On August 10, 2017, the U.S. Environmental Protection Agency (EPA) released an interim final guidance document to help states develop and submit permit programs for the safe management of coal ash combustion residuals (CCR), commonly known as coal ash, to EPA for review and approval.  The current version of the guidance describes EPA’s statutory authority interpretations and the way in which EPA generally intends to review state programs.  EPA is encouraging states to consult that interim final guidance as they develop and submit programs to EPA for review and approval.

EPA Administrator Scott Pruitt described the interim final guidance as being “part of EPA’s ongoing commitment to cooperative federalism,” saying that “we continue to consult with our state partners to find the best management strategy for the safe disposal of coal ash in each of their states.”  He characterized the guidance as being designed to make the permit program approval process “easier to navigate.”

The guidance is divided into four chapters:

  • Chapter 1 provides an overview of the provisions of the Water Infrastructure Improvements for the Nation Act (“WIIN Act”).
  • Chapter 2 contains the process and procedures EPA is planning to use to review and make determinations on state CCR permit programs as well as the documentation EPA will ask states seeking approval of a program to submit.
  • Chapter 3 contains a checklist of all the requirements of the current CCR rule at 40 CFR Part 257 subpart D.
  • Chapter 4 provides a checklist of those items a state would submit when seeking approval of its CCR permit program.

EPA indicates that it anticipates that the guidance is likely to be updated as informed by comments received on the interim final guidance document and will respond to those comments as appropriate. In addition, EPA is stating there are some areas of the WIIN Act; for example, the periodic review of state programs, on which the Agency has not yet focused. The document includes information on the portions of the WIIN Act that are most important for initial EPA review and approval of state programs.

EPA is encouraging states that are or may be considering submitting a CCR permit program to EPA for approval to consult with EPA early in the process. Such consultations will enable EPA and the state to work through areas where the state program may be different from the federal CCR regulation.  EPA will accept public comments on the interim final guidance viaRegulations.gov for 30 days following publication of a notice in the Federal Register announcing its availability.

While EPA’s Interim Guidance does not translate into near-term changes to existing requirements for entities subject to state CCR permitting programs, it does signal that changes are likely afoot, and it may give insight into how state permitting authorities will be dealing with the issues associated with coal ash in the future.  It is important to keep in mind that, as with all federally delegated programs, states are free to choose to impose more stringent regulations than are federally mandated.