A recent federal court ruling on several hot-button issues involving coal combustion residuals (CCR) will likely lead to additional liability and uncertainty for power generators.
The August 21 ruling from the U.S. Court of Appeals District of Columbia Circuit tackled a number of CCR issues, ranging from the ability to consider costs when evaluating alternative disposal capacity to beneficial use of coal ash. But the biggest ramifications involve the court deciding that:
What It Means
The first item, the vacating of section 257.50(e) of the CCR Rule, means that inactive ponds at facilities that were previously not subject to the rule could potentially be regulated moving forward. Absent a new rulemaking or successful court challenge of this decision, these legacy ponds would likely become subject to the full burden of the CCR Rule.
The vacating of parts of section 257.101 and 257.71(a)(1)(i), means that power generators who intended to continue using existing unlined or clay-lined ponds for ash management (assuming they met the provisions/standards of 257.101) will likely have to close or retrofit/reline them. That is, unless the EPA addresses the court’s basis for vacating through a new rulemaking, or this ruling is overturned.
The ruling could also impact the timing of compliance decisions for the Effluent Limitation Guidelines (ELG) rule. Parts of the ELG are currently being reconsidered by EPA with a deadline of September 2020. The recent CCR Rule decision may force power generators to accelerate their decision making in advance of understanding what changes may occur to the ELG rule.
Impact of the Court’s Decision
Overall, the ruling’s impact will depend on several issues, including whether it is appealed or if the EPA attempts to revise the CCR Rule to address the court’s concerns.
Also, the court’s decision adds uncertainty for states that have developed their own CCR regulations based on the WIIN Act or are contemplating doing so, which could provide CCR Rule flexibility for existing and potential future rule changes.
Bottom line, the vacatur of these three key parts of the CCR Rule may significantly impact some power generators, depending on their current and planned CCR management activities, the timing of ultimate judicial or regulatory resolution of these issues and the potential regulation of previously exempt ponds. The ruling also adds a potential liability associated with property transactions at sites that ceased generating electricity prior to October 19, 2015.