House panel to hear issues related to EPA’s coal combustion residuals rule

A U.S. Environmental Protection Agency official plans to tell a House panel on Jan. 22 that the coal combustion residuals (CCR) rule that the agency issued in December is a commonsense approach that will be both protective of the environment and will not impose undue costs on the coal-fired power industry.

The Subcommittee on Environment and the Economy of the House Energy and Commerce Committee plans a Jan. 22 hearing on the rule, and has already posted the written testimony of witnesses to its website.

Mathy Stanislaus, Assistant Administrator for EPA’s Office of Solid Waste and Emergency Response, wrote: “On December 19, the EPA Administrator Gina McCarthy signed the final CCR or coal ash rule. This rule establishes the first ever nationally applicable minimum criteria providing for the safe disposal of coal combustion residuals in landfills and surface impoundments. The 2008 catastrophic failure of a CCR impoundment at the Tennessee Valley Authority’s (TVA’s) Kingston facility, the EPA’s risk assessment, and the 157 cases in which CCR mismanagement has caused damage to human health and the environment clearly demonstrate that improper management of CCRs poses an unacceptable risk to human health and the environment.

“During the public comment period, the EPA heard from communities across the country about the health and environmental risks posed by mismanaged CCR impoundments associated with groundwater contamination, fugitive dust, and structural failure. Coal combustion residuals (CCR – also commonly known as coal ash) are byproducts of the combustion of coal at power plants. CCR includes fly ash, bottom ash, boiler slag, and flue gas desulfurization (FGD) materials. CCR contain contaminants such as mercury, cadmium, and arsenic which, are associated with cancer and other serious health effects.

“The final rule is a strong, effective approach that provides critical protections to communities across the nation by helping to protect our water, land, and air. Further, the rule provides states and local communities the information they need to fully engage in the rule’s implementation, thereby helping to ensure that facilities safely dispose of CCR. To address the risks posed by mismanagement of CCRs, the rule requires utilities to conduct groundwater monitoring, install liners for new surface impoundments and landfills, control fugitive dust and properly close surface impoundments and landfills no longer receiving CCRs.The rule has been designed to provide electric utilities and independent power producers generating CCR with a practical approach for addressing the issue of CCR disposal and has established varying implementation timelines for the technical requirements that take into account, among other things, other upcoming regulatory actions affecting electric utilities and site specific practical realities.

“This rule also sets out recordkeeping and reporting requirements, including requirements to post information on a publicly available web site to ensure transparency. Finally, the EPA is committed to working closely with our state partners on rule implementation and, as a major component of this, is encouraging states to revise their Solid Waste Management Plans and submit the revisions to the EPA for approval. As stated previously, the CCR rule establishes a comprehensive regulatory program governing the disposal of CCR. As such, it has elements of prevention, response, and public information/transparency.”

Stanislaus noted that the final rule addresses surface impoundments that have ceased receiving waste by the effective date of the rule (inactive units). Those units that have water and contain CCRs pose the same risk as active units of structural failure and groundwater contamination. However, the final rule allows for a practical alternative for these units – if they complete closure (dewater, stabilize, and install a final cover) within three years of the publication of this rule, then they are not subject to any additional requirements under the rule.

Stanislaus added: “The rule supports environmentally sound beneficial use of CCR. As noted earlier, approximately 40 percent of the CCR generated in 2012 was beneficially used. Beneficial use of CCR can produce positive environmental, economic, and performance benefits such as reduced use of virgin resources, lower greenhouse gas emissions, reduced cost of CCR disposal, and improved strength and durability of materials. The final rule does not regulate CCRs that are beneficially used, but provides a definition of beneficial use to distinguish between beneficial use and disposal to provide certainty to the regulated community and to the users of CCR.”

Seminole official says clarity needed on federal versus state issues

Lisa Johnson, CEO and General Manager of Florida-based Seminole Electric Cooperative, wrote in her prepared testimony, which is being backed by the National Rural Electric Cooperative Association: “Seminole would like to acknowledge that we support the U.S. Environmental Protection Agency’s (EPA) decision to designate coal combustion residuals, or CCRs, as non-hazardous. The EPA’s approach, supported by data from its own investigations, appropriately balances the need to protect public health and the environment without creating an undue burden on affected facilities. Even with a non-hazardous final rule, however, we are seeking your support to provide legislative certainty to secure the non-hazardous designation and to establish an orderly process for state authorities to implement federal criteria through state permits.”

Johnson added: “While the EPA will now regulate CCRs as a non-hazardous waste under Subtitle D of the Resource Conservation and Recovery Act (RCRA), Subtitle D is self implementing, which means facilities covered by the rule, including Seminole’s coal plant, must comply with the Federal rule regardless of whether or not the state adopts the rule. As a self-implementing final rule under Subtitle D, the typical method for a state or citizen group to check compliance at a facility, that may or may not be adhering to the rule, is to file suit against the facility. For utilities, such lawsuits could result in frivolous and costly legal disputes in federal district courts where the resulting interpretations and penalties could vary significantly. Seminole’s goal is to comply with both state and federal permits, but we need clarification and certainty on this issue to ensure consistent implementation and compliance.”

Seminole owns and operates a 1,300-MW, coal-fired plant in Putnam County, Florida. It generates approximately 800,000 tons of CCRs per year. However, Seminole recycles more than two-thirds, or roughly 550,000 tons, per year of the CCRs to produce wallboard, cement, and concrete block. The FGD waste material is converted into synthetic gypsum and sold to Continental Building Products. Continental is a wallboard production facility specifically constructed in 2000 to utilize the synthetic gypsum from the Seminole plant. Since 2000, more than 7 million tons of FGD materials have been converted into wallboard. Seminole also recycles all of the facility’s bottom ash to manufacture cement and stronger, lighter concrete block. If not reused beneficially, these byproducts would have been placed in a landfill, Johnson will point out.

State rep also sees issues with meshing federal rule into state plans

Michael G. Forbeck, President of the Association of State and Territorial Solid Waste Management Officials (ASTSWMO), will say his group fully supports the CCR program. “The rulemaking has been of longstanding importance to the Association,” he wrote. “We are pleased that EPA promulgated the final rule under Subtitle D of the Resource Conservation and Recovery Act (RCRA). The Subtitle D regulatory option is one that ASTSWMO has advocated since the inception of the rulemaking, in comments to EPA and in testimony before this Subcommittee in April 2011.

“States have been implementing and enforcing requirements for the management of CCRs under non-hazardous waste regulatory programs in the absence of federal regulations. The Subtitle D approach taken in the final federal rule supports the approach of State programs. The focus of ASTSWMO’s testimony is on State implementation issues stemming from the self-implementing construct of the final rule. Groups within the Association are looking at other technical requirements and beneficial use components and will have additional input in the near future.

“As EPA explains in the preamble, due to its existing statutory authority under RCRA to establish federal minimum criteria for coal combustion residuals, EPA has issued the rule under 40 CFR Part 257, which is self-implementing. By self-implementing, owners/operators of facilities can comply with the federal minimum criteria ‘without the need to interact with a regulatory authority’, as EPA notes in the preamble. In this way, EPA’s authority under Part 257 is unlike the RCRA statutory basis for the 40 CFR Part 258 Criteria governing municipal solid waste landfills, which includes a requirement for States to develop and implement a permit program to incorporate the federal criteria, and for EPA to determine whether those permit programs are adequate to ensure compliance with the criteria. EPA can enforce the federal criteria in States where EPA has determined the State permit program to be inadequate. As EPA indicates in the preamble to the final CCR rule, the regulatory structure that is established through the statutory authority for State permit programs for the Part 258 Criteria, while less detailed than State authorization for RCRA Subtitle C, ‘is equally predicated on mandated implementation by a State regulatory authority of the federal requirements, rather than the potential coexistence of two separate regulatory systems.'”

Forbeck, whose day job is with the Pennsylvania Department of Environmental Protection, says his organization sees difficulties with the state plan mechanism, which are:

  • In order for states to adopt these minimum standards by amending their solid waste management plans, thereby avoiding dual regulatory authority in theory, the process would have to be completed within six months of the date of publication of the final rule. This is an insufficient amount of time. There is a potential lengthy public participation process involved in the submission of state plans that means that the plans would not only have to be amended to incorporate the federal criteria, but that public notice procedures for a public hearing would need to be implemented and the public hearing held. It would be difficult to accomplish all of these steps within a six-month timeframe.
  • State solid waste management plans (SWMPs) fall short on full state implementation because even after passage and approval of the plans, as stated in the preamble of the rule, “EPA approval of a State SWMP does not mean that the state program operates ‘in lieu of’ the federal program as EPA does not have the authority to make such a determination.” Thus, the plans would not fully alleviate dual implementation of state and federal standards.
  • In the preamble, EPA states that a facility that operates in accord with an approved SWMP will be able to beneficially use that fact in a citizen suit brought to enforce the federal criteria. This is subjective and speculative as no one with absolute certainty can predict a court decision. Further, citizen suits filed in different jurisdictions could result in individual courts interpreting the plan and rule differently, thus rendering different decisions that lead to inconsistent implementation of the rule.
  • There is also a concern that more sections of a SWMP than the narrow reopening of the plan to incorporate the CCR rule may be reviewed by EPA and potentially require additional revisions to state plans that may be beyond the scope of CCR.

“ASTSWMO believes that legislation such as H.R. 2218 that was passed by the House in the last Congress would provide for the certainty of State primacy in implementation through State permit programs for CCR enforceable by the State,” Forbeck wrote. “State permit programs for CCR would have the additional benefit of allowing flexibility for States to have regionally appropriate State standards, in the same way that EPA-approved State municipal solid waste (MSW) landfill permit programs are able to implement alternative site-specific designs, since the State CCR permit program would take the place of the self-implementing federal standards. It is unclear whether EPA is providing this flexibility by allowing for the incorporation into State SWMPs of ‘alternative requirements that are at least as protective of public health and the environment’ instead of the direct incorporation and implementation of the federal minimum criteria.”

Utility rep also points to federal versus state issues

James R. Roewer, Executive Director of the Utility Solid Waste Activities Group (USWAG), in testimony submitted on behalf of USWAG, the Edison Electric Institute (EEI) and the American Public Power Association (APPA), wrote: “We support EPA’s decision to regulate CCRs, including coal ash, as non-hazardous waste under Subtitle D of the Resource Conservation and Recovery Act (RCRA). That decision is consistent with the rulemaking record and EPA’s previous regulatory determinations that coal ash does not warrant regulation as a hazardous waste. Indeed, USWAG’s long-standing position has been that EPA should develop a regulatory program for coal ash patterned after the federal regulations in place for municipal solid waste landfills, which include unit design standards, location restrictions, dust controls, groundwater monitoring and corrective action, as well as structural stability controls for coal ash surface impoundments.

“Importantly, however, while we support EPA’s regulation of coal ash as a non-hazardous waste, there are serious flaws in the new rule due to statutory limitations. The problem is that RCRA’s Subtitle D program generally does not authorize the implementation of federal Subtitle D rules through state permit programs; nor does it allow for enforcement of Subtitle D rules by EPA. The only exception is the Subtitle D provisions under which EPA issued the municipal solid waste landfill rules, which are enforceable through state permit programs, with backup EPA enforcement authority. USWAG urged EPA to use this authority in issuing the final coal ash rule under RCRA§ 4010(c), but the Agency determined that it could not. Therefore, we are left with a coal ash rule issued under the general Subtitle D provisions that cannot be delegated to the states and which EPA cannot enforce.

“Because the rule cannot be delegated to the states, it is self-implementing, meaning that regulated facilities must comply with the rule’s requirements irrespective of whether it is adopted by the states. Even if adopted by a state, the federal rule remains in place as an independent set of federal criteria that must be met. This results in dual, and potentially inconsistent, federal and state regulatory requirements for coal ash. And, most troubling, we are hearing that some states may not even attempt to adopt the new coal ash rules, which will guarantee the problem of dual federal and state regulation of coal ash.”

About Barry Cassell 20414 Articles
Barry Cassell is Chief Analyst for GenerationHub covering coal and emission controls issues, projects and policy. He has covered the coal and power generation industry for more than 24 years, beginning in November 2011 at GenerationHub and prior to that as editor of SNL Energy’s Coal Report. He was formerly with Coal Outlook for 15 years as the publication’s editor and contributing writer, and prior to that he was editor of Coal & Synfuels Technology and associate editor of The Energy Report. He has a bachelor’s degree from Central Michigan University.