Steptoe & Johnson LLP
Libretta Stennes and Anthony G. Hopp

March 28, 2018

On March 1, 2018, the US Environmental Protection Agency (EPA) announced the first of two sets of rules that will amend the regulations for the disposal of coal combustion residuals, also known as CCR or coal ash, from electric utilities and independent power producers. EPA proposed more than a dozen changes to the 2015 final CCR rule, and estimated that, if this proposal is finalized, it will save the regulated community between $30-$100 million per year.

EPA Administrator Scott Pruitt issued a statement explaining that the goal of the changes is to demonstrate partnership with states to allow for flexibility to tailor permit programs based on their individual needs. Administrator Pruitt also emphasized the intent to seek “much-needed” public comment. Based on a 2016 Congressional Amendment to the Resource Conservation and Recovery Act and the passage of the Water Infrastructure Improvements for the Nation Act (WIIN Act), the EPA has proposed a series of changes that would potentially allow states more freedom to regulate CCR impoundments with oversight from EPA.

The proposed changes include:

• Compressing the reporting and corrective action requirements for certain non-groundwater releases so that the initial notification of a release, and documentation that the release has been remediated, would be published at the same time.
• Allowing states to establish alternative risk-based groundwater protection standards for constituents for which MCLS have not been established.
• Allowing states to determine that remediation is not necessary under certain circumstances.
• Allowing the states to suspend groundwater monitoring under certain circumstances.
• Allowing states to specify an alternative length of time to demonstrate that remedies are complete.
• Allowing states to modify the length of the post-closure end period.
• Allowing the state director to certify that regulatory criteria have been met in lieu of exclusive reliance on a professional engineer.

If they are approved, most of these new rules will only apply to states which have adopted approved CCR permitting programs under the WIIN Act. In effect, EPA is using the proposed changes – with their emphasis on increased flexibility and autonomy for the states – to encourage states to submit permitting programs for EPA approval. EPA has promised additional proposed CCR rule revisions no later than September 2018 and final action on proposed rule changes no later than December 2019.

Meanwhile, March 2 marked the deadline for energy companies to publicly report data collected from groundwater monitoring wells around waste disposal sites. Public scrutiny of the data began almost immediately, with some advocacy groups characterizing the data as evidence of widespread groundwater pollution from Virginia to Alaska that exceeds acceptable levels in some places for arsenic, radium and other contaminants.

As Steptoe previously reported, the EPA required public disclosure of compliance information, including through websites “because this rule is self-implementing and is enforced by citizens and states using the citizen suit provisions of section 7002 of the Resource Conservation and Recovery Act (RCRA).” This appears to be the first time that the EPA has published a rule and then publicly invited citizens and public interest groups to take the lead in policing the regulated industry. The public disclosures mandated by the Rule give citizens and public interest groups the information necessary to mount RCRA citizen suits – and several of those groups recently signaled a clear intention to use RCRA citizen suits as a means to enforce the Rule. The new proposed rule changes appear to be designed to give states more control over the regulatory process, if they submit permitting programs for EPA approval under the WIIN Act and obtain that approval. It remains to be see what effect, if any, new WIIN Act-approved state permitting programs will have on RCRA Citizen suits to enforce the CCR regulations.

What happens next?

EPA will be accepting public comment on this proposal for 45 days after publication in the Federal Register and plans to hold a public hearing to receive additional feedback on the proposal during the public comment period. EPA also plans to propose additional changes to the CCR rule later this year.

The Trump Administration has signaled the desire to give states flexibility. This state action on environmental matters is drawing considerable attention and criticism to tackle other legacy chemical issues because of inconsistent standards and resource constraints. Some states are actively pursuing litigation against industry to fund clean-up while agencies asking for federal support for risk assessment and remedial solutions. As developments continue to evolve, please contact us if are interested in receiving an in-depth analysis of this complex interplay of regulatory policy and risk management.

This article is being provided for informational purposes only and not for the purposes of providing legal advice or creating an attorney-client relationship. You should contact an attorney to obtain advice with respect to any particular issue or problem you may have. In addition, the opinions expressed herein are the opinions of Ms. Stennes  & Mr. Hopp and may not reflect the opinions of Synergy Environmental, Inc., Steptoe & Johnson LLP or either of those firms’ clients.