EPA Proposes To Approve Partial Coal Ash Permit Program For The State Of Texas

Today, the U.S. Environmental Protection Agency (EPA) proposed to approve the Texas partial permit program for the management of coal combustion residuals – commonly known as CCR or coal ash – in landfills and surface impoundments. If approved, this would make Texas the third state in the nation to gain approval to operate a coal ash permit program.

“EPA continues to encourage other states to assume oversight of coal ash management within their borders,” said EPA Administrator Andrew Wheeler. “Texas deserves credit for taking over this responsibility and we are committed to working with the states as they establish coal ash programs tailored to their unique circumstances that are protective of human health and the environment.”

EPA has preliminarily determined that the partial Texas permit program application meets the standard for approval. Congress recognized the essential role of this local expertise in the Water Infrastructure Improvements for the Nation (WIIN) Act of 2016, which provided states the ability to develop and submit permit programs to EPA for approval.

Major portions of the 2015 Final Rule on Coal Combustion Residuals Generated from Electric Utilities that established national standards for the disposal of coal ash are in effect and remain unchallenged. Once a state has an approved CCR permit program in place, the WIIN Act contains provisions for how and when states must update their approved programs when changes are made to the CCR requirements at the federal level. Texas did not apply for certain provisions of the federal CCR regulations for its permit program, further explained in the Federal Register notice, thus is seeking approval for its partial program.

EPA is soliciting comments on this proposal for 60 days, during which a virtual public hearing will be held for interested persons to present information, comments, or views concerning this proposed program. To learn more, visit https://www.epa.gov/coalash.

EPA encourages all states with coal ash facilities to apply to establish their own permit program as the states of Georgia and Oklahoma have done. Many states are already engaging with EPA on how to set up their own programs and how their current state regulations can be revised to incorporate the federal requirements.

Background
EPA issued a final rule in April 2015 regulating CCR as nonhazardous waste under the Resource Conservation and Recovery Act (RCRA) and establishing minimum national standards governing the disposal of CCR from electric utilities in landfills and surface impoundments. At the time the CCR rule was issued, EPA did not have authority under RCRA to regulate CCR disposal through state permit programs. Instead, utilities were responsible for directly implementing the requirements of EPA’s 2015 CCR rule, which were enforceable only through citizen suits.

The 2016 WIIN Act which, among other changes, amended RCRA to give states the authority to operate permit programs, provided EPA determines that the state’s requirements are as protective as the federal standards. Now, states may develop and submit a coal ash permit program to EPA for approval. Applications must provide evidence of a permit program or other system of prior approval and be as protective as the federal regulations currently in place. Once approved, the state permit program operates in lieu of the federal management standards for the disposal of coal ash.

To learn more about this proposed approval, visit https://www.epa.gov/coalash/us-state-texas-coal-combustion-residuals-ccr-permit-program.