Closure: EPA Finalizes Long-awaited CCR Rule Revisions and Surface Impoundment Deadlines

Akin Gump Strauss Hauer & Feld LLP

Akin Gump Strauss Hauer & Feld LLP

Following years of litigation and a segmented rulemaking process, the U.S. Environmental Protection Agency (EPA) finalized revisions to portions of its coal combustion residuals (CCR) regulations governing, among other things, the closure of surface impoundments.1 Of importance for most coal-fired power plant operators, the revisions change the classification of so-called “clay-lined” surface impoundments from “lined” to “unlined,” effectively triggering closure or retrofit requirements for those impoundments. This change comes in response to a 2018 decision by the U.S. Court of Appeals for the District of Columbia Circuit in which the court ruled that EPA violated the Resource Conservation and Recovery Act by failing to recognize that clay-lined impoundments are similar to unlined impoundments with respect to the risks they pose.2

That decision also spurred revisions requiring closure for all unlined CCR impoundments and any CCR units that fail to meet aquifer location standards. Operators now have until April 11, 2021 (as opposed to the August 2020 deadline originally proposed), to cease receipt of waste at these units and begin the closure process. For CCR units that require additional time beyond the April 2021 deadline to develop alternative disposal capacity, the rule allows CCR units to continue receiving waste for up to three to four years (for units closing due to lack of capacity) or up to eight years (for larger units serving boilers that will permanently shut down). To receive an extension, operators must demonstrate to EPA or the applicable state agency that it would be technically infeasible to provide alternative disposal capacity by the April 2021 deadline. Operators must submit this demonstration no later than November 30, 2020.

Finally, the revisions require operators to make it easier for both members of the public and regulators to access and understand the contents of operators’ annual reports by providing executive summaries of groundwater monitoring and corrective action on their CCR websites. The new requirements prohibit attempts to prolong or obscure access to key reports.

After years of uncertainty, the finalized revisions now start the clock for many operators to close or retrofit existing impoundments, or seek an extension. Given EPA estimates of up to two years to obtain alternative disposal capacity for both CCR and non-CCR wastes alike, operators who have not yet begun planning for closure or who anticipate difficulties in meeting the April 2021 deadline should begin to compile the documents needed to make the required demonstration by November 30, 2020.

1 Hazardous and Solid Waste Management System: Disposal of Coal Combustion Residuals From Electric Utilities; A Holistic Approach to Closure Part A: Deadline to Initiate Closure, __ Fed. Reg. __ (pre-publication version dated July 29, 2020) (codified at 40 C.F.R. pt. 257).

2 Util. Solid Waste Activities Grp. v. EPA, 901 F.3d 414, 432 (2018) (per curiam).

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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