September 14, 2020

CCR Unit Closure, Part A Finalized

On August 28, 2020, EPA finalized “Part A” of its coal combustion residues (CCR) unit closure rule. [85 FR 53516] The rule finalizes regulations proposed in December 2019 [84 FR 65941] as a result of a court vacatur in August 2018. The rule finalizes five amendments to the CCR rules in Part 257, Subpart D:

  1. Changes to the classification of “clay-lined” surface impoundments from “lined” to “unlined”;
  2. A new deadline of April 11, 2021 for CCR units to cease receipt of waste and initiate closure if the unit is either unlined (including “clay-lined”) or failed the aquifer location standard;
  3. Revisions to the alternative closure provisions, granting facilities additional time to develop alternative capacity to manage their waste streams;
  4. The addition of an executive summary to the annual groundwater monitoring and corrective action reports; and
  5. Amendments to publicly accessible CCR websites.

“Clay-lined” surface impoundments

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.” This final rule removes §257.71(a)(1)(i) to reflect the court decision, and cross-references to this section are also removed. Existing active surface impoundments certified as “clay-lined” will now need to comply with the more-stringent monitoring and closure requirements of §257.101(a), since they are now considered “unlined.”

New deadlines

Deadlines are revised for CCR units initiating closure because they are unlined, failed the aquifer location standard, or need to develop alternative capacity. The unlined/clay-lined CCR surface impoundment restrictions are found in §257.101(a), while the aquifer location restriction is located in §257.101(b)(1). Facilities operating units impacted by these standards have until April 11, 2021 to initiate closure.

The alternative closure provisions of §257.103 can apply to not only CCR surface impoundments, but also to CCR landfills or any lateral expansion of a CCR unit. Units regulated under this section have a few additional years to initiate closure. The final rule’s various deadlines are summarized in the table below.

Requirement for CCR surface impoundments

Compliance deadline

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

April 11, 2021

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

April 11, 2021

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

  • October 15, 2023 (maximum of 5 years after USWAG decision mandate date)
  • For eligible unlined CCR surface impoundments: October 15, 2024

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

Completion of closure:

  • Surface impoundments ≤40 acres in size—October 17, 2023
  • Surface impoundments >40 acres in size—October 17, 2028

Source: Adapted from 85 FR 53517.

Data accessibility

Section 257.90(e) requires owners and operators of CCR units to prepare an annual groundwater monitoring and corrective action report. The report allows the public, states, and EPA a way of reviewing CCR unit groundwater monitoring and corrective action activities. It includes a description of key actions completed, any problems encountered, actions to resolve the problems, and key activities for the upcoming year. Without a standardized format, however, the data can be difficult for unfamiliar users to understand. As a result, the agency added a new paragraph (e)(6) to this section, requiring a summary at the beginning of each annual report.

In a similar vein, §257.107 contains requirements for owners/operators of any CCR unit to establish and maintain a publicly accessible CCR website. In some cases, EPA has found that these sites are not well maintained, make it difficult to access certain important information, and do not maintain the posted documents for the required five-year minimum time frame. The final rule updates this section by making it clear the website must ensure all posted information is immediately available to anyone without a prerequisite such as registration or submitting a document request. Changes to the site’s URL must be reported to EPA, and a “contact us” form must be available for users who want to submit questions relating to information availability.

This rule takes effect at the federal level on September 28, 2020. In Oklahoma and Georgia, the only states with EPA-approved CCR programs, this rule impacts their programs in various degrees as discussed on 85 FR 53558. The agency also published a short fact sheet on the rule’s revisions to the CCR unit closure regulations.

 


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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.