November 16, 2020

Comments Sought on Legacy CCR Impoundment Rule

On October 14, 2020, EPA issued an advance notice of proposed rulemaking (ANPRM) for legacy coal combustion residues (CCR) surface impoundments. [85 FR 65015] In the original 2015 CCR rule, EPA exempted inactive impoundments at inactive facilities (legacy impoundments) from the Part 257, Subpart D regulations. [80 FR 21344] In the 2018 USWAG decision (Utility Solid Waste Activities Group et al. vs. EPA, 901 F.3D 414), the DC Circuit Court of Appeals vacated and remanded this exemption. Consequently, EPA is now seeking comments and data in this ANPRM to assist in the development of regulations for these legacy CCR units. Information may be submitted until December 14, 2020 via Docket ID No. EPA-HQ-OLEM-2020-0107.

EPA is seeking information in five areas to support a legacy impoundment rule:

Regulatory scope—How far into the past does EPA have authority to regulate legacy impoundments? Should different regulations apply based on when such impoundments became inactive? And should the rule be limited only to legacy impoundments at power plants that sold electricity to the grid, or should it also apply to units at power plants that only provided onsite power?
Unit definition—The agency is also seeking input on three options for defining a legacy impoundment. The definition would include impoundments at power plants that ceased generating power before October 19, 2015 (the effective date of the 2015 CCR rule) and that contained both CCR and liquids on one of the following dates: 1) October 19, 2015; 2) October 15, 2018 (the date the DC Circuit Court issued its mandate in the USWAG decision); or 3) the date EPA issues a final legacy impoundment rule. The agency also wants to know if there should be a definition of an “innocent owner” that would exclude qualifying landowners from regulation and, if so, what should be the criteria for such a definition?
Size of the universe—Data regarding the number and types of inactive impoundments at inactive facilities are incomplete. EPA is looking to fill in these gaps by collecting information on any known inactive impoundments at inactive power plants as of October 19, 2015. Requested information includes plant name, location, retirement year of plant, the status of the impoundment, the year the impoundment ceased receipt of waste, closure processes, characteristics of the unit, and any other relevant information about the inactive impoundment.
Applicable regulations—EPA requests comment on which of the 2015 CCR rule requirements should apply to legacy impoundments and/or if new requirements should be developed for these units. The agency has tentatively identified requirements from the 2015 rule that should apply, including the establishment of a publicly available website, groundwater monitoring, corrective action, closure and post-closure care, and fugitive dust minimization. However, not all requirements found in the 2015 rule would be required for legacy impoundments. For example, certain location restrictions would not be applicable, and specific design and construction information might also be inappropriate.
Compliance deadlines—The agency also needs input to determine compliance deadlines for legacy impoundments. These deadlines would likely be similar to those set for active impoundments. However, less time may be appropriate for inactive units to be brought into compliance, since owners of these units are already aware of pending closure requirements based on the 2018 USWAG decision.

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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.