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.
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