April 17, 2020

Proposed Revisions to CCR Unit Closure and Post-Closure Requirements

On March 3, 2020 [85 FR 12456], EPA proposed four revisions to the coal combustion residues (CCR) regulations found in Part 257, Subpart D: 1) procedures allowing facilities with existing CCR surface impoundments to operate with an alternate liner, 2) two options allowing the use of CCR during unit closure, 3) an additional option for unit closure by CCR removal, and 4) requirements for annual closure progress reports. A virtual public hearing on the proposal was held on April 9, but comments are still being accepted until April 17 via Docket ID. No EPA-HQ-OLEM-2019-0173.

Alternate liner demonstration

In 2018, the Utility Solid Waste Activities Group et al. vs. EPA court decision vacated provisions in Part 257, Subpart D regulating clay-lined surface impoundments differently than unlined impoundments. Consequently, those clay-lined CCR impoundments would need to retrofit or close. Following the decision, industry groups claimed that the performance of some clay-lined impoundments is equivalent to or even superior to that of liners required by the 2015 CCR rule. [80 FR 21302] Therefore, EPA is proposing a process for facilities with clay-lined surface impoundments to submit an alternate liner demonstration to the agency, showing there is no reasonable probability of adverse effects on human health or the environment.

Owners/operators would follow a two-step process—an initial application would be submitted, followed by the alternate liner demonstration. The initial application would be submitted no later than 30 days after the effective date of a final rule; the alternate liner demonstration would be submitted no later than one year after the deadline for submitting the initial application (i.e., no later than 13 months after the effective date of a final rule). The alternate liner demonstration would contain various site-specific data and analyses but, at a minimum, include two lines of evidence: the first would be a characterization of the site-specific hydrogeology surrounding the surface impoundment, and the second would be a characterization of the potential for infiltration through liners and underlying soils that control release and transport of leachate.

Use of CCR during unit closure

Current §257.101 requires owners or operators of certain CCR impoundments and landfills to cease placing CCR and non-CCR waste streams into the unit and initiate closure under specified time frames. A 2018 proposal would allow the use of CCR to construct final cover systems for units closing under that regulatory section. [83 FR 11584] Now, the agency is proposing two additional options that would allow the use of CCR during the closure of impoundments and landfills:

  1. Proposed option 1 would allow the use of CCR during closure of a unit for cause under an approved closure plan. At a minimum, the elements included in proposed §257.102(d)(4) would be required in a closure plan that would be sent to the EPA/state for approval. Owners/operators would be notified of closure plan approval or rejection within three months of receipt of the initial closure plan.
  2. Proposed option 2 would allow the use of CCR to support closure of the unit provided such use meets the rule’s definition of beneficial use. This option is an outcome of §257.50(g), which states that the CCR minimum national criteria do not apply “to practices that meet the definition of a beneficial use of CCR.” However, while the CCR material would not be regulated under Part 257, Subpart D, the CCR unit itself would remain regulated. A facility wishing to make use of this beneficial use exemption would need to document in their written closure plan how the conditions specified in the definition of “Beneficial use of CCR” under §257.53 would be met.

Unit closure by CCR removal

There are currently two options for closing a CCR surface impoundment or landfill—remove all CCR from the unit and decontaminate the area, or close the unit with CCR in place. [§257.102(c) and (d), respectively] The regulations for the closure-by-removal approach include a demonstration that no groundwater protection standard has been exceeded. This groundwater standard must be met before owners/operators can assert completion of unit closure. A problem arises when corrective action taken to attain the groundwater protection standards takes years or decades to complete, thus causing completion of closure time frames to far exceed those allowed in the regulations.

To address this potential problem, EPA proposes to allow groundwater corrective action to be completed during a post-closure care period, which would start after completion of unit closure. Owners/operators would need to complete all other removal and decontamination activities within the required closure time frames, and the groundwater corrective action remedy of §257.97 would need to be selected, put in place, and operating as intended. Once these steps are completed, owners/operators would be allowed to certify CCR unit closure. However, the CCR unit would still be subject to post-closure care requirements in §257.104 until completion of groundwater corrective action. If this proposed closure approach is used, owners/operators would need to amend their closure and post-closure plans, and a notation on the property deed stating the land has been used as a CCR unit would also be required.

Annual closure progress reports

When a facility initiates CCR unit closure, a notification of intent to close must be filed. [§257.102(g)] However, a significant gap may exist between the time the notice of intent to close is filed and the time actual unit closure is certified. Therefore, the agency proposes to require annual closure progress reports to provide information to the public, states, and EPA. The proposed annual reports would include a discussion of 1) which stage of closure the unit is currently undergoing, 2) the closure schedule, and 3) any problems experienced. These reports would be placed in the facility’s operating record by January 31 of each year, starting the year after the effective date of a final rule. Sections 257.105 through 257.107, detailing the program’s various recordkeeping, notification, and public accessibility requirements, would all be revised accordingly.


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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.