Posted on May 12, 2010 by Larry Ausherman
On May 4, 2010, EPA released its proposed rule to regulate disposal and management of coal combustion residuals (“CCRs”) from coal-fired power plants. The 563 page proposal presents for public comment two alternative approaches. In one approach, EPA would regulate CCRs as a new category of “special wastes” under Subtitle C of RCRA when they are destined for disposal in landfills or surface impoundments. Under the alternative approach, EPA would use Subtitle D of RCRA to set performance standards for disposal of CCRs in landfills and impoundments that would be enforced principally by States. Under both proposals, beneficially used CCRs would be exempt from hazardous waste regulation under RCRA. Neither proposal would have EPA regulate placement of CCRs in mines or non-minefill uses of CCRs at coal mine sites.
What are CCRs?
CCRs are residual materials that remain after combustion of coal to generate electric power. This material is also sometimes referred to as coal ash, coal combustion waste, or coal combustion byproducts. Large volumes of CCRs are generated by power plants in the United States. Some CCRs are beneficially used in other products or processes, some are returned to mines as reclamation material or for non-minefill uses and the rest is disposed at landfills.
How are CCRs Regulated Now?
In August 1993 and May 2000, EPA considered whether to regulate CCRs as a hazardous waste under Subtitle C of RCRA, and determined not to do so. Instead, it applied the Bevill Amendment exception (for mining activities) to CCRs and left open the possibility that States may regulate disposal of CCRs. The Office of Surface Mining in the United States Department of the Interior (“OSM”) has authority to regulate placement of CCRs in mines as part of coal mine reclamation.
Why is EPA Revisiting its Previous Determinations Not To Regulate CCRs Under RCRA, Subtitle C?
In December 2008, in Kingston, Tennessee, a retaining wall of a TVA surface impoundment used for disposal of CCRs breached, and CCRs saturated with water from the impoundment were released. The release prompted renewed scrutiny of CCR disposal practices and, in large part, prompted EPA’s decision to revisit previous determinations not to regulate CCRs. EPA’s re-evaluation of CCR disposal since the Kingston release has prompted substantial debate resulting in the delayed announcement of EPA’s May 4, 2010 proposal.
Two Options for Regulation.
In light of strongly held opposing views about regulation of CCRs and the EPA’s desire to avoid further delay in issuing a proposed rule, EPA’s proposal is in the somewhat unusual format of two alternative options. After a 90 day public comment, EPA will decide upon an approach to regulation.
Under the more stringent of the two options, EPA would reverse its previous Bevill Amendment determination, address CCRs as a “special wastes” under RCRA Subtitle C, and regulate the disposal of CCRs in landfills or surface impoundments. “Special wastes” would be a new waste category that would be subject to some, but not all, of Subtitle C requirements applicable to hazardous waste. The Subtitle C option would regulate CCRs from the point of generation to final disposal and would include regulation of siting, liners, run-on and run-off controls, ground water monitoring, fugitive dust controls, financial assurance, corrective action and closure. The Subtitle C approach is favored by environmental groups but opposed by electric power generators because it would significantly increase CCR disposal costs.
The less stringent alternative regulatory option proposed by EPA would leave the Agency’s previous Bevill determination in place so that CCRs would not be regulated under Subtitle C of RCRA. However, CCRs disposed of in surface impoundment or landfills would be subject to RCRA Subtitle D. This option would not require permits from EPA, and requirements would be enforced primarily by States rather than EPA.
Certain uses and disposals of CCRs are not covered by EPA’s proposed rule making. First, EPA is not proposing to change the existing regulatory exemption from hazardous waste regulations for beneficially used CCRs. Examples of beneficial uses of CCRs may be road construction, agriculture, and building products. EPA is seeking comment on potential refinements for certain beneficial uses. Second, EPA is not proposing to address placement of CCRs in coal mines or non-minefill uses of CCRs at coal mines. Instead, OSM, in consultation with EPA, will consider recommendations of the National Research Council and take the lead in developing national standards for placement of CCRs at coal mines. Third, EPA has not proposed to revise its previous Bevill determination for CCRs generated by non-utilities.
A 90 day public comment period will begin when the proposed rule is published in the Federal Register. Comments can be submitted to EPA, identified by docket ID No. EPA-HQ-RCRA-2009-0640.