Overview
Introduction
Legacy ponds and legacy landfills (collectively “legacy sites”) are types of inactive Coal Combustion Residual (CCR or “coal ash”) impoundments at closed power plants (those not active after October 19, 2015). By some estimates, there are over 150 such impoundments around the US., which collectively contain hundreds of millions of tons of CCR. But while EPA rolled out an extensive series of CCR regulations in 2015 (commonly referred to as the Coal Ash Rule), EPA so far has declined to regulate legacy sites, despite numerous lawsuits and widespread criticism from environmental groups.
The wait may soon be over. On February 6, 2023, EPA announced a proposed consent decree in a pending lawsuit which, if finalized, would require EPA to publish its proposed legacy site regulations on or before May 5, 2023, and to take final action no later than May 6, 2024. (88 Fed. Reg. 7444). The proposed legacy site regulations will address both legacy ponds and legacy landfills.
EPA’s other recent actions under the Coal Ash Rule, particularly a series of Part A and Part B denials which began in January 2022, provide important clues as to how EPA will likely address legacy sites. It is reasonably likely that EPA will require the owners and operators of legacy sites to investigate their impact on the surrounding environment, and will require the resolution of any groundwater impacts.
Background: The Coal Ash Rule, the USWAG Decision and Legacy Sites
The Coal Ash Rule is a set of regulations that became effective on October 19, 2015. (40 CFR § 257 et seq.) It established national criteria under Subtitle D of the Resource Conservation and Recovery Act (RCRA) (42 U.S.C. §6901 et seq.) for CCR landfills and CCR surface impoundments, including location restrictions, structural integrity requirements, liner design criteria, groundwater monitoring and corrective action requirements. Sites that fail to meet EPA’s strict criteria must retrofit or close. Currently hundreds of CCR impoundments around the country are in closure or post closure because they were unable to meet EPA’s criteria for continued operation.
As originally drafted, however, the Coal Ash Rule had several important gaps. Among these was the fact that it declined to regulate legacy ponds. While admitting in its preamble to the Rule that legacy ponds likely pose significant risks to human health and the environment, EPA stated that owners of legacy ponds are sometimes difficult to identify. (80 Fed. Reg. at 21,344). In the absence of an identified owner or other responsible party, the EPA reasoned, enforcing the Rule would be problematic. So instead of pro-actively regulating legacy ponds, EPA argued that it could assert its authority over legacy ponds under RCRA’s “imminent and substantial endangerment” provision after leakage was detected and reported (42 U.S.C. § 6973(a)) or could attempt an after-the-spill clean-up under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) (42 U.S.C. § 9601 et seq.).
Environmental groups responded by filing several lawsuits, including Solid Waste Activities Group v. Environmental Protection Agency (DC Cir. 2018) (the “USWAG case”). The plaintiffs in the USWAG case challenged the Rule under the Administrative Procedures Act, arguing that Subtitle D of RCRA required EPA to regulate legacy ponds as prohibited “open dumps” because they pose a “reasonable probability of adverse effects on health or the environment.” 42 U.S.C § 6944(a).
The DC Circuit’s USWAG decision used EPA's own words as a basis to sharply criticize the agency’s decision not to regulate legacy ponds. The Coal Ash Rule contains a long preamble describing the nature of coal ash and the issues that led EPA to promulgate the Rule, including several highly publicized and catastrophic spills. (80 Fed. Reg. 21,302 et seq.) EPA admitted in its preamble that CCR surface impoundments pose threats to the environment stemming from the fact that “thousands, if not millions, of tons [of CCR are] placed in a single concentrated location.” These disposal sites, according to EPA, are at risk for structural failure, particularly when they are located in unstable areas like wetlands or seismic impact zones, and the sheer volume of CCR at these sites can force contaminants into the underlying soil and groundwater, threatening sources of drinking water. With respect to legacy ponds, the EPA’s preamble expressly stated that the they pose risks of groundwater contamination and catastrophic structural failure. Further, according to EPA, because legacy ponds by their nature are older than most surface impoundments and are “generally unlined” and unmonitored, they are more likely to leak than units at utilities still in operation.
The DC Circuit categorically rejected EPA’s rationale for declining to regulate legacy ponds. The Court stated, “[c]onfronted by [the] considerable dangers [of legacy ponds], the EPA’s decision to shrug off preventative regulation makes no sense.” Because the administrative record belied the EPA’s stated reason for its reactive, rather than preventative, approach, the DC Circuit held that the EPA’s legacy ponds exemption in the Coal Ash Rule was “unreasoned, arbitrary, and capricious.”
EPA’s October, 2020 ANPR and the Statewide Organizing Case
In October 2020, EPA issued an Advanced Notice of Proposed Rulemaking (ANPR) in which it asked for public comment on its authority to regulate legacy sites (both legacy ponds and legacy landfills) in the first place and the number, location, owners and status of any potential legacy sites, as well as the types of regulations it should apply to closure and monitoring of legacy sites. Environmental groups were quick to condemn EPA’s ANPR. EarthJustice called it “a grossly inadequate and illegal response” to the USWAG decision. Waterkeepers accused EPA of “thumbing its nose at the courts.”
Then, in August 2022, a coalition of community groups filed yet another RCRA citizen suit, claiming that the EPA’s continued failure to regulate legacy landfills and to comply with the USWAG decision violated section 2002(b) of RCRA. 42 U.S.C. § 6912(b). Statewide Organizing for Community Empowerment, et al v. USEPA (Case no. 1:22-cv-02562). EPA never answered the complaint in the Statewide Organizing case. Instead, on October 30, 2022, the parties informed the court that they were discussing settlement, and on February 6, 2023, EPA announced the proposed consent decree (88 Fed. Reg. 7443-44).
Parallel Developments: EPA's Recent Part B Denials
At the same time as EPA was considering the responses to its ANPR and deciding what to do about the Statewide Organizing case, it was rolling out a series of determinations under Parts A and B of the Coal Ash Rule. Part B allows utilities who are in the process of closing CCR impoundments to seek extensions of closure deadlines if they can demonstrate that the operation of the unit will not create a reasonable probability of adverse effects to human health and the environment. To the surprise of many in the industry, EPA has issued proposed Part B denials for all of the facilities’ requests to continue operations and delay closure of unlined surface impoundments (excluding only those that have withdrawn from the program). Since the CCR Rule was first promulgated in 2015, utilities and professional engineers have read the CCR Rule as allowing unlined impoundments to be closed in place, as long as they are appropriately capped and have engineering controls in place to protect local groundwater.
The recent Part B denials were preceded by a January 11, 2022 draft Part A denial for the General James M. Gavin plant in Cheshire, Ohio, among others. Gavin Power had submitted a request for an extension to close its Bottom Ash Pit (BAP), one of two CCR impoundments on its site. While it was waiting for a decision on the deadline to close the BAP, Gavin Power closed a different pond on its site beginning in 2016, referred to as its unlined Fly Ash Pond (FAR). EPA denied Gavin Power's request for an extension of the deadline to close the BAP because the closed FAR still contained CCR in contact with groundwater. EPA stated, “this means that waste in the unit will continue to be saturated by the groundwater that flows into and out of the unlined impoundment, essentially allowing contaminants to leak out of the closed unit indefinitely.”
The Gavin Power denial sought to disabuse the industry of any notion that closure in place would be allowed if CCR remains in contact with groundwater. In a lengthy report which includes many citations to the USWAG decision, EPA stated that “allowing groundwater to continue flowing through the waste would not protect human health and the environment.” EPA concluded, “the facility cannot simply slap a cover on it and walk away, creating conditions that will indefinitely allow the contaminants in the unit to dissipate into the nearby ground and surface waters.”
The Gavin Power denial became final in November 2022. In January 2023, EPA issued a series of six Part B denials for other CCR units. The reasons EPA gave for these additional denials varied, but EPA’s website characterized the denials as its “Latest Actions to Protect Groundwater and Communities from Coal Ash Contamination.”
The industry has challenged the Gavin Power denial and related actions in court, calling EPA’s reinterpretation of the Coal Ash Rule an exercise in legislative rulemaking without the proper procedures as set forth in the Administrative Procedures Act. Electric Energy, Inc. v. USEPA (Case No. 22-1056). The Electric Energy case will take a year or more to play out, but EPA has made its current position clear. EPA believes that an unlined impoundment which has CCR in contact with groundwater poses unacceptable risks to human health and the environment and is therefore in violation of Subtitle D of RCRA. 42 U.S.C § 6944(a).
Where EPA is Headed: The Legacy Site Regulations
EPA provided a clue as to how it intends to regulate Legacy Sites in January 2022. On the same day as its Gavin Power denial, EPA informed another utility that two of its impoundments at an active power plant, although drained of impounded water and covered with soil and grass since 1989, would now be considered a “CCR surface impoundment[s] … where … the base of the unit intersects with groundwater.” The utility will presumably be required to re-close these long-closed impoundments in a manner that prevents contact between CCR and groundwater.
It is difficult to imagine that, when EPA releases its proposed legacy site regulations in May 2023, it will vary from the approach it has taken since January 2022. It is entirely likely that the proposed legacy site regulations will require the owners and operators of legacy ponds and legacy landfills to evaluate each such impoundment and to report on whether it contains CCR in contact with groundwater. Legacy sites that contain CCR in contact with groundwater will likely be required to re-close under the Coal Ash Rule even if they have been capped and otherwise closed for decades.
EPA’s February 6, 2023 announcement indicates that EPA does not intend to promulgate a final rule until May 2024, so owners and operators of legacy sites will have a full year to get ready. The new regulations will also likely have deadlines for compliance which extend into 2025. Legal challenges from the industry will almost certainly follow, which may delay the deadlines even further. Still, EPA has made its views known. When the legacy site regulations do finally take effect, they will likely characterize impoundments with CCR in contact with groundwater as “open dumps,” which Subtitle D of RCRA prohibits.
Acknowledgement
Anthony Hopp would like to thank Mark Rokoff of Burns & McDonnell for his input on this topic and editorial review.
