EPA Releases Proposals for Regulating Coal Combustion Residuals

Author:Mr Barnes & Thornburg LLP's Environmental Law Department
Profession:Barnes & Thornburg

On May 4, 2010, EPA released its proposals to regulate coal combustion residuals (CCRs). After publication in the "Federal Register", the public will have 90 days to comment on these proposals.

EPA is co-proposing two options. The first option is to regulate CCRs that are generated by electric utilities and independent power producers under Subtitle C of the Resource Conservation and Recovery Act (RCRA) as "special waste subject to regulation under Parts 262 through 268 and Parts 270, 271 and 124" of Title 40 of the Code of Federal Regulations. The second option is to regulate CCRs as solid wastes under Subtitle D of RCRA. According to EPA, it intends to regulate only CCRs generated by electric utilities and independent power producers under either the Subtitle C or the Subtitle D option. However, the Subtitle D option, as drafted, would apply to all CCR, which is broadly defined as all fly ash, bottom ash, boiler slag, and flue gas desulfurization materials. In addition, while a landfill could stop receiving CCRs before the effective date of the rule and avoid Subtitle C regulation, the proposed Subtitle C standards would apply to any surface impoundments that ever received CCRs.

Subtitle C Option

Under the Subtitle C option, the treatment, storage and disposal of listed CCRs would be regulated under hazardous waste regulations. Permits for the disposal, treatment and storage of CCRs would be required. CCRs would be regulated from the point of their generation to the point of final disposal, including while the disposal unit is closing and after closure. Generators and transporters of CCRs would be subject to Subtitle C rule requirements. Units managing CCRs would be subject to siting, run-on and run-off controls, groundwater monitoring, fugitive dust control, financial assurance, corrective active, including facility-wide corrective action, closure of units, and post-closure care (with certain modifications). However, only new landfills and extensions of existing landfills would require liners. Existing surface impoundments would be phased out through the application of the proposed land disposal restriction that would prohibit placement of CCRs in surface impoundments after 5 years from the effective date of the rule. Surface impoundments must be closed two years later in accordance with the closure standards that apply to hazardous waste surface impoundments under 40 C.F.R. 264.228. Surface impoundments that stop receiving CCRs before the effective...

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