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On April 17, 2015, the Environmental Protection Agency (EPA) promulgated national minimum criteria for existing and new coal combustion residuals (CCR) landfills and existing and new CCR surface impoundments. On August 21, 2018, the D.C. Circuit Court of Appeals issued its opinion in the case of Utility Solid Waste Activities Group, et al v. EPA and on October 15, 2018, the court issued its mandate, vacating certain provisions of the 2015 rule and mandating the EPA include "legacy" units in its regulations. This rule would address a provision in that court decision and provide a mechanism in which unlined surface impoundments meeting strict criteria would be allowed to continue to operate. This rule also addresses a necessary modification to the timeline of closure by removal and requests comments on inactive units at inactive facilities also known as legacy units.

Statement of Need:

On April 17, 2015, EPA finalized national regulations to regulate the disposal of Coal Combustion Residuals (CCR) as solid waste under subtitle D of the Resource Conservation and Recovery Act (RCRA) (2015 CCR final rule). The rule was challenged by several different parties, including a coalition of regulated entities and a coalition of public interest environmental organizations. On August 21, 2018, the United States Court of Appeals for the District of Columbia Circuit issued its opinion in the case of Utility Solid Waste Activities Group, et al v. EPA, 901 F.3d 414 (DC Cir 2018). The court vacated three provisions from the 2015 CCR final rule and remanded the 12,400 threshold in the beneficial use definition and the requirements for managing piles of CCR. This proposal addresses one of the three provisions vacated in the USWAG decision; that is inactive surface impoundments at inactive facilities.

Summary of the Legal Basis:

This action addresses one of the three provisions of the 2015 CCR final rule vacated by the court in the USWAG v. EPA , 901 F.3d 414.

Alternatives:

The Agency must provide public notice and opportunity for comment on these issues. Each of these issues is fairly narrow in scope and we have not identified any significant alternatives for analysis.

Anticipated Costs and Benefits:

The EPA will provide estimates of costs and benefits resulting from this proposed rule once they are fully developed and have received Agency clearance.

Risks:

Compared with the risks to human health and the environment that were presented in the 2015 CCR final rule, the proposed amendments discussed in this action are not expected to impact the overall conclusions in the 2015 CCR final rule. As a result, the Agency believes these amendments, if finalized as proposed, would be protective of human health and the environment.