Association urges EPA to modify key elements of CCR proposed rule

The American Public Power Association is urging the U.S. Environmental Protection Agency to implement key modifications to a proposed rule that will revise the 2015 federal national minimum criteria for existing and new coal combustion residual (CCR) units.

Specifically, in its Jan. 31 comments, the Association said it believes that the proposed rule requires important modifications to more accurately reflect the time public power utilities need to develop alternative disposal capacity.

Details on proposed rule

The Proposed rule, “A Holistic Approach to Closure Part A: Deadline to Initiate Closure” is the long-awaited response to the U.S. Court of Appeals for the District of Columbia Circuit’s decisions in Utility Solid Waste Activities Group v. Environmental Protection Agency and provisions remanded to the EPA in the Waterkeeper Alliance, Inc., et al. v. EPA (Waterkeeper) case.

The proposed rule seeks to implement the court’s setting aside of the provisions that allowed unlined impoundments to continue to receive coal ash unless they leak, and that classified “clay-lined” impoundments as lined.

The EPA has proposed to move up the regulatory deadline by which unlined impoundments must cease receiving waste and initiate closure from October 31, 2020 to August 31, 2020. In addition, the proposed rule would establish alternative closure provisions to provide additional time to develop alternate capacity to manage CCR and non-CCR wastestreams.

Public power and CCR impoundments

The Association noted in its comments that its members own and operate CCR impoundments that serve a multitude of wastewater management functions beyond just the management of CCR.

“Public power utilities must develop alternate disposal capacity, all while continuing to provide safe, reliable, affordable, and sustainable power to our customs and complying with complex federal and state environmental requirements. Therefore, replacement of these units requires considerable planning, coordination, and reasonable timelines,” the public power group told the EPA.

The proposed rule’s framework is intended to establish a timeframe by which the majority of unlined CCR impoundments can cease the receipt of waste and begin to close in accordance with the USWAG decision.

The EPA and the court “importantly recognized that the 2015 CCR rule’s alternative closure provisions are critical elements of this regulatory framework, as the provisions provide facilities with time to develop alternate disposal capacity when it is not technically feasible to meet the new deadlines,” the Association said.

Important modifications are needed

At the same time, the Association believes the proposed rule requires important modifications to more accurately reflect the time public power utilities need to develop alternative disposal capacity.

The Association noted that it supports setting deadlines for closure that are technically feasible. “The rulemaking record illustrates that the majority of unlined impoundments are unable to meet the October 31, 2020 deadlines much less an accelerated deadline of August 31, 2020. EPA must reevaluate its 22.5-month timeframe based on the information in the rulemaking record.”

Moreover, the Association believes it’s critical for the final rule to include the alternate closure deadlines for those facilities that will not be able to develop disposal capacity by the ultimate deadline EPA establishes.

APPA supports the site-specific closure provisions under §257.103(f)(1) with modifications. Under this provision a facility would provide detailed information that it’s not technically feasible to develop alternative disposal capacity by November 15, 2020 and any extension under this option could not exceed October 15, 2023. The Association recommended “[that] the site-specific alternative closure deadline should be based on the site-specific data included in a facility’s demonstration.”

The Association also recommended that EPA create a regulatory process for circumstances when a facility submits an alternate closure demonstration and the demonstration is denied by EPA.

In addition, the Association suggested any final rule at a minimum include a means to stay the deadline for ceasing the receipt of waste for these units that file for a liner equivalency demonstration under the pending Closure Part B Rule proposal that is still undergoing OMB review.