On July 29, the U.S. Environmental Protection Agency (EPA) finalized several changes to the regulations for coal combustion residuals, known as CCR or coal ash, to implement the court’s vacatur of certain closure requirements as well as adding provisions that enhance the public’s access to information about the management of coal ash at electric utilities.
“Today’s action makes changes to the closure regulations for coal ash storage that enhance protections for public health while giving electric utilities enough time to retrofit or replace unlined impoundment ponds,” said EPA Administrator Andrew Wheeler. “The public will also be better informed as EPA makes facility groundwater monitoring data more accessible and understandable.”
In response to court rulings, this final rule specifies that all unlined surface impoundments are required to retrofit or close, not just those that have detected groundwater contamination above regulatory levels. The rule also changes the classification of compacted-soil lined or “clay-lined” surface impoundments from “lined” to “unlined,” which means that formerly defined clay-lined surface impoundments are no longer considered lined surface impoundments and need to be retrofitted or closed.
Additionally, the rule establishes a revised date, April 11, 2021, by which unlined surface impoundments and units that failed the aquifer location restriction must cease receiving waste and initiate closure or retrofit. EPA determined this new feasible date after a thorough review of the construction timeline information submitted during the public comment period.
Even though EPA is making several regulatory changes with this final rule, the regulations in place since 2015 to detect, assess and remediate impacts on groundwater from CCR in surface impoundments and landfills are in place and implementation remains on schedule. The 2015 requirements for facility inspection, monitoring, recordkeeping and reporting requirements are also unchanged except for two enhancements to public access to information. EPA’s updates with this final rule keep the major protections and requirements of the 2015 rule in place while making changes to address litigation and apply lessons learned to ensure smoother implementation of the rule.
EPA is also finalizing revisions to the alternative closure provisions that would grant certain facilities additional time to develop alternative capacity to manage their waste streams (including additional waste—primarily non-CCR wastewater—generated at the facility) before they must stop receiving waste and initiate closure of their surface impoundments.
Lastly, EPA is finalizing amendments to make data more accessible and understandable to the public by:
- Revising the annual groundwater monitoring and corrective action report requirements to make the data easier for the public to understand and evaluate, including a requirement to summarize the results in an executive summary.
- Revising the CCR website requirements to ensure that relevant facility information required by the regulations is immediately available to the public.
In April 2015, EPA promulgated a comprehensive set of requirements for the management of CCR in landfills and impoundments. CCR include a variety of waste streams, specifically, fly ash, bottom ash, boiler slag and flue gas desulfurization materials generated from coal-fired electric utilities; these waste streams are commonly known as coal ash. The rule established corrective action, closure and post closure, technical standards, inspection, monitoring, recordkeeping and reporting requirements. In Utility Solid Waste Activities Group [USWAG et al. v. EPA (Aug. 21, 2018)], the D.C. Circuit Court of Appeals overturned certain provisions of EPA’s 2015 rule and remanded some provisions back to the agency.