January 15, 2015

Disposal of Coal Combustion Residues From Electric Utilities

EPA Administrator Gina McCarthy signed the coal combustion residues (CCR) final rule on December 19, 2014. The rule has not been published in the Federal Register yet, but a prepublication copy is available. The final rule will be effective six months after it’s published in the Federal Register. The new requirements for CCR disposal units will be phased in over three and one-half years.

The final rule establishes a comprehensive set of requirements for the disposal of CCR from power plants under RCRA Subtitle D. Thus, CCR from power plants will tentatively not be regulated as hazardous waste. The Subtitle D regulations for CCR disposal units will be codified in 40 CFR Part 257 Subpart D and will include structural integrity requirements for surface impoundments, ground water monitoring and corrective action requirements, location restrictions, liner design criteria for new units and lateral expansions, and operating, recordkeeping, notification, and internet posting requirements. A summary of the new Subtitle D requirements for CCR disposal units is given in EPA’s fact sheet on the new rule.

The agency has not made a final decision about whether CCR should be regulated as hazardous waste under Subtitle C of RCRA or as nonhazardous waste under Subtitle D, saying it needs additional information to make that decision. However, EPA says there is a compelling need for a uniform system of requirements to address risks posed by CCR disposal without waiting for the additional information. Hence, the final rule establishing requirements under Subtitle D was signed in December.

The final rule maintains the Bevill exclusion from the definition of hazardous waste for CCR that are beneficially used and defines “beneficial use” to distinguish it from disposal. Beneficial use of CCR must meet the following four conditions, per new §257.53:

  1. The CCR must provide a functional benefit;
  2. The CCR must substitute for the use of virgin material, conserving natural resources that would otherwise need to be obtained through practices such as extraction;
  3. The use of the CCR must meet relevant product specifications, regulatory standards or design standards when available, and when such standards are not available, the CCR is not used in excess quantities; and
  4. When unencapsulated use of CCR involves placement on the land of 12,400 tons or more in non-roadway applications, the user must demonstrate and keep records showing that releases to the environment are comparable to or lower than those from analogous products made without CCR, or that releases will be at or below relevant regulatory and health-based benchmarks for human and ecological receptors.

Under the final rule, placement of CCR in sand and gravel pits or quarries is considered disposal, not beneficial use.

EPA codified in §261.4(b)(4) a list of wastes generated from processes that support the combustion of coal or other fossil fuels that, when co-disposed with CCR, are not subject to hazardous waste regulations. These wastes are also referred to as “uniquely associated wastes.” However, these uniquely associated wastes are subject to hazardous waste regulations when they are not co-disposed with CCR. The uniquely associated wastes are:

In codifying the above list of uniquely associated wastes, the agency essentially reverted to its position expressed in the 1981 Dietrich letter (RO 12021).

Finally, the CCR rule does not require permits, does not require states to adopt or implement the requirements, and does not give EPA the authority to enforce the requirements. Instead, states or citizens can enforce the requirements of the rule under RCRA’s citizen suit authority. States can also continue to enforce any state regulation under their independent state enforcement authority. Because of the above, EPA strongly encourages states to revise their Solid Waste Management Plans (SWMPs—specified by 40 CFR Part 256) to show how these new CCR criteria will be implemented. The agency would then review and approve the revised SWMPs, provided they demonstrate that the minimum federal requirements in the CCR rule will be met. EPA’s approval of a revised SWMP signals the agency’s opinion that the state program meets the minimum federal criteria of the CCR rule.


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