Despite the original April 2021 closure deadline, EPA did not respond to the filings until last week, when it informed all of the remaining applications (some facilities withdrew their request in the intervening 14 months) that their demonstrations were complete and EPA would now proceed to evaluate them. In addition, EPA rejected five applications for being incomplete or ineligible and published proposed decisions for four facilities, all located in the Midwest: Clifty Creek (Indiana), Gavin (Ohio), H.L. Spurlock (Kentucky), and Ottumwa (Iowa). For those facilities, EPA proposed to deny all but Spurlock, which it conditionally approved for a short period of time (until November of this year) subject to costly monitoring requirements, and began a 30-day a public comment period that will end on February 23, 2022. EPA announced it would make the remaining determinations “as expeditiously as possible,” though provided no timelines.
EPA’s initial decisions represent what many view as this Administration’s assumption of a stricter stance on coal, and the denied facilities will have 135 days to cease receipt of waste and initiate closure following the publication of EPA’s final decision in the Federal Register once the comment period closes. In all of the determinations, EPA supported its decisions with painstakingly detailed analysis, clearly an attempt to “judgment proof” the decisions in the face of likely forthcoming litigation.
While we wait on the remaining decisions (and that potential litigation), we can glean some insights from the decisions made to date. First, EPA issued no determinations relating to plants that requested an extension premised on a permanent shutdown under the CCR Rule, perhaps suggesting that it may view those facilities differently than those who claimed it was infeasible to develop alternative storage capacity by April 2021. It is reasonable to think that the Agency would be more amenable to an extension if an operator plans to cease operations anyway, particularly given the delay in getting to this point and the fact that many of those plants only planned to operate for another year or two.
Second, it is not entirely clear how the Agency selected which facilities to include in its initial determinations. All come from different Midwestern States, with no overlap. This regional diversity may very well reflect random variance from a small sample size, but maybe it implies a conscious attempt to reduce the impact of impending closures on grid reliability – one consideration EPA acknowledged in its determinations. Each decision provides an “escape clause” in which owners and operators can continue use of their impoundments if they submit to and receive approval of a planned outage request from the relevant Regional Transmission Organization (RTO). This clause requires operators to submit the outage request within 15 days from the date of EPA’s decision and provides additional conditions that must be met before EPA will extend the facility’s closure deadline. Despite this process, EPA went out of its way to flag for the RTO that their demonstrations “presented no evidence” that a potential closure would result in adverse impacts on electric reliability.
Third, while one facility did receive a brief extension, EPA premised the extension on robust groundwater-related requirements to address alleged noncompliance with the CCR Rule. These include, among others, a limitation on the wastestreams permitted in the facility’s ash pond, publication of additional groundwater monitoring data, a revised groundwater monitoring plan with new characterization measures, publication of information on background groundwater quality levels, installation of new wells downgradient from the facility’s CCR units, and new sampling and analysis procedures. Although not intended to establish independently enforceable requirements under the CCR Rule, this conditional approval suggests that EPA views the extension requests as an opportunity to assure strict compliance with the spirit of the CCR Rule’s pollution control requirements.
Over the coming weeks, we will learn more about why EPA made these determinations for these plants after a one year-plus wait, why it did not yet issue any other determination, and maybe about when it plans to do so. Of course, that assumes more facilities do not withdraw their requests or the requests otherwise are not mooted. To that end, we imagine many of the requests for extension asked for an extension deadline that already passed. For those facilities that did not, they will continue to watch… and wait.