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May 13, 2010Client Alert

EPA’s Proposed Regulation of Coal Ash: Hazardous Waste? Solid Waste? Beneficial Use?

On May 4, 2010, US Environmental Protection Agency (“EPA”) announced its plans to regulate coal ash from coal-fired power plants and independent power producers. In its pre-public notice announcement, EPA described its proposals as the “first-ever national rules to ensure the safe disposal and management of coal ash from coal-fired power plants.”

Spurred by the infamous Tennessee Valley Authority (“TVA”) impoundment failure in Kingston, Tennessee in 2008, EPA has engaged with myriad stakeholders since that time to collect data, understand the issues and develop its regulatory approaches to these coal combustion residuals (“CCRs”).

There are several interesting aspects of EPA’s proposal to consider, among them;

  1. Instead of proposing a single regulatory approach, EPA has developed and is requesting public comment on two options – one that characterizes these materials as hazardous and one that does not;
  2. These proposals only apply to electric utilities and independent power plants, not to other industrial or manufacturing operations that burn coal; and
  3. EPA is seeking a way to regulate the disposal and management of these materials without impeding the many beneficial uses for coal ash that have developed over time.

Hazardous or Solid Waste?

EPA’s two options are both styled under the authority in the Resource Conservation Recovery Act (“RCRA”) – the Subtitle C option and the Subtitle D option.

Under the Subtitle C option – which regulates hazardous wastes - CCRs would be classified as a “special waste” when destined for disposal and subject to the existing “cradle-to-grave” hazardous waste management requirements. EPA would phase out the wet handling of CCRs and existing surface impoundments and establish storage, manifest, transport and disposal requirements, mechanisms for corrective action and financial responsibility. The rules would be federally enforceable. Authorized states would need to adopt a rule to implement the requirements in their state, so implementation would be expected to begin in several years.

Under the Subtitle D option – which regulates non-hazardous wastes – CCR disposal would be subject to national standards dealing with location, composite liner requirements, groundwater monitoring and corrective action, closure and post-closure care requirements. This approach would not regulate the generation, storage or treatment of CCRs prior to disposal and would not require permits. Because the standards would be set at the national level, they would become effective upon enactment; however, enforcement would be by states or citizen groups but not by EPA.

Beneficial Use?

While attempting to address the risks associated with improper management and disposal of these materials, EPA is also intent on preserving the many beneficial uses to which these materials can be put. Many beneficial uses have developed over time as a result of the so-called “Bevill exemption” which exempts CCRs that are recycled into products – such as concrete, cement, wallboard -- instead of disposed in landfills. EPA’s announcement materials stress that using these materials beneficially conserves resources, reduces greenhouse gas emissions, and reduces the need for waste disposal facilities. And the volumes are significant – production of CCRs has grown from approximately 30 million tons in the 1960s to over 138 million tons in 2008; compared to 6.9 million tons of non-wastewater hazardous waste disposed by all other sectors in 2007, and two million tons of hazardous waste disposed in landfills and surface impoundments in 2005. The economic benefit of beneficial use of that volume of materials is well worth EPA’s efforts and attention. EPA recognizes that many states, Wisconsin among them, have developed effective beneficial use programs that successfully keep these materials out of landfills and put them into productive use. See Wis. Admin. Code NR 538 Beneficial Use of Industrial Byproducts at http://www.legis.state.wi.us/rsb/code/nr/nr538.pdf.

EPA is seeking comment on how to encourage beneficial use of these materials. It is apparent from EPA’s publication materials that many have expressed concern that classifying these materials as hazardous waste will create a stigma that will work against that goal. EPA dedicates many pages to its perspective that a hazardous waste label does not impose a significant barrier to its beneficial use, and that as disposal costs increase non-regulated uses of these materials will also increase. EPA further distinguishes “encapsulated” uses such as wallboard, concrete, roofing materials and bricks – which the agency is comfortable will not have environmental impacts – from the “unencapsulated” uses of loose or unbound coal ash in agricultural or construction settings – where the question of environmental impact is less clear.

EPA will publish the rule in the Federal Register shortly. Comments will be due 90 days thereafter.

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