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February 10, 2014
CCR final action set for December 2014

In a consent decree, the EPA, environmental groups, and industry associations have agreed that the Agency will take final action on its proposed regulation of coal combustion residuals (CCR) by December 19, 2014.  The deadline will arrive 31/2 years after the EPA proposed to issue first-time federal regulations for CCR generated by electric power plants and 6 years after a catastrophic collapse of an impoundment in Kingston, Tennessee, spilled over    1 billion gallons of coal ash slurry into the Emory River and onto riverfront properties. 

Two options

In its proposal, the EPA solicited public comments on two regulatory options under RCRA—federal rules to manage CCR as either Subtitle C hazardous waste or Subtitle D nonhazardous waste.  The consent decree refers specifically to EPA’s obligation to revise Subtitle D regulations pertaining to CCRs and makes no mention of Subtitle C.  However, nothing in the decree dictates the content of the Agency’s final action. 

But the American Coal Ash Association (ACAA) believes the Agency’s signature on the decree indicates that the final rule will be issued under Subtitle D.  “EPA has indicated in a related rulemaking on effluent limitation guidelines that the Agency’s ‘current thinking’ is that a Subtitle D regulation will be appropriate,” explains the ACAA.

The EPA believes that federal regulation under either subtitle is necessary because of inconsistent regulation of CCR and impoundments by state agencies.  In July 2013, the House passed the Coal Residuals Reuse and Management Act, which allows states to develop CCR permitting programs as long as they meet minimum requirements established in the bill.  Bill approval by the Senate did not follow.

Comparison

EPA’s regulatory approach under either Subtitle C or Subtitle D would have similarities and differences.  For example:
  • Both options would provide for the first time on a national basis that liners and groundwater monitoring are in place at new landfills handling coal ash to prevent leaching of contaminants to groundwater.
  • Under the Subtitle C proposal, the EPA would adopt measures intended to phase out the wet handling of CCRs and existing surface impoundments; under the Subtitle D proposal, existing impoundments would require liners.
  • 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, a process that could take several years.
  • The Subtitle D option would go into effect sooner than a Subtitle C rule, with implementation required approximately 6 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 suits could be filed (a state could also file a citizen suit), and would not establish the same extensive management requirements for CCRs destined for disposal.
  • For both options, the EPA can always take action if a situation may present an imminent and substantial endangerment to human health or the environment.

In 2008, nearly 140 million tons of CCRs were generated in the United States.  In the same year, nearly half of this total was recycled into products such as concrete, gypsum, wallboard, and blasting grit.  The ACAA notes that the regulatory uncertainty following the Kingston spill and EPA’s proposal has adversely affected recycling.  According to the ACAA, in 2008, 60.6 million tons of CCRs were recycled.  In 2012, the amount dropped to 51.9 million tons. 

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