On Jan. 11, 2022, the U.S. Environmental Protection Agency (EPA) took another step toward finalizing federal rules for the disposal of coal combustion residuals (CCR) and management of CCR in landfills and impoundments. That’s the date the agency released written comments to nine of the 57 facilities that submitted CCR Part A demonstrations, requesting deadline extensions for closing their unlined CCR surface impoundments.

Within these written responses — the first news EPA has released on many issues related to the CCR Rule since it was first promulgated in April 2015 — are proposed decisions and rule interpretations expected to foreshadow the agency’s review of other CCR sites.

The EPA’s 30-day period for commenting on these decisions began on Jan. 25 and runs through Feb. 23, 2022, unless extended. Utilities should consider reviewing these preliminary decisions and providing feedback on issues that will affect their own CCR management and closure plans. The EPA will consider these comments before issuing final decisions.

The primary topics EPA addresses in its preliminary decisions include:

1. Approach to Closure in Place

In its preliminary decisions, the EPA found many of the closure plans failed to comply with the requirements of 40 C.F.R. § 257.102(d) because they did not address porewater issues or infiltration concerns for groundwater in contact with CCR, or because they provided insufficient details on major milestones and tasks to be performed. After reviewing the EPA’s comments in detail, utilities may want to evaluate their own closure plans and approach and verify that they include the necessary details for compliance.

2. The Prohibition of CCR as Beneficial Use for Closure

In its Jan. 11 proposed decisions, the EPA states that “the CCR Rule prohibits placing CCR in a unit that is required to close; considering this placement a ‘beneficial use’ is irrelevant.” Based on this interpretation, utilities that used CCR as beneficial use to close impoundments that triggered closure for a cause (40 C.F.R. § 257.101) may have inappropriately placed CCR into these units past the prescribed date. Given the EPA’s position, any site closure that involves consolidating CCR from multiple units into an impoundment for grading below the final cover should perform further evaluation of the closure and past activities related to it.

3. New Pond Over a Closed CCR Impoundment

The EPA expressed concerns about several Part A demonstrations that included a new pond over a CCR impoundment that had been closed in place. Specifically, the EPA’s comments suggest that a utility must complete a final cover system first and then construct a separate liner system in a manner that “does not disturb or negatively impact the final cover.” If your closure plans conflict with this approach, consider reassessing and evaluating your approach.

4. Adequacy of Groundwater Monitoring Programs

The EPA’s proposed decisions identify a number of interpretations and assessments related to groundwater. They range from incomplete datasets to inappropriate monitoring systems. Based on the EPA’s language in its comments, civil action and/or enforcement may become a reality for such CCR units. Given the agency’s scrutiny of groundwater programs and corresponding assessments of alternative sources and corrective action, additional review of a CCR unit’s groundwater network design and resulting data is a prudent step to properly understand compliance.

5. Monitored Natural Attenuation (MNA)

In four of its proposed decisions, the EPA found that MNA was not an acceptable approach for treating groundwater contamination at CCR sites. While EPA has not provided an overarching interpretation of MNA for all sites, the EPA’s commentary provides insight into the acceptable use of this approach and recommends use of the 2015 “Use of Monitored Natural Attenuation for Inorganic Contaminants in Groundwater at Superfund Sites” for guidance.

6. Reclassification of “Capped or Otherwise Maintained” Ponds

The EPA also sent letters to several utilities documenting past conversations. In these letters, the EPA suggested that some former ash ponds that had been covered or dewatered prior to the CCR rule’s effective date may have been incorrectly classified. This interpretation has industrywide implications and could affect CCR ponds previously thought to be unregulated since they were “capped or otherwise maintained,” as discussed in the CCR rule preamble. If your facility has any capped or otherwise maintained ponds, now is a good time to learn more about this new CCR rule interpretation and verify your utility’s compliance with it.

7. Proposed Decisions Provide One Path to Extension

In eight of its nine proposed decisions, the EPA called for CCR facilities to stop receiving waste 135 days after receiving the agency’s final decision. Despite the EPA’s position that grid reliability is not an issue and time extensions for closure are unnecessary, the agency could authorize additional time for a utility to use an impoundment, as needed, to address any demonstrated grid reliability issues under these conditions:

  • The utility submits a planned outage or suspension request to the system operator (e.g., MISO) within 15 days of the date of the EPA’s final decision.
  • The utility provides the EPA the system operator’s request to reschedule the planned outage or suspension and the formal reliability assessment upon which it is based within 10 days of receiving the response from grid operator.

The EPA would then review the request and, without further notice and comment, issue a decision. The EPA’s deadline for comments is Feb. 23, 2022.


Understanding how the latest proposed CCR rule decisions impact your CCR site reviews is crucial. Learn more to help guide any comments you submit to EPA in response.

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Jason Eichenberger is a civil engineer and an associate at Burns & McDonnell. Over a career spanning nearly 20 years, Jason has worked on site development, permitting and design of large-scale programs and retrofit projects for the power industry and other industrial sectors, with many aimed at compliance with federal and state water and air quality regulations.