For those seasoned rockers, CCR means Creedence Clearwater Revival, but for environmental lawyers, CCR means Coal Combustion Residuals (“CCR”) which is a slurry by-product from the generation of electricity from coal fired power plants. As the United States sprints toward renewable energy, CCR remains a massive legacy of coal fired power generation.
CCR is usually located in ponds near the current or former power generation plants. Because of a well-publicized breach of CCR dikes at the Kingston Fossil Plant in Tennessee in December 2008, USEPA started to focus on federal CCR regulation. In 2015, the United States Environmental Protection Agency (USEPA) issued the first iteration of comprehensive federal CCR regulations which included closure options and groundwater protection requirements. 80 FR 21302, April 17, 2015; 40 CFR 257. USEPA has an entire section of its website devoted to CCR.
The 2015 CCR Rules spawned litigation which resulted in a partial roll back of the 2015 Rules and subsequent USEPA revisions in 2020 and 2023. Utility Solid Waste Activities Group v. EPA, 901 F. 3d 414, (D.C. Cir. 2018). On April 25, 2024, USEPA released the pre-publication of the final Legacy Pond CCR Rules with an effective date of November 8, 2024. 89 FR 38950. EPA- HQ-OLEM-2020-0107; This is a 674 page document which includes an exhaustive review of public comments on the Legacy Pond CCR Rules and USEPA’s responses. The final regulations confirmed a broad scope under the defined term “CCR Management Unit.” Thus, environmental law practitioners have a new acronym “CCRMU.”
In general, the current primary dispute concerns the regulation of CCR ponds closure under state law and the scope of groundwater protection under 40 CFR 257. To date, the USEPA has approved three state CCR programs in Texas, Georgia and Oklahoma. RCRA §4005(d).
On May 23, 2024, USEPA announced its intention to deny approval of the Alabama CCR program. US EPA Docket EPA-HQ-OLEM-2022-0903. Alabama and USEPA have battled for several years concerning the adequacy of the Alabama CCR program.
Currently, the CCR Legacy Pond regulations have morphed into a regulatory and litigation morass involving D.C. Circuit Court of Appeals litigation, state law equivalents, threats of federal enforcement and a recent Ohio administrative action. On March 7, 2024, the D.C. Circuit Court of Appeals heard oral argument in Electric Energy Inc. v. USEPA, case no. 23-1035 (D.C. Cir).which concerns a trade group challenge to USEPA authority under the CCR regulations.
Recent Ohio Decisions
An Ohio administrative action, NOPE v. Stevenson, and a recent Southern District of Ohio case highlight the salient CCR issues.
The Ohio administrative action involved a state permit to close one of the CCR ponds at the former Duke Energy Beckjord Power Plant near Cincinnati. Neighbors Opposing Pit Expansion v. Stevenson, ERAC Case No. 21-7114. In Ohio, the Ohio EPA regulates the closure of CCR ponds through its surface water regulations because CCR is exempt from the definition of solid waste.
The Ohio Environmental Review Appeals Commission (ERAC) held a three-day hearing in May 2023 about the permit review process which included Ohio EPA employee testimony. On January 10. 2024, ERAC issued its opinion which upheld the Ohio EPA issuance of the closure permit.
Recently, the citizens group and another entity filed Cross Notices of Appeal of the ERAC decision to the 10th Appellate District in Columbus. NOPE v. Stevenson, Case No. 24 AP 93
The Tenth Appellate District briefing is complete and the parties are awaiting the oral argument date. In the Southern District of Ohio, the same citizen group filed a RCRA Citizen suit alleging violations of the RCRA Open Dumping statute at the Beckjord plant. NOPE v. New Richmond Development Company, Case No. 1:20 CV 91(S.D. Oh.). The citizen group’s Motion for Summary Judgment remains pending.
2024 will prove an eventful year for CCR regulation because USEPA will issue the final CCR regulations and the DC Circuit will issue its opinion in Electric Energy.
Also, we can expect USEPA challenges to state approval closure permits which may raise constitutional and pre-emption issues.
