EPA Overrides Subpart D in Newly Proposed Federal Coal Ash Permitting Rule

Only “high hazard” CCR units will be subject to immediate compliance deadlines under a newly proposed Environmental Protection Agency (EPA) rule that revises federal permit requirements for the management of coal combustion residuals (CCRs) at power plants. If finalized, the rule will apply to all coal facilities in Indian country and the 48 U.S. states that have not yet submitted state programs for the EPA’s approval.

Among the biggest changes proposed in the Dec. 19–issued “Hazardous and Solid Waste Management System: Disposal of Coal Combustion Residuals from Electric Utilities; Federal CCR Permit Program” rule is that the EPA creates a new subpart—subpart E—in part 257 of the Resource Conservation and Recovery Act (RCRA), and the EPA has essentially fashioned it as a “permit shield” against requirements within subpart D, which the Obama administration established under its broad final coal ash rule in April 2015.

While subpart D will still apply to form the basis of “technical and substantive requirements” for permits, the Trump administration’s new subpart E establishes narrower definitions, and more flexible application, modification, and termination requirements and procedures. Significantly, it also establishes a “tiered” approach to compliance deadlines.

The EPA’s proposal to revise federal coal ash permitting comes just days after the agency gave its final approval to only the second state CCR permit. On Dec. 16, it allowed Georgia to implement its partial CCR state permit program under RCRA. Since June 2018, when it approved Oklahoma’s state program, EPA has urged states to submit state permitting programs, but states have been hesitant, owing in part to regulatory uncertainty and legal challenges related to key portions of the Obama administration’s broad April 2015 final coal ash rule. Other states, such as Virginia, North Carolina, and Illinois, have meanwhile moved to address power plant coal ash disposal through state-level legislation.

In a statement last week, EPA Administrator Andrew Wheeler said the agency continues to encourage states to adopt their own program. “But for those that choose not to and for facilities in Indian Country, EPA is confident that the proposed federal program will protect human health and the environment without placing undue burden on operators.”

A Notable Action for Coal Ash Regulation

CCRs—commonly known as “coal ash”—are generated from combustion of anthracite, bituminous, sub-bituminous, and lignite, for the purpose of generating steam to power. Coal ash includes, for example, fly ash, bottom ash, boiler slag, and flue gas desulfurization materials.

In response to the disastrous spill at the Tennessee Valley Authority’s Kingston Fossil Plant in December 2008, and another spill from a Duke Energy plant into North Carolina’s Dan River in 2014, the Obama administration issued the final coal ash rule in April 2015, which established the first-ever comprehensive set of federal requirements for the disposal of coal ash in landfills and surface impoundments. Specifically of note is that the rule created 40 CFR part 257, subpart D in the RCRA, which encoded technical standards designed to prevent the release of contaminants into groundwater, blowing of contaminants into the air as dust, and failure of coal ash surface impoundments. It also set out inspection, monitoring, and reporting requirements, and it emphasized transparency by requiring facilities to post compliance data online on a facility-established, publicly available website.

However, when the rule was promulgated, the EPA did not have the authority to approve state permit programs, which meant utilities were directly responsible for implementing the 2015 rule, and it could only be enforced through citizen suits. The WIIN Act, enacted in 2016, however, amended Section 4005 of RCRA to allow states to submit permit programs to the EPA for approval in lieu of federal requirements established by the final 2015 coal ash rule. Once approved, the EPA must review the state program at least once every 12 years.

The newly proposed rule essentially sets out a federal permitting program for CCRs in surface impoundments and landfills. According to the EPA, it integrates “lessons learned from many years of implementing hazardous waste and other permitting programs,” and boils it down to an “efficient” federal permitting process. Among benefits it touted was that “issuance of a permit will provide increased clarity to owners and operators of units about their obligations because the rule requirements can be tailored to specific conditions at the unit,” and that the permit process would “provide an opportunity for public participation.”

However, the EPA set only 60 days for public comments under a new docket (Docket ID No. EPA-HQ-OLEM-2019-0361, which, as of Dec. 26, was not yet available on regulations.gov)—and it scheduled only one hearing—a virtual one, which will take place on Feb. 19, 2020.

A Few Key Changes

While the newly proposed rule contains a handful of notable definition changes, its biggest addition is the new subpart E, which is effectively fashioned as a “permit shield” against lawsuits that could force enforcement of requirements contained in the Obama administration–promulgated subpart D.

As the EPA explained, under subpart E, any CCR unit owner and operator that is located in a nonparticipating state (that is, it does not have a state program) or in Indian country, and is subject to requirements under subpart D, must obtain and maintain a RCRA CCR permit. The permit would apply through several stages of operations, including: “active life of the CCR unit, the post-closure care period, and until completion of all corrective action.”  However, “compliance with a CCR permit constitutes compliance, for purposes of enforcement, with requirements of subpart D of this part,” it said.

The wording of the proposed “permit shield” is similar to provisions in other federal permit programs, the EPA explained. “Consistent with those provisions, the proposed permit shield provision expressly provides that compliance with a permit shields the permittee from any claim in an enforcement proceeding (including a citizen suit proceeding brought pursuant to RCRA section 7002) that the permittee was or is not in compliance with any subpart D requirement not specified in the permit.”

Also notable is that the new subpart establishes “tiers” of compliance deadlines for when permit applications must be sent to the EPA administrator. However, the EPA only proposed to define the “first” tier, which would be due within 18 months after the rule has been finalized. The first tier would apply to CCR units “that present higher acute risks,” based on the hazard potential classification system for CCR surface impoundments—such as for potential loss of life or damage owing to a dam or embankment failure—as well as to the only three coal generators in Indian country.

For subsequent tiers, the EPA said the administrator would “notify owners and operators of CCR facilities by a notice in the Federal Register at least 180 days before the application submission is required.” However, the agency said it is still considering several approaches to “prioritizing permit applications” in subsequent tiers. Among examples it listed are CCR units located at specific facilities, CCR units that are undergoing closure, and CCR landfills. It said it has considered having two, three, or even more tiers of permit application deadlines “to space out applications so that EPA may act on them in a timely manner.”

Another significant change, and one nearly certain to draw criticism, is that under the proposed rule, CCR permits issued by the EPA will not have an expiration date. “Permit terms will remain in effect until modified, or until the permit is revoked and reissued or terminated,” it says. However, it also revised its requirements for permit changes for modifications, proposing two basic categories—major and minor—to encapsulate those initiated by the EPA (in response to a citizen petition) and those initiated by the permittee. Specifically, it moved to limit the agency’s authority to initiate a modification only to situations in which alterations would be substantially different from those specified in the existing permit or application, or if it has information that demonstrates the need for a permit modification.

Meanwhile, for new coal plants that become subject to subpart D after the rule’s finalization, the EPA established a “phased-in” deadline approach that gives units up to two years to become compliant.

Among other substantial changes is that the EPA proposed to rely on general administrative procedures applicable to several EPA permit programs. “These procedures apply to RCRA hazardous waste permits, as well as to EPA permits issued under other statutory authorities.” It also stressed that with some exceptions, it was not moving to amend any portion of subpart D, and it suggested it would not respond to comments that raise issue with subpart D. “However, this is not intended to prevent commenters from identifying any inconsistencies between the existing regulations and the proposals in this notice,” it said.

Finally, the EPA said changes proposed in the new rule will likely result in an increase in net costs of between $85,000 and $90,000 per year, but it did not provide details about what could cause those increases in the proposal.

Final Approval for Georgia’s Partial CCR Program

The EPA’s final action to partially approve Georgia’s program comes about 18 months after the agency approved Oklahoma’s CCR permit program. Former EPA Administrator Scott Pruitt, a former Oklahoma attorney general, signed the June 2018 approval for Oklahoma’s program about 11 months after it was first submitted for review, saying the state had incorporated all elements of the federal rule.

Georgia submitted its initial CCR state permit program application to the EPA in April 2018, but in February 2019, the state revised its application and asked the EPA to approve part of it. After it submitted more revisions in March and May 2019, the EPA determined the application was “complete.”

The final action means the EPA approves all of Georgia’s program except four key provisions; one relates to protections for threatened and endangered species, while the others are provisions in the 2015 federal coal ash rule that the D.C. Circuit vacated in its pivotal August 2018 decision in Utility Solid Waste Activities Group, et al. v. EPA. The vacated federal provisions excluded inactive impoundments at retired facilities, they allowed unlined impoundments to continue receiving coal ash unless they leak, and they classified “clay-lined” impoundments as lined.

The EPA said in a statement that its analysis showed that Georgia’s program “contains all the elements of the federal rule, including requirements for location restrictions, design and operating criteria, groundwater monitoring and corrective action, closure requirements and post-closure care, recordkeeping, notification and internet posting requirements.” The program also “contains state-specific language, references and state-specific requirements that differ from the federal rule, which EPA has determined to be at least as protective as the Federal criteria,” it said.

As Georgia Environmental Protection Division Director Richard Dunn noted in a statement, Georgia has worked for years to address coal ash disposal. “Under Georgia’s rules, all 27 coal ash ponds in the state are required to cease acceptance of waste and close,” he said. “EPA’s approval of our coal ash management program means that closure will be enforced through a permit, which allows for the direct oversight, review, and approval of the utilities’ monitoring and clean-up activities.”

—Sonal Patel is a POWER senior associate editor (@sonalcpatel, @POWERmagazine)