The month of August, 2017 has seen three distinct developments that may significantly impact management of “Coal Combustion Residuals,” or “CCR,” which include bottom ash, fly ash, boiler slag, and flue gas desulfurization materials generated from burning coal at steam powered electricity plants. Although one of these developments may provide a degree of regulatory relief, the other two may preserve or even strengthen existing regulatory requirements.

EPA Guidance For State Permit Programs For CCR. Landfills and surface impoundments managing CCR are currently subject to EPA’s regulations in 40 CFR Part 257, Subpart D. The 2016 federal Water Infrastructure Improvements for the Nation (WIIN) Act provided for state programs to implement Part 257 through permits or similar systems. Though this legislation thus gave a nod to “cooperative federalism,” it also effectively ratified EPA’s Part 257 Subpart D CCR regulations. On August 10, 2017, EPA issued guidance outlining how states can obtain approval of a CCR permit program. By issuing guidance rather than initiating formal rulemaking, EPA expedited the timeline for states to obtain approval for CCR permit programs. But the guidance, which included over 200 pages of checklists for state permit programs, made it clear that EPA will enforce the WIIN Act requirement that state programs be at least as protective as Part 257.
Take-away: State-issued permits may eventually replace the EPA regulations governing CCR landfills and surface impoundments, but don’t count on significant relaxation of the existing regulatory requirements.

Proposed Revision Of Power Plant Wastewater Effluent Rule. Utilities and electric industry groups filed a judicial challenge to EPA’s September, 2015 Effluent Limitation Guidelines and Standards for steam electric power generating facilities, 40 CFR Part 423, which established much stricter BAT (Best Available Technology Economically Achievable) and PSES (Pretreatment Standards for Existing Sources) wastewater effluent limitations applicable to bottom ash transport water and flue gas desulfurization wastewater. In April, 2017, EPA announced that it would reconsider these limitations, and issued a postponement of the compliance dates. On August 11, 2017, EPA Administrator Pruitt announced that EPA will commence rulemaking to potentially revise the limitations, and on August 22, 2017, the Fifth Circuit Court of Appeals granted EPA’s request to hold the judicial challenge in abeyance pending EPA’s potential revision of the rule.
Take away: Coal-fired electric power plants may obtain some relief from the tighter wastewater treatment requirements in the 2015 Effluent Limitation Guidelines. Facilities that have recently been re-issued NPDES permits should review them for limits and conditions incorporating the stayed provisions.

Cleanup Of CCR Disposal Units Under The Clean Water Act. On August 4, 2017, the U.S. District Court for the Middle District of Tennessee entered a judgment which will require the Tennessee Valley Authority to remove coal ash waste from historical and currently operating ash pond areas at its coal-fired power plant on the Cumberland River south of Gallatin, Tennessee. Tennessee Clean Water Network v. Tennessee Valley Authority, No. 3:15-cv-00424. The court’s order followed a trial involving competing expert testimony; the court found that plaintiffs had proved that the ash pond areas are discharging coal ash constituents in groundwater to the Cumberland River. The court held that these discharges were not permitted under the facility’s NPDES permit. The court further found that the coal ash waste cannot be left in place, as the coal ash waste penetrates the water table, and fissures in the bedrock prevent the units from completely containing the contaminated groundwater.
Take-away: Part 257 and Effluent Guideline Limitations aside, a CCR facility may face significant remediation costs if contaminated groundwater from the facility reaches a surface water body.

Husch Blackwell’s Energy and Natural Resources Group, including our environmental law specialists, closely follows developments in the regulation of CCR. If you are involved in managing CCR, please contact Bob Wilkinson or Coty Hopinks-Baul if you would like to discuss how these developments might affect your business.