Update & Overview of the Coal Combustion Residuals Proposed Rule United States Environmental Protection Agency Region 4 Frank Ney February 2012 1.

Update & Overview of the Coal Combustion Update & Overview of the Coal Combustion Residuals Proposed RuleResiduals Proposed Rule

United States Environmental United States Environmental Protection AgencyProtection Agency

Region 4Region 4

Frank NeyFrank Ney

February 2012February 201211

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Background Background 1980 Bevill Amendment1980 Bevill Amendment temporarily excluded many mining and temporarily excluded many mining and

mineral processing wastes from Subtitle C regulation.mineral processing wastes from Subtitle C regulation.

EPA was sued forEPA was sued for failing to timely make a final regulatory failing to timely make a final regulatory determination.determination.

May 2000 EPA published its determinationMay 2000 EPA published its determination that regulation of that regulation of CCR disposal in Landfills and Surface Impoundments is not CCR disposal in Landfills and Surface Impoundments is not warranted under Subtitle C. warranted under Subtitle C.

August 2007 EPA Issued a Notice of Data AvailabilityAugust 2007 EPA Issued a Notice of Data Availability (NODA) which included: additional information on damage cases, a (NODA) which included: additional information on damage cases, a revised risk assessment and new information on industry revised risk assessment and new information on industry management practices. The comment period on this NODA ended management practices. The comment period on this NODA ended February 11, 2008.February 11, 2008.

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Background (Continued)Background (Continued)

New Information in the NODA:New Information in the NODA: Risk AssessmentRisk Assessment – EPA’s Revised risk assessment – EPA’s Revised risk assessment

suggests greater risk than did earlier assessmentssuggests greater risk than did earlier assessments• Greater risks from arsenic in unlined landfill; Greater risks from arsenic in unlined landfill;

surface impoundment arsenic risks were surface impoundment arsenic risks were considerably higherconsiderably higher

• Non-cancer risks for boron and cadmium for Non-cancer risks for boron and cadmium for unlined surface impoundmentsunlined surface impoundments

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Background (Continued)Background (Continued)

New information in the NODA (con’t)New information in the NODA (con’t)• Composite liners effectively reduce the risk for Composite liners effectively reduce the risk for

both pathways for surface impoundments and both pathways for surface impoundments and landfillslandfills

Damage CasesDamage Cases – EPA Identified a total of 27 – EPA Identified a total of 27 proven cases of damageproven cases of damage

• 17 cases involved contaminated groundwater 17 cases involved contaminated groundwater (typically arsenic)(typically arsenic)

• 10 involved contaminated surface water10 involved contaminated surface water• 15 of the Groundwater cases involved unlined 15 of the Groundwater cases involved unlined

units; the liner status not clear in 16th unitunits; the liner status not clear in 16th unit• Not long after the publishing of this new Not long after the publishing of this new

information the Coal Ash Surface Impoundment at information the Coal Ash Surface Impoundment at the TVA Kingston Plant breachedthe TVA Kingston Plant breached

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Tennessee Valley AuthorityTennessee Valley AuthorityKingston, TNKingston, TN

• December 22, 2008, a December 22, 2008, a containment structure failed containment structure failed at TVA Kingstonat TVA Kingston

Estimated 5.4 million cubic Estimated 5.4 million cubic yards (CY) of fly ash yards (CY) of fly ash released into the Emory released into the Emory River and surrounding areasRiver and surrounding areas

May 11, 2009, TVA and the May 11, 2009, TVA and the EPA entered into an AOCEPA entered into an AOC

Approximately 3+ million CY Approximately 3+ million CY of ash has been addressed of ash has been addressed under time-critical removal .under time-critical removal . Looking south across failed dredge cell

toward power plant.

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Location and Plant HistoryLocation and Plant History

Emory

Clinch

Tennessee

TVA Kingston

Fossil Plant

Failed Dredge Cell

Harriman,Tennessee

Kingston,Tennessee

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Dredge

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AOC Non-time-critical Cleanup AOC Non-time-critical Cleanup RequirementsRequirements

Approved by EPA in May 2010.Approved by EPA in May 2010.

Removal and consolidation on-site of approximately 2.5 Removal and consolidation on-site of approximately 2.5 million cubic yards of ash.million cubic yards of ash.

Protective dike around the coal ash disposal area.Protective dike around the coal ash disposal area.

Closing of disposal area will include a two foot clay cover Closing of disposal area will include a two foot clay cover and one foot of top soil.and one foot of top soil.

Phase III (residual ash in river system) to be addressed Phase III (residual ash in river system) to be addressed under separate Environmental Evaluation Cost under separate Environmental Evaluation Cost Assessment (EE/CA). Draft Phase III Sampling and Assessment (EE/CA). Draft Phase III Sampling and Analysis Plan currently under regulatory review.Analysis Plan currently under regulatory review.

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Coal Combustion Regulations Coal Combustion Regulations Proposal (Continued)Proposal (Continued)

We have seen the new damage and risk info from the We have seen the new damage and risk info from the 2007 NODA, and the TVA devasting surface 2007 NODA, and the TVA devasting surface impoundment failure, what is the current status of impoundment failure, what is the current status of CCRs and CCR management:CCRs and CCR management:

Current Management Practices Current Management Practices – While most landfills and – While most landfills and surface impoundments constructed between 1994 and surface impoundments constructed between 1994 and 2004 had liners and ground water monitoring, there are still 2004 had liners and ground water monitoring, there are still many older units – particularly surface impoundments – many older units – particularly surface impoundments – lacking liners and ground water monitoring.lacking liners and ground water monitoring.

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Current information (Con’t)Current information (Con’t)

• However, even though most landfills and surface However, even though most landfills and surface impoundments constructed between 1994-2004 have impoundments constructed between 1994-2004 have liners, EPA has estimated that in 2004, only 69% of CCR liners, EPA has estimated that in 2004, only 69% of CCR landfills and 38% of surface impoundments had liners landfills and 38% of surface impoundments had liners compared to 57% and 26%, respectively, in 1995; andcompared to 57% and 26%, respectively, in 1995; and

• 90% of CCR landfills and only 42% of surface 90% of CCR landfills and only 42% of surface impoundments had ground water monitoring in 2004 impoundments had ground water monitoring in 2004 compared to 85% and 38%, respectively, in 1995.compared to 85% and 38%, respectively, in 1995.

• In 2007, approximately 131 million tons of CCRs were In 2007, approximately 131 million tons of CCRs were generated, 36% (47.4 million tons) of CCRs were landfilled, generated, 36% (47.4 million tons) of CCRs were landfilled, 21% (27.7 million tons) were disposed of in surface 21% (27.7 million tons) were disposed of in surface impoundments, 38% (49.3 million tons) were beneficially impoundments, 38% (49.3 million tons) were beneficially used (excluding minefilling), and 5% (6.7 million tons) used (excluding minefilling), and 5% (6.7 million tons) were used for minefilling.were used for minefilling.

Coal Combustion Regulations Coal Combustion Regulations Proposal (Continued)Proposal (Continued)

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Coal Combustion Regulations ProposalCoal Combustion Regulations Proposal

What Action is EPA Taking?What Action is EPA Taking?

EPA is proposing two approaches for regulating the EPA is proposing two approaches for regulating the disposal of coal combustion residuals (CCRs) in disposal of coal combustion residuals (CCRs) in landfills and surface impoundments generated by landfills and surface impoundments generated by electric utilities and independent power producers. electric utilities and independent power producers. The proposal will not cover CCRs that are The proposal will not cover CCRs that are beneficially used or used for minefilling.beneficially used or used for minefilling.

• Option 1Option 1: RCRA Subtitle C hazardous waste : RCRA Subtitle C hazardous waste regulation.regulation.

• Option 2Option 2: RCRA Subtitle D non-hazardous waste : RCRA Subtitle D non-hazardous waste regulation.regulation.

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OverviewOverview

Technical requirements of each option are very similar; Technical requirements of each option are very similar; differences are primarily in enforcement and differences are primarily in enforcement and implementation.implementation.

Bevill exemption remains in place for beneficial uses of Bevill exemption remains in place for beneficial uses of CCRs.CCRs.

Minefilling is not covered by the proposal.Minefilling is not covered by the proposal.

Principles for EPA decisions:Principles for EPA decisions:• Protective of Public Health and EnvironmentProtective of Public Health and Environment• Sound ScienceSound Science• Transparency and Greatest Degree of Public ParticipationTransparency and Greatest Degree of Public Participation

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Major Elements of the Subtitle C ProposalMajor Elements of the Subtitle C Proposal

CCRs will be listed as a “special waste subject to subtitle C” – CCRs will be listed as a “special waste subject to subtitle C” – S001.S001.

CCRs and the facilities that manage them will be subject to the CCRs and the facilities that manage them will be subject to the existing Subtitle C requirements, e.g., generator, transporter, existing Subtitle C requirements, e.g., generator, transporter, permitting, ground water monitoring, corrective action, and permitting, ground water monitoring, corrective action, and financial assurance.financial assurance.

Land Disposal Restrictions (LDRs) and treatment standards apply.Land Disposal Restrictions (LDRs) and treatment standards apply.

Modifying certain requirements, using Section 3004(x)Modifying certain requirements, using Section 3004(x)• Single composite linerSingle composite liner

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Major Elements of Subtitle C Proposal (continued)Major Elements of Subtitle C Proposal (continued)

Structural Stability RequirementsStructural Stability Requirements

Existing landfills must install groundwater monitoring within Existing landfills must install groundwater monitoring within 1 year of effective date of rule, but do not need to install 1 year of effective date of rule, but do not need to install composite liners. composite liners.

New landfills or lateral expansions of existing landfills must New landfills or lateral expansions of existing landfills must install composite liners and groundwater monitoring.install composite liners and groundwater monitoring.

Surface impoundment must meet LDRs and liner Surface impoundment must meet LDRs and liner requirements within 5 years of effective date of rule or requirements within 5 years of effective date of rule or close within an additional 2 years after cessation of receipt close within an additional 2 years after cessation of receipt of waste. of waste.

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Major Elements of Subtitle D ProposalMajor Elements of Subtitle D Proposal

CCRs remain classified as a “non-hazardous” waste.CCRs remain classified as a “non-hazardous” waste.

National minimum criteria governing facilities disposing of National minimum criteria governing facilities disposing of CCRs.CCRs.

Standard is “no reasonable probability of adverse effects on Standard is “no reasonable probability of adverse effects on health or the environment” from disposal of solid waste at the health or the environment” from disposal of solid waste at the facility.facility.

Many of the technical requirements are similar to the Subtitle C Many of the technical requirements are similar to the Subtitle C option, e.g., groundwater monitoring, liner and structural option, e.g., groundwater monitoring, liner and structural stability requirements and dust suppression.stability requirements and dust suppression.

Requirements are self implementing – typically a design Requirements are self implementing – typically a design standard, and/or performance criteria which a facility could standard, and/or performance criteria which a facility could meet in place of the design standard which provides the facility meet in place of the design standard which provides the facility flexibility– often in circumstances where the appropriate flexibility– often in circumstances where the appropriate requirement is dependent on site-specific conditions.requirement is dependent on site-specific conditions.

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Major Elements of Subtitle D Proposal (continued)Major Elements of Subtitle D Proposal (continued)

Owner/operator required to obtain certifications by Owner/operator required to obtain certifications by independent professional engineers/minimum qualification independent professional engineers/minimum qualification requirements for those who make certifications.requirements for those who make certifications.

Owner/operator required to document how various Owner/operator required to document how various standards are met. Must be kept in the operating record standards are met. Must be kept in the operating record and the State notified.and the State notified.

Owner/operator required to maintain a web site available to Owner/operator required to maintain a web site available to the public that contains the documentation that the the public that contains the documentation that the standard is met. standard is met.

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Key Differences Between Subtitle C and Subtitle D OptionsKey Differences Between Subtitle C and Subtitle D Options

Subtitle CSubtitle C Subtitle DSubtitle D

Effective DateEffective Date Timing varies; states Timing varies; states must adopt must adopt

rulerule

Six months after Six months after promulgationpromulgation

EnforcementEnforcement State and federal State and federal enforcementenforcement

Enforcement through Enforcement through citizen suits; states citizen suits; states can act as citizenscan act as citizens

Permit IssuancePermit Issuance Federal requirements Federal requirements for permits issued by for permits issued by StatesStates

NoNo

Financial AssuranceFinancial Assurance YesYes Considering Considering subsequent rule using subsequent rule using CERCLA 108(b) CERCLA 108(b) authorityauthority

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Key Differences Between Subtitle C and Subtitle D OptionsKey Differences Between Subtitle C and Subtitle D Options

Subtitle CSubtitle C Subtitle DSubtitle D

Storage Storage requirements, requirements, including containers, including containers, tanks, containment tanks, containment buildings; generator buildings; generator and transportation and transportation requirementsrequirements

YesYes NoNo

Structural StabilityStructural Stability YesYes YesYes

Landfills built before Landfills built before effective date of ruleeffective date of rule

GW monitoring – GW monitoring – install 1 year from install 1 year from effective date effective date

GW monitoring– GW monitoring– install 1 year from install 1 year from effective dateeffective date

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Key Differences between Subtitle C and Subtitle D Options Key Differences between Subtitle C and Subtitle D Options (continued)(continued)

Subtitle CSubtitle C Subtitle DSubtitle D

Landfills built after Landfills built after effective date of ruleeffective date of rule

Single composite liner Single composite liner & GW monitoring& GW monitoring

Single composite liner Single composite liner & GW monitoring& GW monitoring

SIs built before SIs built before effective date of ruleeffective date of rule

Meet LDRs and Meet LDRs and treatment standards treatment standards (solids removal); (solids removal); retrofit with retrofit with composite liner within composite liner within 5 years of effective 5 years of effective date; close within an date; close within an additional 2 years additional 2 years after cessation of after cessation of receipt of waste.receipt of waste.

Remove solids and Remove solids and retrofit with retrofit with composite liner or composite liner or cease receiving waste cease receiving waste within 5 years of within 5 years of effective date and effective date and close unitclose unit

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Key Differences between Subtitle C and Subtitle D Options Key Differences between Subtitle C and Subtitle D Options (continued)(continued)

Subtitle CSubtitle C Subtitle DSubtitle D

SIs built after SIs built after effective date of ruleeffective date of rule

Meet LDRs and liner Meet LDRs and liner requirementsrequirements

Composite linersComposite liners

Closure and Post-Closure and Post-Closure CareClosure Care

Yes, monitored by Yes, monitored by States and EPAStates and EPA

Yes, self-Yes, self-implementingimplementing

Siting requirementsSiting requirements YesYes YesYes

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Some Subtitle C Advantages and Some Subtitle C Advantages and Disadvantages Disadvantages

Subtitle C Advantages:Subtitle C Advantages:

Allows direct federal enforcement of regulationsAllows direct federal enforcement of regulations Supported by damage cases and draft risk Supported by damage cases and draft risk

assessment assessment Requires permitsRequires permits

Subtitle C Disadvantages :Subtitle C Disadvantages :

Regulation will take 2-5 years or longer to become Regulation will take 2-5 years or longer to become effective after promulgation effective after promulgation

Could raise disposal capacity issues, complicate and Could raise disposal capacity issues, complicate and add to expense of cleanup/ removal actionsadd to expense of cleanup/ removal actions

Could have adverse impacts on beneficial usesCould have adverse impacts on beneficial uses

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Some Subtitle D Advantages and Some Subtitle D Advantages and DisadvantagesDisadvantages

Subtitle D Advantages:Subtitle D Advantages:

Environmental standards in place in all states on the Environmental standards in place in all states on the effective date of the regulationseffective date of the regulations

No perceived stigma on beneficial useNo perceived stigma on beneficial use

Subtitle D Disadvantages:Subtitle D Disadvantages:

EPA cannot directly enforce the regulationsEPA cannot directly enforce the regulations EPA cannot require a permit program under Subtitle DEPA cannot require a permit program under Subtitle D Financial Assurance requirements are more limitedFinancial Assurance requirements are more limited

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Coal Combustion Regulations Coal Combustion Regulations Proposal (Continued)Proposal (Continued)

Regardless of the regulatory option chosen, Regardless of the regulatory option chosen, the proposed regulations will requirethe proposed regulations will require::

No placement of CCRs in fault zones, floodplains, No placement of CCRs in fault zones, floodplains, and below the natural ground water table.and below the natural ground water table.

Synthetic liners in new CCR disposal units.Synthetic liners in new CCR disposal units. Groundwater monitoring at all new and existing Groundwater monitoring at all new and existing

disposal units.disposal units.

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Coal Combustion Regulations Coal Combustion Regulations Proposal (Continued)Proposal (Continued)

Regardless of the regulatory option chosen, Regardless of the regulatory option chosen, the proposed regulations will requirethe proposed regulations will require::

Fugitive dust controls.Fugitive dust controls. Surface-impoundment integrity and inspections.Surface-impoundment integrity and inspections. Closure and post-closure care.Closure and post-closure care.

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Beneficial UseBeneficial Use

EPA supports and encourages safe and environmentally EPA supports and encourages safe and environmentally appropriate beneficial uses.appropriate beneficial uses.

Beneficial use has significant benefits – conserves Beneficial use has significant benefits – conserves resources, provides improved material properties, reduces resources, provides improved material properties, reduces GHG emissions, lessens need for disposal units, and GHG emissions, lessens need for disposal units, and provides significant domestic economic benefits.provides significant domestic economic benefits.

EPA recognizes, however, important issues and EPA recognizes, however, important issues and uncertainties associated with specific uses, considerable uncertainties associated with specific uses, considerable recent and ongoing research, and that the composition of recent and ongoing research, and that the composition of CCRs are likely changing as result of more aggressive air CCRs are likely changing as result of more aggressive air pollution controls.pollution controls.

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Beneficial Use (continued)Beneficial Use (continued)

In EPA ‘s proposal: In EPA ‘s proposal: Beneficial use retains the Bevill exemptionBeneficial use retains the Bevill exemption Beneficial use is defined as a use which: Beneficial use is defined as a use which:

Provides a functional benefitProvides a functional benefit Replaces the use of a virgin or other alternative material, Replaces the use of a virgin or other alternative material,

conserving natural resourcesconserving natural resources Meets relevant product specifications and regulatory standards Meets relevant product specifications and regulatory standards

(where available).(where available). Use of CCRs in excess quantities, placement as fill in sand Use of CCRs in excess quantities, placement as fill in sand

and gravel pits, or use in large scale fill projects, such as for and gravel pits, or use in large scale fill projects, such as for restructuring the landscape, are not beneficial use.restructuring the landscape, are not beneficial use.

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Beneficial Use (continued)Beneficial Use (continued)

Concerned with potential “stigma” on beneficial use, if Concerned with potential “stigma” on beneficial use, if CCRs are regulated under Subtitle C. Solicits comments CCRs are regulated under Subtitle C. Solicits comments and specific data on stigma.and specific data on stigma.

Do not have information on concerns associated with Do not have information on concerns associated with encapsulated uses (e.g, concrete).encapsulated uses (e.g, concrete).

Aware of issues with unencapsulated uses and will fully Aware of issues with unencapsulated uses and will fully consider risks, management practices, state controls, consider risks, management practices, state controls, ongoing research and other information. Specifically solicit ongoing research and other information. Specifically solicit comment on whether to regulate and, if so, the most comment on whether to regulate and, if so, the most appropriate regulatory approach to be taken.appropriate regulatory approach to be taken.

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Additional Options ConsideredAdditional Options Considered

D Prime --surface impoundments allowed to operate until D Prime --surface impoundments allowed to operate until end of useful life; other requirements same as the D end of useful life; other requirements same as the D proposal.proposal.

Wet-handled CCRs regulated under Subtitle C; Dry-handled Wet-handled CCRs regulated under Subtitle C; Dry-handled under Subtitle Dunder Subtitle D

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Additional Options Considered Additional Options Considered (continued)(continued)

““CKD Approach”CKD Approach”• Establish detailed management standards under Subtitle Establish detailed management standards under Subtitle

DD• If CCRs were in egregious violation of the requirements, If CCRs were in egregious violation of the requirements,

then the CCRs would be considered “special wastes” then the CCRs would be considered “special wastes” under Subtitle Cunder Subtitle C

Rely on NPDES Permits for structural integrity requirementsRely on NPDES Permits for structural integrity requirements

No regulationsNo regulations

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Solicitation of CommentsSolicitation of Comments

EPA solicits comments on numerous matters and most fall EPA solicits comments on numerous matters and most fall into four main areas of analyses:into four main areas of analyses:

Extent of existing damage casesExtent of existing damage cases Extent of risks posed by mismanagement of CCRsExtent of risks posed by mismanagement of CCRs Adequacy of state programs to ensure proper management Adequacy of state programs to ensure proper management

of CCRsof CCRs Extent to which unencapsulated uses of CCR should be Extent to which unencapsulated uses of CCR should be

defined as “Beneficial Use” and parameters to ensure defined as “Beneficial Use” and parameters to ensure unencapsulated beneficial use is protective of human unencapsulated beneficial use is protective of human health and the environmenthealth and the environment

Public HearingsPublic Hearings Arlington, VA – August 30, 2010,Arlington, VA – August 30, 2010, Hyatt Regency, 2799 Jefferson Davis Highway, Hyatt Regency, 2799 Jefferson Davis Highway,

Arlington, VA 22202, Phone: (703) 418-1234, Arlington, VA 22202, Phone: (703) 418-1234, www.crystalcity.hyatt.com ..

Denver, CO – September 2, 2010Denver, CO – September 2, 2010, Grand Hyatt, 1750 Welton Street, Denver, CO , Grand Hyatt, 1750 Welton Street, Denver, CO 80202, Phone: (303) 295-123480202, Phone: (303) 295-1234, , www.granddenver.hyatt.com ..

Dallas, TX – September 8, 2010Dallas, TX – September 8, 2010, Hyatt Regency Dallas, 300 Reunion Boulevard, , Hyatt Regency Dallas, 300 Reunion Boulevard, Dallas, TX 75207, Phone: (214) 651-1234, Dallas, TX 75207, Phone: (214) 651-1234, www.dallasregency.hyatt.com ..

Charlotte, NC – September 14, 2010,Charlotte, NC – September 14, 2010, Holiday Inn Charlotte (Airport), 2707 Little Rock Holiday Inn Charlotte (Airport), 2707 Little Rock Road, Charlotte, NC 28214, Phone: (704) 394-4301Road, Charlotte, NC 28214, Phone: (704) 394-4301, , www.hicharlotteairport.com ..

Chicago, IL – September 16, 2010,Chicago, IL – September 16, 2010, Hilton Chicago, 720 South Michigan Avenue, Hilton Chicago, 720 South Michigan Avenue, Chicago, IL 60605, Phone: (312) 922-4400, Chicago, IL 60605, Phone: (312) 922-4400, http://www.chicagohilton.com/hotels__hiltonchicago.aspx ..

Pittsburgh, PA – September 21, 2010,Pittsburgh, PA – September 21, 2010, Omni Hotel, 530 William Penn Place, Omni Hotel, 530 William Penn Place, Pittsburgh, PA 15219, Pittsburgh, PA 15219, http://www.omnihotels.com/FindAHotel/PittsburghWilliamPenn.aspxhttp://www.omnihotels.com/FindAHotel/PittsburghWilliamPenn.aspx

Louisville, KY – September 28, 2010,Louisville, KY – September 28, 2010, Seelbach Hilton, 500 Fourth Street, Louisville, Seelbach Hilton, 500 Fourth Street, Louisville, KY 40202-2518, KY 40202-2518, http://www.seelbachhilton.com /

Knoxville, TN – October 27, 2010, Knoxville Marriott, 500 Hill Avenue, SE, Knoxville TN, Knoxville, TN – October 27, 2010, Knoxville Marriott, 500 Hill Avenue, SE, Knoxville TN, 37915, Phone: (805) 637-123437915, Phone: (805) 637-1234

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Public CommentsPublic Comments The public comment period closed on November 19, 2010.The public comment period closed on November 19, 2010. EPA has received over 450,000 comments.EPA has received over 450,000 comments. EPA announced a Notice of Data Availability (NODA) on EPA announced a Notice of Data Availability (NODA) on

October 12, 2011.October 12, 2011. The NODA invited comment on additional information The NODA invited comment on additional information

obtained during the comment period such as: chemical obtained during the comment period such as: chemical constituent data from CCRs; facility and waste constituent data from CCRs; facility and waste management unit data; additional alleged damage cases; management unit data; additional alleged damage cases; adequacy of State programs; and information on Beneficial adequacy of State programs; and information on Beneficial Use.Use.

The comment period closed for the NODA on November 14, The comment period closed for the NODA on November 14, 2011.2011.

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