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On April 17, 2015, the Environmental Protection Agency (EPA or the Agency) 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, which vacated and remanded the provision that exempted inactive impoundments at inactive facilities from the CCR rule. EPA is developing regulations to implement this part of the court decision for inactive CCR surface impoundments at inactive utilities, or “legacy units”. This proposal may include adding a new definition for legacy CCR surface impoundments. EPA may also propose to require such legacy CCR surface impoundments to follow existing regulatory requirements for fugitive dust, groundwater monitoring, and closure, or other technical requirements. Finally, EPA is considering proposing corrective action requirements for all CCR contamination (regardless of how or when that CCR was placed) on site of a regulated facility.

Statement of Need: On April 17, 2015, the 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). In response to the Utility Solid Waste Activities Group v. EPA decision, this proposed rulemaking, if finalized, would bring inactive surface impoundments at inactive facilities (legacy surface impoundments) into the regulated universe.

Summary of the Legal Basis: No statutory or judicial deadlines apply to this rule. The EPA is taking this action in response to an August 21, 2018 court decision that vacated and remanded the provision that exempted inactive impoundments at inactive electric utilities from the 2015 CCR final rule. The proposed rule would be established under the authority of the Solid Waste Disposal Act of 1970, as amended by the Resource Conservation and Recovery Act of 1976 (RCRA), as amended by the Hazardous and Solid Waste Amendments of 1984 (HWSA) and the Water Infrastructure Improvements for the Nation Act of 2016.

Alternatives: The Agency issued an advance notice of proposed rulemaking (ANPRM) on October 14, 2020 (85 FR 65015), which included public notice and opportunity for comment on this effort. We have not identified at this time any significant alternatives for analysis.

Anticipated Costs and Benefits: The Agency will determine anticipated costs and benefits later as it is currently too early in the process.

Risks: The Agency will estimate the risk reductions and impacts later as it is currently too early in the process.