EPA Proposes Alternative Regulatory Schemes for Coal Ash under RCRA

    On May 4, 2010, EPA made available a 563 page pre-publication proposal for two approaches to address the risk of coal ash management under the nation's primary law for regulating solid waste, the Resource Conservation and Recovery Act ("RCRA"). Under the first proposal, EPA would list Coal Combustion Residuals ("CCRs") as Special Wastes in a newly created section of the Subtitle C regulations of RCRA when they are destined for disposal in landfills or surface impoundments. Under the second proposal, EPA would regulate coal ash under Subtitle D of RCRA, dealing with non-hazardous waste.

 

Under current law, these wastes are considered exempt from hazardous waste regulation under §3001(b)(3)(A)(i) of RCRA (known as the Bevill exclusion). This provision excluded certain large-volume waste generated primarily from the combustion of coal or other fossil fuels from being regulated as hazardous wastes pending completion of a Report to Congress required by §8002(n) of RCRA. In 1993, EPA published a Regulatory Determination that Subtitle C regulation of fly ash, bottom ash, boiler slag and flue gas emission control waste from the combustion of coal by utilities and independent power producers was not warranted. Again, EPA in 2000 concluded that Subtitle C regulation was not warranted. In its latest determination, EPA noted that there were potential risks which warranted continued scrutiny of CCR use and disposal.

 

After extended discussion of the risks for groundwater contamination presented by CCRs and the potential for large scale releases such as occurred at the Tennessee Valley Authority's Kingston, Tennessee facility, EPA concluded that the review of information developed over the past ten years confirms EPA's original risk concerns and raises significant questions regarding the accuracy of the agency's predictions regarding anticipated improvements in management and regulatory oversight. Therefore, EPA concluded that a reconsideration of whether regulation of CCRs under Subtitle C is necessary in light of the most recent information.

 

This will involve an analysis of the eight study factors set forth in RCRA §8002(n). These factors include: the source and volumes of CCRs generated per year; present disposal and utilization practices; potential danger to human health and the environment from the disposal and reuse of CCRs; documented cases in which dangers to human health and the environment from surface run-off or leaching have been proven; alternatives to the current disposal methods; the cost of such alternatives; the impact of alternatives on the use of coal and other natural resources; and the current potential utilization of CCRs. 

 

EPA noted the following key differences between the Subtitle C and Subtitle D options:

 

1. Effective Date: Under the Subtitle C option, the timing will vary from state to state as each state must adopt the rule individually. EPA knows that this can take from one to two years. The Subtitle D option would be through federal rule and would become effective six months after the final rule is promulgated for most provisions.

 

2. Enforcement. Under the Subtitle C proposal, both the state and federal agencies would have enforcement authority. Under the Subtitle D proposal, enforcement would be through citizens suits with states having status to act as citizens.

 

3. Corrective Action. Under the Subtitle C proposal, corrective action would be monitored and authorized by both the states and EPA. Under Subtitle D, corrective action would be self-implementing.

 

    4. Financial Assurance. Financial Assurance would be required under the Subtitle C proposal. Under the Subtitle D proposal, EPA is considering a future rule using CERCLA 108(b) authority to impose financial assurance requirements.

 

    5. Permit Issuance. Under the Subtitle C proposal, permits would be issued by states. Under Subtitle D, no permit would be required.

 

    The proposed rule would apply to all coal combustion residues generated by electric utilities and independent power producers. The rule does not address placement of CCRs at mine sites. EPA's notice indicates that EPA and the Department of Interior will address the management of CCRs at mine sites in a separate regulatory category. Neither alternative impacts the status of CCRs that are beneficially used. However, beneficial use is defined to exclude CCRs used in excess quantities placed as fill in sand and gravel pits or used in large scale fill projects such as restructuring the landscape. 

 

According to EPA, under the Subtitle C proposal, CCRs would be regulated from the point of their generation to the point of final disposition including during and after closure of any disposal unit. Included are requirements for the generator and transporter of the CCRs as well facilities managing the CCRs such as siting requirements, liners, run-on and run-off controls, groundwater monitoring, fugitive dust controls, financial assurance, corrective action and closure requirements and requirements for post-closure care. 

 

The Subtitle C option would also regulate disposal in sand and gravel pits and other large fill operations. EPA is also proposing regulations for dam safety and stability. 

 

Under the Subtitle D proposal, regulations would establish national criteria to ensure the safe disposal of CCRs similar to solid waste disposal facilities. Disposal units would be subject to location standards, composite liner requirements (new landfills and surface impoundments would require composite liners – existing facilities would have five years to retrofit or close), groundwater monitoring and corrective action standards for releases, closure and post-closure care requirements and requirements to address the stability of surface impoundments. The Subtitle D option would not regulate the generation, storage or treatment of CCRs prior to disposal. The Subtitle D proposal would not require permits and would only be enforced by states and citizens under RCRA citizen suit authority. States could also enforce any regulation under their independent state enforcement authority.

 

EPA is seeking public comments on its proposals within 90 days. In the preamble, it identified several major issues on which comments with supporting information data are specifically requested. Some of these are:

 

1. Whether regulatory criteria should be established individually for the four Bevill wastes (fly ash, bottom ash, boiler slag and flue gas desulfurization sludges).

 

2. The degree to which CCR management practices have changed and the impacts of those changes on groundwater monitoring and use of liners.

 

3. Information and data on CCRs generated by non-utility industries (such as volumes, characteristics and whether they are comingled with other waste).

 

4. A series of specific questions regarding risk assessment techniques, liners, beneficial use and stigma (suggestions on methods by which the EPA could reduce any stigmatic impact that might directly arise if CCRs are regulated as special waste).

 

This article was authored by James R. Snyder, Jackson Kelly PLLC. For more information on the author see here.