Is it Enough to Follow Regulatory Steps in the CCR Rule?

Issue 5 and Volume 120.

By Christopher J. Snider, P.E., P.G., and Katie A. Bland, P.E., Burns & McDonnell

The Environmental Protection Agency’s Coal Combustion Residuals (CCR) Rule went into effect on Oct.19, 2015. The structure it uses to manage groundwater compliance is downright scary. Not only has the power industry been saddled with increasingly stringent air emission and water discharge compliance rules, the federal CCR rule enforcement mechanism is especially perilous in its reliance on citizen lawsuits filed in federal court under Resource Conservation and Recovery Act (RCRA). As stated in the Federal Register, “EPA acknowledges that the lack of federal enforcement under Subtitle D presents challenges.” At least with most other environmental regulations, the enforcement mechanisms go through normal state regulatory channels; unfortunately this is not the case with the CCR Rule.

Complicated groundwater contamination scenarios are best managed by owners and state regulators who are charged with protecting the public and state groundwater resources. Reliance on citizen lawsuits, combined with the requirement that technical groundwater compliance reports be placed on the utility’s public website, is cause for concern with respect to the downside risks of legal action, groundwater remediation costs, and potential negative publicity. The rule essentially relies on public perception, rather than scientific data, as its means of enforcement. The best chance the utilities have to avoid falling victim to legal action and negative publicity is to act early and proactively.

If you think you might have a groundwater compliance issue brewing, consider conducting an assessment of potential corrective measures now to better understand your risk profile. The primary reason to consider acting now is the fact that the federal CCR Rule allows only 90 days to complete an assessment of corrective measures alternatives, or to demonstrate that apparent groundwater impacts are attributed to a source other than your CCR unit.

Groundwater corrective measure alternatives, also known as remediation alternatives, may vary significantly in both initial capital and long-term operations and maintenance costs. Lower cost alternatives, such as monitored natural attenuation may be appealing and acceptable to utilities and state regulators; however, they may not satisfy potential third party claimants. More aggressive remediation alternatives such as hydraulic containment, consisting of groundwater pumping, treatment, and/or beneficial reuse within the Plant, may require more than 90 days to evaluate from a technical and financial standpoint. In-situ technologies may be a viable solution, but they often require pilot studies that require several months to confirm the technology will adequately address groundwater impacts.

Evaluating a site early, before an assessment of corrective measures is triggered by the federal CCR Rule, may provide the time needed to confirm that a far less costly remedy will be effective.

Starting your groundwater evaluation early carries the added benefit of allowing you to factor ecological and human health risk assessment into your overall management strategy. As EPA stated in the Federal Register, “Because this is a self-implementing rule that relies on citizen enforcement, it is important for the owner or operator of the facility to periodically document that they are in compliance with the existing groundwater monitoring requirements, and an annual certification is the easiest and most effective way to achieve this.”

If potential citizen lawsuits and public perception issues have you concerned, consider conducting an ecological and human health risk assessment coupled with an early assessment of corrective measures. Initiating these studies now enables development of a fully informed strategy to meet the compliance timeline specified in the CCR Rule. Utilities are also encouraged to engage in a dialogue with state regulators who may be in the process of adopting state-level CCR rules. Utility representation and participation in the state rule development process could prove beneficial in both the short and long term.

The bottom line: If you are waiting until Oct. of 2017, when baseline sampling must be completed, to determine if you have a groundwater compliance problem, you are losing valuable time. Creating and executing a proactive game plan now will put you in an offense position while significantly enhancing the potential for positive outcomes. The alternative is to wait, hope for the best, and potentially end up playing defense in federal court.