Complying with the CCR Rule: A Moving Target

The Coal Combustion Residuals (CCR) Rule, first issued in April 2015, regulates the disposal of coal ash in landfills and surface impoundments under Subtitle D of the Resource Conservation and Recovery Act. It provides location restrictions, dam safety requirements, operating rules, and groundwater monitoring requirements. Landfills or Surface impoundments (CCR units) that fail specific requirements are required to retrofit or close. Operators must also take corrective actions to remediate and contain groundwater contamination, or releases resulting from a dam breach. 

On December 2, 2019, EPA issued a proposed rule that would expand the types of CCR surface impoundments that must close or retrofit and would alter the time Surface impoundments have to stop accepting waste and initiate closure. In summary, EPA’s proposal contains three categories of amendments. First, EPA would no longer consider clay-lined (or compacted soil-lined) Surface impoundments as lined, making such units subject to closure regardless of whether they have been shown to be leaking. Second, EPA proposes to accelerate the deadline from October 31, 2020, to August 31, 2020, for stopping all new disposal (the “cease receipt of waste” deadline) at all Surface impoundments. Finally, EPA would offer new time extensions for deadlines that would otherwise apply to Surface impoundments. The rule does not change existing requirements for CCR landfills.

EPA is currently accepting comments on its proposal through January 31, 2020. 

Background and Summary of Proposed Changes 

Additional Types of Surface Impoundments Must Close

The 2015 final rule allowed unlined Surface impoundments to continue operating unless and until the units contaminated groundwater. The rule also defined clay-lined Surface impoundments as lined, allowing continued operation so long as corrective action was taken to cure groundwater contamination or other releases. On August 21, 2018, the D.C. Circuit vacated these portions of the final rule and required EPA to revise the rule in accordance with its decision. Utility Solid Waste Activities Group, et al. v. EPA, 901 F.3d 414 (D.C. Circ. 2018) (USWAG). EPA’s proposal is intended to implement the D.C. Circuit’s decision.

EPA’s proposal would remove clay-lining from qualifying liners for Surface impoundments, thereby classifying these Surface impoundments as unlined. As a result of this amendment, all clay-lined Surface impoundments would need to stop accepting waste by August 31, 2020, unless an alternative date applies under § 257.103. (Once a unit stops accepting waste, the time to complete closure is governed by § 257.102, and these timelines have not changed.) Similarly, the proposed rule would remove the now-vacated portion of the 2015 rule, under which unlined surface impoundments were allowed to continue operating unless groundwater problems were detected. Thus, this rule change adds clay-lined surface impoundments and non-leaking unlined surface impoundments to the types of units that are required to “cease receipt” of waste, and close.

Further Revisions to the “Cease Receipt” of Waste Deadlines

In a 2018 rulemaking, EPA required Surface impoundments that leaked or that failed the aquifer restriction to stop receiving new waste (the “cease receipt” deadline) by October 31, 2020. EPA now proposes to require these surface impoundments that must close, to stop receiving new waste as soon as technically feasible but no later than August 31, 2020, unless an alternative date applies under § 257.103. 

The shortened deadline has compliance challenges for facilities that have been relying on the October 31, 2020, deadline and facilities that were not previously subject to the deadline at all. These facilities would need to expedite their plans to meet the August 31, 2020 deadline at the latest, but “as soon as technically feasible,” which means facilities are required to “do what is possible in the shortest achievable time.” 84 Fed. Reg. 65941, 65945 (Dec. 2, 2019). EPA explains that the precise steps and actual time needed will vary from facility to facility, but the first step is to divert the waste streams to another unit. (For example, some facilities may have an existing unit that could accept waste, while others may need to construct a new unit to receive waste.)

EPA explains that it studied the information provided by stakeholders to understand the issues faced by facilities developing alternative capacity for managing CCR as waste. Based on that research, EPA describes six main approaches to developing alternative capacity and how long each might take to implement: 

1. Conversion to dry handling - 36 months.
2. Non-CCR wastewater basin - 21 months.
3. Wastewater treatment facility - 16 to 21 months.
4. New CCR surface impoundment - 27 months.
5. Retrofit of a CCR surface impoundment – 4 to 12 and up to 31.5 for larger impoundments.
6. Multiple technology systems – 21 to 36 months.

These timelines provide a national average benchmark, but, EPA explains, may vary based on site-specific needs of each facility. For facilities that may require more time beyond the August 31, 2020, EPA proposes new time extensions in section 257.103(a), (b), (e) or (f).

Two New Time Extensions

The 2015 rule contained a five-year extension to the six-month “cease receipt” rule for facilities that demonstrated a lack of alternative disposal capacity and longer extensions for retiring coal units. 80 Fed. Reg. 21302, 21495 (April 17, 2015). Thus, time extensions for insufficient disposal or retiring units were built into the original rule. EPA now proposes additional time extensions, taking into account the revised “cease receipt” deadline. Time extensions may provide relief for those facilities that continue to encounter waste capacity challenges, and for those with Surface impoundments that were not previously required to close. The time extensions to the cease receipt rule may be particularly important to facilities (clay-lined Surface impoundments and non-leaking, unlined surface impoundments) that have had shortened time for planning, because they did not anticipate the August 2018 D.C. Circuit decision.

EPA has created two new, mutually exclusive, time extensions to the cease receipt deadline: 257.103(e) and 257.103(f). Facilities may use only one of the new provisions, not both. A facility utilizing either extension must make detailed and specific demonstrations as required by the rule in order to obtain the additional time. For example, facilities must include a detailed narrative of its plan to obtain alternative capacity and analysis of the adverse impacts of lack of capacity, among other things.

First, 257.103(e) is a “self-implementing” provision that provides a three-month extension to the new August 31, 2020 deadline for non-CCR and CCR waste streams. To take advantage of this extension, the facility would have to certify that it continues to lack capacity and that it is technically infeasible to meet the August 31, 2020 deadline. (EPA describes this extension as a “limited force majeure” provision.)

The second alternative allows for longer extensions for facilities that demonstrate a lack of alternate capacity, but only if the facility obtains a site-specific governmental approval. Under this scenario, facilities may request an approved extension from EPA or a Participating State: i) for the “exact amount of time necessary” to obtain alternate capacity but no later than October 15, 2023; or ii) for a facility that plans to permanently cease coal-fired operations, it must cease operation and complete closure by 2023 (for impoundments smaller than 40 acres) or 2028 (for impoundments larger than 40 acres). 40 CFR 257.103(f).

Increased cost or inconvenience, without more, is not sufficient to qualify a facility for either extension. Therefore, facilities that anticipate the need for a time extension may wish to prepare for the detailed documentation and analysis that will be required to support requests for time extensions longer than three months.

Beveridge & Diamond's Waste and Recycling practice group and Waste Treatment, Recycling, and Disposal Services industry group has been directly involved in virtually every major waste rulemaking under the Resource Conservation and Recovery Act and advise companies on waste issues in all 50 states and on every continent. We help clients minimize exposure to liability, develop business opportunities, decrease cost, and enhance profitability. For more information, please contact the authors.