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Permit Programs for Coal Combustion Residual Disposal Units

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About the Water Infrastructure Improvements for the Nation (WIIN) Act

Congress passed and the President signed the WIIN Act in 2016. Section 2301 of the Act amends Section 4005 of the Resource Conservation and Recovery Act (RCRA) to provide for state coal combustion residuals (CCR) permit programs. The law also provides EPA additional authorities including the authority to review and approve state CCR permit programs. The major provisions of Section 2301 of the WIIN Act include:

  • States may, but are not required to, develop and submit a CCR permit (“or other system of prior approval”) program to EPA for approval.
  • The program does not have to be identical to the current CCR rule, found in Title 40 of the Code of Federal Regulations (CFR) Part 257 subpart D, but must be at least “as protective as” the CCR rule.
  • EPA has 180 days to act on a complete State submission; EPA must provide public notice and an opportunity for comment prior to EPA approval.
  • EPA may approve a program “in whole or in part”.
  • Once approved, the State permit program operates “in lieu of” the federal CCR rule.
  • The CCR rule applies to a CCR unit until a permit is in effect for that unit.
  • In States that do not have an approved permit program (“non-participating States”), EPA must implement a permit program, “subject to the availability of appropriations specifically provided to carry out a program…”.
  • EPA must implement a permit program in Indian Country.
  • EPA may use its information gathering and enforcement authorities under RCRA Sections 3007 and 3008 to enforce the CCR rule or permit provisions.
  • EPA must review State permit programs at least once every 12 years and in certain specific situations.

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Permit Programs in Indian Country

The WIIN Act requires EPA to establish and carry out a permit program for CCR units in Indian Country to achieve compliance with the current CCR rule. There are three facilities in Indian Country with CCR disposal units.  EPA is coordinating with the affected tribes to develop appropriate permits for the three facilities.

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Relationship Between State CCR Permit Programs and State Solid Waste Management Plans

Early in the development of the waste management infrastructure, a process was created to encourage states to effectively plan for and manage their solid wastes through the development of Solid Waste Management Plans. A Solid Waste Management Plan (SWMP) is a document that outlines how a state will plan and manage its solid waste.

Currently, most states have SWMPs that have been submitted to and approved by EPA. EPA recommends that states take advantage of this process, already in the regulations, by revising their SWMPs to address the issuance of the CCR rule and to submit revisions of these plans to EPA for approval.  Thus, the SWMP will serve as a mechanism where a state will be able to set out, as part of their overall solid waste program, how it intends to regulate CCR landfills and surface impoundments.

There are several ways in which a state can submit a SWMP for approval. If a regulatory agency wants to have their SWMP approved of before state CCR regulations have been adopted, they can submit the plan based on the expectation of the regulations being put in place. These SWMPs can receive approval conditioned on adoption of those state CCR regulations.  A state can also initially submit a plan dealing only with compliance schedules. This would be considered a partial approval and can be granted provided the state agrees to submit an entire plan in a timely fashion.

EPA recognizes that some states have already adopted requirements that go beyond the minimum federal requirements. The CCR rule will not affect these state requirements; moreover, the final rule does not preclude a state from adopting more stringent requirements where they deem that appropriate.

Three states have updated their SWMPs to incorporate how they intend to regulate CCR landfills and surface impoundments since the promulgation of the federal CCR regulations in 40 CFR Part 257.

Approval of a SWMP and a state CCR permit program are fundamentally different.  Approval of a SWMP allows a state to grant facilities extra time regarding compliance schedules to meet regulatory requirements; however, the federal CCR rule still applies to the facilities.  Approval of a state CCR permit program means that, once a permit is issued, the requirements of that permit operate "in lieu of" the federal rule.

Below is a chart further comparing SWMPs and state CCR permit programs:

State CCR Permit Program State SWMP
  • WIIN Section 2301, amends RCRA Section 4005.
  • EPA enforcement authority for CCR rule under 3007 and 3008.
  • State may develop and submit CCR permit program to EPA for approval.
  • Program may be different from, but must be “as protective as” federal rule.
  • EPA has 180 days to approve/disapprove a permit program.
  • Public notice and opportunity for comment required.
  • Permit operates “in lieu of” federal rule.
  • Until permit is issued federal CCR rule applies.
  • RCRA Sections 4002, 4003, 4005(a), 4006, and 4007.
  • SWMPs are to encourage and facilitate solid waste management planning.
  • EPA required to promulgated guidelines for SWMPs.
  • Minimum requirements for plans (4003)– must prohibit establishment of new open dumps and provide for closing or upgrading of existing open dumps.
  • EPA has 6 months to approve a SWMP.
  • Approved SWMP allows State to set a schedule for compliance for an entity that cannot meet regulatory requirements; schedule cannot exceed 5 years from promulgation of regulations.
  • Federal regulations remain applicable to all units.

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State Permit Program Guidance

EPA has developed an interim final guidance document that provides information about the provisions of the 2016 WIIN Act related to CCR as well as the process and procedures EPA will generally use to review and make determinations on state CCR permit programs. The guidance document is divided into four chapters. The first two chapters are in the form of questions and answers about the WIIN Act and the state permit program approval process. The third and fourth chapters consist of checklists to aid states as they consider and develop their program submittals.

The release of this interim final guidance was announced in the Federal Register on August 15, 2017 and was open for public comment through through September 14, 2017.

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Individual State Permit Programs

As discussed above, EPA now has the authority to approve State CCR permitting programs. When EPA receives a permit program submission from a state, EPA will review the submission to ensure that the submission includes all the required elements. EPA will send a letter to the state informing them that their submission is complete ("completeness letter").  The issuance of this letter officially marks the beginning of the 180 days that EPA has to make a determination on a State program submission.

During this 180 days, EPA will publish a Federal Register notice providing its initial determination and offering the public an opportunity to comment and the opportunity for a public hearing. EPA plans to post completeness letters when they are released and will ultimately post the information and documents associated with permit program submissions once the Federal Register notices are published proposing determinations regarding the submissions.

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