The federal coal ash permit program was proposed 2020-02-20 and never finalized as of 2026-08-08 — the routine check on whether a unit complies is a website the operator maintains about itself

What is happening?

The federal coal ash rule at 40 CFR part 257, subpart D binds regulated units directly. No permit is issued and no agency reviews a site before the requirements attach, so the routine check on whether a unit complies is a website the operator maintains about itself. As of 2026-08-08, ten years after the rule and nine and a half years after Congress supplied the permitting authority, five states have an approved coal ash permit program and four of the five are partial, the federal permit program that would cover everyone else has been a proposal since 2020-02-20, and EPA counts over 2.5 million people living within three miles of the legacy impoundments and CCR management units at issue, as of 2024-05-08.

EPA is explicit about the design. In the preamble to its April 2026 proposal, published 2026-04-13 at 91 FR 18968, the agency writes that the 2015 rule relied on certifications by qualified professional engineers and on web posting requirements as a substitute for regulatory oversight. That was not an oversight of drafting. Coal ash was regulated under RCRA Subtitle D, the half of the statute with no federal permit program, and at promulgation EPA had no authority to issue coal ash permits, to approve state permit programs, or to provide the review a permit authority normally provides.

Congress supplied that authority in the 2016 WIIN Act at 42 U.S.C. 6945(d). Since then five states have been approved — Oklahoma effective 2018-07-30, Georgia 2020-02-10, Texas 2021-07-28, North Dakota 2025-12-17 and Wyoming 2026-03-30 — and three more applications are pending as of 2026-08-08. Only the Oklahoma program is full. In the other four, EPA states that federal provisions the state did not adopt remain directly applicable to the units, which is to say still self-implementing.

The 2024 rule pulled two more categories into the regime — 97 legacy surface impoundments at 49 facilities and 195 CCR management units at 104 facilities, by the EPA count of 2026-04-13. Their deadlines were then extended by a final rule published 2026-02-10 at 91 FR 5806, moving groundwater monitoring installation to 2031-02-10 and closure initiation to 2032-02-09. In April 2026 EPA proposed to rescind the CCR management unit requirements entirely, including 40 CFR 257.75, the facility evaluation report that would have produced the first national count of these units. That proposal is pending as of 2026-08-08.

Whose problem is this?

Nobody in this table is breaking the law. The rule is in force and the operators file what the rule tells them to file, on their own websites, where EPA links to the documents and states plainly that it is not responsible for what they contain.

Where does this problem end?

The boundary here is not whether coal ash is dangerous but whether anyone outside the operator ever looks. Both halves of the regime already exist on paper, and the missing piece is the body that would check.

What is the state now, and what should it be?

Now

Needs a new measurementthe target state: no source opened here states how many states should have an approved permit program, by what date, what share of units would count as adequately covered, or what follows if coverage stays where it is. The WIIN Act contains one clock, a 180-day period for EPA to act on a complete state application, and that clock measures a response rather than an outcome. The implied floor is legible from the rule itself — groundwater monitoring, corrective action, closure and post-closure care verified by a permit authority rather than by the party being regulated — but no document opened here converts that into a number or a date.

How big is it?

Between 200,000 and 2,500,000 people in the United States. Both ends come from the EPA regulatory impact analysis summarized in the 2024 legacy rule at 89 FR 38950, dated 2024-05-08, which states that almost a million households and over 2.5 million people live within three miles of legacy CCR surface impoundments and CCR management units, and that roughly 75,000 households and 200,000 people live within one mile.

The range is a distance bracket rather than a confidence interval. The low end is the population close enough that a private well or a garden plausibly sits over the same shallow aquifer as the unit. The high end is the outer bracket EPA itself uses for proximity and property-value effects. Neither end counts people harmed. Both count people living beside units whose compliance nobody outside the operator is currently checking.

One step that would have looked more precise was deliberately not taken. Multiplying by the share of facilities outside an approved-program state fails because the 367 compliance-website entries are dominated by the 303 facilities regulated since 2015, while the units at issue here sit at 104 and 49 facilities respectively, and no source publishes a state distribution for either group. The two universes cannot be joined, so the multiplication would have been arithmetic laid over a gap.

Under what conditions does it arise?

1. A binding rule was written for a statute with no permit program. Coal ash was kept out of RCRA Subtitle C, so the 2015 rule had to live under Subtitle D. EPA states that at promulgation it could not issue permits, approve state programs or otherwise provide the oversight a regulator normally provides. Site-specific flexibility was therefore barred by design, because no one would have been there to review a variance.

2. The 2016 statute put a clock on only one direction. WIIN gives EPA 180 days to act on a complete state application. It sets no deadline for a state to apply, none for EPA to finalize the federal program, and attaches no consequence to a state that never applies. The path that moves work away from EPA is time-bound and the path that would place EPA on the hook is not.

3. Verification is self-published and unaudited. The compliance record lives on a website the owner maintains under 40 CFR 257.107. EPA aggregates links to those sites, states that they are outside its own website and that it is not responsible for their content, and acknowledges that other regulated units may have compliance sites it does not know about. In the 2024 rule a commenter asked EPA to require owner certification and a standard layout, and EPA declined, finding no factual basis that certification would improve compliance beyond the engineer certifications already required.

4. The enforcement channel that remains was narrowed administratively. A 2025-03-12 memorandum from the EPA enforcement office directs that coal ash enforcement at active power plants focus on imminent threats to human health, requires advance approval for any action that would unduly burden or significantly disrupt power generation, and requires concurrence before enforcing any rule under reconsideration. The coal ash rule is under reconsideration, so the proposal to amend it raises the internal bar for enforcing it.

5. Deadlines can move without anyone losing an argument. Each extension in the February 2026 rule is individually defensible — records are scattered, these units lack discrete boundaries, and the second report cannot begin before the first is done. Together they push the first enforceable moment for groundwater monitoring from 2028 to 2031 and closure from 2029 to 2032.

What has been tried?

Two of the largest expansions of this regime came from a court vacatur and a consent decree rather than from agency initiative, and the current retrenchment is proceeding while the challenge to the 2024 rule sits in abeyance rather than being decided.

What was found?

Why is it still unsolved?

Enforcement absent — the requirements are binding and in force, the authority to permit and to enforce has existed since 2016, and in 45 states the apparatus that would apply either one was proposed and never built.

Start with what a permit does that a rule alone cannot. A permit is the moment an outside party reads the site file, asks whether the monitoring wells are in the right places, and either signs or refuses. Without that moment the same questions still exist, but the only entity answering them is the entity being asked about. EPA said in its own enforcement alert of December 2023 that assessments had detected widespread noncompliance, and enumerated the failure modes it kept finding, among them closure plans that were inadequate and groundwater monitoring networks with too few wells. Those are exactly the findings a permit review produces. Here they surfaced through a national enforcement campaign instead, ran to about 150 facilities with detected contamination, and produced settlements naming seven.

The second movement is that the backstop was never finished and nothing counts the cost of not finishing it. The federal program was proposed on 2020-02-20 and remains a proposal on 2026-08-08. In six and a half years the recorded change is that the comment period reopened. No statute sets a date, no court has ordered one, and the agency now asks in an advance notice whether a temporary general permit should exist at all — which concedes, in the current posture, that facilities are waiting out the self-implementing rule while their state works through a process EPA says can take years.

The third movement is the one that keeps the shape stable. Time is the instrument, and delay is not an event. The February 2026 rule moved groundwater monitoring to 2031 and closure to 2032 with reasons that are individually reasonable. The April 2026 proposal would then delete 40 CFR 257.75, the facility evaluation report, before the first one is filed on 2027-02-09. That report is the only instrument that would ever have counted these units. If the proposal is finalized as written, a regulatory category will have existed for roughly eight years and been counted exactly zero times, and the number that would tell anyone how large the problem is will not exist to be argued over.

What observation would mean it is solved?

Candidates — (a) EPA finalizes the federal coal ash permit program with a stated effective date, and states without their own program come under a permit authority (b) the count of states with an approved program, weighted by units rather than by states, rises toward full coverage (c) the facility evaluation reports are filed and produce a national inventory of CCR management units against which compliance can be measured.

(a) alone can be satisfied without changing anything on the ground. A final program still has to issue individual permits facility by facility, and nothing observed here bounds how long that queue would be. A permit program with no staffing, or one whose first permits arrive after the 2031 and 2032 deadlines have passed, would register as finalized while the units continue to be checked only by their owners.

(b) alone rewards the wrong unit of account. Five states is the headline number and four of those five are partial, which means the federal provisions the state did not adopt stay directly applicable and stay self-implementing inside an approved state. Counting states also hides the distribution: no source publishes where the 97 legacy impoundments and 195 CCR management units actually sit, so a rise in the state count could leave most of the units exactly where they were.

(c) alone is the observation currently scheduled for deletion. The reports are due 2027-02-09 and the April 2026 proposal names the section that requires them among those to be removed. Even if they are filed, a first inventory measures how many units exist and not whether any of them is being monitored correctly. The three have to be read together, and the second must be weighted by units rather than by states.

What is it connected to?

Fills with researchdrinking water regulation and the split between public systems and private wells, electricity reliability policy where it intersects with enforcement discretion at power plants, the litigation environment for federal rulemaking after recent Supreme Court decisions, and the same structure of self-implementing environmental standards in other RCRA Subtitle D waste categories. Relation type and evidence grade were not confirmed in this round.

What these sources do not say

• How many CCR management units exist. EPA states that its figure of 195 rests only on data it could independently verify from posted facility reports and public comments. No source opened here gives an expected true count, a plausible range, or what fraction of the real universe 195 represents. The instrument that would answer it is due 2027-02-09 and is named for deletion in the April 2026 proposal.
• Where those units are. EPA publishes the approved states in one place and the compliance websites in another and never joins them, and it publishes no state distribution for legacy impoundments or CCR management units. So the question of how many of these units sit in a state with no permit authority has no answer in any source opened here. The 14.4 percent coverage figure in this document is derived from a facility list that is dominated by a different universe, and it is reported as a separate fact rather than applied to the population.
• What adequate coverage would be. No document opened here, and not the WIIN Act, states how many states should have approved programs, by when, or what happens if the number stops moving. The only statutory number is a 180-day clock on EPA responding to a state.
• Why the EPA legacy impoundment count fell from 194 at 85 facilities to 97 at 49. The two figures are 23 months apart in the same docket. The later document simply states the new number.
• Whether operators are complying with the self-posting requirement itself. EPA states that it is not responsible for the content of the linked sites and that other regulated units may have sites it does not know about. No source opened here counts facilities with no site, sites that are stale or incomplete, or documents that are simply missing. EPA declined in 2024 to require certification or a standard format and proposed no other way to measure.
• An enforcement denominator. EPA reports widespread noncompliance and about 150 facilities with detected contamination, and names seven in settlements with no dates. No source opened here gives inspection counts, notices of violation, citizen suits, or what fraction of found violations was resolved.
• Where the 2.5 million people went. The 2024 rule states that over 2.5 million people live within three miles of these units. The April 2026 proposal that would rescind regulation of part of the same universe quantifies the money in detail and contains no proximity analysis, no household count and no demographic profile beyond a statement that children are not disproportionately present. No document explains the removal.
• What a facility in a state with no permit authority should do with the new flexibilities. The July 2026 advance notice raises this as an open question and asks the public for an answer rather than giving one.

See the evidence

Nine primary federal documents were opened directly and read against the claims they support — the April 2026 proposal, the 2024 legacy rule, the February 2026 deadline extension, the July 2026 advance notice, two state approval documents, the enforcement alert, the enforcement memorandum and the Federal Register API listing. Where a summary and the primary text disagreed, the primary text governs. This mattered once and sharply: an EPA plain-language page states that the April 2026 proposal would rescind all CCR management unit requirements, while the Federal Register summary of the same document describes it only as modifying those provisions, and the rule text carries a titled section on rescinding them and lists the sections to be removed. Two automated readings of the same document reported that the word rescind does not appear in it. Anything in this dossier about that proposal comes from the document itself. Disagreements are left visible rather than resolved. EPA counts 194 legacy impoundments at 85 facilities as of 2024-05-08 and 97 at 49 facilities as of 2026-04-13, in the same docket, with no reconciliation. The effective date of the 2024 rule is 2024-11-04 in the Federal Register record and 2024-11-08 in EPA summary material. The April 2026 preamble lists four approved states while a fifth had already taken effect on 2026-03-30. Contamination is reported as about 150 facilities by EPA and as 91 percent of 292 reporting plants by an advocacy analysis, on different denominators that no source joins. The litigation chronology and the 14.4 percent coverage figure are the weakest items here — the first is secondary and its source misstates the citation of the 2024 rule, and the second is derived by counting rows on an EPA page rather than published by anyone. This is a Path A output (research-based definition), so observation_refs is empty and provenance_mode: press-derived.

People affected

Estimated range 200,000–2,500,000 As of 2024-05-08

Sensitivity The width of the range is the distance bracket itself, one mile against three miles, a 12.5-fold span in the EPA figures. That is the honest resolution available: hundreds of thousands at one mile, low millions at three. The figure is anchored to the number of units EPA could verify, and that number is the thing nobody knows. EPA describes its count of 195 CCR management units as limited to independently verifiable data, the facility evaluation report that would produce a real count is not due until 2027-02-09, and the April 2026 proposal names the section requiring that report among those to be removed, so the base could rise substantially and no source bounds by how much. In the opposite direction, EPA put legacy impoundments at 97 units at 49 facilities as of 2026-04-13 against 194 at 85 facilities as of 2024-05-08, and if the lower figure is correct rather than an artifact the base shrinks. The estimate also cannot count anyone near a unit that has never been identified, anyone near a unit holding between one and 1,000 tons since those are deferred to permitting that does not exist in 45 states, anyone drawing water from an aquifer that extends past three miles given that EPA risk modeling puts peak release roughly 70 years after waste placement, or anyone near a facility that never posted a compliance website, which EPA acknowledges it would not know about. The 783 units at 303 facilities regulated since 2015 are excluded on purpose because this problem is the legacy and management-unit layer plus the missing permit authority; including them would raise the base substantially. Two adjacent figures for scale, not to be added: a commenter estimate recorded in the 2024 rule puts close to half a million people within one mile of the 417 active and inactive coal-fired plants that have reported coal ash units, and the EPA enforcement alert of December 2023 reports about 150 facilities with detected groundwater contamination. The uncertainty here is not statistical. The denominator has never been counted.

Regional breakdown No source opened here publishes a state distribution for legacy CCR surface impoundments or CCR management units. EPA publishes the five approved state permit programs in one place and the 367 operator compliance websites in another and never joins them, and those 367 entries are dominated by the 783 units at 303 facilities regulated since 2015 rather than by the 97 legacy impoundments at 49 facilities and 195 management units at 104 facilities at issue here. Splitting the national population figure by state population would be proportional allocation, and these units sit where coal was burned rather than where people live, so that split would be wrong in both directions at once.