Hazardous Choice: EPA Proposes Competing Coal Ash Rules

Author:Mr David Rieser, Brennen D. Keene and Brian D. Vanderbloemen
Profession:McGuireWoods LLP

On May 13, the Environmental Protection Agency (EPA) issued its long-awaited coal combustion residue (CCR) proposal, which presents a stark choice between handling CCR under a draconian hazardous waste regime and following past EPA determinations to handle the material as a low-risk solid waste. While EPA reportedly favored the hazardous waste approach, strong pressure from industry and state regulators and from within the Obama administration encouraged the dual draft. The resulting proposal vividly documents the extraordinary costs of listing and handling CCR as a hazardous waste and the less costly, but still difficult, problems of handling CCR as a solid waste. Under both scenarios, generators of CCR face additional burdens and those burdens will extend to historic sites where CCR has been disposed previously.

CCR has been a skirmish point in the environmental community's challenge to coal combustion power plants for some time. CCR includes many different components of the coal combustion process, including fly ash, bottom ash and boiler slag, all of which are produced in great abundance at large generating facilities. CCR contains numerous metals and other materials, which can be individually hazardous but are released from the CCR matrix only under limited conditions. At the same time, CCR has numerous beneficial uses, including road construction, cement manufacturing, the manufacture of concrete products and soil amendment. These uses are not always available, however, and many power plants end up disposing the material in on-site landfills or storing it in ash ponds. The issue of on-site lagoon storage was brought into greater relief in 2009 with the catastrophic release of 5.4 million cubic yards of ash from a TVA facility in Kingston, Tenn. In proposing these rules, EPA sought to balance its concern for potential physical impacts from impoundment releases and groundwater impacts from long term storage with the administrative burden of regulating such a vast waste stream while not discouraging its continued use as a raw material.

As a result, EPA is at great pains to discuss its support for continued beneficial use of CCR. EPA ostensibly reaffirmed its determinations from 1993 and 2000 that beneficially-used CCR would be excluded from the definition of solid waste and thus could not be regulated as a hazardous waste. Yet despite referencing its prior determinations, EPA significantly changed its position. First, it limited the types of beneficial...

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