On March 3, 2020, the United States Environmental Protection Agency (EPA) published its most recent proposed revisions to the federal Coal Combustion Residuals (CCR) rule. The proposal, which EPA has coined “Part B” to its “Holistic Approach to Closure,” is a follow-up to the Part A proposal, which EPA published in November 2019. Part of a flurry of CCR-related activity, the Part B proposal comes just days after EPA issued its proposed federal CCR permit program.
As we previously reported, the purpose of EPA’s Part A proposal was to align the Agency’s regulations with the D.C. Circuit Court of Appeals’ August 2018 decision in USWAG v. EPA, 901 F.3d 414 (D.C. Circuit 2018). To that end, Part A proposed to (1) classify clay-lined surface impoundments as unlined, and (2) require all unlined surface impoundments to close.
After the USWAG decision (and before the promulgation of the Part A proposal), EPA received reports from industry groups and companies stating that there were clay-lined surface impoundments that would be required to retrofit or close, despite having liners that are equivalent or even superior to the liners the CCR rule requires. In response to these reports, EPA published its Part B proposal, which, if finalized, would establish procedures for impoundments to continue to operate by making alternate liner demonstrations. In addition, the Part B proposal would also allow for the use of CCR during closure, add an additional option for units being closed by removal of CCR, and require the submittal of annual progress reports. Each of these proposed changes to the CCR rule are discussed in turn below.
Alternate Liner Demonstration
EPA’s Part B proposal seeks to provide a pathway for surface impoundments not meeting the CCR rule’s liner requirements to continue to operate if they can demonstrate that their continued operation “pose[s] no reasonable probability of adverse effects on human health or the environment.” To make this demonstration, owners and operators of these units would need to provide EPA (or a Participating State Director) with site-specific data through a two-step process.
The first step would require an initial application “to ensure that a unit meets minimum requirements before embarking on a comprehensive alternate liner demonstration.” This would entail the owner/operator submitting a letter to EPA within 30 days of the final rule’s effective date declaring its intent to submit a demonstration. With the letter, the...
