May 252023

EPA Proposes Rule for Management of Coal Combustion Residuals at Inactive Facilities

Samuel B. Boxerman, Aaron L. Flyer and Hannah Posen
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On Thursday, May 18, 2023, the U.S. Environmental Protection Agency (EPA) proposed new regulatory requirements for inactive coal combustion residuals (CCR) surface impoundments at inactive electric generating units. EPA had promulgated standards for new and existing CCR landfills and surface impoundments that exempted inactive surface impoundments at inactive facilities in April 2015. However, in August 2018, the U.S. Court of Appeals for the District of Columbia Circuit vacated the exemption and remanded the issue to EPA after environmental nongovernment organizations objected to the treatment of inactive impoundments at inactive facilities that may still pose a risk of introducing toxic substances into ground and drinking water.

If finalized, all owners and operators of legacy CCR surface impoundments at inactive facilities must comply with all existing requirements for inactive impoundments at active facilities. The proposed rule also establishes requirements for groundwater monitoring, corrective action, closure, and post-closure care for all CCR management units at regulated facilities, which would include both regulated and nonregulated units (called “CCR management units”) and regulated CCR facilities. All told, EPA expects the requirements in the proposed rule to cost approximately $400M, which will be borne by owners and operators of inactive facilities with CCR management units.

This post is as of the posting date stated above. Sidley Austin LLP assumes no duty to update this post or post about any subsequent developments having a bearing on this post.

Samuel B. Boxerman

Washington, D.C.

sboxerman@sidley.com

Aaron L. Flyer

Washington, D.C.

aflyer@sidley.com

Hannah Posen

Chicago

hposen@sidley.com

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