How Will Proposed CCR Rules Affect the Disposal of Coal Ash at Mine Sites?

As previously mentioned on this blog, the U.S. Environmental Protection Agency (EPA)  issued a pre-publication copy of its proposed rule to regulate the disposal of coal combustion residuals (CCRs) from electric utilities and independent power producers under the Resource Conservation and Recovery Act (RCRA).  See  EPA PROPOSES ALTERNATIVE REGULATORY SCHEMES FOR COAL ASH UNDER RCRA by James Snyder.  A copy of the proposed rules can be viewed at http://www.epa.gov/epawaste/nonhaz/industrial/special/fossil/ccr-rule/ccr-rule-prop.pdf.  To recap, the combustion of coal in coal-fired power plants produces several materials, including: fly ash, bottom ash, boiler slag, and flue gas desulfurization material. Together, these materials represent what is generally referred to as coal ash, or sometimes as coal combustion residuals.  Although CCRs are a waste product, they have many beneficial uses, including as an additive to improve soil chemistry for surface mine reclamation purposes. 

 

The rule does not address placement of CCRs at mine sites.   At first glance then, this would not appear to have a direct impact on coal mine operators.  However, the proposed rules would apply CCRs generated at power plants.  It is fairly common industry practice for mine operators to agree—pursuant to “haulback” provisions in sales contracts with the utilities to whom they sell coal—to take coal ash back from the utility and dispose of it at the mine site.  This practice reduces the utility’s cost of disposing of the ash.  The West Virginia Department of Environmental Protection (“WVDEP”) has a process for approving the mine-site disposal if it determines that the ash will have a beneficial use as a soil amendment.  Hence, these proposed rules may concern the coal industry to the extent that they would modify this practice.

 

To the extent EPA decides to apply these rules to CCRs disposed of at mine sites, the proposed rules continue to provide for the beneficial use of coal ash as long as its use provides a functional benefit.  One example EPA provides of a “functional benefit” is the use of coal ash as a soil amendment to adjust the pH of soil in order to promote plant growth.  See Proposed Rules, pp. 142-143.  EPA specifically excludes, however, CCRs used in amounts that exceed scientifically-supported quantities for enhancing soil properties from the definition of “beneficial use.”  If excessive volumes of CCRs are used—i.e., greater than were necessary for a specific project—EPA believes that could be grounds for a determination that the use was subject to regulations for disposal.  While mine operators will still be allowed to place coal ash at mine sites, these new rules may require greater consideration to the amounts used if an operator wishes to avoid having the RCRA regulatory scheme applied to the use of coal ash at mine site reclamations.

 

This article was authored by Chris M. Hunter, Jackson Kelly PLLC. For more information on the author see here.