Coal Combustion
Products and
Electronic Waste
Sean M. Sullivan
Williams Mullen
301 Fayetteville Street, Suite 1700
Raleigh, NC 27601
(919) 981-4312
ssullivan@williamsmullen.com
Coal Combustion Products
• Four classes of byproducts resulting
from burning coal.
– Fly ash
– Bottom ash
– Boiler slag
– Flue Gas Desulfurization Material
Coal Combustion Products
• Two Basic Handling Methods
– Wet ash – ash is mixed with water and
accumulated in surface impoundments.
– Dry ash – ash is handled in dry form
and transported for reuse or disposal.
• Chemical content – Varies but typically
includes: Arsenic, Barium, Cadmium,
Chromium (6), Lead, Mercury, Selenium
and Vanadium.
Coal Combustion Products
• Environmental Risks from Disposal
– Groundwater contamination.
– Direct human exposure.
– Catastrophic failure of surface
impoundments.
• Alternative is beneficial reuse.
– Different forms of reuse have different
environmental risks.
Coal Combustion Products
• Current Regulatory Framework
– Federal
• Section 3001(b) of RCRA authorizes
EPA to list certain wastes as hazardous
wastes.
• Section 3001(b)(3) required EPA to
study coal ash before listing it as a
hazardous waste.
• EPA has already done two studies and
twice decided not to list coal ash (1993
& 2000).
Coal Combustion Products
• Current Regulatory Framework
– Federal
• Thus, coal ash is currently regulated as
solid waste, primarily by the states.
• Several petitions to list it as hazardous
waste are pending with EPA.
– North Carolina
• DWM, DWQ and Land Management all
have some jurisdiction over coal ash.
Coal Combustion Products
• Current Regulatory Framework
– North Carolina
• DWM – Notification and selfimplementing requirements for disposal.
• DWQ – Land application of coal ash
from wastewater treatment plants.
• DLM – Enforcement of dam safety rules
for surface impoundments.
Coal Combustion Products
• EPA’s Proposal
– Two options for regulating coal ash that
is destined for disposal.
• “Special waste” within the hazardous
waste program.
• Enhanced regulations for coal ash
disposal sites in the solid waste rules.
– Beneficial reuse – ash that will be
reused will not be regulated as waste at
all.
Coal Combustion Products
• EPA’s Proposal
– Beneficial Reuse
• Preamble clarifies EPA’s understanding
of “beneficial reuse.”
• Use of large quantities of coal ash as fill
is not beneficial reuse, it is land
disposal.
• Similar to notion of recycling hazardous
waste as a substitute for raw ingredient.
– Chemical content must have benefit.
Coal Combustion Products
• EPA Proposal
– Beneficial Reuse
• Because reused materials are not
wastes, reuses can continue without
regulation.
• Incorporation into concrete and drywall
can continue.
• Some reuses common in NC may be
regulated as disposal.
– Large scale fill, traction agent.
Coal Combustion Products
• EPA Proposal
– Regulation as a Special Waste
• Section 3004(x) allows EPA to alter general subpart
C rules for coal ash, hence it is a “special waste.”
• Ban on new surface impoundments.
– EPA studies suggest wet ash disposal poses greater
risk.
– Done through a land disposal restriction on coal ash
wastewaters (effective five years after rule is final).
– EPA alters definition of wastewaters for coal ash to
state if there is more water than ash, it is wastewater.
– All solids must be removed and water must meet
Universal Treatment Standards.
Coal Combustion Products
• EPA Proposal
– Regulation as a Special Waste
• Existing Surface Impoundments
– Dam safety inspections.
– Visual inspections every seven days.
– Groundwater monitoring.
– Must retrofit liners within five years.
– Must close existing surface
impoundments within seven years.
Coal Combustion Products
• EPA Proposal
– Regulation as a Special Waste
• Net Effect on Surface Impoundments
– Existing ponds must cease operation
within five years unless they have a liner.
– New wastewater LDR prohibits use of all
ponds after five years anyway.
– So, no one will build a new one and no
one will bother with retrofitting a liner on
existing ones.
Coal Combustion Products
• EPA Proposal
– Regulation as a Special Waste
• New Landfills
– Synthetic liners with leachate collection.
– Groundwater monitoring.
– TSD Permits.
• Existing Landfills
– Not required to retrofit liners and leachate
collection.
– Groundwater monitoring.
– Expansion triggers new facility standards.
Coal Combustion Products
• EPA Proposal
– Regulation as a Special Waste
• Implementation
– Facilities that store newly generated ash
or actively manage previously stored ash
must get interim status as TSD.
– Ultimately must get permits.
– Closure, post-closure and financial
assurance will apply.
Coal Combustion Products
• EPA Proposal
– Regulation as a Special Waste
• Implementation
– Every generator would likely become
LQG and subject to 90 day accumulation
requirements.
» Storage must be in containers, tanks or
containment buildings once generated.
» Fees.
– Transporter rules apply.
Coal Combustion Products
• EPA Proposal
– Forced phase-out of surface impoundments.
• Chosen approach is dry ash disposal in lined,
permitted landfills.
– LDR for dry ash becomes applicable six
months after rules are final.
• Dry ash must meet Universal Treatment Standards
prior to land disposal.
• Short time frame because EPA expects dry ash will
meet standards without treatment.
Coal Combustion Products
• EPA Proposal
– Regulation as a Special Waste
• EPA expects most power plants will
need to obtain interim status and permits
for existing surface impoundments.
• Corrective action requirements may
apply at a number of sites.
• Question about stigma of coal ash in
beneficial use context.
Coal Combustion Products
• EPA Proposal
– Regulation as a Solid Waste
• Technical standards for landfills are similar to
requirements in the Special Waste model.
• Major difference is that surface impoundments are
not banned.
– EPA lacks authority to impose land disposal
restrictions for solid waste.
– Existing ponds must comply with a performance
standard, retrofit a liner and leachate collection
system or close within five years.
– New ponds must meet standard immediately.
Coal Combustion Products
• EPA Proposal
– Regulation as a Solid Waste
• States and local governments are the
primary regulatory authorities.
• EPA has limited authority to regulate
solid waste or to oversee state solid
waste programs.
• Groundwater monitoring and corrective
action requirements would apply based
on state rule requirements.
Coal Combustion Products
• EPA Proposal
– Regulation as a Solid Waste
• Multiple references in the preamble to EPA concerns
about limited state resources, sufficiency of oversight
and uniformity.
• NC as an Example
– DWM’s regulations allow large-scale use of coal ash
as fill material with 30-day notice to state and
compliance with self-implementing design criteria. No
ongoing monitoring.
» Sierra Club report criticizes DWM oversight.
– Tougher regulations from DWQ for coal ash removed
from ash ponds (regulated as treatment sludge).
» Limited applicability.
Coal Combustion Products
• North Carolina commented in favor of
the solid waste approach but asked for
additional guidance regarding beneficial
use.
• Hard to imagine EPA promulgating rules
that it cannot enforce.
• EPA has asked for data about the
stigma associated with the special
waste approach.
Coal Combustion Products
• The big issue seems to be surface
impoundments.
– EPA believes wet ash management is
far riskier than dry ash management.
– The only way for EPA to ban wet ash
management is through the special
waste approach.
• Electricity rates probably aren’t going
down any time soon.
Electronic Wastes
• Computers, cell phones, televisions, etc.
• Commonly contain – Nickel, Cadmium,
Lead and Mercury.
• EPA believes MSWLFs provide sufficient
protection to environment, but wants to
encourage recycling.
• Twenty states (including NC) have e-waste
recycling laws.
– California regulates certain e-wastes as
hazardous waste. North Carolina does not.
Electronic Wastes
• EPA has developed a Responsible
Recycler (“R2”) certification program.
– Goal is to create standard practices that
minimize environmental impact of
reclaiming and recycling hazardous
substances from e-waste.
– Helps public identify reliable vendors.
Electronic Waste
• North Carolina E-Waste Recycling Law
– NCGS § 130A-309.130, et seq.
– Ban on disposal of discarded computer
equipment or televisions in solid waste
landfills (effective July 1, 2011).
• Only applies to materials discarded by
consumers.
– Residences or non-profits with fewer
than 10 employees.
Electronic Waste
• Recycling Obligations of Manufacturers
– Register with the state and pay fees.
– Take responsibility for recycling of products
sold in NC.
– Annual report of recycling data to state.
– Computer Equipment
• Three types of recycling plans, which vary based on
the number of collection stations the manufacturer
provides.
– Options include mail-ins, collection stations and
collection events.
– Fees vary based on type of plan.
• Manufacturers can establish joint collection stations.
Electronic Waste
• Recycling Obligations of Manufacturers
– Televisions
• Must annually recycle or arrange for
recycling of manufacturer’s “market
share of televisions.”
– Calculated based on sales data.
• Manufacturers can satisfy requirements
jointly.
Electronic Waste
• Obligations of Retailers
– Ensure all computer equipment and
televisions are labeled with
manufacturer’s name.
– Ensure manufacturer has registered
with DENR.
• Names of registered manufacturers
posted on DENR’s website.
Electronic Waste
• Use of Fees Paid by Manufacturers
– Paid into state Electronics Management
Fund.
– DENR may use all television fees and
10% of computer equipment fees to
operate the program.
– Remaining funds are paid to local
governments for management of ewaste.
Electronic Waste
• Local Government Eligibility to Receive
Fees
– Only one governmental entity per county can
receive funds – multiple governments can
enter into agreements.
– Amend solid waste management plan to
address e-waste.
– After January 1, 2013 – contract with recycler
certified under EPA’s R2 program.
Contact Information
Sean M. Sullivan
Williams Mullen
301 Fayetteville Street, Suite 1700
Raleigh, NC 27601
(919) 981-4312
ssullivan@williamsmullen.com