Environmentalists have been pushing for years to overturn the Bevill Amendment and get coal combustion residuals (CCR) regulated as a hazardous waste. The failure of an impoundment at the TVA facility in Kingston, Tennessee, in 2008 almost guaranteed that EPA would do something to regulate CCR. Like Hamlet, however, EPA seems to be having trouble making up its mind. Earlier this week,EPA announced two different potential regulatory approaches, one regulating CCR as a hazardous waste under RCRA Subtitle C and one regulating CCR as non-hazardous waste under Subtitle D of RCRA.

Entities with coal generating assets have two problems, broadly speaking, with regulating CCR as a hazardous waste. The first is just the sheer magnitude of the costs required to address existing surface impoundments and find alternatives to impoundments going forward. I realize that there are significant scientific questions regarding whether migration of contamination from existing impoundments in fact poses any significant risk. However, this question was answered at a political level once the Kingston impoundment failed. It’s difficult to see any regulatory regime going forward that doesn’t strictly regulate impoundments.

The second significant issue is beneficial reuse. A very substantial amount of CCR is safely and economically reused. Strict regulation of CCR as a hazardous waste would, to put it mildly, put a crimp in the CCR recycling market. EPA, at least based on its public pronouncements to date, appears to get it, though time will tell whether the program the agency ultimately implements will nonetheless create needless obstacles to recycling CCR.

Thus, if I had to guess – and to paraphrase the Bard – recycling of CCR is to be, disposal of CCR in surface impoundments is not to be.