Deeper dive into CCR impoundments: EPA’s long-awaited Demonstration determinations
21 January 2022
Akin Gump Strauss Hauer & Feld LLP
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2015 saw the U.S. Environmental Protection Agency, or the EPA, become the
“Agency”) promulgatedThe following are national regulations
coal ash from coal-fired power stations can be disposed of or recycled.
combustion residuals (CCRs). Revisions in response to
Multiple administrations can present legal challenges that require the attention of multiple attorneys.
CCR landfills must comply with the so-called CCR Rule
Operators are required to comply with surface impoundments
CCR surface impoundments without lines to stop CCR and other CCR from being received
Waste streams and initiate retrofitting/closure by April 2021
Operators were able to extend the CCR Rule.
deadline if they can show to EPA that they: (1) couldn’t
It is possible to obtain additional disposal capacity before this date;
(2) would permanently close their coal-fired power plant.
Soon thereafter, boilers were added. Due to the large number of unlined, industrial boilers
Surface impoundments in America, 57 facilities made them
“Demonstrations” to Agency by November 2020
EPA did not meet the April 2021 deadline.
It did not respond to the files until last week when it informed all
Resting applications (some facilities withdrew requests in)
Their demonstrations lasted 14 months.
The EPA would now evaluate them. EPA will also evaluate them.
Five applications were rejected because they were incomplete or uneligible.
Publicized proposed decisions for four facilities located in
The Midwest: Clifty Creek (Indiana), Gavin (Ohio), H.L. Spurlock(Kentucky), Ottumwa (Iowa). EPA is responsible for providing these facilities.
It proposed to deny Spurlock and conditionally approved
Subject to change for a brief period (until November)
expensive monitoring requirements, and began an initial 30-day public comment
The period will expire on February 23, 2022. EPA announced it would
Do the remaining decisions “as fast as possible”.
It is possible,” but there are no timelines.
Many consider the initial decisions by EPA to be this.
Administration’s assumption of a more strict stance on coal.
The facilities that are denied will have 135 days to stop receiving waste
After publication of the final EPA report, initiate closure
Decision in the Federal RegisterOnce the comment period is over
closes. EPA supported all decisions
With a meticulously detailed analysis, it is evident that an effort was made to
“Judgement Proof” the decisions made in the face of likely
We wait to make the final decisions (and that possibility).
litigation), we can gain some insights from the decisions made.
date. First, EPA did not issue any determinations relating plant matter.
A request for an extension was made based on a permanent shut down under the
CCR Rule, possibly suggesting that it may view these facilities
Differently than those who claimed it was impossible to develop
Alternative storage capacity by April 2021 It is reasonable.
If an extension was granted, the Agency might be more open to it.
Operator plans to close down operations regardless, especially given the
It is a slow process to get there and many of those who do not have the right skills are not able to afford it.
Plants were only intended to continue operating for a year or so.
Second, it’s not clear how the Agency selected which Agency.
Facilities to include in its initial determinations. All of these come from
There are many Midwestern States with different boundaries. This regional
Diversity may reflect random variation from a small sample
Size, but it could also mean a conscious effort to reduce the impact
One consideration EPA: Grid reliability is at Risk – Impending closures
Recognized in its determinations. Each decision provides an
Operators and owners can use the “escape clause” to protect themselves.
Continue to use their impoundments if the owner submits to and is granted permission
Approval of a request for planned outage from the Regional
Transmission Organization (RTO). Operators must comply with this clause
Send the outage request within 15 calendar days from the date EPA was issued
Additional conditions that must be met prior to the decision are required
The facility’s closure date will be extended by EPA. Despite this
EPA made every effort to flag the RTO for their involvement in this process.
Demonstrations “presented no evidence” of a potential
The negative impact of closing would be on electric power
Third, EPA granted a short extension to one facility, but it did not extend for long.
The extension was based upon strong groundwater-related requirements
to address alleged noncompliance of the CCR Rule. These include:
A limitation on the number of waste streams that can be included in the
Facility’s Ash Pond, Publication of Additional Groundwater
Monitoring data, a revised groundwater monitoring program with new
Publication of background information and characterization measures
Groundwater quality and installation of new wells downgradient
CCR units at the facility, as well as new sampling and analysis
procedures. Although not intended to be established independently
This conditional requires that the CCR Rule be complied with.
Approval indicates that the EPA considers extension requests an acceptable form of government work.
Possibility to ensure strict compliance with CCR spirit
Rule’s pollution control requirements.
We will learn more about the reasons EPA was created in the coming weeks.
These are the results of a one-year-plus wait.
Why it didn’t yet issue any other determination and possibly about
When it plans to do so. That assumes that there are more facilities.
If they do not withdraw their requests, the requests are not considered valid.
mooted. We can see many of the requests for extensions.
Requested an extension deadline that was already met. For those
Facilities that did not comply with the requirements will be monitored…
This article is meant to be a guide.
guide to the subject matter Expert advice should be sought
Discuss your specific circumstances.
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