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U.S. EPA Proposes Coal Ash Regulation

06.01.2010

By Andy Bowman, Attorney, Bingham Greenebaum Doll LLP

On May 4, 2010, the U.S. EPA proposed first-time national rules to regulate the disposal and management of coal ash from coal-fired power plants under the Resource Conservation and Recovery Act (RCRA). Coal ash is also referred to as coal combustion residuals (CCR) and includes fly ash, bottom ash, flue gas desulfurization materials, synthetic gypsum and boiler slag. The proposed rules are largely in response to the 2008 failure of a Tennessee Valley Authority coal ash impoundment which resulted in a massive release of more than a billion gallons of water and coal ash onto nearby land and into streams and rivers, requiring hundreds of millions of dollars in cleanup costs. U.S. EPA is seeking comments on two options for the regulation of coal ash: (1) as a hazardous waste under Subtitle C of RCRA; or (2) as a nonhazardous waste under Subtitle D of RCRA.

Under the Subtitle C option, coal ash would be listed as a “special waste.” As a special waste coal ash would be regulated as a hazardous waste under the cradle-to-grave requirements of Subtitle C of RCRA, except that coal ash would be unregulated if it is reused for certain beneficial purposes, such as encapsulation in building materials or road construction. Under the Subtitle C approach, U.S. EPA will effectively phase out the wet handling of coal ash and existing surface impoundments. Existing surface impoundments must meet land disposal restrictions and would be required to be retrofitted with liners within five years of the effective date of the rule to remain in operation. New surface impoundments must meet land disposal restrictions and liner requirements. New landfills must install liners. Existing and new landfills would be subject to groundwater monitoring requirements. Surface impoundments operated after the effective date of the rule would be required to meet structural stability standards set by the federal Mining Safety and Health Administration (MSHA). The Subtitle C option would require permits for the treatment, storage or disposal of coal ash.

Under the Subtitle D option, U.S. EPA would establish national minimum standards for the disposal of coal ash in landfills or surface impoundments. Permits would not be required. States are not required to adopt the minimum standards. The proposed minimum standards include a composite liner requirement for new landfills and surface impoundments. Existing surface impoundments would be required to cease operating or retrofit a composite liner within five years of the effective date of the rule. Surface impoundments would be required to meet MSHA structural stability standards. U.S. EPA is also seeking comment on a modified Subtitle D approach which would allow existing surface impoundments to continue to operate without installing composite liners.

The proposed rule includes U.S. EPA’s clarification that coal ash used as fill in sand and gravel pits and other large scale projects are not considered beneficial uses.

According to U.S. EPA, Indiana ranks third highest among the 45 states which generate CCR. Nationally 56% of CCR is disposed in landfills or surface impoundments. About 37% of CCR is beneficially reused and the remaining 7% is used as minefill. The proposed rule does not address minefilling. U.S. EPA estimates annual compliance costs of $1.4 billion for the Subtitle C option and $587 million for the Subtitle D option. Utility customers can expect to bear the costs of the new regulations.

Once the proposed rule is published in the Federal Register, the public will have 90 days to submit comments. More information can be obtained at www.regulations.gov by using Docket ID No. EPA-HQ-RCRA-2009-0640.

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