On Dec. 2, 2019, the U.S. Environmental Protection Agency (EPA) proposed revisions to the Coal Combustion Residual Rule (CCR Rule) under the Resource Conservation and Recovery Act (RCRA).1 The proposed rule affects how electric utilities, independent power producers, and the like, dispose of coal combustion residuals (CCR) generated by their operations. The proposed rule makes three major revisions to the existing CCR Rule.

First, the proposed rule sets an Aug. 31, 2020 deadline requiring facilities to stop disposing of CCR and non-CCR waste and start the closure of all unlined impoundments and all surface impoundments that fail the aquifer location standard of 40 C.F.R § 257.101(b)(1). Id. at 65,942. This rule expedites the prior Oct. 31, 2020 deadline. Id.

Second, the proposed rule reflects the D.C. Circuit’s decision in Utility Solid Waste Activities Group v. EPA, 901 F.3d 414 (D.C. Cir. 2018) (USWAG). USWAG held that the EPA acted arbitrarily and capriciously when it classified clay-lined impoundments as “lined” under 40 C.F.R. § 257.71(a)(1) and permitted unlined surface impoundments to continue to receive CCR unless the impoundment leaks. 901 F.3d at 431–32. The proposed rule re-classifies clay-lined impoundments as “unlined.” As a result, clay-lined impoundments are subject to the Aug. 31, 2020 deadlines and requirements. 84 Fed. Reg. at 65,941–42.

Lastly, the proposed rule grants facilities more time to develop alternative capacity plans to accommodate the closure of the CCR impoundments. Id. The EPA recognized that closing CCR impoundments will require facilities to develop alternative means to dispose of CCR and non-CCR waste. Id. at 65,945. The proposed rule provides facilities additional time to develop those plans to prevent disrupting the facility’s ability to generate and provide electricity to customers. Id.

Comments to the proposed rule must be submitted to the EPA by Jan. 31, 2020 and a public hearing will be held on Jan. 7, 2020.