APPA Urges EPA to Reconsider Key Element of Coal Combustion Residual Proposal

by APPA News
July 20, 2023

The Environmental Protection Agency should withdraw and re-propose provisions related to coal combustion residual management units included in a proposed rule once it performs the requisite risk assessment and determines whether and how to regulate coal combustion residual disposal practices not currently regulated under federal regulations, the American Public Power Association said in July 17 comments submitted to EPA.

At issue is the proposed rule, “Hazardous and Solid Waste Management System: Disposal of Coal Combustion Residuals from Electric Utilities: Legacy Coal Combustion Residual (CCR) Surface Impoundments.”

The proposed rule was issued by EPA in response to a decision in the U.S. Court of Appeals for the District of Columbia Circuit that vacated and remanded the provisions that exempted inactive impoundments at inactive facilities from federal CCR regulation.

In addition, the proposal seeks to establish post-closure care requirements for all CCR management units regardless of how and when CCR was placed at a regulated CCR facility.

APPA Has a Long-Standing Interest in the Implementation of CCR Rule

APPA’s members have a long-standing interest in the implementation of the 2015 CCR rule and the types of CCR management practices that are subject to federal regulation, the trade association noted in its comments.

“Since the initial development of federal CCR regulations almost a decade ago, public power utilities have had a history of collaboration with EPA as the agency developed rules to ensure the safe, sustainable, and affordable disposal of CCRs. We take seriously our responsibility to comply with all applicable requirements,” APPA said.

The 2015 CCR Rule established national rules for coal ash disposal “and the industry has worked consistently to implement the rule and its subsequent amendments through a commonsense approach that achieves the environmental goals in a workable and effective manner.”

APPA noted that the focus of the 2015 Rule sought to ensure the safe disposal of CCR at operating surface impoundments and landfills, “which is substantially different from this proposal’s focus on addressing historic CCR management practices.”

The proposed rule addresses site-wide remediation similar to programs implemented under the Comprehensive Environmental Response, Compensation, and Liability Act and Resource Conservation and Recovery Act Subtitle C.

Along with its recommendation that EPA withdraw and re-propose the CCRMU provisions, APPA also offered a series of other recommendations for EPA.

APPA recommended that the agency establish an applicability date for determining what constitutes a legacy impoundment based on a final rule.

“Establishing an early applicability date is impractical, if not impossible, for legacy impoundments that have closed prior to the effective date of any final rule. These units would have to re-close in accordance with the 2015 CCR Rule closure performance standards despite having closed under other existing requirements,” APPA said.

The group also recommended that EPA separate the two regulatory actions (legacy impoundment and CCRMU provisions) and analyze the impact of the CCRMU provisions on the universe of small entities under the Regulatory Flexibility Act. The Proposed Rule broadly defines CCRMUs; as a result, it significantly undercounts the number of CCRMUs at small utilities.

APPA also recommended that EPA exclude units from the rule which have undergone or are currently undergoing post-closure care under a state program. In many cases, state programs are robust and include closure requirements as stringent, if not more so, than the federal CCR regulations.