Following a failure of the dike at the Kingston Fossil Plant in Tennessee which received national attention, the Obama Administration announced it would re-evaluate regulation of coal combustion residuals (CCR) or coal ash.
The Administration’s key decision was whether to regulate CCR under Subtitle C of the Resource Conservation and Recovery Act (RCRA) as a hazardous waste or Subtitle D of RCRA as a non-hazardous waste. Industry feared that with the national attention from two major spills, EPA would take the more stringent path and regulate CCR as a hazardous waste.
As indicated by the time line from the Bloomberg BNA article discussing the EPA announcement, EPA has been very slow to make a final decision.
Time line of EPA Coal Ash Regulation
Dec. 22, 2008—Dike ruptures at the Kingston Fossil Plant in Harriman, Tenn., releasing 5.4 million cubic yards of coal ash slurry into surrounding area.
Jan. 14, 2009—At her Senate confirmation hearing, incoming EPA Administrator Lisa Jackson says the agency will review how it regulates coal ash.
June 21, 2010—The EPA proposes (75 Fed. Reg. 35,128) two possible ways for regulating coal ash—under the hazardous waste provisions of Subtitle C of RCRA or under the nonhazardous waste provisions of Subtitle D.
April 5, 2012—Frustrated with the slow pace of the rulemaking, environmental advocates sue the EPA over failure to complete a mandatory review of RCRA regulations every three years. They seek a deadline for final coal ash standards.
Jan. 31, 2014—Environmental advocates, coal ash recyclers, utilities and the EPA reach an agreement that requires the EPA to complete its coal ash regulations by Dec. 19.
Feb. 2, 2014—140,000 tons of coal ash and wastewater spill from a Duke Energy Corp. into North Carolina’s Dan River.
Dec. 19, 2014—The EPA issues a final rule on the management and disposal of coal ash.
On December 19, 2014, EPA released its final CCR rule. The rule will regulate CCR as solid waste under Subtitle D of the Resource Conservation and Recovery Act (RCRA), rather than as a special waste under Subtitle C.
If EPA elected to regulate CCR under Subtitle C, EPA would have maintained greater authority over the material and enforcement of standards. Under Subtitle D, states will take the lead on implementation and enforcement.
Subtitle D also governs municipal solid waste landfills. EPA’s approach to regulating CCR in many ways is similar to standards established for solid waste landfills. The rule establishes the following:
- Minimum national criteria for new and existing CCR landfills and surface impoundments;
- location restrictions;
- design requirements;
- groundwater monitoring, if constituents are detected in groundwater above protective standards, the owner will be required to institute corrective action;
- inspection requirements, including evaluation of the structural integrity of impoundments;
- fugitive dust controls;
- surface water protection requirements; and
- closure and post-closure care requirements.
Inactive Landfills Will Not Be Regulated
The final rule will become effective six months after publication in the federal register. The new standards will not apply to CCR landfills that cease receiving waste prior to the effective date ("inactive units"). If these units complete closure (that is dewater and place final cover) within three years of the publication of the rule, then they are not subject to any additional requirements under the rule.
Coal ash is the second largest industrial waste stream. This final rule supports responsible recycling of coal ash by distinguishing safe, beneficial use from disposal. In 2012, almost 40 percent of all coal ash produced was recycled (beneficially used), rather than disposed.
The rule establishes a comprehensive definition of beneficial use of CCRs. The rule
also clarifies that a use of a CCR that is not beneficial use is disposal.