1. CCR Final Rule Utility Perspective on Key Compliance Items
A&WMA Southern Section Meeting
Coal Combustion Residuals Panel
August 19, 2015
Brittany Wilson

2. CCR Final Rule Overview
Favorable Aspects
Applicability
State Involvement
Challenges
The purpose of this presentation is to go through key compliance items of the CCR Final Rule from a utility perspective, i.e:
What pieces of the Final Rule would we consider to be positive?
What portions of the Final Rule do we see as negatives, and going forward, what challenges do we face in the future for compliance?
How is our system impacted by the Final Rule?
What role will the State play in implementing the Final Rule?

3. CCR Final Rule Favorable Aspects
CCRs regulated as non-hazardous waste
No mandatory closure of unlined CCR ponds
Ability to obtain closure extensions for ponds
Ability to defer closure when lack of capacity exist
In some cases, it would be difficult to complete pond closure within 5 years. Allowing possibility for closure extensions gives flexibility to account for site-specific circumstances and for factors beyond facility's control:
1. Complications due to climate & weather
2. Time required to dewater pond
3. Geology and terrain
4. Time required or delays to obtain State permits
Unlined ponds can continue to operate as long as the technical criteria are met
It is important to note that not everything in this rule is entirely bad, but then again I guess it depends on who you are asking….but in some instances where there are positives; such as:
EPA issued the final rule for CCRs under the Subtitle D non-hazardous solid waste regulations of the Resource Conservation and Recovery Act, and set forth minimum federal criteria because EPA lacks the authority in this instance to force individual states to adopt a CCR permit program.
Under this rule EPA does not establish mandatory closure of unlined ponds. Instead pond closure is triggered when the CCR unit does not meet: structural stability/safety factor assessments, GW protection standards, and location restrictions: 5’ above the uppermost aquifer, wetlands, seismic impact zones, fault areas, and unstable areas
epa enables owners to obtain extensions for completing closure (in addition to the 5 year presumed closure process
for ponds who trigger closure by failing to meet gw protection standards or location restrictions, the o/o may have the ability to delay initiating closure if they can document and demonstrate that no alternative capacity exist. the ability to defer closure is not an option for units who fail to meet structural stability requirements
In order to qualify for “alternative closure requirements” an owner/operator must document the following:
Certification no alternative disposal available on or off site
CCR unit must remain in compliance with all requirements of the rule
Annual progress reports documenting lack of alternative capacity and progress towards development of capacity
If this can be demonstrated, the CCR unit may continue receiving CCR for up to 5 years or until disposal capacity is available before initiating closure
If this can be demonstrated, the CCR unit may continue receiving CCR for up to 5 years or until disposal capacity is available before initiating closure
Keeps market open for ash to be safely managed and recycled for concrete, road building and other beneficial uses.

4. CCR Final Rule Challenges – Tough Road Ahead
SELF-IMPLEMENTED
Instead of meeting a state schedule or program for compliance the owner/operator will be responsible for having a professional engineer certify all necessary compliance reporting and documentation, and then post all required datasets on the Company’s publicly available webpage.
State Permit program not required
Internet Posting
RCRA CITIZEN SUITS
Non-compliance enforced in federal district court
DUAL REGULATORY PATH
Even if states were to adopt the federal criteria, utilities would comply with both the state and federal rule
STATE PERMIT - we would have preferred EPA delegate the permit program through the states to manage and issue permits to include the minimum criteria. This would have made compliance more seamless and provide a shield against citizen suits Therefore, the program will be “self-implemented,” or self-directed instead of meeting a state schedule or program for compliance.
SELF IMPLEMENTING - The rule is “self-implementing” because EPA lacks the authority for requiring states to issue permits; therefore, EPA requires the minimum federal criteria to be administered by each owner / operator at each company that manages CCRs in surface impoundments and landfills.
INTERNET –
-Logistical issues with multitude of compliance documents requiring PE certification to meet compliance. If you add up each and every document required to be posted online with PE certification, you are looking at over 50 datasets of information that has to be compiled, and placed on an internet site this is for just ONE CCR UNIT, we have roughly 40 ap and 20 LF you can do the math.
**EPA suggests that this transparency will allow the public to determine noncompliance with the federal rule. The rule is essential set up to be carried out through citizen suit litigation in federal district court. Non-compliance enforced through RCRA citizen suits in federal district court
DUAL REGULATORY - Even if states were to adopt the federal rule, utilities would comply with both the state and fed rule, with compliance enforced by state courts creating likelihood of conflicting state/federal court interpretations
ALT CLOSURE - It is important that the alt closure provision also enable O/O to consider if there is alt disposal capacity for NON CCR WW managed in that unit in addition to CCR, as the inability to manage those WW in the impoundment could also result in closure of the plant. We have to take into account how long it will take to build WW treatment
BEVILL - Leaving open the possibility to reverse the determination and regulate ccr under RCRA Subtitle C
Utilities will be investing considerable resources to comply with the Subtitle D rule. If EPA were to regulate CCR as a hazardous waste at some point in the future (assuming it could), the substantial investments that utilities have incurred to develop systems to meet the Subtitle D criteria would be largely lost. In addition, the continued specter of potential hazardous waste regulation for CCR perpetuates uncertainty in the CCR beneficial use market, frustrating emerging CCR beneficial use markets and investments in CCR beneficial use technologies.
ALTERNATIVE CLOSURE
The omission of any consideration of non-CCR waste streams in evaluating whether a unit can qualify for the rule’s “Lack of Alternative Disposal Capacity”
EPA defers Final Bevill Determination

5. CCR Rule Applicability
Main Points:
Opportunities exist for CCR ponds to fall outside of the federal rule:
Plants completely retired prior to October 19, 2015
Closed inactive CCR ponds
All applicable state rules apply and do not operate in lieu of the federal rule
Is the pond located at an active power plant (of any fuel type) on
October 19, 2015?
Is the pond “closed”? (dewatered, capped and maintained)
Has the pond ceased receiving CCR* prior to the
POND NOT SUBJECT TO FINAL RULE
(does not exclude compliance with state regulations)
Will the pond complete closure (dewater & cap) by April 17, 2018? NO
YES
See notification requirements § (c)
*Pond can continue to receive WW
YES NO NO NO
SUBJECT TO THE FINAL RULE

6. Compliance Road Map Main Points:
Ponds can remain open when meeting all technical criteria
Ponds not meeting safety factors for structural stability, groundwater exceedances, or location restrictions are forced to close
Application of corrective measures to meet GWPS not afforded to unlined surface impoundments
POND CAN REMAIN OPEN
(subject to and must maintain compliance with all Subpart D compliance requirements)
Does the pond meet specified safety factor for structural stability?
YES
Is the pond lined? NO
YES
Does groundwater monitoring trigger corrective action?
Does groundwater monitoring trigger corrective action? NO
Start Corrective Measures & Meet GW Protection Standards
YES NO NO
Does the pond meet location restrictions?
YES
YES NO
PROCEED TO POND CLOSURE

7. “Extensions” Available
Pond Closure Roadmap
POND CLOSURE
(Presumed 5 years)
30 days to commence closure; 5 years to complete closure
POND CLOSED
YES NO
“Extensions” Available
Must maintain compliance with Subpart D and any corrective action measures.
6 mo. to cease receipt of all CCR and liquids
Will the coal-fired boiler cease operation on or before one of the following dates?
If yes, then ponds < 40 acres can continue its use if the coal-fired boiler ceases operation and the pond completes closure by October 17, 2023; and
ponds > 40 acres can continue its use if the coal-fired boiler ceases operation and the pond completes closure by October 17, 2028
Then, the pond can continue to operate until alternative disposal capacity is available, max five years; Once available, immediately cease receipt of CCR and proceed to closure
Is alternative disposal capacity available for CCRs (on site or off site)?
Ponds < 40 acres;
One 2-yr extension
(2 years max)
Ponds > 40 acres;
Five 2-year extensions
(10 years max)
Main Points:
EPA presumes a 5 year pond closure
Opportunities exist to continue the use of ponds prior to initiating closure if no alternative disposal capacity is available for CCRs
EPA allows for various extensions to complete closure of CCR ponds

8. STATE SOLID WASTE MANAGEMENT PLAN
State Regulatory Involvement
Some states are likely to modify its state solid waste regulations to incorporate the minimum federal criteria; could potentially involve public input; or a stakeholder process
States are not required by EPA to incorporate the federal criteria. If a state chooses to adopt the federal criteria, the process may begin in 2016.
STATE LEGISLATION
Some states may require a legislative change to allow state solid waste rules to be updated in order to close the gap between federal criteria and current state requirements.
STATE REGULATION
States adopt the federal minimum criteria into its state solid waste management plan.
Because the EPA has not required the states to adopt the federal criteria, and States may choose not to adopt the federal criteria, Any preliminary action taken (i.e. studies, reports, certifications) to meet compliance in the final rule or to address risk independent of the final rule, are not necessarily legally protected when there are no state rules or state actions.
It is likely that state rules will not shield from citizen suit enforcement.  While they may give some assurance of reasonableness and evidence of state concurrence as a Federal judge looks at a particular suit, states cannot stop the suits. State CCR legislation could provide clear direction, cost recovery and afford the best backstop in the event of litigation (because any court would be looking at demanded relief against a backdrop of a date certain for closure).  
The rule is a complicated set of decisions that we have to make regarding the future of each pond.  Citizens suits will be filed the decisions we made or will make, with the plaintiffs claiming that we should have made a different decision based on the data.  While we will make prudent decisions on these questions, there is always the tension at the PUC level over what is required and if we are doing too much.  State legislation could clarify that process, and hopefully provide a rational schedule for the activities to eventually close these ponds.
STATE SOLID WASTE MANAGEMENT PLAN
Does not alleviate dual regulatory environment (Federal & State simultaneously).
EPA must approve the plan.
SOCO Territory:
ALABAMA
FLORIDA
GEORGIA
MISSISSIPPI
EPA APPROVAL

9. Recap…