Proposed Federal Rule Concerning Coal Combustion Residuals

Most Recent Action

On January 18, Earthjustice and 11 environmental groups notified the U.S. Environmental Protection Agency today that they intend to sue the agency to force it to issue regulations for the disposal of coal ash if the EPA does not finalize its proposed rule within 60 days.

 

Background

The EPA is proposing the first-ever national rules regulating the disposal and management of coal combustion residuals (CCR), or coal ash, from coal-fired power plants.

Structural stability concerns associated with coal ash impoundments came to national attention in 2008 when an impoundment holding disposed ash waste generated by the Tennessee Valley Authority broke open, creating a massive spill in Kingston, TN, that covered millions of cubic yards of land and river. The EPA estimates that there are approximately 300 CCR landfills and 584 CCR surface impoundments or similar units where CCRs are disposed at roughly 495 coal-fired power plants.

Two proposals that reflect different approaches to managing the disposal of coal ash under the Resource Conservation and Recovery Act (RCRA) are outlined in the proposed rule.

The EPA is only considering coal ash generated by electric utilities and independent power plants. The EPA is not proposing to change the May 2000 Regulatory Determination for beneficially used CCRs, or addressing the placement of CCRs in mines, or non-minefill uses of CCRs at coal mine sites.

This rule is part of a group of rules known as the EPA’s Regulatory Train Wreck.

 

Authority

There is currently no direct authority for regulation of coal ash. To regulate coal ash the EPA will need to either list these residuals as special wastes subject to regulation under subtitle C or the RCRA, or regulate the residuals under subtitle D of the RCRA, the section for non-hazardous wastes.

 

Proposed Standards

The EPA is considering two possible options for the management of coal ash for public comment. Both options fall under the Resource Conservation and Recovery Act (RCRA).

Under the first proposal, the EPA would list these residuals as special wastes subject to regulation under subtitle C of the RCRA, when destined for disposal in landfills or surface impoundments. Subtitle C creates a comprehensive program of federally enforceable requirements for waste management and disposal.  Under the second proposal, the EPA would regulate coal ash under subtitle D of the RCRA, the section for non-hazardous wastes. Subtitle D gives the EPA authority to set performance standards for waste management facilities which are narrower in scope and would be enforced primarily by those states who adopt their own coal ash management programs.

Under the first proposal, the EPA would reverse its August 1993 and May 2000 Bevill Regulatory Determinations regarding CCRs and list these residuals as special wastes subject to regulation under subtitle C of the RCRA, when they are destined for disposal in landfills or surface impoundments. Under the second proposal, EPA would leave the Bevill determination in place and regulate disposal of such materials under subtitle D of RCRA by issuing national minimum criteria.

The main differences between the two proposals involve implementation and enforcement. A chart comparing and contrasting the two approaches is available online.

The Subtitle C option would require the development of state or federal permit programs, would allow for direct federal enforcement, and would include related storage, manifest, transport, and disposal requirements and mechanisms for corrective action and financial responsibility.  Before the Subtitle C rule would become effective, authorized states would need to adopt the rule.

The Subtitle D option would go into effect sooner than a Subtitle C rule, with implementation required approximately six months after promulgation.  However, the Subtitle D option would not require permit programs to be established, although states can establish such permit programs under their own authorities.  Also, the federal Subtitle D proposal would not be federally enforceable, although citizen’s suits could be filed, and would not establish the same extensive management requirements for CCRs destined for disposal.

Under the Subtitle C option, the EPA is proposing measures that will effectively phase out existing surface impoundments.  During this interim period, the EPA is proposing to require measures relating to the structural integrity of impoundments. Under the Subtitle D option, existing impoundments would be required to be retrofitted with composite liners, which will create strong incentives to close these impoundments and transition to landfills.

Both options mandate liners and ground water monitoring at new landfills handling coal ash in order to prevent leaching of contaminants to groundwater and resulting risks to human health. Both alternatives also establish dam safety requirements to address the structural integrity of surface impoundments.

The Regulatory Impact Analysis (RIA) estimates the average annual regulatory cost, for the next 50 years, to be $1.474 billion a year under the Subtitle C option and $587 million a year under the Subtitle D option.  These estimates include the costs of industry compliance and state and federal government oversight and enforcement costs.  On a 50-year present value basis at a 7% discount rate, these average annual costs total $20.3 billion (Subtitle C) and $8.1 billion (Subtitle D), respectively.

 

Additional Information

Notice of Data Availability and Request for Additional Comments, October 12, 2011

Press Release, May 4, 2010

Published rule and corrections, as published in the Federal Register.

Frequently Asked Questions

Chart outlining the Key Differences Between Subtitle C and Subtitle D Options

Coal Combustion Residuals Impoundment Assessment Reports

Notice of Data Availability

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