The proposed federal permitting regime includes some surprising provisions, including no permit expiration and no proposed application deadline for most units.

By Claudia M. O’Brien and Stacey L. VanBelleghem

On December 19, 2019, the US Environmental Protection Agency (EPA) released a proposed rule to establish a federal permitting program under the Resource Conservation and Recovery Act (RCRA) for the disposal of coal combustion residuals (CCR), also known as coal ash, in surface impoundments and landfills. EPA’s 2015 CCR rule established self-implementing requirements for the management of CCR. In 2016, Congress passed the Water Infrastructure Improvements for the Nation (WIIN) Act, which authorized states to submit for EPA approval state CCR permit programs to implement the federal CCR rule requirements. The WIIN Act also required EPA to implement a federal CCR permit program in Indian country and in states that do not have an approved permitting program.

The proposed rule, titled Hazardous and Solid Waste Management System: Disposal of Coal Combustion Residuals from Electric Utilities; Federal CCR Permit Program (Proposed CCR Permitting Rule), would establish this federal permitting backstop.

Here are six key points stakeholders should know about the Proposed CCR Permitting Rule:

  1. It would likely cover most CCR units in the US — at least, at the outset

The Proposed CCR Permitting Rule would apply in every state that does not have an EPA-approved CCR permitting program and in Indian country. To date, only two states — Georgia and Oklahoma — have EPA-approved CCR permitting programs. Unless a significant number of states submit programs for EPA approval before EPA finalizes the Proposed CCR Permitting Rule, the federal program will likely have a broad reach.

Moreover, EPA proposes to issue federal CCR permits without an expiration date. The permit would be maintained throughout all stages of CCR management at the facility, including the active life of the CCR unit, the post-closure care period, and until any required corrective action is completed. The proposed lack of permit expiration date raises questions regarding whether states that have not yet submitted a permitting program to EPA would have incentive to do so once the federal program is in place and permits have been issued.

Consistent with RCRA and similar statutes, CCR rule requirements apply jointly and severally to both owners and operators of CCR units. The Proposed CCR Permitting Rule would expressly require owners and operators of CCR units to obtain a federal CCR permit. Both the owner and the operator would be obliged to submit the permit application as joint permittees. The owner could defer to the operator’s signature and certification of posted documents, submittals, and applications, but would remain a permittee and subject to joint and several liability. Regarding EPA’s implementation of the permitting program on Indian lands, EPA has changed its interpretation of ownership on tribal lands and now takes the novel position that CCR units on tribal lands are owned both by the CCR unit owner and the tribe on whose land the CCR unit resides.

  1. While the proposed federal permit could shield the permittee from certain RCRA claims, it would not mitigate or eliminate all potential liability

EPA is proposing a permit shield provision, stating that a federal permit would protect the permittee from claims in an enforcement proceeding by EPA or a citizen suit proceeding brought pursuant to RCRA Section 7002 alleging that the permittee did not comply with any CCR rule requirements incorporated in the permit. However, this liability protection would be limited. EPA could modify the permit at any time to incorporate additional requirements. Moreover, the permit shield would not relieve the permittee from liability for violation of other federal laws, such as the Clean Water Act. And it would not shield the permittee from liability for violation of state or local laws. Therefore, the permittee would still remain subject to the types of litigation challenges that groups have filed in recent years to seek remedial action at CCR units. And even in the absence of an EPA-approved state CCR permitting program under RCRA, states could still enact legislation to impose more stringent requirements, similar to recent state action taken in Virginia, North Carolina, and Illinois.

  1. EPA is proposing flexibility in the type of permit coverage based on facility characteristics

EPA has developed a three-part approach to the permitting program that provides flexibility in determining the most appropriate and efficient permit application process for each CCR unit at a facility.

  • Individual Permit: EPA proposes offering a traditional permitting approach of individually-issued permits for CCR units. An individual permit would be tailored to the specific conditions of that unit. Of all of the permitting options, this application would be the most involved for both the permittee and the EPA permit-writer because of the unit-specific review.
  • General Permit: Similar to EPA permitting programs under other statutes, such as the Clean Water Act stormwater general permit under the National Pollutant Discharge Elimination System (NPDES), EPA is proposing to offer general permits to certain categories of CCR units based on criteria defined by operating parameters unique to that category. Once a general permit is proposed in the Federal Register and finalized, eligible CCR units could seek coverage under the general permit to satisfy federal permitting requirements. An owner or operator would submit a request for coverage under a general permit, which would take significantly less time than an individual permit application.
  • Permit by Rule: EPA is proposing a permit-by-rule option for a new landfill or a lateral expansion of a landfill — notably, this option would not be available for surface impoundments. As long as the established criteria and permit-by-rule conditions for these new or expanded landfills were met, the owner or operator would be deemed to have a CCR permit. To remain eligible for the permit by rule, CCR landfills would have to demonstrate through groundwater monitoring of the uppermost aquifer that there are no constituents detected above groundwater protection standards, which would otherwise trigger corrective action requirements. In addition, if non-groundwater releases from a CCR unit were detected, the owner and operator would be obliged to apply for a general or individual permit. For a permit by rule, the owner or operator would submit a Notice of Intent to obtain coverage, similar to the process for a general permit. State permitting requirements may nonetheless apply to any new landfill or lateral expansion of a landfill.

EPA is requesting comments on the categories of CCR units for which general permits may be appropriate, whether seeking public comment on individual applications for coverage under a general permit is appropriate, and whether EPA should be required to issue a determination that coverage under a general permit is appropriate for a particular CCR unit. EPA is also requesting comments on whether other categories of units could be appropriately permitted by rule.

  1. It could be years before some CCR units would be subject to the new federal permitting requirement

In order to first address the highest-priority CCR units, EPA proposes to establish a tiered deadline system. The first tier of permit applications would be due 18 months after the effective date of the final rule and would focus on CCR surface impoundments that are classified as “high hazard potential.” EPA’s existing CCR rule requires an initial hazard-potential classification and periodic assessments certified by a qualified professional engineer. These assessments result in a rating of high-, significant-, or low-hazard potential. In addition to prioritizing CCR surface impoundments with high-hazard-potential classification, EPA is also proposing to require owners and operators of CCR units in Indian country to submit applications by the first tier deadline.

EPA is considering other tiers of subsequent permitting application deadlines but has not yet proposed what those would be. For now, EPA proposes to notify owners and operators of CCR facilities in other tiers by a notice in the Federal Register at least 180 days before the application submission deadline. For CCR units that become subject to the applicable RCRA requirements after this rule is finalized, the deadlines to submit a permit application would be phased in.

  1. Permittees would have ongoing obligations, and EPA proposes avenues for permit modifications

Although EPA does not propose an expiration date for federal permits, the permittee would have an ongoing obligation to submit any information missing from the permit application and any new or corrected information as soon as the applicant becomes aware of it. Moreover, a permittee would be obliged to review and resubmit each permit application, or each Notice of Intent or request to be covered by the permit by rule or general permit, no less frequently than every 10 years to ensure that EPA has current information about the facility’s operations.

Permit modifications may be initiated by EPA (including responses to citizen petitions) and by the permittee. EPA may modify or revoke and reissue an individual permit if one or more listed causes in the proposed rule exist, based on information obtained through a facility inspection, information submitted or posted by the permittee, a citizen petition, or whenever EPA reviews a permit file.

For permit modifications initiated by the permittee, EPA proposes two categories: minor modifications and major modifications. Minor modifications would include minor or administrative changes that do not substantially alter the permit conditions (such as ownership changes). Minor modifications would be implemented quickly and would not warrant public comment. Major modifications would be those that materially alter the facility, operations, or compliance approaches required in the existing permit, or changes to address technical or discretionary regulatory revisions. EPA would require public notice and comment for major modifications.

  1. The federal permitting scheme would trigger compliance with other federal laws

When issuing federal permits, EPA would need to ensure compliance with other federal laws triggered by the RCRA permitting action, including the:

  • Wild Scenic Rivers Act
  • National Historic Preservation Act of 1966
  • Endangered Species Act
  • Coastal Zone Management Act
  • Fish and Wildlife Coordination Act

Compliance with these laws could require consultation with other federal and state agencies or stakeholders and could add time to the permitting process. Moreover, the results of consultation under some of these laws, such as the Endangered Species Act or the National Historic Preservation Act, could impose additional requirements or mitigation measures on permitted facilities. Overall, this obligation could require additional time and resources for CCR unit permitting.

Next Steps

A public comment period of 60 days will follow EPA’s forthcoming publication of the Proposed CCR Permitting Rule in the Federal Register. EPA will hold a virtual public hearing on February 19, 2020. Stakeholders, particularly owners and operators of CCR units, should engage with EPA on key issues.

This post was prepared with the assistance of Jacqueline J. Yap in the Washington, D.C., office of Latham & Watkins.