Coal Ash Backfill: Congress Authorizes EPA to Approve State Coal Combustion Residue Programs

Original article by David L. Rieser of K & L Gates:  http://bit.ly/2kOp8Mp

As mentioned in a recent Alert of “A WIIN for Water Infrastructure” on the recently signed Water Infrastructure Improvements for the Nation (“WIIN”) Act, Congress included provisions intended to provide national consistency and certainty in the implementation and enforcement of Environmental Protection Agency’s (“EPA”) 2015 regulations on the Disposal of Coal Combustion Residue (“CCR”).[1]

In the CCR Rules, EPA established specific requirements for the siting, operation and closure of CCR impoundments operated by electric utilities. Because of the statute under which it adopted the rules, however, EPA lacked the ability to issue permits to such facilities to ensure compliance, to approve state permit programs adopting the federal rules, or to otherwise directly enforce the requirements. While regulated industries would generally find those conditions positive, the absence of federal authority caused significant conflicts and uncertainty. The lack of a permit program and process make it difficult for electricity generators to demonstrate compliance and the lack of federal approval of state programs could leave generators open to enforcement actions by citizen suits for noncompliance with the federal rules, even if they were in compliance with the state programs. In a broad compromise, the WIIN Act authorized EPA to review and approve state permit programs and to bring its own enforcement actions. These changes are intended to nationalize the effectiveness of the CCR Rules and provide greater certainty in implementation.