EPA’s Expected Coal Ash Rule: The Shortest, Most Thorough Primer on the Internet

Today marks a court-ordered deadline for EPA to promulgate a final coal combustion residual (CCR) rule pursuant to the Resource Conservation and Recovery Act. To be sure, the agency could ignore the deadline, as the courts have no means readily at hand to prod the agency into action today. That said, the agency is widely expected to promulgate the rule this afternoon. What follows is the shortest, most thorough primer of the rule on the web.

Coal Combustion Residuals: What They Are and How They’re Handled

CCRs are colloquially known as “coal ash,” but the term refers to a number of byproducts from the burning of coal to produce electric power, including:

• Fly ash: Ash that is light enough to be carried in the flue gas

• Bottom ash: Ash that is too heavy to be carried in the flue gas

• Boiler slag:  Molten ash

• Flue gas desulfurization byproducts: The byproduct of pollution control mechanisms, known as “scrubbers,” that remove sulfur dioxide emissions from the flue gas

CCRs are managed in either wet or dry disposal systems. In wet systems, materials are generally sluiced via pipe to a surface impoundment. The material can be generated wet, such as flue gas desulfurization byproducts, or generated dry and water added to facilitate transport (i.e. sluiced) through pipes. In dry systems, CCRs are transported in its dry form to landfills for disposal.

Threat: Minimal

According to EPA, there are more than 300 landfills and 500 surface impoundments holding CCRs at more than 495 coal-fired power plants throughout the United States. Among these, the agency has identified 27 “proven damage cases,” which entail: “documented exceedences of…health-bases standards measured in ground water…that could cause human health concerns.” (75 FR 35131).

As EPA acknowledges, all 27 of the “proven damage cases” are being remedied by state or federal governments. (see, e.g., 65 FR at 32216 and 75 FR at 35150 n.43). And according to an informal calculation by the Office of Management and Budget, even the most stringent possible regulatory regime for controlling CCRs is projected to prevent .5 deaths, at a cost of more than $50 billion per saved life. Surely, there are more cost effective ways to protect the public.

Legal Framework for CCR Regulation

The Resource Conservation and Recovery Act authorizes two pathways for EPA to regulate coal ash:

• Subpart C establishes draconian “cradle to grave” regulations for hazardous waste. Under this option, every aspect of the hazardous materials supply chain (generation, storage, treatment, and disposal) is subject to an ultra-onerous federal regulatory oversight.

• Subpart D establishes minimum standards for federal, state and local government cooperation in controlling the management of nonhazardous solid waste. The agency’s role here is largely advisory such that state and local governments retain primacy.

In fact, EPA is authorized to effectively render the Subpart D requirements as stringent as Subpart C requirements. Both Subparts, for example, may require: location standards; composite liner requirements; groundwater monitoring and corrective action standards for releases; closure and post-closure care, and requirements to address the stability of surface impoundments.

While Subparts C and D can share ends, their means differ dramatically. Subpart C permitting is infamously burdensome, requiring permits at virtually every instance when the regulated materials are handled. Subpart D doesn’t require permits, and instead relies on back end enforcement via state or interest group lawsuits pursuant to the Resource Conservation and Recovery Act’s citizen suit provision.

Also, the two Subparts differ in scope. Subpart C regulates the generation, storage, treatment, and disposal (i.e., “cradle to the grave”) of hazardous wastes. Subpart D, on the other hand, regulates only the disposal of non-hazardous wastes.

History of CCR Regulation

In 1980, Congress amended the Resource Conservation and Recycling Act to prohibit EPA regulation of CCRs pursuant to Subpart C until after the date of submission to Congress of a comprehensive study of those wastes.

EPA performed this statutorily mandated study in two phases, in 1988 and 1999 for high volume and low volume CCRs processes (respectively). Both studies concluded that Subpart C was inappropriate for CCRs. In 2000, EPA consummated the process initiated by the 1980 congressional amendment, when it formally concluded that CCRs did not warrant regulation under Subtitle C. Instead, EPA concluded that Subtitle D regulation is appropriate when CCRs are disposed of in landfills or surface impoundments. (65 Fed. Reg. 32214).

However, the agency never proceeded with Subpart D regulations. In December 2008, a dyke burst at a bottom ash surface impoundment in Kingston, Tennessee burst, thereby unleashing nearly a billion of gallons slurry onto nearly 300 acres of nearby lands and streams. It was the largest such accident in U.S. history, and it lent impetus to EPA regulation of CCRs.

On June 21, the agency proposed three options for regulating CCRs under the Resource Conservation and Recovery Act: Subpart C, Subpart D, and Subpart D Prime.

We’ve already covered the differences between regulation under Subparts C and D. As I explain above, both share similar ends, but deploy different means. Notably, EPA’s proposed Subpart C and D options both would require the retrofit of existing surface impoundments with composite liners, or otherwise close. Subpart D Prime is identical to Subpart D except that it would NOT require existing surface impoundments to close or install composite liners; instead, it would require additional monitoring. Thus, Subpart D Prime is the friendliest to industry.

Cost of Rule

Subpart C—EPA estimate: $20 billion over twenty years
Subpart C—Industry estimate: $50 billion to $70 billion over twenty years.
Subpart D—EPA estimate: $6 billion to $7 billion over twenty years
Subpart D Prime—EPA estimate: $3 billion to $3.5 billion over twenty years

Stakeholder Positions

• Industry actually welcomes Subpart D regulation, but would prefer Subpart D Prime

• Environmentalists are hell bent on Subpart C

• EPA seems to be intent on ending the “wet handling” of CCRs (i.e., end the use of surface impoundments for storage and treatment). Both the Subpart C and D options would push (to differing degrees) the utility industry into “dry handling.”

Predicted Outcome

EPA almost assuredly will regulate CCRs pursuant to Subpart D. In late 2009, the agency floated a Subpart C proposal, but it was smacked down as wholly impracticable in the course of a brutal interagency review. [See next post: “EPA’s Coal Ash Rule Demonstrates Worthiness of White House Regulatory Review“]

While I doubt that EPA will adopt the Subpart D Prime option (that is, I doubt the agency won’t require surface impoundments to retrofit with liners), there remains many details to work out for a Subpart D regime, including:

• Whether EPA will apply location restrictions to exiting CCR surface impoundments and landfills

• Whether the agency will amend it run on control requirements for CCR surface impoundments

• Whether the agency will revise certain of the groundwater monitoring parameters

• Whether EPA will allow employees of the disposal unit to make compliance certifications

• The extent to which EPA ensures that beneficial uses for CCR are exempt from regulation

• Whether to include a mechanism for qualified state programs to administer the rules in lieu of the self-implementing approach set forth in the proposal