On October 19, 2015, Disposal of Coal Combustion Residuals from Electric Utilities final rule became effective that regulates the disposal of coal combustion residuals (“CCR”), otherwise known as coal ash, generated from coal-fired power plants. The rule was promulgated under subtitle D of the Resource Conservation and Recovery Act (“RCRA”). Prior to this date, CCR was regulated under various states environmental and dam safety regulatory programs.

West Virginia has chosen not to adopt the federal requirements and will continue to regulate CCR landfills and impoundments in accordance with existing state statutes. Of note is the fact that West Virginia regulates groundwater quality standards based on dissolved metals, whereas under the federal rule groundwater quality is based on total metals. If West Virginia were to have adopted the federal requirements, amendments to the West Virginia Code would be needed, as the adoption of the citizen suit provisions and change in groundwater quality standards would be needed in order to adequately implement the federal rule.

The federal rule addresses structural stability for landfills and impoundments receiving CCR, protective liners for impoundments, surface and groundwater quality and monitoring, fugitive dust emissions, prohibits construction of disposal areas in some locations, closure of CCR disposal units, and requires each facility to provide site specific reporting requirements for this information on a publically-accessible website.

The CCR program is self-implementing and states are not required to adopt the federal guidelines or to develop a program to implement or enforce the guidelines.   This requires the facility to comply with the regulations without any action by a regulatory agency. The enforcement of the federal rule will be by citizen suits or by states acting as citizens; however, states do have the option of adopting the federal requirements and could include additional regulatory requirements that provide for broader or more stringent enforcement or environmental and safety requirements. The state program would be required to be at least as stringent as the federal rule.

Each active CCR facility must meet all federal rule criteria by October 17, 2018. Prior to this date engineering evaluations and aquifer studies may be conducted. This future date does not prevent the facility from compliance with current federal or state groundwater quality or surface water quality requirements or other existing statutes or regulations.