United States: Coal Ash Regulations: EPA Speaks--Sort of...

Last Updated: May 10 2010
Article by J. David Brittingham and Thomas P. Doyle

On Tuesday May 4, 2010, EPA started the process of federal regulation over the disposal and storage of coal combustion residuals, commonly referred to as coal ash. Coal ash has been largely exempt from federal regulation, leaving oversight to individual states. The December 2008 breach of a coal ash storage facility and the subsequent massive spill in Kingston, Tennessee brought coal ash storage and disposal national attention. On one side, many people and environmental groups are calling for action from the federal government. Conversely, many people are worried about additional oversight and duplicative regulatory controls in an area where state law exists. Many of the arguments against federal regulation concern the continued ability to recycle coal ash waste. Coal ash is used in concrete, cement, roadways, and other materials. Both sides of the debate argue in the context of the possible re-classification of coal ash as a hazardous waste.

Solid Waste is federally regulated under the Resource Conservation and Recovery Act1 (RCRA), which gives EPA the authority to control all aspects of hazardous waste. Subtitle C governs the generation, transportation, treatment, storage, and disposal of hazardous waste. Subtitle D sets forth a framework for the management of non-hazardous solid wastes. Subtitle D leaves the majority of regulation to each individual state.

Coal ash has been exempt from federal regulation since the inception of the "Bevill Exclusion." In October 1980, RCRA was amended by adding section 3001(b)(3)(A)(ii), to exclude "solid waste from the extraction, beneficiation, and processing of ores and minerals" from regulation as hazardous waste under Subtitle C of RCRA. This exclusion held pending completion of a study and a Report to Congress, required by section 8002 (f) and (p), and pending a determination by the EPA Administrator either to promulgate regulations under Subtitle C or to declare such regulations unwarranted.

In 1993 and 2000, EPA published regulatory determinations stating that coal ash waste does not warrant regulation under Subtitle C and should remain excluded from the definition of hazardous waste. However, in 2000, EPA determined that national non-hazardous waste regulations under RCRA Subtitle D were needed for coal combustion wastes disposed in surface impoundments and landfills and used as fill in surface or underground mines (minefill). EPA further determined that beneficial uses of these wastes, other than for minefilling, pose no significant risk and no additional national regulations are needed.

Since 2000, EPA has continued to conduct research and receive comments in regards to proper regulation of coal ash disposal and use. After Kingston, EPA promised to release a proposal for regulation by the beginning of 2010. On May 4, 2010, EPA finally broke its silence. However, instead of releasing a final proposal, EPA Administrator Lisa Jackson requested feedback. Two options were broadly laid out and EPA is seeking public opinion and guidance on each. EPA will hold hearings and seek public comment for 90 days, but there is no time table for a final decision.

Both proposals released by EPA would still regulate coal ash waste under RCRA. Under the first proposal, EPA would reverse its August 1993 and May 2000 Bevill Regulatory Determinations regarding coal ash waste and list these residuals as special wastes subject to regulation under subtitle C of RCRA, when they are destined for disposal in landfills or surface impoundments. An EPA e-mail sent after Jackson's comments said the agency was creating a "special waste" classification within the hazardous waste regulations, "to help remove the stigma that some believe attaches when a waste is called hazardous."

Under the second proposal, EPA would leave the Bevill determination in place and regulate disposal of such materials under subtitle D of RCRA by issuing national minimum criteria. The Subtitle C option creates federal oversight; the Subtitle D option leaves enforcement to the states and citizen lawsuits. Under both alternatives EPA is proposing to establish dam safety requirements to address the structural integrity of surface impoundments to prevent catastrophic releases.

Regulation under Subtitle C would normally classify a substance or material as hazardous and would lead to stricter rules and federal enforcement. Many people were concerned that if coal ash waste was re-classified as hazardous and regulated under Subtitle C, any beneficial use of coal ash would be severely hindered. EPA appears to be looking for a way around this main concern. Under the proposal that regulates coal ash waste under Subtitle C, coal ash would be classified as a "special waste" and could still be used in "beneficial" ways.

Since the Kingston spill, one side has been advocating for a hazardous classification and regulation under Subtitle C, while the other side argued to leave the non-hazardous classification in place, continue to utilize and explore beneficial uses, and let states regulate to their specific needs. After EPA's May 4, 2010 announcement, the debate remains largely the same. The only thing EPA has clarified is that no matter the action taken, coal ash will continue to be recycled and apparently will not be classified as hazardous. EPA explained in its own summary of the proposed rules that regulation under Subtitle C would reverse the 1993 and 2000 classification exemptions, but would not change the 2000 Regulatory Determination for beneficially used coal ash waste. However, EPA is clarifying this determination and seeking comment on potential refinements for certain beneficial uses.

Both approaches focus on the storage facilities and only apply to the disposal of coal ash from electric generating units. EPA will require composite liners and groundwater monitoring at new dry ash landfills, while existing surface impoundments will have to be retrofitted with liners. Under the Subtitle C option, wet ash storage facilities would specifically be phased out and EPA thinks the new safety requirements under Subtitle D would also lead to the phase out of wet ash containers.2

EPA specifically mentioned Kingston, Tennessee and how the new regulations are being put in place to avoid accidents like the spill in December 2008. EPA administrator Lisa Jackson commented that she hopes the proposals will begin a national dialogue about coal ash regulation and disposal. It appears EPA wants safety without hindering beneficial use or too much regulation. Either way, both sides of the debate still have questions and time to advocate their position.

More information about the EPA's proposed regulation can be found here.

Click here for the EPA's unofficial pre-publication copy of the proposed rule for public reference. This document has not been published in the Federal Register and is not an official version of the final rule. The official rule will be available here as soon as it is published by the Federal Register Office.

Click here to view a chart comparing the key differences between the EPA's Subtitle C and Subtitle D options.

Footnotes

1. 42 U.S.C. §6901 et seq. (1976).

2. While Subtitle D would require coal ash ponds to be retrofitted with a composite liner, it would not "phase out" coal ash ponds. To continue to use the wet ash pond, a company would have to remove all the materials, put the lining in, and then return the wet coal ash to the impoundment. If pond owners elect not to line the existing ponds, Subtitle D requires the owner to discontinue usage of the coal ash pond and implement closure of the pond within five years.

www.dinslaw.com

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions