EPA Seeks Input on Proposals to Establish a Clear and Stable Regulatory Framework for Coal Combustion Residuals and Reduce More Pollutants Under Effluent Limitation Guidelines

November 4, 2019

WASHINGTON — Today, the U.S. Environmental Protection Agency (EPA) announced two proposed regulations – one that applies to the management of coal combustion residuals (CCR) from electric utilities and one that revises a portion of the regulations (known as effluent guidelines) affecting wastewater management from steam electric power plants. Because these proposed rules may affect many of the same facilities, EPA coordinated their timing to promote transparency and regulatory certainty for the U.S. power sector and electric reliability for consumers.

“Today’s proposed actions were triggered by court rulings and petitions for reconsideration on two 2015 rules that placed heavy burdens on electricity producers across the country,” said EPA Administrator Andrew Wheeler. “We are proposing both at the same time in order to provide more certainty to the American public. These proposed revisions support the Trump Administration’s commitment to responsible, reasonable regulations by taking a commonsense approach, which also protects public health and the environment.”

“We applaud the Trump EPA’s latest efforts to protect coal mining and the livelihoods of those who depend on its success in West Virginia. The proposed regulations will improve the regulatory burden on the coal industry and lower the cost of electricity for West Virginians,” said West Virginia Attorney General Patrick Morrisey.

“Oklahoma pursued a State program because we felt it was the most efficient way to protect the public and meet the needs of industry. We continue to believe that federal standards are best implemented at the local level. We will commit to revise our program to ensure it remains as protective as the federal program. We also strongly endorse beneficial reuse as a means of sustainably managing CCR when accomplished in a manner protective of human health and the environment,” said Oklahoma Secretary of Energy and Environment Kenneth Wagner.

“We fully support the EPA’s efforts to develop guidelines that enable states to develop a workable regulatory framework for coal combustion residuals and effluent guidelines while still protecting the environment,” said Kentucky Energy and Environment Cabinet Secretary Charles Snavely.

In 2015, EPA promulgated a rule establishing a set of solid waste requirements for the management of coal combustion residuals, commonly known as coal ash, fly ash, bottom ash, boiler slag, and flue gas desulfurization materials generated from coal-fired electricity utilities, in landfills and impoundments, along with inspection, monitoring, recordkeeping and reporting requirements. In 2018, the D.C. Circuit Court of Appeals overturned certain provisions of EPA’s 2015 final rule and remanded some provisions back to the agency.

In light of court rulings, today’s CCR rule proposal amends certain closure provisions in the regulations for the disposal of coal ash. This proposal is one of several planned revisions to provide a clear and stable regulatory framework for coal ash management and disposal and address matters raised in litigation, legislation, petitions for reconsideration, and rule implementation.

In August, EPA proposed a regulation to address issues associated with piles of coal ash, which supports beneficial use while providing protection for human health and the environment. These beneficial use provisions will deliver additional positive environmental, economic, and product benefits. For example:

• Environmental benefits include reduced need for CCR disposal in landfills.
• Economic benefits include reduced costs associated with coal ash disposal, increased revenue from the sale of coal ash, and savings from using coal ash in place of other more costly materials.
• Product benefits include improved strength, durability, and workability of materials that are used in wallboard and concrete and therefore our nation’s highways and infrastructure projects. Under certain circumstances, coal ash can be used as a direct substitute for Portland cement in the manufacturing of concrete, a stabilized base for highway road bed, and for agricultural purposes – all of which conserve natural resources and provide viable alternatives to disposal.

Specifically, EPA proposed modifying the 2015 CCR regulation, which set an arbitrary limit on the amount of CCR that could be beneficially reused, in order to promote increased recycling in infrastructure projects and other uses.

Although EPA is working on several regulatory proposals, the vast majority of the 2015 CCR rule remains in place, and its implementation continues. All units managing coal ash are required to monitor groundwater, publicly report the data, and take action to address exceedances of the groundwater protection standards.

Today’s proposal addresses the deadline for initiating closure of all unlined surface impoundments containing coal ash and for impoundments located in close proximity to aquifers. It includes the following:

• A new date of Aug. 31, 2020, for facilities to stop placing waste into these units, and either retrofit them or begin closure. EPA determined this date after evaluating the steps owners and operators need to take to cease receipt of waste and initiate closure and the time frames necessary for implementation.
• Revisions to the alternate closure provisions that would allow certain facilities additional time to develop alternate capacity to manage their waste streams (both coal ash and non-coal ash) before they must initiate closure of their surface impoundments.
• A court mandated change in the classification of compacted-soil lined or clay-lined surface impoundments from “lined” to “unlined,” which means that clay-lined surface impoundments would no longer be considered lined units and will need to be retrofitted or comply with closure requirements. In addition, pursuant to the court’s decision, the revisions will specify that all unlined units are required to retrofit or close, not just those that have detected groundwater contamination above regulatory levels.

Once completed, these and other contemplated revisions to EPA’s CCR management regulations will provide a workable and reasonable framework for facilities to follow while enabling states to more easily develop CCR permit programs and submit them to EPA for approval.

Congress recognized the essential role states play in managing coal ash when they passed the 2016 Water Infrastructure Improvements for the Nation (WIIN) Act. Among other changes, it gave states the authority to operate coal ash management permit programs in lieu of the federal requirements, provided EPA determines that the state’s requirements are as protective as the federal standards. EPA is currently working with several states with coal ash facilities to establish their own permit programs. Last year, EPA approved Oklahoma’s coal ash program and this year has proposed the approval of Georgia’s program.

EPA will be proposing additional updates to the 2015 CCR rule to implement the WIIN Act, respond to petitions, implement court decisions, and apply lessons-learned over the last several years.

For more information on EPA’s proposed CCR revisions, see: https://www.epa.gov/coalash.

EPA is also seeking input on proposed revisions to its Steam Electric Power Plant Effluent Guidelines Rule issued in 2015.

Under the Clean Water Act, EPA establishes regulations that apply to categories of industrial wastewater dischargers. Known as Effluent Limitations Guidelines and Pretreatment Standards (ELGs), these regulations are technology-based and protect public health and the environment by limiting wastewater discharges into surface waters and wastewater treatment plants.

In 2015, EPA issued a rule that established new ELGs for the nation’s steam electric power plants. That rule was subject to legal challenge and the agency received multiple petitions for administrative reconsideration, including a request for reconsideration from the U.S. Small Business Administration’s Office of Advocacy. In response, EPA undertook a rulemaking that changed the earliest compliance date in the 2015 rule from Nov. 1, 2018, to Nov. 1, 2020, to allow for reconsideration of the regulatory provisions.

After considering the issues raised by the petitioners, the agency began a rulemaking process to reconsider the 2015 ELGs for two specific waste streams produced by steam electric power plants: flue gas desulfurization (FGD) wastewater and bottom ash (BA) transport water.

EPA’s proposal would achieve greater pollution reductions than the 2015 rule, at a lower cost. By leveraging newer and less costly pollution control technologies and taking a flexible, phased-in implementation approach, EPA’s proposal is estimated to save more than $175 million annually in pre-tax compliance costs while reducing the amount of pollutants discharged to our nation’s waters by approximately 105 million pounds per year over the 2015 rule.

EPA took an open and inclusive approach to the rulemaking process and considered a wide range of data, information, and stakeholder input. The agency also conducted a limited information request and collected voluntarily provided sampling data. Based on this information and careful consideration of stakeholder input, EPA is proposing revisions to the 2015 rule’s best available technology economically achievable (BAT) effluent limitations and pretreatment standards for FGD wastewater and BA transport water. The proposed rule would make key changes to the 2015 rule, including:

• Changing the technology-basis for treatment of FGD wastewater and BA transport water, which will result in cost savings for utilities and ratepayers due to lower technology costs associated with the pollutant control systems that are available today and by providing facilities with greater flexibility in the operation and maintenance of those systems.
• Establishing new compliance dates, which will result in near-term costs savings for utilities and ratepayers and provide greater flexibility to identify and install pollution control technologies.
• Revising the voluntary incentives program for FGD wastewater, which will help to reduce the pollutants that steam electric plants would discharge in FGD wastewater by an estimated 105 million pounds per year.
• Adding subcategories for high-flow facilities, low-utilization units, and facilities nearing retirement, which will result in costs savings and greater flexibility for smaller facilities by imposing less stringent requirements.

For more information on EPA’s proposed ELG revisions, see: https://www.epa.gov/eg/steam-electric-power-generating-effluent-guidelines-2019-proposed-revisions.

EPA is seeking comment on both proposals through two concurrent 60-day public comment periods, during which one virtual public hearing will be held for each rule. More information is available on each rule webpage.