“As I drew in my head, and was turning around,
Down the chimney St. Nicholas came with a bound:
He was dress'd all in fur, from his head to his foot,
And his clothes were all tarnish'd with ashes and soot;”
As Christmas approached, the U.S. Environmental Protection Agency was under a court order to issue rules governing the regulation of coal ash. The question was whether EPA would treat coal ash as a hazardous material, which would impose significant requirements and additional costs for its handling and disposal, or whether it would treat it as non-hazardous solid waste.
With visions of sugar plums dancing in their heads as they anticipated the new rule, on Dec. 19, those wanting stricter control of coal ash were given instead the ashes and soot from Santa’s red suit. EPA decided to treat coal ash as solid waste, rather than hazardous waste. However, the rule represents the first time the handling, treatment and disposal of coal ash was specifically regulated by federal law.
EPA explained that it decided to determine how to treat coal ash began with a 2008 catastrophic release of five to four million cubic yards of coal ash from a landfill that destroyed homes, covered a large area with soggy, nasty ash, caused an evacuation of a neighborhood and otherwise disrupted the lives of those living near the impoundment. Earlier this year, 39,000 tons of coal ash was released into the Dan River in North Carolina. These events focused significant attention to the issue of storage of coal ash.
According to EPA, there are “over 310 active on-site landfills, averaging over 120 acres in size with an average depth of over 40 feet, and at over 735 active on-site surface impoundments, averaging over 50 acres in size with an average depth of 20 feet.” Add to these numbers the numerous locations where coal ash was used as fill or otherwise reused (i.e., gypsum board, concrete, filler in plastics or rubber), which represents 40 percent of the estimated 110 million tons of ash created annually. The number of these facilities and the vast tonnage of coal ash at these locations provided the impetus to review how these materials were being handled.
EPA needed to decide which of two options it would use to address coal ash. The first was to regulate it as hazardous waste under Subtitle C of the Resource Conservation and Recovery Act (RCRA). The second was to treat it as non-hazardous waste under Subtitle D of RCRA, which would be less restrictive that treating it as hazardous waste. As noted above, EPA chose the latter option.
So, what does the new rule require?
- Surface impoundments containing “coal combustion residuals” or CCR must be designed meeting structural stability standards and periodically monitored to ensure that they are working properly. Liners are required for all new landfills and impoundments.
- CCR units must include a system of groundwater monitoring wells and where groundwater is contaminated, corrective action must be implemented.
- The rule imposes restrictions on where new CCR units can be placed and existing landfills must meet engineering standards. If they can’t, they will need to be closed.
- The rule imposes new operating criteria governing groundwater monitoring and control of fugitive dust. The public will be able to access these reports.
- Inactive sites that pose a potential threat will need to be dewatered and covered. Going forward, new closed sites will need to meet specific criteria.
These obligations merely set a national floor of requirements. States may choose to impose stricter controls under their own programs.
One aspect of this rule, beneficial use, was the subject of a Crain’s Environmental Law Blog entry. EPA rejects the concept of “large scale placement [of CCR] akin to disposal,” like the use of CCR to fill old quarries or regrading landscape with large quantities of CCR. Instead, EPA identifies acceptable beneficial reuses, including “encapsulated” and “unencapsulated” reuses.
While those hoping that coal ash would be regulated as hazardous are disappointed, this regulation represents the first time coal ash, the nation’s second largest waste stream, will be specifically governed by RCRA regulations. It represents a new chapter in the handling, treatment and disposal of a significant waste material.
- Senior Attorney
A senior attorney in Plunkett Cooney’s Bloomfield Hills office, Saulius K. Mikalonis leads the firm's Environment, Energy and Resources Law and Cannabis Law industry groups.
Mr. Mikalonis focuses his practice on all aspects of ...
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