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Advanced Notice of Proposed Rulemaking for Disposal of Coal Combustion Residuals from Electric Utilities; Legacy CCR Surface Impoundments

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Rule Summary

EPA is seeking comments and data on inactive surface impoundments at inactive electric utilities, referred to as "legacy CCR surface impoundments" or "legacy units", to assist in the development of future regulations for these coal combustion residuals (CCR) units. This action is in response to the August 21, 2018 opinion by the U.S. Court of Appeals for the District of Columbia Circuit (Utility Solid Waste Activities Group, et al v. EPA) that vacated and remanded the provision that exempted inactive impoundments at inactive facilities from the April 17, 2015 CCR rule.

EPA is seeking input on a potential definition of a legacy CCR surface impoundment and is specifically soliciting information on the types of inactive surface impoundments at inactive facilities that might be considered legacy surface impoundments. Specifically, EPA is requesting information on:

  • the number of legacy units,
  • their current status (i.e., capped, dry, closed according to state requirements, still holding water), and
  • names and locations of former power plants that may have these units and when the plants closed.

Finally, the Agency is taking comment on EPA's regulatory authority, the appropriate regulatory approach for these units and the timeframes to come into compliance with those regulations. EPA is soliciting comments and data in a 60-day comment period, originally scheduled to conclude on December 14, 2020.

EPA is extending the comment period on this legacy CCR surface impoundment advance notice of proposed rulemaking for an additional 60 days, through February 12, 2021.

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Rule History

In April 2015, EPA finalized national regulations to provide a comprehensive set of requirements for the safe disposal of coal ash from coal-fired power plants. These regulations include technical standards that prevent the leaking of contaminants into groundwater, blowing of contaminants into the air as dust, and catastrophic failure of coal ash surface impoundments.  Additionally, the rule sets out inspection, monitoring, recordkeeping and reporting requirements and makes transparency a cornerstone of the program by requiring facilities to post compliance data online on a facility-established, publicly available website.

The 2015 rule imposed requirements on inactive surface impoundments at active facilities, but did not impose requirements on inactive surface impoundments at inactive facilities. The 2015 rule was challenged by several parties, who challenged, among other provisions, the exemption for inactive surface impoundments at inactive power plants from regulation.

The U.S. Court of Appeals for the D.C. Circuit issued its decision on August 21, 2018. The Court held that EPA acted “arbitrarily and capriciously and contrary to RCRA” in exempting inactive surface impoundments at inactive power plants from regulation. The court ordered that these provisions be vacated and remanded back to the Agency. Utility Solid Waste Activities Group (USWAG), et al. v. EPA, 901 F.3d 414 (D.C. Cir. 2018).

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