Contaminated Properties and Waste

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.