The Trump administration’s EPA has again finalized changes to the CCR Rule. The most recent rule change—”Part B”—provides an exception to the Rule’s mandate that all unlined impoundments close on or before April 11, 2021. If the rule stands—a big if, for several reasons explained below—certain unlined impoundments may be permitted to continue to operate indefinitely, even despite certain groundwater contamination exceedances. Part B requires a demonstration that the impoundment’s natural lining (or other lining not consistent with the Rule’s definition) is sufficiently impermeable that there is “no reasonable probability that releases throughout the active life of the CCR surface impoundment will result in adverse effects to human health or the environment.”

In its original version, the CCR Rule drew an absolute distinction between lined and unlined impoundments, but included in the definition of lined impoundments units with compacted soil “liners” with a hydraulic conductivity of no more than 1 x 10-7 centimeters per second. That portion of the rule was challenged and found to be unlawful in Utility Solid Waste Activities Group v. EPA, 901 F.3d 414 (D.C. Cir. 2018). In response to that decision, EPA ditched the categorical inclusion of certain soil-lined impoundments in the “lined” impoundment category, but created a process by which any impoundment that can make an “Alternate Liner Demonstration” may be treated, in effect, as “lined.”

Under Part B, any facility owner may seek to make an “Alternate Liner Demonstration” through a two-step process. In the first step, the facility submits an application demonstrating that it meets certain minimum requirements, a process “designed to ensure that it is likely a facility will ultimately be able to make the more extensive demonstration to support continued operation.” EPA anticipates acting on these applications by April 11, 2021, the date on which these impoundments would otherwise be required to close. The second step is more intensive and requires a host of site-specific data and analyses to prove the impoundment “can sustain its current performance and operate safely for the remainder of its active life.”

The rule is controversial for several reasons. First, despite the D.C. Circuit’s decision in Utility Solid Waste Activities Group, which was a victory for the environmental groups that challenged portions of the rule, Part B expands the number of unlined units that might continue to operate indefinitely (at least potentially). Second, the two step process might allow certain basins to operate at least past the otherwise applicable April 11, 2021 closure date, even if they are not ultimately successful in making an Alternate Liner Demonstration.

It is far from certain that Part B will remain part of the CCR Rule. Legal challenges are almost guaranteed. The Sierra Club, which is among the groups that challenged the initial CCR Rule as not going far enough to protect groundwater, has already criticized Part B as “another rollback of clean water protections, which will allow utilities to keep dumping enormous quantities of toxic coal ash into unlined, leaking, and structurally unsound coal ash ponds.” Because Part B, at least to some, degree moved the CCR Rule in the opposite direction the Utility Solid Waste Activities Group court suggested was required, the litigation has at least some chance of success (although EPA justifies the rule by contending it has added to the record assessed by the Utility Solid Waste Activities Group court). Perhaps as important, if the rule is tied up in litigation and a Biden administration takes over EPA, it is hard to see Part B surviving or being used. Part B is therefore just one more way in which the long-term fate of CCR is far from settled.

We will continue monitor the status of the CCR Rule. If you have any questions about this post or would like more information, please contact Ryan Rudich ([email protected]; (312) 360-6379) or another member of Freeborn’s Environment and Energy Practice Group.