Proposed Revisions to the CCR Rules

Proposed changes to the U.S. Environmental Protection Agency (U.S. EPA) CCR Rules in 40 CFR 257 (Federal Register/Vol. 83, No. 51/Thursday, March 15, 2018/Proposed Rules) could have a significant impact on coal-fired power plants, especially with regard to groundwater monitoring requirements and close-in-place capping.

BACKGROUND AND KEY POINTS

• The rule changes are proposed in response to
  • Judicial Remand, April 18, 2016, resolution of Utility Solid Waste Activity Group (USWAG) et al. v. U.S. EPA no. 15-1219, D.C. Circuit Court); and
  • The Water Infrastructure Improvements for the Nation (WIIN) Act enacted in December 2016.
• Additional proposed rule changes are in response to comments to U.S. EPA received after the final CCR rule date.
• Proposed rules address four provisions of the final rule that were remanded on June 14, 2016.
• U.S. EPA presently intends to take final action on proposed rule amendments in response to Judicial Remand by June 2019.
• U.S. EPA also proposes seven provisions that establish alternative performance standards for CCR units located in states that have approved CCR permit programs (identified as “participating states,” such as Oklahoma) under the WIIN Act.
  • If not in a participating state, U.S. EPA will administer a permit program for CCR units.
• Also, additional proposed changes effect record keeping, notification, and internet posting requirements.
• U.S. EPA is not considering any other comments on other provisions of the final CCR rule under this specific proposal; however, additional revisions may be changed subject to challenge in litigation.
• The comment period for the proposed CCR rule amendments ended on April 30, 2018.

Economic Benefits

These proposed actions are estimated to result in net cost savings of between $25 million and $76 million per year for the industry. Cost savings are attributable to the proposed amendments against the baseline costs of the 2015 CCR rule.

SUMMARY OF THE U.S. EPA PROPOSED AMENDMENTS

Proposals Associated with Judicial Remand

Four proposed changes:

1. Add boron to the list of Appendix IV parameters that trigger corrective action and potentially require CCR unit retrofit or closure.
2. Determine the requirement for woody and grass vegetation for slope protection.
3. Clarify the type and magnitude of non-groundwater releases requiring facilities to comply with some or all of the corrective action procedures in 40 CFR 257.96-257.98 for cleanup of the release. U.S. EPA is proposing a subset of corrective action procedures for non-groundwater releases that can be completely remediated within 180 days from detection of the release.
4. Modification of the alternative closure provisions to allow management of both CCR and non-CCR waste streams under exception for a certified absence of alternate disposal capacity.

Proposals Associated with the WIIN Act

General proposed provisions:

• U.S. EPA is seeking comments on how alternative performance standards can be implemented directly by the facilities, even in states without a permit program, given that U.S. EPA has oversight and enforcement authority.

• U.S. EPA seeks comment on whether to allow participating states the ability to modify the location restrictions on a site-specific basis, and whether changes to the location restriction deadlines are appropriate.

Seven alternative performance standards:

1. Allow the use of risk-based groundwater protection standards for Appendix IV constituents with no MCL.
2. Allow modification of the corrective action remedy in certain cases.
3. Allow the suspension of groundwater monitoring if a no-migration demonstration can be made.
4. Establish an alternate schedule to demonstrate compliance with the corrective action remedy.
5. Modify the post-closure care period.
6. Allow Director of participating states to issue technical certifications, rather than the current certifying engineer requirement.
7. Allow the use of CCR during certain closure situations.

If you have questions about any of the above-mentioned details regarding U.S. EPA’s proposed changes to the CCR Rules, please contact one of the blog post authors: Roy Stanley, C.P.G., in our Columbus office (rstanley@cecinc.com; 888-598-6808 ext. 3316) or Brianne Hastings, P.G., in our Pittsburgh office (bhastings@cecinc.com; 800-365-2324 ext. 1117). More information on the proposed changes can be found at the links placed within this post, or by visiting U.S. EPA’s website at https://www.epa.gov/coalash/coal-ash-rule.