On May 4, 2010, EPA released its proposals to regulate coal combustion residuals (CCRs). After publication in the Federal Register, the public will have 90 days to comment on these proposals.  

EPA is co-proposing two options. The first option is to regulate CCRs that are generated by electric utilities and independent power producers under Subtitle C of the Resource Conservation and Recovery Act (RCRA) as “special waste subject to regulation under Parts 262 through 268 and Parts 270, 271 and 124” of Title 40 of the Code of Federal Regulations. The second option is to regulate CCRs as solid wastes under Subtitle D of RCRA. According to EPA, it intends to regulate only CCRs generated by electric utilities and independent power producers under either the Subtitle C or the Subtitle D option. However, the Subtitle D option, as drafted, would apply to all CCR, which is broadly defined as all fly ash, bottom ash, boiler slag, and flue gas desulfurization materials. In addition, while a landfill could stop receiving CCRs before the effective date of the rule and avoid Subtitle C regulation, the proposed Subtitle C standards would apply to any surface impoundments that ever received CCRs.  

Subtitle C Option  

Under the Subtitle C option, the treatment, storage and disposal of listed CCRs would be regulated under hazardous waste regulations. Permits for the disposal, treatment and storage of CCRs would be required. CCRs would be regulated from the point of their generation to the point of final disposal, including while the disposal unit is closing and after closure. Generators and transporters of CCRs would be subject to Subtitle C rule requirements. Units managing CCRs would be subject to siting, run-on and run-off controls, groundwater monitoring, fugitive dust control, financial assurance, corrective active, including facility-wide corrective action, closure of units, and post-closure care (with certain modifications). However, only new landfills and extensions of existing landfills would require liners. Existing surface impoundments would be phased out through the application of the proposed land disposal restriction that would prohibit placement of CCRs in surface impoundments after 5 years from the effective date of the rule. Surface impoundments must be closed two years later in accordance with the closure standards that apply to hazardous waste surface impoundments under 40 C.F.R. 264.228. Surface impoundments that stop receiving CCRs before the effective date of the rule also must meet these closure standards. In addition, the rule would regulate disposal of CCRs in sand and gravel pits, quarries, and other large fill operations.  

To address the potential for catastrophic releases from surface impoundment, EPA also is proposing requirements for dam safety and stability for surface impoundments that do not close by the effective date of rule. Finally, EPA proposes land disposal restrictions and treatment standards for CCRs, as well as prohibitions on the disposal of treated CCRs below the natural water table.  

Beneficial Use  

EPA’s proposed hazardous waste listing does not include CCRs that are “beneficially used.” When beneficially used, CCRs are called coal combustion products, or “CCPs.” Beneficial use is defined as follows: “the use of CCPs that provides a functional benefit; replaces the use of an alternative material, conserving natural resources that would otherwise need to be obtained through practices such as extraction; and meets relevant product specifications and regulatory standards (where these are available). CCPs that are used in excess quantities, placed as fill in sand and gravel pits, or used in large scale fill projects, such as for restructuring the landscape, are not considered beneficial uses.” In addition, EPA is seeking comments on other unencapsulated beneficial uses of CCPs, suggesting that the Agency may seek to regulate such uses.  

Subtitle D Option  

Under the Subtitle D proposal, the rules would establish national criteria for the disposal of CCRs in surface impoundments and landfills. These units will be subject to such requirements as location standards; composite liner requirements (new landfills and all surface impoundments require composite liners; existing surface impoundments without liners have to retrofit in five years or cease receiving CCRs and close); groundwater monitoring; corrective action standards for release from units; closure and post-closure care requirement; and requirements to address the stability of surface impoundments. These requirements are modeled generally on existing requirements for municipal solid waste landfills at 40 C.F.R. Part 258. However, the standards for surface impoundment closure are modeled after the requirements for hazardous waste surface impoundments at 40 C.F.R 264.228. The proposal would also regulate disposal CCRs in sand and gravel pits, quarries and other large fill operations. Under Subtitle D proposal, the rule would not regulate the generation, storage or treatment of CCRs prior to disposal. Permits would not be required, but states could require permits as part of their program implementing the Subtitle D option. In addition, EPA is seeking comment on an alternative Subtitle D option, called “D prime.” Under “D prime,” existing surface impoundments would not need to be retrofitted with liners. The rest of the Subtitle D proposal would remain the same.  

Hybrid approaches.  

In addition to the two co-proposed options, EPA is seeking comments on several hybrid approaches. One option is to regulate wet-handled CCRs as hazardous waste under Subtitle C and regulate dry-handled CCRs as solid waste under Subtitle D. Under another hybrid approach EPA would issue Subtitle C regulations but those regulations would not go into effect in states that had developed enforceable Subtitle D regulations for CCRs that meet certain minimum controls. Another hybrid approach is to establish standards under Subtitle D and any CCRs that are not managed in accordance with these standards would be considered hazardous waste.

Release Reporting  

If the Subtitle C option is promulgated, CCRs would become subject to release reporting obligations under the Comprehensive Environmental Response Compensation and Liability Act. EPA is proposing a reportable quantity of one pound. However, EPA would allow operators to take advantage of the mixture rule to determine the amount of hazardous constituents being released based on standard assumptions regarding the composition of coal ash. Under this approach, reporting would be required when 1,294 pounds of CCRs are released, based on the assumption that the residuals consist of 773 ppm arsenic.  

Costs and Benefits  

EPA estimates that the Subtitle C option will cost an average of $1.474 billion a year, the Subtitle D option will cost an average of $587 million a year, and the Subtitle "D Prime" option will cost an average of $236 million a year. The primary difference between the costs of the Subtitle C option and the Subtitle D options is EPA's assumption that compliance rates will be lower under Subtitle D. The human health and groundwater protection benefits of all the options are much lower than the costs – ranging from $71 million a year for the Subtitle C option to $14 million a year for the "D Prime" option. However, EPA assumes significant benefits from the rule by assuming that, but for the regulations, a catastrophic impoundment failure such as the failure of the impoundment at the TVA Kingston facility would occur as often as every year, resulting in annual benefits as high as $1.2 billion a year under the Subtitle C option. EPA assumes even greater benefits by assuming, contrary to the comments it has received, that the rule will induce more beneficial use, rather than less. EPA assumes beneficial use benefits as high as $6.1 billion a year under the Subtitle C option. In contrast, if EPA assumes that beneficial use stays the same or decreases, then the costs of all of its proposals exceed the benefits.