Federal CCB Regulations:
Utility Industry’s
Perspective
Jim Roewer
APPA E&O Conference
March 30, 2010
Coal Combustion Byproducts
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Produced as a result
of coal combustion
for power generation
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Fly Ash
Bottom Ash
Boiler Slag
Flue Gas
Desulfurization (FGD)
Materials
CCB Generation & Utilization
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>136 million tons CCBs produced in 2008
>60.6 million tons beneficially used (44.5%
utilization)
Utilization reduces land disposal, utilization of
natural resources, energy consumption and
GHG emissions
Reduction of CO2 emissions >13 million tons
CCB Regulatory Status
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Subject to State Solid, Industrial or Special
Waste Regulations
Exempt from Regulation as RCRA
Hazardous Waste
CCB Regulatory Chronology
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1980 Bevill Amendment
1988 EPA Report to Congress
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“EPA does not intend to regulate under Subtitle C”
1993 Regulatory Determination (58 Fed Reg
42466)
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“regulation … as hazardous waste under RCRA
Subtitle C is unwarranted.”
CCB Regulatory Chronology
•
1999 EPA Report to Congress
–
•
“disposal … should remain exempt from RCRA
Subtitle C”
2000 Regulatory Determination (65 Fed Reg
32214)
–
–
–
“regulation … under Subtitle C of RCRA is not
warranted.”
no additional regulations are warranted for beneficial
use
“decided to establish national regulations under
subtitle D of RCRA “
TVA Kingston Fossil Plant
Coal Ash Spill
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Monday, December 22, 2008, just before 1 a.m.,
a dike at a coal ash containment area failed at
TVA’s Kingston Fossil Plant
>1 Billion gallons of ash was released into
adjacent waterways and properties
Heightened Focus on Coal Ash
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Congressional Attention
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Senate EPW; House Energy & Commerce, Natural
Resources, Transportation & Infrastructure
EPA Inspections & Rulemaking
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Dam Safety
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Environmental Regulations
Advocacy
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Environmental Groups
Industry (CCB Coalition)
Federal CCB Regulations
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Regulatory Options
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Non hazardous regulations (RCRA Subtitle D)
Hazardous Waste Regulations (RCRA Subtitle C)
Combined Options (Mix of C & D)
Proposed Rule sent to OMB October 15
Proposed Rule Published December 2009
Federal CCB Regulations
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Regulatory Options
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Non hazardous regulations (RCRA Subtitle D)
Hazardous Waste Regulations (RCRA Subtitle C)
Combined Options (Mix of C & D)
Proposed Rule sent to OMB October 15
Proposed Rule Published January 2010
Federal CCB Regulations

Regulatory Options
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Non hazardous regulations (RCRA Subtitle D)
Hazardous Waste Regulations (RCRA Subtitle C)
Combined Options (Mix of C & D)
Proposed Rule sent to OMB October 15
Proposed Rule Published February 2010
Federal CCB Regulations

Regulatory Options

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Non hazardous regulations (RCRA Subtitle D)
Hazardous Waste Regulations (RCRA Subtitle C)
Combined Options (Mix of C & D)
Proposed Rule sent to OMB October 15
Proposed Rule Published April 2010
Federal CCB Regulations

Regulatory Options
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Non hazardous regulations (RCRA Subtitle D)
Hazardous Waste Regulations (RCRA Subtitle C)
Combined Options (Mix of C & D)
Proposed Rule sent to OMB October 15
Proposed Rule Published ???? 2010
Federal CCB Regulations

Regulatory Options
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Non hazardous regulations (RCRA Subtitle D)
Hazardous Waste Regulations (RCRA Subtitle C)
Combined Options (Mix of C & D)
Proposed Rule sent to OMB October 15
Proposed Rule Published ???? 2010
Final Rule 2011
Implementation 2013 - 2015
EPA Concerns
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Enforceability
Permitting
Wet Handling (Impoundments)
Beneficial Use
Federal CCB Regulations
–
–
–
–
–
–
–
–
Location Restrictions
Operating Criteria
Design Criteria (e.g., liners)
Groundwater Monitoring
Closure
Financial Assurance
Impoundment Integrity
Restrictions on “Wet Handling” (i.e., pond closure)
Subtitle D Regulations
●
●
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●
Administered and Enforced by the States
Consistent with 1993 & 2000 Regulatory
Determinations
No Stigma/Barriers to CCB Beneficial Use
EPA Direct Enforcement May be Limited
Subtitle C Regulations
●
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●
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Federal Hazardous Waste Rules Supplant State
Controls
Direct Federal Enforceability
2–5 Years for Rules to Become Effective
Disposal Capacity Issues
Adverse Impact on Beneficial Use
Impact of Subtitle C Regulation
on CCB Disposal
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Re-permitting of Existing Facilities
Corrective Action
Closure of Existing Facilities
Permitting of New Disposal Facilities
De Minimis Releases
Spill Cleanup
Impact of Subtitle C Regulation
on CCB Disposal
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Disposal Subject to Subtitle C Regulation
Qualified Beneficial Uses Exempt from
Regulation
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Cement & Concrete, Wallboard Manufacture OK
Unconfined Uses, Land Application Likely Prohibited
“Qualified Uses” or “Legitimate” Recycling
Assumes Hazardous Secondary Material
Impact of Subtitle C Regulation
on CCB Use

RCRA Compliance—Regulatory Conditions
Similar to Part 261.4(a)(23)
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Storage to Prevent Release/Spill Response
Release = Illegal Disposal?
Prohibition on Speculative Accumulation
Due Diligence to Ensure Safe Handling/Use
Ensuring Legitimate Use & Meeting Legitimacy
Criteria
Impact of Subtitle C Regulation
on CCB Use

Potential Environmental Liabilities
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Increased Tort Exposure
Product Liability Concerns
Product Disposal Concerns (Off-Spec Materials,
end-of-life Disposal)
Reduced Markets
Increased CERCLA Visibility
State Environmental
Regulatory Agencies
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ECOS
ASTSWMO
Arizona DEQ
Arkansas DEQ
Colorado DPHE
Florida DEP
Hawaii DLNR
Illinois EPA
Indiana DEM & DNR
Iowa DNR
Kansas DHE
Kentucky AG
Louisiana DEQ
Maryland DE
Michigan DEQ
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Minnesota PCA
Missouri DNR
Mississippi DEQ
New Jersey DEP
North Dakota DH
Ohio EPA
Oklahoma DEQ
Pennsylvania DEP
South Carolina DHEC
South Dakota DENR
Tennessee DEC
Texas CEQ
Virginia DEQ
West Virginia DEP
Wisconsin DNR
Other State Agencies
State Associations
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NCSL
Conf of Mayors
Public Utility Commissions
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Indiana URC
Louisiana PSC
New Mexico PRC
North Carolina PUC
North Dakota PSC
Ohio PUC
Pennsylvania PUC
State Highway/DOT
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American Association of State
Highway and Transportation
Officials (AASHTO)
Arizona DOT
Colorado DOT
Florida DOT
Indiana DOT
Michigan DOT
Minnesota DOT
New Hampshire DOT
North Carolina DOT
Texas DOT
Utah DOT
Other Stakeholders
Chambers of Commerce
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US Chamber of Commerce
Michigan
North Carolina
South Carolina
CCB End Users
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Technical/Educational
Organizations
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ACAA
ACI
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American Concrete Paving Assn
American Society Concrete
Contractors
Gypsum Assn
National Ready Mix Concrete
Assn
National Assn of Manufacturers
Labor

UJAE
State Officials
Governors
 National Governors
Association
 Western Governors
Association
 West Virginia Governor
Manchin
 North Dakota Governor
Hoeven
State Executive Officials
 Missouri Lieutenant Governor
Kinder
 Kentucky Attorney General
Conway
Municipal Governments
 Colorado Springs
 Grand Island, NE
 Hastings, NE
 Springfield, IL
 Wyandotte, MI
Congressional Letters
Conrad Senate Letter (25)
Bayh Senate Letter (27)
Senators Burris, Casey, Kyl &
Roberts
House Letter (74)
House Coal Caucus letter (116)
Reps Bonner, Leutkemeyer,
Platts, Schock, Sires,
Skelton and Teague
CCB Coalition

Ash Producers (Utilities and Industries), Ash
Users—Individual Companies & Associations


Seeking Non-hazardous Waste Regulations
Seeking to Preserve and Expand CCB Beneficial
Use
www.uswag.org/ccbletters.htm
Possible Timeline for Environmental Regulatory
Requirements for the Utility Industry
Ozone
SO2/NO2
CAIR
Water
Beginning
SO2 Primary
CAIR
Phase
I
Revised
Reconsidered NAAQS
Effluent Guidelines
Proposed CAIR
Ozone Seasonal
Ozone
Final rule expected
Replacement
NAAQS NOx Cap
NAAQS
SO2/NO2
Next Ozone
Final CAIR
Rule Expected
Secondary
NAAQS Revision
Replacement
CAIR
NAAQS
Rule Expected
Vacated
316(b) Compliance
Effluent
316(b) final rule
3-4 yrs after final rule
Guidelines
expected
CAIR
NO2
CO2
proposed rule
Remanded
Primary
Regulation
expected
NAAQS
'08
'09
PM-2.5
SIPs due Begin
CAIR
(‘97)
Phase I
CAMR &
Annual
Delisting
NOx Cap
Rule vacated
'10
Begin
CAIR
Phase I
Annual
SO2 Cap
'11
'12
Next PM2.5
NAAQS
Revision
'13
'15
'14
Effluent Guidelines
Compliance 3-5 yrs
after final rule
'16
PM-2.5
SIPs due
(‘06)
Beginning CAIR
Final
New PM-2.5 NAAQS
Phase II Annual
Rule for
Designations
SO2 & NOx Caps
CCBs
HAPS MACT Begin Compliance
HAPS MACT
Mgmt
Compliance with Compliance 3 yrs
final
rule
Requirements
under
HAPs MACT
Proposed
CAIR
expected
Final CCB Rule
after final rule
proposed
Rule for CCBs
Replacement
Rule
(ground water
Final EPA
rule
Management
monitoring,
double
Nonattainment
316(b) proposed
monitors,
closure,
Designations
rule expected
dry ash conversion)
PM2.5
Ash
Hg/HAPS
CO2
'17
Beginning
CAIR Phase
II Seasonal
NOx Cap
31
-- adapted from Wegman (EPA 2003) Updated 2.15.10
Questions?
Jim Roewer
202/508-5645
jim.roewer@uswag.org