On August 15, 2017, EPA issued non-binding guidance providing insight of EPA’s expectations for states to assume regulation authority over coal combustion residuals (CCRs). Comments on this guidance are due September 14, 2017. Under the Water Infrastructure and Improvements for the Nation Act, states may develop their own CCR permit programs that are “at least as protective” as the federal CCR rule. EPA must review these programs at least every 12 years. Upon the submission of a program application by a state, EPA will have 180 days to act, which includes a period of public notice and comment. States may choose not to submit such a program, and instead opt to remain under the federal scheme.

The state programs can comply with the federal CCR rule or require measures that are “at least as protective” as the federal scheme. EPA will allow “flexibilities” in implementing state CCR programs but what flexibilities EPA will approve remain to be seen. Some examples may be “risk-based” approaches for corrective actions at certain CCR units; the option to suspend groundwater monitoring requirements in certain circumstances; and state officials deciding the length of time needed to demonstrate that remedies are complete. Any flexibilities approved must also go through public notice and comment.