On January 11, the U.S. Environmental Protection Agency (EPA) issued a new interpretation of its coal combustion residual (CCR) regulations: CCR landfills or surface impoundments “cannot be closed with coal ash in contact with groundwater.” Although EPA claims it has “consistently held” this interpretation, this is the first time EPA has expressly articulated this view. Perhaps acknowledging the novelty of its position, EPA also announced its intent to “review … state-level CCR program applications to ensure they are as protective as federal regulations” and to proceed toward a federal CCR permitting framework.

The new interpretation arrives at the same time EPA has started to act on a long list of applications to extend the closure deadline for unlined CCR surface impoundments. These applications were based either on the infeasibility of developing alternative disposal capacity for the CCR or a commitment to cease coal combustion by certain dates. EPA has proposed to deny three such applications outright. While these proposed denials each rest on a variety of site-specific considerations, a common theme is that EPA found closure-in-place to be impermissible where the CCR was in contact with groundwater.