For electric power generation owners/operators managing sites with coal combustion residuals (CCR), the future may never be as unclear as it is today thanks to unfolding litigation and potential regulatory changes.
During the past few months alone, several significant developments have added to the uncertainty and confusion.
1. On August 15 the U.S. Environmental Protection Agency (EPA) issued an interim guidance document explaining the terms and conditions under which state programs could be approved to regulate CCR in lieu of the EPA. The EPA guidance, administered through provisions in the federal Water Infrastructure Improvements for the Nation (WIIN) Act, included more than 200 pages of checklists and made clear the agency will require any state program to demonstrate it is “at least as protective” as EPA’s CCR regulations in 40 CFR Part 257 Subpart D. To date, two states have submitted programs for approval: Georgia and Oklahoma.
The upshot: The EPA guidance indicates there may be a long, complex road ahead for CCR site owners/operators who have been hoping to shift to more locally-informed, flexible CCR regulations. Additionally, the time to develop, get approval and implement state programs may be problematic for a number of CCR issues without a reevaluation/extension of current federal deadlines.
2. On August 4 a federal court in Tennessee entered a judgment that required the Tennessee Valley Authority (TVA) to remove CCR materials from existing and legacy ash ponds at a power plant near Gallatin on the Cumberland River. In Tennessee Clean Water Network, et al., v. TVA, the judge ruled the ash ponds were discharging CCR constituents to surface water via groundwater migration, a violation of the Clean Water Act (CWA). Essentially, the ponds were considered point sources. TVA is moving forward with the removal but has appealed the decision.
The upshot: This ruling appears to create a playbook for litigants in other states to try to force removal of CCR material in lieu of closure-in-place and other remedial options, which are allowed under the CCR regulations. There have been similar recent rulings regarding violations of the CWA elsewhere.
3. On September 12 EPA Administrator Scott Pruitt signed a Final Rule announcing the postponement of compliance dates for steam electric power generators, which were subject to EPA’s Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category (ELG’s; November, 2015). This Final Rule postponed the compliance dates for flue gas desulfurization (FGD) wastewater and bottom ash transport water for two years, meaning that compliance dates determined by the appropriate permitting authority will need to be determined “as soon as possible beginning November 1, 2020.” This will allow the agency time to conduct a new rulemaking for these waste streams.
The upshot: The EPA’s Final Rule means certain CCR site owners/operators could see some relief from the 2015 ELGs relative to their bottom ash ponds and FGD wastewaters. However, other CCR compliance issues (e.g. closure for cause) could mitigate any potential benefit if existing CCR deadlines remain in-place.
4. On September 27 the U.S. Court of Appeals for the District of Columbia Circuit rejected a stay of the ongoing litigation related to EPA’s 2015 Final CCR Rule (USWAG et. al., vs EPA) and set oral arguments for November 20. While a number of issues originally part of the litigation were resolved/settled last year, several core issues remain, including justification for siting and closure requirements, whether the agency has the authority under the Resource Conservation and Recovery Act to regulate legacy sites, and beneficial use matters. EPA and industry had requested the stay while the agency reconsiders the CCR Rule, based on a recent petition by USWAG. That petition, in response to Executive Order 13777, identified a number of issues and existing CCR deadlines for reconsideration based on the transition of the federal CCR Rule to state CCR permit programs via the WINN Act and alignment with the proposed postponement of the ELG compliance dates.
The upshot: The court will not only hear arguments based on the remaining issues not remanded or vacated in September 2016, but will also listen to arguments regarding EPA’s request to indefinitely stay litigation until EPA reconsiders the regulation. This could provide some clarity (and potential regulatory/deadline relief) as states decide whether to develop their own CCR programs.
As electric power generators plan for future operation or closure of their CCR units, potential impacts of regulatory changes and ongoing litigation need to be considered and planned for. Ultimately, the CCR and ELG issues under litigation/reconsideration will continue to shape what CCR units are subject to regulation, how they will be closed, closure timing, groundwater corrective action, and other rule requirements.