By Brent A. Rosser and Linda Trees

On May 18, the U.S. Environmental Protection Agency (EPA) proposed a rule that would expand the federal regulations governing the management of coal combustion residuals (CCR) to cover landfills and surface impoundments that were previously excluded from regulation under the CCR Rule, first promulgated in 2015 under the Resource Conservation and Recovery Act (RCRA). The CCR Rule sets national minimum standards for the management of CCRs at existing and new landfills and surface impoundments, but it currently does not impose requirements on impoundments at inactive facilities. 

EPA’s proposed rule expands coverage of the CCR Rule to inactive facilities by establishing two new classes of regulated CCR units: legacy CCR surface impoundments and CCR management units (CCRMUs). A legacy impoundment is defined as a CCR surface impoundment that no longer receives CCR but contained both CCR and liquids on or after Oct. 19, 2015, and that is located at an inactive electric utility.” A CCRMU is defined as “any area of land on which any non-containerized accumulation of CCR is received, placed, or otherwise managed at any time,” including “inactive CCR landfills and CCR units that closed prior to Oct. 17, 2015.”

Although EPA recognizes that this is a broad definition, it suggests at the same time that the definition is narrower than the plain language implies: “The Agency does not intend that the placement of any amount of CCR would necessarily constitute a CCRMU, and that CCRMUs would not include units which “are not designed to hold an accumulation of CCR, and in fact, do not generally contain a significant amount of CCR,” such as “closed or inactive process water ponds, cooling water ponds, wastewater treatment ponds, storm water holding ponds or aeration ponds.”

The proposed definition of CCRMU does not contain a threshold for the amount of CCR that would trigger regulation. EPA explains that a CCRMU would include CCR material that was “routinely and systematically placed on the ground, or where facility activities otherwise resulted in measurable accumulations of CCR on the ground,” but there are no objective criteria for evaluating the terms “routinely,” “systematically” or “measurable accumulations.”

EPA provides examples of CCRMUs to include “structural fill sites, CCR placed below currently regulated CCR units, evaporation ponds, or secondary or tertiary finishing ponds that have not been properly cleaned up, and haul roads made of CCR if the use does not meet the definition of beneficial use.” But EPA does not define what “properly cleaned up” means for purposes of the regulation and states only that the rule is meant to address the direct placement of CCR on the land “in sufficient quantities to raise concern about releases of hazardous constituents,” where there are “no measures in place to effectively limit the contact between the CCR and liquids, and subsequent generation and release of any leachate.”

Under the proposal, most of the existing CCR Rule requirements would apply to legacy impoundments, while the CCRMUs would be subject to the requirements for groundwater monitoring, corrective action, and closure. For both types of units, however, the new requirements would have accelerated deadlines for compliance as compared to the deadlines established for new and existing facilities in the 2015 CCR Rule. Given the broad definitions of these new classifications, electric utilities may have previously unregulated CCR facilities that would now be subject to the proposed new requirements and these accelerated deadlines.

Under the proposed rule, facilities would only have six months after the final rule is published to identify CCR units that are subject to the rule as legacy impoundments or CCRMUs. Moreover, the proposed deadline for completing the initial potential hazard classification, structural stability and safety assessment for legacy surface impoundments is three months after the date the final rule becomes effective, or nine months after the final rule is published. By contrast, under the 2015 CCR Rule, facilities had 18 months after the rule became effective (24 months after it was published) to complete these assessments. CCRMUs would have only six months after the effective date of the final rule to install groundwater monitoring systems and develop a groundwater sampling and analysis plan, compared to 24 months allowed under the 2015 CCR Rule. 

Some companies may find these deadlines challenging for a number of reasons, including the time needed to understand the new regulations and their implications, labor and contractor shortages, delays at laboratories, supply chain issues and time needed to complete the various assessments and installation of groundwater monitoring systems.

EPA anticipates issuing a final rule in April 2024 with an effective date six months after publication. Based on comments submitted in EPA’s proposal, legal challenges in the DC Circuit Court of Appeals seem likely.

Brent A. Rosser is a partner and Linda Trees is an associate with the law firm Hunton Andrews Kurth LLP. They can be reached at and