Coal Combustion Residuals Rule Is Approved by EPA
By Larry Kane, Attorney, Bingham Greenebaum Doll LLP
The long anticipated regulation to govern the management of coal combustion residuals (CCR) was approved by EPA Administrator McCarthy on Dec. 19, 2014. The CCR Rule is one of a plethora of environmental regulations that have been under development by EPA over the past five years or so targeting the full range of potential environmental media impacts by the electric generating utility sector.
One of the biggest policy issues associated with the anticipated CCR rule – whether CCRs would be categorized as a hazardous waste or non-hazardous waste under RCRA – has been answered. EPA has decided to regulate CCR as a non-hazardous waste under Subtitle D of RCRA. This approach allows EPA to avoid a potentially significant controversy over whether RCRA’s Bevill exemption from hazardous waste regulation is appropriately applied to CCR.
The Executive Summary in the preamble to the CCR Rule explains that the rule “establishes nationally applicable minimum criteria for the safe disposal of coal combustion residuals in landfills and surface impoundments.” The actual rule language in 40 CFR 257.1(a) refers to the adoption of “criteria... for determining which CCR landfills and CCR surface impoundments pose a reasonable probability of adverse effects on health or the environment ...”
Before briefly reviewing the regulatory approach of the CCR Rule, it is useful to examine the scope of applicability of the new rule as described in 40 CFR 257.50.
Generally, the CCR Rule will apply to owners and operators of new and existing landfills and surface impoundments, including lateral expansions, that dispose or otherwise engage in solid waste management of CCR generated from the combustion of coal at electric utilities. Existing units are defined as units that receive CCR both before and after the Rule’s effective date, which is 180 days after publication of the rule in the Federal Register.
The rule will also apply to inactive CCR surface impoundments located at active electric utilities that do not receive CCR after the rule’s effective date but still contain both CCR and liquids, unless those facilities are closed within three years of the Rule’s publication date in accordance with specified closure standards.
However, the CCR Rule will not apply to the following: (i) CCR landfills that have ceased receiving CCR prior to the Rule’s effective date; (ii) CCR units at electric utility plants that have ceased producing electricity prior to the Rule’s effective date; (iii) combustion wastes generated at facilities that are not part of an electric utility or which are generated primarily from combustion of fuels other than coal; (iv) practices that are a beneficial use of CCR; (v) CCR placement in active or abandoned underground or surface coal mines; and (vi) CCR disposal at municipal solid waste landfills. To be considered beneficial use of CCRs, a four-part test must be met that may reduce the use of CCR as structural fill.
General Regulatory Approach
The CCR Rule establishes (i) location restrictions, (ii) design criteria, which include among other things structural integrity criteria, and (iii) operating criteria. Failure of a CCR unit to meet either location restrictions or design criteria can lead to a requirement for closure of the unit, if it is an existing unit, or preclude initial acceptance of CCR material at a new CCR unit.
Location restrictions include typical locational factors such as: a minimum vertical separation between lowermost CCR placement and the uppermost aquifer; wetlands; fault areas; seismic impact zones; and unstable areas.
Design criteria consist of minimum liner requirements and, for CCR surface impoundments, structural integrity criteria. The latter item includes performance of periodic hazard potential classification assessments of CCR surface impoundment units, resulting in the assignment of a hazard potential for the unit from the following: low hazard potential, significant hazard potential, or high hazard potential.
Although definitions are provided in the Rule for each of the hazard potential classifications to assist in differentiating among these hazard potential classifications, the definitions are very brief and rather vague and subjective. An emergency action plan (EAP) is to be prepared for each CCR unit classified as having a significant hazard potential or a high hazard potential. Such a plan is to define the events or circumstances pertaining to the CCR unit that represent a safety emergency and describe procedures to be followed if a safety emergency were to occur. The EAP for a unit must be implemented if a safety emergency is detected.
Structural integrity criteria also include periodic structural stability assessments and periodic safety factor assessments. The latter assessment must determine whether the four factors of safety identified in the Rule meet the specified minimum safety factor values. A CCR unit that fails to meet one or more of the minimum safety factors is subject to a closure requirement.
It should be noted that the CCR Rule places a special emphasis on existing CCR surface impoundments. This is illustrated by the point that, while the location restrictions and design criteria apply only to new CCR landfills, they apply to existing as well as new CCR surface impoundments.
This particular focus may be attributable to the fact that CCR surface impoundments outnumber CCR landfills by more than 2:1 and a notable failure of a surface impoundment occurred roughly seven years ago at TVA’s Kingston Fossil Plant in Harriman, Tennessee. Ostensibly, existing CCR surface impoundments that cannot meet one of these locational or design criteria are confronted with a potential requirement to undergo closure. However, alternative criteria are available for several of these criteria in the event the primary criterion cannot be met. Nonetheless, the CCR Rule’s retrofit requirements associated with certain of these criteria could be a death knell for some existing surface impoundments.
Operating criteria for CCR units include: (i) development of and compliance with a fugitive dust control plan; (ii) design, construction, operation and maintenance of run-on and run-off controls for existing and new CCR landfills based on the 24-hour, 25-year storm for the facility; and (iii) compliance with hydrologic and hydraulic capacity requirements for existing and new CCR surface impoundments, including design, construction, operation and maintenance of an inflow design flood control system to adequately manage flow into the CCR unit during the peak discharge of the inflow design flood.
A significant burden may be imposed on existing CCR landfills and existing CCR surface impoundments by the second and third items since they will require such existing units to retrofit, as necessary, new facility features to meet these new requirements. The design flood specifications set in the third item may be very challenging for some existing CCR surface impoundments given that the inflow design floods for CCR units with significant and high hazard potential classifications are the 1,000-year flood and the probable maximum flood, respectively.
Another significant element of the CCR Rule is its requirement for all existing and new CCR landfills and surface impoundments to establish and implement a groundwater monitoring program.
Existing CCR units must design, install, and take a minimum of eight independent samples from a groundwater monitoring network within 24 months after the effective date of the CCR Rule. The design of the groundwater monitoring system must meet the performance standard stated in 40 CFR 257.91(a). Although a minimum of one upgradient (background) and three downgradient monitoring wells is specified in the Rule (40 CFR 257.91(c)), additional monitoring wells must be included if necessary to meet the performance standard. Periodic sampling will be required after the initial monitoring period.
Also, the owner or operator of a CCR unit must select one of five available statistical methods listed in the Rule which will be subject to an additional performance standard. The selected statistical method will be largely determinative of the number of groundwater samples required to be taken and analyzed over time. The purpose of the statistical method selected for a CCR unit is to enable the owner or operator of the CCR unit to determine whether a statistically significant increase over background levels of each constituent has resulted from the presence of the CCR unit.
The groundwater monitoring program is to include a detection monitoring program under 40 CFR 257.94 that must include monitoring for all constituents listed in Appendix III to 40 CFR Part 257. If a statistically significant increase over background levels of one or more constituents in a monitoring well at the waste boundary, the owner or operator of the CCR unit must establish an assessment monitoring program consistent with 40 CFR 257.95.
Under this monitoring program, each monitoring well in the groundwater monitoring system for the CCR unit must be sampled for all constituents listed in Appendix IV to Part 257. Groundwater protection standards must be established with respect to the CCR unit for any constituent detected by the assessment monitoring program.
If monitoring data eventually show, using the statistical methods selected, that one or more of the monitored constituents has been detected at a statistically significant level above the corresponding groundwater protection standard, then the owner or operator of the CCR unit must prepare a notification under the Rule, including a notification to all persons owning or residing on land directly overlying any part of the plume, and initiate an assessment of possible corrective measures. The owner or operator is required to proceed to select a remedy consistent with the CCR Rule’s provisions at 40 CFR 257.97 and then implement the corrective action measures.
Closure and Post-Closure Requirements
The CCR Rule provides a detailed prescription for closure of CCR units and for post-closure care of such units. (See 40 CFR 257.100 – 257.104.)
Oversight and Enforcement
Every indication from the CCR Rule and the preamble to the Rule is that EPA intends to rely upon state solid waste agencies to adopt state programs to oversee implementation and enforcement of the Rule. In fact, EPA states it cannot directly enforce the minimum national criteria.
Of likely concern to the regulated stakeholders is the novel requirement in the CCR Rule at 40 CFR 257.107 that owners or operators of CCR units subject to the CCR Rule upload and post considerable compliance information at a publicly accessible internet website to be established by the owner or operator of the CCR unit. The easy availability of such information, in instances in which noncompliance events are reported, may be anticipated to foment a new round of citizen suits seeking to enforce the CCR Rule’s requirements against regulated entities.
Where a state adopts its own regulations in a solid waste management plan (SWMP) that EPA approves on the basis that the plan meets or exceeds the minimum national criteria, a state determination of compliance with the SWMP standards may be a defense to a citizen suit claim of violation of the federal standards. However, it is unclear how long it will take for states to promulgate such regulations and for EPA to approve SWMPs.
The CCR Rule provides a detailed and robust regulatory program to govern the operation and closure of CCR landfills and surface impoundments. Unfortunately, the regulatory provisions involving locational, design and operating criteria are frequently vague and subject to a broad range of subjective interpretations.
The Rule also provides for remediation of groundwater contamination resulting from a CCR unit when significant contamination exceeding groundwater protection standards is found downgradient of such a unit, particularly if such contamination extends offsite. The Rule’s provisions, particularly the various location, design, and groundwater monitoring criteria, may be quite challenging for some existing CCR surface impoundments and may precipitate the closing of some units.