EPA Proposes Sweeping Regulation for Coal Ash Disposal

On May 4, 2010, the United States Environmental Protection Agency ("EPA") proposed approaches for the regulation of Coal Combustion Residuals ("CCRs")1 from the electric power sector. In so doing, EPA is reevaluating its August 1993 and May 2000 Bevill2 regulatory determinations regarding CCRs generated at electric utilities and independent power producers. While the two basic approaches for regulating CCRs would depend on the same statute for authorization—the Resource Conservation and Recovery Act ("RCRA")—they differ widely in scope and expense. Either way, handling of fossil fuel combustion wastes at coal-fired power plants may be about to undergo a dramatic transformation.

What is Coal Ash?

Coal ash (sometimes referred to as fossil fuel combustion waste) is a generic term referring to the wastes generated by the process of burning coal. Large amounts of coal ash are generated from the combustion processes used to produce electricity. In 2008, coal-fired power plants produced 136 million tons of fossil fuel waste, up from the 62 million to 71 million tons generated annually in the mid-1990s.

Coal ash is generally disposed of in one of three ways. The most common method (34 percent or 46 million tons in 2008) is disposal in landfills. EPA categorizes any disposal of dry fossil fuel combustion waste on or in the land to be disposal by landfill. This would include disposal in piles, sand and gravel pits, quarries, and/or large-scale fill operations. Another significant method of disposal (23 percent or 26.2 million tons in 2008) is through the use of surface impoundments, or so-called ash ponds. Surface impoundments differ from landfills, in that the CCRs are stored "wet," mixed with water. Ash ponds can be natural depressions, settling ponds, lagoons, aeration pits, or diked areas where free liquids are mixed with the CCRs. Sometimes, the liquid has been used as part of an air pollution control process to limit the amount or type of pollution emitted during combustion of the coal. Those pollutants captured in such liquids are disposed of in the surface impoundments, along with the coal ash. Often, disposal by landfill or in ash ponds occurs on-site. The third way for disposing of CCRs—through injection into caves or mines, is the least common method of disposal (in 2008, only 10.5 million tons, or nearly 8 percent of all coal ash, was disposed of in this manner).

Beneficial Uses

Significantly, under either approach, EPA is not proposing to withdraw the current Bevill exemption for coal combustion products that are "beneficially used."3 Such uses could include waste stabilization, beneficial construction applications (e.g., cement, concrete, brick and concrete products, road bed, structural fill, blasting grit, wallboard, insulation, and roofing materials), agricultural applications, and other uses (like absorbents, filter media, paints, plastics and metals manufacturing, and snow and ice control).4 See EPA's 1999 Report to Congress for further discussion on beneficial uses for coal combustion products. In 2008, 50.1 million tons of coal ash generated, or nearly 37 percent, was handled as a beneficial use.

EPA applauds many of these beneficial uses, noting that any rule it devises should continue to encourage these types of applications for coal combustion wastes. The Agency points out that such uses reduce landfill capacity required for disposal and the need for other natural resources that are used in place of coal ash additives (like portland cement in concrete, mined gypsum in wallboard or stone, and gravel in concrete or road bed). Sometimes, use of coal ash even enhances natural additives, like in cement, where the use of fly ash increases the durability of concrete, enabling structures to last longer and require less new concrete for repair or replacement projects.

In regulating coal ash, EPA states that it does not intend to stigmatize or negatively affect the beneficial uses of such wastes. EPA specifically requests comments regarding the possible negative impacts of listing coal ash as a special waste under Subtitle C (typically that portion of RCRA that deals with hazardous wastes) and how to ensure that such listing will not reduce the beneficial uses of fossil fuel combustion wastes. However, while both options would...