rule would be available only to new CCR landfills or lateral expansions and would still require notification to EPA and the public.

Application deadlines and renewals

To prevent a backlog of permit approvals, EPA is proposing the establishment of permit application tiers with various application deadlines. Applications would be required for individual and general permits but not permits by rule. The first tier of applications would include any CCR facility with at least one existing, new, or inactive CCR surface impoundment classified as a high hazard potential under §257.74(a)(2). This tier of permit applications would be due 18 months after the effective date of the final CCR permitting rule.

Subsequent application tiers are not proposed at this time, but the agency is considering several approaches. These include establishing tiers based on CCR units undergoing closure, CCR landfills, CCR units not meeting wetland restriction requirements, and more. The deadline for submitting an application for CCR units in these subsequent tiers would be established by EPA at a later date. Once a tier is established, facilities would have at least 180 days to submit their application.

Permits would be issued without expiration and would remain in effect throughout the active life of the CCR unit, the post-closure care period, through completion of all corrective action, and until the permit is terminated. However, if a permit remains unmodified for ten years, the permittee would be required to resubmit a CCR permit application for agency review.

Permit modifications

EPA is proposing two basic categories of modifications: 1) those initiated by EPA or in response to a citizen petition, and 2) those initiated by the permittee. The agency may modify a permit for several reasons, including substantial facility changes, transfer of ownership of a CCR unit, and correction of errors, mistakes, or omissions. All EPA permitting actions would be posted on a publicly available website.

Modifications initiated by the permittee would be considered either “minor” or “major.” Minor modifications would not substantially alter the permit conditions or reduce the ability of the facility to operate in a manner protective of human health and the environment. Examples of minor modifications include administrative/typographical changes to the permit, transfer of CCR unit ownership, and replacing a damaged groundwater monitoring well. A minor modification would not require a public comment period or public meeting. If EPA has not responded within 45 days after submittal of the minor modification application, the application would be considered approved.

Major modifications would be any modification that is not considered “minor” and are those changes that materially alter the facility, its operation, or compliance with the existing permit. Examples include reducing the frequency of inspections, removing a condition because the underlying regulatory requirement is no longer applicable, and changing the design of groundwater monitoring wells. Major modifications would be incorporated into a draft permit made available for public comment and subject to a public hearing. The final permit decision would include a response to comments and may subsequently be appealed. There would be no default approval if the agency does not take action within a certain number of days.

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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 environmental regulations. Persons evaluating specific circumstances dealing with the environmental 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.