EPA recently provided its “current thinking” on its coal combustion residuals (CCRs) final rule that is not expected until 2014. CCRs are residues from the combustion of coal in power plants and include coal ash (fly ash and bottom ash) and wastes from implementation of air pollution controls such as flue gas desulfurization (FGD) or scrubbers and flue gas mercury controls (FGMC). Currently, CCRs are exempt from the hazardous waste requirements of the Resource Conservation and Recovery Act (RCRA). In part in response to the coal ash spill that occurred in Tennessee in December 2008, EPA proposed in 2010 two options for regulating CCRs under RCRA: (1) as hazardous waste under Subtitle C, and (2) as non-hazardous waste under Subtitle D. 75 Fed. Reg. 35,128 (June 21, 2010). Now, in the preamble to the Agency’s recently proposed electric utility effluent limitation guidelines (ELG) rule, EPA states that non-hazardous management of CCRs may be adequate. 78 Fed. Reg. 34,432 (June 7, 2013).
Basically, since the close of the comment period on the CCR rule, EPA has received new data through a 2010 Information Collection Request. EPA now has facility-specific data from the 495 coal-fired power plants in the U.S. that the Agency says have the potential to affect its final risk assessment. The new data reveals that the impoundments and landfills are generally smaller than the impoundments and landfills included in the assessment to support the proposed CCR rule. According to EPA, the new data and analyses “may have the potential to lower the CCR rule risk assessment results by as much as an order of magnitude.” EPA continues: “If this proves to be the case, EPA’s current thinking is that, the revised risks, coupled with the ELG requirements that the Agency may promulgate, and the increased Federal oversight such requirements could achieve, could provide strong support for a conclusion that regulation of CCR disposal under RCRA Subtitle D would be adequate.” Id. at 34,442 (emphasis added).
Further, EPA’s “current thinking” is to “align” and “coordinate” any final CCR requirements with any final ELG requirements. Because only the CCR rule would regulate the disposal of CCRs in landfills, EPA’s “coordination” of CCR substantive requirements with ELG substantive requirements will focus on requirements applicable to surface impoundments. EPA predicts that the proposed ELG requirements may result in some affected facilities converting to dry ash-handling systems and no longer sending their CCR wastes to surface impoundments. This might affect technical requirements under RCRA that could be applicable to CCR surface impoundments such as time frames needed for closure of the impoundments. Id. at 34,441-42.
As for timelines for implementation, EPA states it intends to “coordinate” compliance and implementation deadlines under the ELG and CCR rules. Under EPA’s “current approach,” a facility would “determine whether any changes to its operations are needed to comply with the Steam Electric ELG – and if so, what those might be – before the facility would be required…to decide whether to close or retrofit any surface impoundments pursuant to any CCR rule.” Id. at 34,442 (emphasis added).
With respect to ELG requirements for surface impoundments that are used to manage CCRs, EPA is considering establishing best management practices (BMPs) that address impoundment construction, operation, and maintenance to prevent uncontrolled discharges. Id. at 34,458. The BMPs that EPA is considering would require plant operators to conduct periodic inspections of active and inactive surface impoundments and to take corrective actions where warranted. Inspections would be conducted every seven days by a person qualified to recognize specific signs of structural instability and other hazardous conditions by visual observation and, if applicable, to monitor instrumentation such as piezometers. If a potentially hazardous condition develops, the owner or operator would be required to: (1) take action immediately to eliminate the potentially hazardous condition; (2) notify the Regional Administrator or the authorized State Director; (3) notify and prepare to evacuate, if necessary, all personnel from the property that may be affected by the potentially hazardous condition(s); and (4) notify state and local emergency response personnel if conditions warrant so that people living in the area down gradient from the surface impoundment can evacuate. Reports of inspections would be maintained in the facility operating record. To establish these BMP requirements, EPA would rely upon Clean Water Act Sections 306, 304(e), and 402(a)(2) and implementing regulations. These BMPs would be implemented through NPDES permits. Id. at 34,466.
EPA is also considering BMPs to address the integrity of surface impoundments. These BMPs would be modeled after those promulgated for coal slurry impoundments regulated by the Mine Safety and Health Administration (MSHA) at 30 CFR § 77.216. Facilities using CCR impoundments would need to (1) submit to EPA or the authorized state plans for the design, construction, and maintenance of existing impoundments, (2) submit to EPA or the authorized state plans for closure, (3) conduct periodic inspections by trained personnel who are knowledgeable in impoundment design and safety, and (4) provide an annual certification by an independent registered professional engineer that all construction, operation, and maintenance of impoundments is in accordance with the approved plan. Owners and operators would be required to address any problematic stability and safety issues in a timely manner. Unlike MSHA’s regulations which apply only to those coal slurry impoundments meeting certain elevation and storage volume requirements, the BMPs being considered for CCR impoundments at power plants would apply regardless of height and storage volume. EPA is also considering variations on BMPs for the ELGs, including, but not limited to, different inspection frequencies or limitations on the applicability of BMPs that more closely mirror the applicability of the MSHA regulations. To establish BMPs that address structural integrity, EPA would use RCRA authority. Id. at 34,466-67.
As part of the best available technology economically achievable (BAT) for existing sources, EPA is considering establishing a voluntary incentive program that would provide more time for plants to implement the proposed BAT requirements if they adopt additional process changes and controls that would provide significant environmental protections beyond those achieved by the preferred options in this proposed rule. This voluntary program would establish two levels, or “tiers,” of advanced technology performance requirements which would be incorporated into the NPDES permits for the facilities that participate in the program. Participation in the program would be available only to existing power plants that discharge directly to surface waters. Power plants would have until July 1, 2017, to commit to the program and submit a plan for achieving the Tier 1 or Tier 2 requirements. Power plants enrolled in the program would ultimately be agreeing to adopt NPDES permit limits that are more stringent than those that would be required by the proposed and final BAT in exchange for additional time to comply with their new effluent limitations. Id. at 34,458 & 34,467-68.
Under Tier 1, power plants would be granted two additional years beyond July 1, 2017, if they also dewater, close and cap all CCR surface impoundments at the facility (except combustion residual leachate impoundments), including those surface impoundments located on non-adjoining property that receive CCRs from the facility. A power plant participating in the Tier 1 voluntary incentive program could continue to operate surface impoundments for which combustion residual leachate was the only type of CCR solids or wastewater contained in the impoundment. Id. at 34,458 & 34, 467. EPA explains how the Tier 1 program would work: “power plants…would first convert ash handling operations to dry handling or closed-loop tank-based systems and FGD wastewater treatment operations to tank-based systems….This first step would eliminate new contributions of CCRs (solids and wastewater) to the surface impoundments. The plants would then dewater the impoundments by draining or pumping the wastewater from the impoundments, in compliance with the ELGs and other requirements established in their NPDES permits. Upon completing the dewatering operations, plants would then stabilize the contents and close and cap the impoundments consistent with state requirements and any other additional requirements that may be established by EPA as part of the Tier 1 incentives program or other applicable requirements.” Id. at 34,467-68.
Under Tier 2, power plants would be granted five additional years beyond July 1, 2017, if they eliminate discharges of all process wastewater to surface waters, with the exception of cooling water discharges. Id. at 34,458 & 34,467. The Tier 2 incentives would not be available to power plants that eliminate direct discharge to surface water by sending the wastewater to a POTW. To achieve Tier 2 status, these plants would eliminate all process wastewater discharges (except cooling water) by reducing the amount of wastewater generated and preferentially using recycled wastewater to meet water supply demands. To accomplish this, Tier 2 plants would conduct engineering assessments of the processes that generate wastewater and identify opportunities to eliminate or reduce the amount of wastewater they generate. These plants would also assess the processes that use water and determine how they could use recycled wastewater in those processes, as well as the degree of treatment that may be needed to enable such reuse. Id. at 34,468. According to EPA, “a number of steam electric power plants…currently discharge no process wastewater” and two plants in Italy that previously discharged process wastewater have implemented changes, including wastewater recycle, that now allow them to operate without discharging any process wastewater except cooling water.
Comments were originally due August 6, 2013, but EPA has extended the comment period by 45 days to September 20, 2013. 78 Fed. Reg. 41,907 (July 12, 2013). Comments on ELG/CCR alignment and coordination should be directed to EPA Docket EPA-HQ-RCRA-2013-0209. EPA is not reopening comment on the CCR rulemaking. 78 Fed. Reg. at 34,441 & 34,442.
The final ELG and CCR rules may reasonably be expected in 2014. EPA is obligated under a consent decree to promulgate the final ELG rule by May 22, 2014. A 2014 date for promulgation of the CCR rule would be consistent with EPA’s representations in court papers filed in a pending citizen suit that it needs until then to review and respond to all of the comments filed on the CCR rule.
This article was authored by Gale Lea Rubrecht, Jackson Kelly PLLC. For more information on the author, see here.