The following is a viewpoint from Josh More, Schiff Hardin environmental attorney.
In response to utility industry requests, the Environmental Protection Agency (EPA) issued interim final guidance earlier this month that sets forth a process for state submission and criteria for approval of state-led Coal Combustion Residual (CCR) permit programs under the Water Infrastructure Improvements for the Nation Act.
This milestone creates opportunities to influence how coal ash is regulated through the development of state permit programs. Utilities and states now have guidance on just how to seek flexibility from the step-by-step approach this federal rule offers. But, the challenge is convincing the EPA that states’ alternative provisions are “as protective as” the federal CCR rule.
Utilities interested in shaping how coal ash is regulated are encouraged to reach out to their state regulator now, before many of the onerous federal CCR rule requirements are triggered. Furthermore, should your state adopt and implement the federal criteria in a manner that is different than how your facility has implemented the existing federal criteria, you may be required to alter certain management practices. For example, a state may require the installation of additional groundwater wells, the monitoring of additional groundwater parameters, or more stringent closure requirements. These additional requirements can cost millions of dollars and impact ongoing rate recovery proceedings. Thus, coordination with your state regulator is necessary to ensure your interests are protected.
When working with state regulators, the old adage is “don’t be a stranger.” Since utilities do a significant amount of business in their states, they are likely already meeting with regulators on a regular basis. Take advantage of those meetings, and inquire about the state’s interest in implementing a CCR permit program. Be prepared to discuss your needs. Also, make it easy for your regulator. Offer to draft the rule. This will allow you to propose specific language that provides your company with the flexibility it needs.
State programs will be more easily approved when the alternative provisions are consistent with existing Resource Conservation and Recovery Act (RCRA) regulations, such as the Municipal Solid Waste Landfill (MSWL) program. With that in mind, here are three examples of alternative provisions to explore in rule drafts that allow facilities to take site-specific conditions into account and can easily model after existing RCRA programs:
1. Consider Alternative Risk-Based Groundwater Protection Standards
Under the federal CCR rule, the groundwater protection standards are either based on background or a maximum contaminant level (MCL). When the EPA originally proposed to regulate coal ash in 2010, it included a provision that would have allowed the owner or operator to establish an alternative groundwater protection standard for constituents where MCLs have not been established. However, the EPA removed this option from the final rule, explaining in a self-implementing rule “it was unlikely that a facility would have the scientific expertise necessary to conduct a risk assessment, and was too susceptible to potential abuse.” Since that would not be the case with a state permit program and has long been acceptable under the MSWL program, this is a key opportunity to explore in drafting a proposed rule for state regulators.
2. Explore Selecting Corrective Action Remedy
Another option to consider as part of a rule draft relates to corrective action. Corrective action should not be necessary when it provides no additional protection. This concept was originally proposed in 2010 and rejected by the EPA on the grounds that it was “subject to abuse” without state oversight. Currently, under the federal CCR rule, the owner or operator must take corrective action under rigid criteria even when such corrective action provides no meaningful environmental benefit.
3. Review Alternative Points of Compliance
A state permit program allowing for alternative points of compliance should also be approvable. Under the federal CCR rule, the point of compliance is set at the boundary of the waste unit. Yet, the EPA has historically allowed site-specific tailoring when determining the point of compliance for municipal solid waste landfills. The EPA decided not to incorporate this concept in the CCR rule “in the absence of a mandated state oversight mechanism.”
Overall, the developments surrounding the EPA’s guidance on coal ash management is consistent with recent trends to allow state regulators to consider site-specific conditions. Arguably those who best know the needs of their communities and stakeholders – the state regulators – should be in charge. Given the pending deadlines under the federal rule, now is the time for utilities to work with their state regulator to develop a CCR program to regulate coal ash in a way that provides companies with the flexibility each of them need.