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EPA Issues First Final Decision to Deny Plant’s Request to Continue Disposal of Coal Ash

The U.S. Environmental Protection Agency (EPA) on Nov. 18 issued the first final decision to deny a facility’s request to continue disposing of coal combustion residuals (CCR) into an unlined surface impoundment after the deadline to stop such disposal has passed.

Specifically, EPA took final action to deny the deadline extension request submitted by Gavin Power, LLC for the 2,600-megawatt General James M. Gavin Power Plant in Cheshire, Ohio. EPA proposed to deny this request on January 11, 2022.

EPA said it was denying the request for an extension because Gavin has failed to demonstrate that it is in compliance with 2015 CCR regulations. In particular:  

  • One of the unlined coal ash impoundments known as the Fly Ash Reservoir closed with waste sitting in groundwater.
  • The groundwater monitoring system for the Bottom Ash Pond is inadequate; Gavin failed to conduct appropriate statistical analyses of data and failed to support alternative source demonstrations.
  • The groundwater monitoring systems for the Fly Ash Reservoir and the Residual Waste Landfill are inadequate because monitoring wells in the systems are too far apart to detect all potential pathways of groundwater contamination.

According to the Federal Register this facility must stop placing CCR and non-CCR waste streams into its bottom ash pond no later than April 12, 2023, or such later date as EPA establishes to address demonstrated electric grid reliability issues. 

EPA said its final decision recognizes the importance of maintaining grid reliability and establishes a process for Gavin to seek additional time if needed to address demonstrated grid reliability issues.

Because Gavin is in the PJM Interconnection region, EPA said it closely considered the comments from and discussions with PJM and developed a process that relies on and is consistent with PJM’s existing approach to scheduling outages and protecting electric grid reliability.

Specifically, PJM’s process of maintaining grid reliability requires a facility like Gavin to request a planned outage at least 30 days prior to the start of the outage. PJM confirmed in EPA discussions that 30 days is generally sufficient time to assess a facility’s planned outage request.

To ensure that PJM has adequate time to evaluate a request, EPA’s final action also requires Gavin to submit any request for a planned outage to PJM within 15 days of publication of EPA’s final decision in the Federal Register. EPA said it will continue consultations with relevant electric grid authorities to maintain reliability.

EPA’s CCR Part A Final Rule, published on August 28, 2020, grants facilities the option to request an extension to the deadline for unlined CCR surface impoundments to stop receiving waste under two circumstances.

These facilities could submit a demonstration showing a continued need to use the surface impoundment due to lack of capacity.

EPA received and reviewed 57 applications from CCR facilities requesting deadline extensions and determined that 52 were complete, four were incomplete, and one was ineligible for an extension.

Of the 52 complete applications received, EPA proposed determinations for seven facilities, four in January, two in July, and one in October of 2022. Of the seven determinations, three were proposed denials, and four were proposed conditional approvals.

The January 11th proposed determinations raised a host of new legal positions that have been challenged in Electric Energy, Inc., et al. v. EPA. Petitioners contended EPA’s new interpretation of compliance with the 2015 CCR rule was issued without notice and comment and without EPA acknowledging its sudden change in position.  Briefings in the case are expected to begin in early December.

On March 25, 2022, APPA and the Large Public Power Council (LPPC) submitted joint comments in response to the first set of CCR alternative deadlines to initiate closure demonstrations.

EPA’s proposed actions on the first group of Part A CCR Decisions will profoundly affect the electric utility sector, including public power utilities, the groups said.

Furthermore, the proposed decisions will likely have adverse repercussions for both the remaining unlined surface impoundments as well as other CCR disposal facilities regulated under the federal CCR rule, APPA and LPPC said.