Coal Ash Rule Update: EPA's Proposed Federal Permit Program

Subtitle D of the Resource Conservation and Recovery Act was designed to be self-implementing. Unlike Subtitle C, which subjects hazardous waste to extensive federal oversight and permitting requirements, Subtitle D applies to non-hazardous waste and envisions that the states will be primarily responsible for regulating landfills. As long as a facility poses "no reasonable probability of adverse effects on human health or the environment," it is defined as a "sanitary landfill" and is not subject to federal enforcement or stringent oversight under Subtitle D. 

All that may be changing, at least with respect to surface impoundments containing Coal Combustion Residuals (CCR). Using a little-noticed provision in a 2016 law on infrastructure improvements, EPA has proposed a new federal permit program for CCR surface impoundments. While the first phase of the new federal permit program will only apply to certain high hazard sites, it is designed to eventually cover all CCR surface impoundments which are not covered by an EPA approved state-level program. 

Background 

As originally conceived and currently worded, the 2015 EPA rule on the Disposal of Coal Combustion Residuals (the Coal Ash Rule) is intended to be self-implementing. Owners and operators with coal combustion residual (CCR or Coal Ash) surface impoundments are required to be "directly responsible for ensuring that their operations comply with the rules' requirements." 80 Fed. Reg. 21, 311. There is no mechanism for federal oversight or enforcement. EPA's 2015 Federal Register notice announcing the Coal Ash Rule specifically envisioned that the primary enforcement mechanism for the Coal Ash Rule would be citizen suits under Section 7002 of the Resource Conservation and Recovery Act (RCRA), Id. at 21, 427; 42 U.S.C. § 6972. Since then, a small handful of citizen suits have been filed challenging utilities' closure plans for CCR impoundments. As detailed in a previous update, the plaintiffs have met with mixed results. 

In 2016, Congress passed the Water Infrastructure for the Nation Act (WIIN Act), which amended Section 4005 of RCRA. Among other things, the WIIN Act sets up a process whereby states may submit their own coal ash permitting programs for EPA approval. Upon approval, a state-level program in a participating state will operate "in lieu of" the self-implementing federal rule. So far, only Oklahoma and Georgia have elected to participate in the WIIN Act process for obtaining EPA approval of CCR permitting programs. Other states, most notably Wisconsin and Wyoming, have publicly announced their intentions to submit proposed CCR permit programs to EPA for approval. Still others, such as Illinois and North Carolina, have promulgated or are in the process of promulgating their own stringent regulations for CCR management and permitting without seeking EPA approval. 

The WIIN Act also directed EPA to design and implement a federal permit program for the regulation of CCR in non-participating states. The WIIN Act did not set out the parameters of the permit program or say whether Congress intended for EPA to abandon its historical hands-off approach under Subtitle D. On February 20, 2020, EPA published its proposed Federal CCR Permit Program in the Federal Register. 85 Fed. Reg. 9940-9987. 

As proposed, the new Federal CCR Permit Program represents a drastic change in direction. It will do away with self-implementation and will severely restrict the ability of citizens groups to enforce the Coal Ash Rule with RCRA citizen suits. 

The Federal Coal Ash Permit Program 

The new federal permit program will apply in "Indian Country" and "non-participating states." The term "non-participating state," as defined in the WIIN Act, includes every state that has not received EPA approval for a CCR permit program. The forty-eight states other than Oklahoma and Georgia are currently non-participating and will be subject to the federal program. As states such as Wisconsin and Wyoming obtain EPA approval for CCR permit programs, facilities in those states will become exempt from the federal permit requirements. 

Under new proposed 40 C.F.R. § 257.123, owners and operators of CCR units in non-participating states must submit an application for a federal permit for all CCR management operations subject to Subtitle D of RCRA. This requirement will take in all operating and nonoperating CCR surface impoundments, even if the impoundment is already in post closure care. 

But not all facilities will need to apply for permits right away. EPA is proposing a tiered approach to deadlines for permit applications. The first tier includes any "existing CCR impoundment, new CCR surface impoundment or inactive CCR surface impoundment that is classified as a 'high hazard potential' unit." 40 C.F.R. § 257.124. The Coal Ash Rule does not specifically define a "high hazard potential unit," but it does require operators to assess the hazard potential of each CCR unit every five years. 40 C.F.R. § 257.73(f)(3). Because the Coal Ash Rule does not define "high hazard," operators have used the Federal Guidelines for Dam Safety as guidance for determining hazard potential, and generally characterize a "high hazard potential" impoundment as one where "failure or mis-operation will probably cause a loss of human life." A 2009 EPA Fact Sheet estimated that there were 44 such units in the US as of that time. EPA 530-F-09-006. Federal permit applications for these facilities will be due 18 months after the effective date of the final rulemaking. If a CCR facility has multiple CCR units, and one of those units triggers the deadline, then the permit application must include all units at the facility. 40 C.F.R. § 257.124(a). The proposed regulations state that deadlines for future tiers will be set at a later date. 40 C.F.R. § 257.124(b). Permits issued under the proposed rule never expire. They remain in effect until revoked, reissued, terminated or modified. 40 C.F.R. § 257.120(b)(7). 

The new regulations are not particularly specific with respect to the required contents of the permit application. Under 40 C.F.R. § 257.131, the application must contain "all of the information necessary" for EPA to determine that the facility complies with Subtitle D of RCRA and to ensure that there "is no reasonable probability of adverse effects on health or the environment" from the operation of the facility. The new regulations set out categories of information that "at a minimum" must be included in a permit application, but do not expressly state how much information, or what information in particular, will be necessary to obtain a permit. 

Permit "By Rule" 

New CCR landfills or lateral expansions of existing CCR landfills have the option of claiming a permit "by rule." This means that such facilities need not submit permit applications, and will be deemed to be covered by federal permits, if they comply with all of the location and other criteria for CCR impoundments set forth in 40 C.F.R. § 257. Permits "by rule" only apply to the presumably small subset of CCR landfills which are either new or undergoing expansion. An owner or operator of a facility covered by a permit by rule must submit a permit application no later than 180 days prior to initiating closure. 

The Permit Shield 

Perhaps the most dramatic evidence that EPA intends for its new federal permit program to be a complete change in direction is the permit shield provision of the new proposed regulations. 40 C.F.R. § 257.125. EPA is proposing that compliance with a federally-issued permit "constitutes compliance, for the purposes of enforcement, with the requirements of subpart D" of RCRA. Under the current, self-implementing system, a citizen or citizens group could sue the owner or operator of a CCR surface impoundment for corrective action if the facility allegedly poses a "reasonable probability of adverse effects on health or the environment" 42 U.S.C. § 6944. Once the federal permit program is enacted, compliance with a permit will shield the permittee from any claim in an enforcement proceeding, including RCRA citizen suits. The permit shield provision expressly states that it does not create a property right, and so presumably will not shield owners and operators from claims for nuisance or trespass if a neighboring landowner believes that the operation of the CCR unit has created off-site impacts. 

Conclusion

While the WIIN Act called for the creation of a federal permitting program, it did not specifically require a mandatory federal permit regime in all states that have not sought or received EPA approval for their own permit programs. The WIIN Act also did not mandate a permit shield which would effectively end any enforcement of the Coal Ash Rule by way of RCRA citizen suits. EPA's most recent proposed rulemaking, once it becomes effective, will begin by placing the most "high hazard" sites within exclusive federal control for permitting and RCRA enforcement purposes. The newly-proposed federal program will likely spark a vehement debate between the regulated community and environmental citizens groups over the original intent of the 2015 Coal Ash Rule and whether EPA's proposed new approach will adequately protect human health and the environment. 

Acknowledgement 

The author would like to thank Mark Rokoff and John Priebe of AECOM for their input on this topic and their editorial review and comments on this update.