Energy and Environment Monitor

EPA Issues Guidance for States to Develop Permitting Programs for Coal Ash Disposal

August 21, 2017

On August 15th, 2017 the Environmental Protection Agency (EPA) released and began accepting public comments on guidance for states that want to develop a permitting program for the disposal of coal combustion residuals (CCR), or coal ash. While the guidance does offer some flexibility to states in developing their permitting programs, state programs must be at least as protective as the Federal CCR requirements at 40 C.F.R. Part 257, Subpart D.

Pursuant to a 2015 EPA regulation, coal ash is regulated as a solid waste under Subtitle D of the Resource Conservation and Recovery Act (RCRA). (Environmental groups had wanted it to be regulated as a hazardous waste under Subtitle C of RCRA.) The Water Infrastructure Improvements for the Nation Act (WINN Act), signed by President Obama shortly before leaving office in December 2016, gives states the authority to develop their own permitting programs for disposal of CCR. Like many other environmental regulatory programs, states that choose to do so must submit their proposed CCR permitting program to EPA for its review and approval. States that choose not to adopt their own permitting program are considered “non-participating states.” EPA cannot implement its own permitting program in non-participating states unless and until Congress provides a specific appropriation for EPA to do so.

Importantly, until a facility has obtained a permit pursuant to an approved state or federal CCR program, the facility must continue to comply with the federal CCR regulations at 40 C.F.R. Part 257, Subpart D.

Comments on EPA’s guidance document can be submitted electronically at regulations.gov under Docket ID # EPA-HQ-OLEM-2017-0458. The public comment period ends on September 14, 2017.

This article was authored by Jennifer L. Hughes, Jackson Kelly PLLC.