ts and have otherwise favorable terms for policyholders.The assessment and development of coverage claims for closure costs under legacy insurance policies (often dating back to the early 1900s) may require legacy insurance program reconstruction and archeology to uncover valuable existing coverage. Coverage claims are developed by combining counsel’s knowledge of insurance coverage and interpretation of policy terms with the knowledge of experts in historical groundwater impacts and closure costs. [5]Coverage claims are then presented to the appropriate insurers and either negotiated or litigated to resolution. The potential value available to energy companies under historical liability insurance policies to help pay for CCR remediation obligations can be material. Prompt action to preserve and pursue such rights and claims is recommended.[1]See Hazardous and Solid Waste Management System: Disposal of Coal Combustion Residuals From Electric Utilities; Legacy CCR Surface Impoundments, 89 Fed. Reg. 38950 (May 8, 2024).[2] For more information on the implications of the legacy CCR rule, please see Morgan Lewis’s LawFlash EPA Finalizes Rules for Fossil Fuel-Fired Power Plants, Including GHG Standards (April 29, 2024).[3]EPA Announces Federal Enforcement Priorities to Protect Communities from Pollution(Aug. 17, 2023).[4]EPA Finds Significant Noncompliance with the RCRA Coal Ash Disposal Regulations (Dec. 2023).[5] It remains to be seen what effect, if any, the US Supreme Court’s June 28, 2024 opinion eliminating Chevron deference to agency interpretations of statutes will have in any legal challenge to the legacy CCR rule. Morgan Lewis’s LawFlash on the implications of Loper Bright v. Raimondo and Relentless v. Commerce can be found at The End of the Chevron Doctrine: An Environmental Law Watershed?. If the most recent CCR rule is stayed during a judicial challenge, in whole or in part, the delay could afford policyholders an opportunity to explore coverage potential.[View source.]

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 e

-hour input. National Emission Standards for Hazardous Air Pollutants, 89 Fed. Reg. 38508, 38510 (May 7, 2024) (to be codified at 40 C.F.R. pt. 63).15 Id. at 38510.16 See Maxine Joselow, New rules will slash air, water and climate pollution from U.S. power plants, WASHINGTON POST (Apr. 25, 2024) https://www.washingtonpost.com/climate-environment/2024/04/25/power-plant-pollution-coal-gas-epa/.17 See Supplemental Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category, 89 Fed. Reg. 40198 (May 9, 2024) (to be codified at 40 C.F.R. pt. 243).18 Seegenerally id. 60 days after publication of the regulation is 8 July 2024.19 See id. at 40199-200.20 Please note that the EGUs in this subcategory are required to meet the 2020 rule requirements for FGD wastewater and BATW rather than the new, more stringent zero-discharge requirements that will apply to other facilities. See id. at 11.21 See generally Hazardous and Solid Waste Management System, 89 Fed. Reg. 38950 (May 8, 2024) (to be codified at C.F.R. pts. 9, 257).22 CCR Management Units are CCR surface impoundments and landfills that were closed prior to the effective date of the 2015 CCR rule and inactive. See id. at 38951.23 See id. at 39005.24 See Joselow, supra note xvi.25 Id.26 See id. For more information on W. Va. v. EPA, please refer to this K&L Gates client alert on the major question doctrine.