On May 4, 2010, the EPA proposed the first-ever federal rules to regulate "coal combustion residuals" (more commonly known as coal ash waste), which are the byproduct of burning coal to produce power. The large volumes of coal ash generated by power plants may be disposed of either in solid form at landfills or in liquid form at large surface impoundments. Coal ash may also be recycled for beneficial uses, including use in cement, concrete, and wallboard.

In itspress release, the EPA stated that coal ash waste contains "contaminants like mercury, cadmium, and arsenic, which are associated with cancer and various other serious health effects" and opined that without proper disposal safeguards, these toxins could leach into groundwater and migrate to drinking water sources. A major impetus for the EPA's recent efforts toward coal ash regulation was the December 2008 rupture of a surface impoundment at the Tennessee Valley Authority in Kingston, Tenn., where 5.4 million cubic yards of ash flooded nearby land and waterways, displacing residents and resulting in an expected $1.2 billion in cleanup costs.

The EPA's proposal takes an unusual approach in that it proffers two different alternatives for coal ash regulation under the Resource Conservation and Recovery Act (RCRA), the nation's primary solid and hazardous waste law. The two options differ significantly both in breadth and means of enforcement. Regulation under Subtitle C, which governs hazardous wastes, would establish a comprehensive regime to regulate coal ash from generation to disposal, with permitting requirements and direct federal enforcement. In response to industry's concern that regulation of coal ash as hazardous would stigmatize and hamper its beneficial reuse, the EPA proposes to list coal ash in a newly created "special waste" category under Subtitle C.

The second alternative is regulation under Subtitle D, which relates to nonhazardous residential and industrial solid wastes. Under this option, the EPA would establish performance standards for waste management facilities but would not have "cradle-to-grave" authority to regulate coal ash. Additionally, the rules would not require permitting and would not be federally enforceable, instead leaving enforcement to citizen suits and state action.

Regulation under either Subtitle C or Subtitle D would require protections such as liners and groundwater monitoring for new landfills, groundwater monitoring for existing landfills, and retrofitting of liners for existing surface impoundments, together with strong incentives for closure and transition to dry storage. Additionally, both options would retain the current exemption from regulation for coal ash destined for beneficial reuse.

The proposed rules are open to public comment for 90 days. Read more here, and see EPA’s chart comparing the two alternatives here.