Legal & Regulatory

EPA Finalizes First Set of Coal Ash Rule Revisions

The Trump administration has finalized a significantly weakened rule governing the disposal of coal ash in landfills and surface impoundments by coal generators nationwide.

The Environmental Protection Agency (EPA) revealed on July 18 that it signed the first rule of its two-part rulemaking set that overhauls the Obama administration’s final 2015 rules for the disposal of coal combustion residuals (CCR). The final rule, “Hazardous and Solid Waste Management System: Disposal of Coal Combustion Residuals from Electric Utilities; Amendments to the National Minimum Criteria Finalized in 2018 (Phase One, Part One),” follows a fiercely controversial March 2018 proposal in which the agency proposed more than a dozen changes to the 2015 final CCR rule.

However, the final rule, which was formally signed on July 17, only addresses a handful of these proposed changes. According to the EPA, it responds to “stakeholders’ comments on the proposal,” and mainly seeks to better align the CCR rule with the anticipated timing of the EPA’s potential revisions to the Effluent Limitations Guidelines (ELG) and Standards for the Steam Electric Power Generating Source Category, the agency told POWERin a statement on July 18.

Two Alternative Performance Standards and Deadline Extensions

In the final rule, the EPA finalized two types of alternative performance standards. The first allows states with EPA-approved coal ash permit programs or the EPA to suspend groundwater monitoring requirements “if there is evidence that there is no potential for migration of hazardous constituents to the uppermost aquifer during the active life of the unit and post closure care.” The second standard allows for the issuance of technical certifications in lieu of a professional engineer.

The EPA also revised the groundwater protection standard for constituents that do not have an established drinking water standard (also known as a maximum contaminant level, or MCL).

As significantly, the EPA extended a deadline by which facilities triggered into closure must cease placement of waste in CCR units. That applies to facilities that have detected a significant increase above a groundwater protection standard from an unlined surface impoundment, or where the unit is unable to comply with local restrictions regarding placement above the uppermost aquifer. The deadline now gives these facilities until October 31, 2020—about 18 more months compared to the 2015 rule.

“The agency selected the date to coordinate with the revised compliance date for the ELG requirements,” it said. The ELG rule, which is under regulatory review, will likely be revised or rescinded by December 2019, it noted. That will provide “nine months from the rule’s likely publication in January 2020,” which is “sufficient for facilities to make informed decisions to meet the requirements of both rules,” it said.

Environmental Groups: Final Rule Dismantles Minimum Protections

The EPA said that it received more than 160,000 comments on the proposed rule, but it noted that a “majority of commenters” focused on the four provisions remanded back to the agency by the D.C. Circuit in June 2016, as well as six alternate performance standards to reflect the EPA’s new CCR enforcement authority under amendments to the Resource Conservation and Recovery Act (RCRA) as part of the 2016-enacted Water Infrastructure Improvements for the Nation Act (WIIN Act). “A number of commenters argued that no revisions were necessary to the April 2015 final CCR rule,” it noted.

Among commenters opposed to the changes wereseveral environmental groups, which point out that the agency provided a sparse 45-day comment period and held only one dedicated public hearing for its vast changes to the rule. On July 18, those groups, including Earthjustice, the Sierra Club, Waterkeeper Alliance, and the Environmental Integrity Project, noted that the rule failed to address key environmental protections or weakened protections established in the 2015 version.

The rule, for example, failed to add boron to the list of coal ash contaminants. The common element is highly soluble, and according to power experts, treatment options for boron are limited and expensive.

The environmental groups also said the rule “weakens drinking water protection standards by removing strong national limits for groundwater contamination for several hazardous chemicals, namely lead, cobalt, lithium and molybdenum.” Of more immediate concern, it “extends compliance deadlines for closing unlined leaking ash ponds and ash ponds within five feet of groundwater and permits hundreds of leaking ponds to continue to operate.” Finally, in lieu of professional engineers, it “allows state officials to judge whether sites are following rules.” The groups added: “Every single one of the changes is in response to an industry petition filed with the Trump administration in 2017.”

In its final rule, the EPA provides some justification for why it did not finalize some proposed amendments. It added, however, that provisions from the March 2018 proposed rule that were not finalized will be addressed “in a subsequent phase of rulemaking.” The EPA also plans to propose other changes to the 2015 coal ash rule later this year.

According to Acting EPA Administrator Andrew Wheeler, the rule seeks to provide utilities and states more flexibility in how CCR is managed. But it will also ensure “human health and the environment are protected,” he said. Also, it will save industry between $28 million and $31 million a year in regulatory costs. “Our actions mark a significant departure from the one-size-fits-all policies of the past and save tens of millions of dollars in regulatory costs,” he said.

A New Development for the WOTUS Rule

Separately, on July 12, the EPA and the U.S. Army Corps of Engineers issued a supplemental notice seeking additional comment on their 2017 proposal to repeal the definition of the term “waters of the United Sates” (WOTUS). The agencies issued the rule, also known as the “Clean Water Rule,” in June 2015, in a bid to protect wetlands from pollution and degradation. It has been challenged widely by project developers and landowners across several sectors, including from the power industry.

In the supplemental notice, the agencies propose to conclude that the rule exceeds their authority under the Clean Water Act, and that “administrative goals of regulatory certainty would be best served by repealing the 2015 Rule.” However, the agencies also want to hear about whether other alternatives to a full repeal—which include revising specific elements of the WOTUS rule, issuing revised implementation guidance and implementation manuals, and proposing further changes to the date for when the rule would be applicable—would address deficiencies in the rule.

The agencies will accept comments on their supplemental notice through August 13, 2018. According to law firm Van Ness Feldman, the proposed rule will make “little practical difference, at least in the short term,” for regulated entities.

“The 2015 Rule continues to be subject to a preliminary injunction issued by the District of North Dakota as to 13 States: Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, North Dakota, South Dakota, Wyoming, and New Mexico,” it noted. The 2015 rule is also subject to a preliminary injunction issued by the U.S. District Court for the Southern District of Georgia for 11 more states: Alabama, Florida, Georgia, Indiana, Kansas, Kentucky, North Carolina, South Carolina, Utah, West Virginia, and Wisconsin. Meanwhile, the U.S. District Court for the Southern District of Texas is considering preliminary injunction motions filed by parties including the states of Louisiana, Mississippi, and Texas. Michigan, Ohio, and Tennessee are seeking a preliminary injunction in the U.S. District Court for the Southern District of Ohio, the law firm added.

“Moreover, if the proposed rule to repeal the 2015 Rule is issued, it will almost certainly be challenged in court, leading to continued uncertainty,” the law firm said.  “Thus, the regulated community will probably not see long-term certainty until after the agencies issue a new rule and the Supreme Court issues a decision on the substance of the ‘waters of the United States’ definition.”


—Sonal Patel is a POWER associate editor (@sonalcpatel, @POWERmagazine)


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