Frequent Questions about Solid Waste Management Plans and Implementation of the Final Rule Regulating the Disposal of Coal Combustion Residuals (CCR)

EPA developed a list of responses to the many questions the Agency received about implementing the 2015 final CCR disposal rule. Questions that fall under the category of solid waste management plans (SWMPs) and their responses are below:

How long does EPA anticipate it will take to approve a state SWMP?
Please describe in detail the process that will be followed for approving the state plans.
Does EPA intend to delegate the authority to approve the revisions to the state plans to the Regional offices?
Many states will need statutory or regulatory changes in order to open the SWMP to incorporate the final rule. How does EPA anticipate that states will be able to incorporate the requirements in time to meet the six month effective date of the final rule?
The preamble to the final rule states that once "EPA has approved a SWMP that incorporates or goes beyond the minimum federal requirements, EPA expects that facilities will operate in compliance with that plan and the underlying state regulations." However, isn't it true that the federal requirements remain independently enforceable through federal citizen suits?
How will the experience of states implementing the final rule inform EPA’s future analysis? The final rule also identified the possibility that concentrations of hazardous contaminants in coal ash may rise in the near future.
What is the relationship between the EPA and the states in regard to implementation of the CCR rule?
Is there any incentive for states to adopt the rule?
What are the consequences if a state does not adopt the rule?

How long does EPA anticipate it will take to approve a state SWMP?

The requirements at title 40 of the Code of Federal Regulations (CFR) Part 256 state that the EPA has six months from the time of the submittal of the revised plan to either approve or disapprove the SWMP.

Please describe in detail the process that will be followed for approving the state plans.

EPA has been working to develop materials and an efficient process (consistent with the requirements of the 40 CFR Part 256 regulations) for the review/approval of state plans. The Agency has developed a checklist of relevant sections of 40 CFR Part 256 (Guidelines for the Development & Implementation of State Solid Waste Management Plans) that states will be able to consult.

EPA will review the state's plan to determine how it intends to regulate CCR facilities in the state. EPA has also developed a checklist of the technical requirements included in the CCR final rule that will be available for the states to consult in developing their revised plans. In order to approve a revised state SWMP, EPA must, among other things, determine that the state plan provides enforceable regulatory requirements for the closing or upgrading of CCR disposal facilities that constitute open dumps. If the state SWMP incorporates the federal requirements verbatim, it will be straightforward to approve. If the state requirements for CCR facilities are different from the federal regulations, EPA will compare them and determine if the alternative requirements are at least as protective of public health and the environment as the federal minimum requirements.

Does EPA intend to delegate the authority to approve the revisions to the state plans to the Regional offices?

EPA regional administrators have the authority to approve the revisions to SWMPs. Regions will consult with EPA headquarters to help ensure national consistency.

Many states will need statutory or regulatory changes in order to open the SWMP to incorporate the final rule. How does EPA anticipate that states will be able to incorporate the requirements in time to meet the six month effective date of the final rule?

EPA does not necessarily expect the revised plans to be submitted by states before the effective date of the rule which is October 19, 2015. The technical requirements of the rule that facilities must meet have varying timelines; and many of the most complex requirements are not immediately effective. For example, the groundwater monitoring requirements must be met within two years of the effective date. In addition, the EPA's current regulations do not preclude a state from submitting a SWMP for conditional approval based on anticipated regulatory or statutory revisions, or a partial SWMP to gain authority to extend compliance deadlines. However, note that where a partial SWMP is submitted, the regulations require EPA to establish a timetable for completion of the final plan in order to grant partial approval. Refer to 40 CFR section 256.04(f).

The preamble to the final rule states that once "EPA has approved a SWMP that incorporates or goes beyond the minimum federal requirements, EPA expects that facilities will operate in compliance with that plan and the underlying state regulations." However, isn't it true that the federal requirements remain independently enforceable through federal citizen suits?

Once a SWMP that incorporates or goes beyond the minimum federal requirements is approved, EPA believes that compliance with the state program would be considered as compliance with the federal CCR rule criteria. In addition, EPA anticipates that a facility that operates in accordance with an approved SWMP will be able to beneficially use that fact in a citizen suit brought to enforce the federal criteria. EPA believes a court will accord substantial weight to the fact that a facility is operating in accordance with an EPA-approved SWMP. Finally, we note that Resource Conservation and Recovery Act (RCRA) section 7002 requires a citizen group to provide 60 days notification to the EPA and the state prior to filing a suit to enforce the requirements of the CCR rule. States can take a number of actions in response to this notification, including: (a) intervening in the suit; or (b) filing their own action to enforce compliance with the rule, which would preempt the citizen's action.

How will the experience of states implementing the final rule inform EPA’s future analysis? The final rule also identified the possibility that concentrations of hazardous contaminants in coal ash may rise in the near future.

EPA recognizes the critical role that our state partners play in the implementation and ensuring compliance with the regulations, and the Agency expects that states will be active partners in overseeing the regulation of CC R landfills and CCR surface impoundments. Any future analysis will account for the states’ implementation of the final rule, including any revisions to state programs adopted in response to the final rule. In this regard, EPA is strongly encouraging states to adopt these federal minimum criteria into their regulations and revise their SWMPs to incorporate these federal requirements. For those states that choose to submit revised SWMPs, EPA will review and approve those revised SWMPs, provided they demonstrate that the minimum federal requirements have been met. EPA expects that the information developed as part of this process will help the Agency better understand the full extent of a state's regulatory authority over the disposal of CCR and the manner in which states will implement this oversight.

What is the relationship between the EPA and the states in regard to implementation of the CCR rule?

The final rule establishes self-implementing requirements—primarily performance standards--that owners or operators of regulated units can implement without any interaction with regulatory officials. These requirements apply directly to the facilities, and facilities must be in compliance with the rule on its effective date, irrespective of state requirements. States may choose to adopt the federal requirements into their existing program or to impose more stringent standards, but they are not required to adopt or implement these regulations, develop a permit program, or submit a program covering these units to EPA for approval and there is no mechanism for EPA to officially approve or authorize a State program to operate "in lieu of" the federal regulations.

In order to ease implementation the regulatory requirements for CCR landfills and CCR surface impoundments, EPA strongly encourages the States to adopt at least the federal minimum criteria into their regulations.

The federal requirements are independent of state requirements and do not preempt them. EPA recognizes that some states have already adopted requirements that go beyond the minimum federal requirements; for example, some states currently impose financial assurance requirements for CCR units, and require a permit for some or all of these units. This rule will not affect these state requirements. The federal criteria are minimum requirements and do not preclude states' from adopting more stringent requirements where they deem to be appropriate.

Is there any incentive for states to adopt the rule?

If a state adopts the rule and EPA approves the state's solid waste management plan, the state may extend compliance times for "open dumps" that meet the criteria in RCRA 4005; e.g., times to complete structural stability measures.

What are the consequences if a state does not adopt the rule?

None. Owners and operators of CCR disposal units are required to comply with the EPA's CCR rule irrespective of state action or requirements.

Do you want to read all of the 2015 final rule implementation questions at once? Check out the complete list in PDF format.

NOTE

EPA finalized amendments to the 2015 final rule that may affect these frequent questions. Additionally, we have not updated these frequent questions since Congress passed the Water Infrastructure Improvements for the Nation Act that paves the way for state coal ash permit programs. Please refer to the following rulemakings and the WIIN Act for more information: