The U.S. Environmental Protection Agency on Dec. 19 proposed to establish a new federal coal ash permitting program that could allow electric utilities to self-certify coal ash impoundments and landfills indefinitely without subjecting those facilities to outside review.

On the same day, the EPA also finalized its approval of a state coal ash permitting program for Georgia opposed by environmental groups who argued the program runs afoul of key provisions in an Obama-era coal ash rule.

The EPA was required to develop a federal coal ash permitting program under the Water Infrastructure Improvements for the Nation Act, or WIIN Act, a 2016 law passed by the U.S. Congress that allowed states to form their own coal ash management programs. The law was aimed in part at addressing utilities' concerns with the EPA's Coal Combustion Residuals, or CCR, rule.

Finalized in 2015, the CCR rule was issued under the Resource Conservation and Recovery Act, establishing the first minimum federal safety standards for what is one of the nation's largest sources of toxic pollution.

The WIIN Act later revised the Resource Conservation and Recovery Act so states can form their own coal ash permit programs, as long as the EPA approves the plans and the state programs are based on the technical standards in the EPA's CCR rule or are "at least as protective" as the federal agency's regulation.

Georgia approval

Georgia's state-run permitting program is the second of its kind in the nation to receive EPA approval after the agency in June 2018 signed off on Oklahoma's permitting program.

At that time, former EPA Administrator Scott Pruitt touted the approval of his home state's program as an action that "places oversight of coal ash disposal into the hands of those who are best positioned to oversee coal ash management: the officials who have intimate knowledge of the facilities and the environment in their state."

In September 2018, however, a coalition of environmental groups challenged that approval in the U.S. District Court for the District of Columbia, arguing the Oklahoma program is illegal in part because it allows the state to grant permits to coal ash disposal units "for the life" of the unit. That lawsuit is still pending before the court.

Meanwhile, the EPA in June proposed to approve Georgia's coal ash permitting program and Pruitt's successor, EPA Administrator Andrew Wheeler, urged other states to follow suit. The proposed approval received support in public comments by Georgia Power Co., the state's largest utility, but was opposed by the Southern Environmental Law Center, one of the foremost litigants in coal ash-related matters.

Noting that Georgia Power power has already submitted 29 solid waste permit applications to the state Environmental Protection Division, or EPD, the environmental group argued that approving the state-run program would be premature because many of those plans illegally propose to leave millions of tons of coal ash in unlined impoundments. A December 2018 report from the environmental groups Earthjustice and the Environmental Integrity Project found 11 out of the state's 12 coal-fired power plants have contaminated groundwater with unsafe levels of at least one potentially toxic pollutant.

However, in response to a federal appeals court decision finding that all unlined coal ash impoundments must close, the EPA in November proposed to allow coal-fired power plants with known retirement dates to continue receiving coal ash at those units until 2028 some cases.

In approving Georgia's program, the EPA said it is not making any determinations regarding the adequacy of any particular closure plans prepared by individual facilities. Instead, the agency said it reviewed the legal merits of the state's program and found it to comply with the CCR rule's requirements.

The agency said it also disagreed with environmental groups' concerns that the Georgia program "proposes the addition of zero staff to run it" while the state EPD simultaneously administers 160 active solid waste disposal facilities, 309 closed landfills, and 1,196 solid waste collection operations.

An EPD spokesman said in a Dec. 20 email that the agency will conduct a thorough review to ensure that Georgia Power's pending permit applications meet federal requirements. Georgia Power spokesman John Kraft said in an email that the company's ash pond closure plans "fully comply with the federal CCR rule, as well as the more stringent requirements of Georgia's state CCR rule." The company is in the process of completely excavating 19 ash ponds with the remaining 10 being closed in place using "proven engineering methods and closure technologies," Kraft said.

No expiration date

The EPA's proposed federal permitting program would apply to coal ash storage sites in "Indian Country" and "nonparticipating states," meaning states without an approved CCR program and states that have indicated they do not plan to develop their own plans. Under the federal program, the owners and operators of facilities covered by the CCR rule in those areas would be required to submit permit applications to the EPA certifying that those sites comply with the regulation's requirements.

Notably, permits issued by the EPA will not have an expiration date. Instead, the EPA has proposed to require a permittee to review and resubmit a permit application when the permit is modified or at least every 10 years. The program would allow facility operators to certify "for truth, completeness, and accuracy" either that the permit application remains current or submit an amended application.

In its proposal, the EPA said it does not expect the 10-year deadline to be reached often because most permits will need to be modified sooner than that due to the CCR rule's closure requirements.

However, the WIIN Act was not intended to give electric utilities the ability to self-certify their own facilities indefinitely, said Jennifer Cassel, an Earthjustice attorney representing environmental plaintiffs in the lawsuit challenging Oklahoma's permitting program.

"The understanding was that somebody was going to be minding the store," Cassel said in an interview. "If you're getting a permit to shield yourself from liability, that means there's actually someone with some expertise in EPA or the state agency that's checking to see if they're actually doing what they're saying they're doing."

The EPA will hold a virtual public hearing on Feb. 19 to take public comments on the proposal. Written comments will be due 60 days from its publication in the Federal Register.