Jackson Kelly PLLC

Energy and Environment Monitor


May 18, 2017

By: Robert G. McLusky


In 2013 and 2014, we previously wrote about EPA's efforts to regulate the disposal and use of coal combustion ash.  Those efforts culminated in a late 2014 decision by EPA not to regulate coal combustion residuals (CCR) (ash) as a hazardous waste, but nonetheless to place specific restrictions on its disposal as a solid waste.  By a petition dated May 12, 2017, a group representing coal fired utilities requested that EPA extend some of the compliance deadlines in the existing rule, undertake a new rulemaking to reflect changes to part of the existing rule and to hold pending litigation over the rule in abeyance to allow the Trump administration time to react to the petition.  See Utility Solid Waste Activities Group (USWAG) Petition for Rulemaking to Reconsider Provisions of the Coal Combustion Residuals Rule.  Some of deadlines or elements of the rule that USWAG requests be extended or reconsidered are: 

1.    Extension of deadlines to allow transition to State Permit Programs and to Coordinate with Effluent Limitation Guidelines for Coal Fired Power Plants:

      The Petition notes that as originally issued, the CCR rule was self-implementing.  There was no nationwide permitting program created, and the rule would have relied primarily on citizen suits to enforce it.  As a result, EPA rejected the use of flexible and risk-based standards  because there was no regulatory program for administering and policing them.  However, the Petition claims that former President Obama signed the Water Infrastructure Improvements (“WIIN Act”) into law on December 16, 2016.  It says that the WIIN Act amended RCRA Subtitle D to authorize states to implement the CCR Rule through state permit programs.  But, to obtain this authority, states must submit applications to administer the CCR Rule through a state program in lieu of the self-implementing rule.  Where states do not seek this authority, EPA is directed to implement the Rule through a federal program.  The Petitioner believes that the implementation of these programs should allow for more site-specific risk-based program elements than are permitted by the current CCR rule, but that time is needed both to recognize these elements in an amended rule and to implement them.  Also, utilities will need more time to coordinate ash disposal options with new effluent limitation guidelines issued in late 2015.

2.    Alternative Risk-Based Groundwater Protection Standard: 

The CCR rule generally relies on Safe Drinking Water Act “maximum contaminant levels” for groundwater protection; however, for constituents without an MCL, the rule defaults to background levels.  The original proposal would have recognized risk-based standards, but EPA did not adopt them after determining they complicated what was then a self-implementing program.  The Petition seeks a rule modification recognizing the use of risk-based standards now that the rule will not be self-implementing. 

3.    Modification to Corrective Action Remedy:

The Petition asks that the Rule be modified to recognize that a facility could demonstrate no need for further corrective action if the groundwater was not a drinking water source and had a low likelihood of migrating off-site.  Again, EPA dropped this proposal from the final Rule after determining that its implementation was problematic under a self-implementing program.

4.    Modification to Allow for Alternative Points of Compliance and Site-Specific Groundwater Monitoring Constituents.

5.    Modification to Allow Unlined CCR Surface Impoundments to Operate While Undertaking Corrective Action:

The current Rule requires that unlined impoundments that trigger corrective action by detecting a statistically significant increase over a groundwater protection standard must cease receipt of CCR within 6 months and commence closure, with no opportunity to continue operating while taking steps to remedy the release with engineering controls.  EPA has acknowledged that engineering controls could serve as an alternative to closure at some locations, but declined to authorize the option under the former self-implementing program.  Now that facilities will be regulated by state or federal programs, there is no reason not to allow such controls in lieu of closure. 

6.    Repeal the Rule’s Regulation of Inactive Surface Impoundments:

        The Petition asserts that inactive impoundments are subject only to the “imminent and substantial endangerment” authorities of RCRA and CERCLA, but not to the regulatory or permitting authority of EPA.

7.     Clarify that the use of CCR to close out CCR units can qualify as a “Beneficial Use” of CCR not otherwise regulated under the Rule.

8.     Amend the Rule to recognize that placement of ash in clay mines can qualify as a “Beneficial Use”: 

The Rule does not restrict what activities can qualify as unregulated beneficial use with the exception of its use in “sand and gravel pits or quarries.”  EPA has extended the prohibition to clay mines even though clay provides a natural barrier to groundwater migration.

9.     Amend the Rule to Recognize use of liners found by States to be Effective.

10.  Correct mathematical error in Rule that led EPA to impose a threshold of 12,400 tons for making an environmental safety demonstration on non-encapsulated and non-roadway beneficial uses of ash:

The Petition says that EPA’s math was wrong in the final Rule, and that the threshold should have been 75,000 tons.

This article was authored by Robert G. McLusky,  Jackson Kelly PLLC. 








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