regulate coal ash

January 3, 2017

On Friday, Dec. 16, 2016, President Obama signed The Water Infrastructure Improvements for the Nation Act or the “WIIN Act.” Section 2301 of the WIIN Act allows states to establish permit programs to regulate the disposal of coal combustion residuals (CCR) units in lieu of the Environmental Protection Agency’s (EPA) CCR regulations and published at 40 CFR 257, Subpart D, also known as the federal CCR rule, that were effective as of October 19, 2015.

Under the federal CCR rule, enforcement has been through citizen suits brought under Section 7002 of the Resource Conservation and Recovery Act (RCRA). Following WIIN, for CCR disposal facilities operating under an approved permit program, citizen enforcement will be replaced by more traditional state and federal enforcement authorities. It will take time for states to apply for permit authority and to issue permits, and in the meantime the federal CCR rule will continue to be enforced by citizen suits, and utilities will be subject to potentially conflicting interpretations of what is required to comply at a given facility.

Other CCR-related highlights from the WIIN Act include:

• EPA has not more than 180 days to approve in whole or in part a state’s permit program that complies with the WIIN Act’s requirements.
• The proposed state programs will be subject to public notice and public comment within EPA’s 180-day approval timeframe.
• State requirements may differ from those in 40 CFR 257, Subpart D, but only if EPA determines the state requirement are at least as protective as the federal CCR rule.
• EPA must review previously approved state programs (1) at least every 12 years, (2) within 3 years of revising the federal CCR rule, (3) within 1 year of a “significant” unauthorized release from a CCR unit in the state, or (4) if a state requests that EPA review another state’s program with the claim that a CCR unit in another state is, or is likely to, impact their soil, groundwater, or surface water.
• To the extent that Congress appropriates funds to do so, EPA must implement a permit program in states that elect not to pursue their own program or have lost their approved status. If funds are not provided by Congress, the federal CCR rule will be enforced through citizen lawsuits in the non-participating state.
• EPA can now enforce the federal CCR rule under RCRA Sections 3007 and 3008 in states without an EPA-approved permit program. The EPA can also enforce the federal CCR rule under RCRA Section 3008 in states with approved permit programs with some additional considerations.

The WIIN Act that was passed by the U.S. Congress on Dec. 10, 2016, is based on CCR legislation that has been introduced in the House of Representatives and Senate in various forms over the past 6 years with the support of many in the utility industry. The WIIN Act has been lauded by the U.S. Senate Committee on Environment and Public Works and utility groups alike.

For example:

“This new permitting authority fixes the main problems with the recent coal ash regulation issued by the Environmental Protection Agency, by removing citizen suits as the sole means of enforcement and allowing states to tailor permit requirements on a case-by-case basis.”

Inhofe, Capito, Manchin, Hoeven Praise Inclusion of Coal Ash Provision in Bicameral, Bipartisan WIIN Deal

“The coal ash language will ensure that states have the authority and flexibility they need to regulate coal ash while protecting the environment as much as the current EPA coal combustion residuals rule,” said APPA Vice President of Government Relations and Counsel Desmarie Waterhouse.

Coal Ash Language Backed by APPA Is Headed to President’s Desk

“…these legislative provisions will enable states to be more involved in the permitting process for the closure of basins.”

EII Applauds Passage of the Water Infrastructure Improvements for the Nation Act

“The bill also injects greatly needed certainty into the regulation of coal ash by giving states clear permitting and enforcement authority and reducing litigation, while providing for its continued beneficial use.”

America’s Electric Co-ops Cheer House Passage of Water Resources Bill with Critical Coal Ash Provisions

SCS Engineers will continue to track the WIIN Act and provide you with updates as states consider and make known their approach to developing a CCR permit program, or not.

For questions about the Act or more information, please contact:

Mike McLaughlin, PE, Senior Vice President
Eric Nelson, PE, Vice President
Steve Lamb, PE, Vice President
Kevin Yard, PE, Vice President

Or contact your local SCS Engineers office.