Summary and Analysis of EPA’s Coal Ash Proposed Rule
July 12, 2010
This document summarizes EPA's proposed rule for coal combustion residuals ("CCRs") that was
originally released on Tuesday, May 4, and a revised on May 26, incorporating certain “technical
amendments. The proposed rule was published in the Federal Register on June 21, with comments due
on September 20, 2010. EPA has since proposed some “Administrative” corrections, which are
summarized by EPA as follows:
1. Corrections have been made to several numbers in Table 1, "Summary Table Comparison of
Regulatory Benefits to Costs" on page 16 of the Preamble. The low-end values for the numerical
ranges displayed in rows A2, B2, and B4 of Table 1 have been corrected. The correct low-end
numbers were previously included in Table 11 on page 182 of the Preamble.
2. Editorial corrections, primarily correcting references to risk documents, were made on pages 10,
45, 52, 59, 79, 81, 82, 83, 86, 89, 91, and 188.
A copy of the proposed rule, as well as a pre-publication copy of the administrative changes can be
found at EPA’s website: http://www.epa.gov/osw/nonhaz/industrial/special/fossil/ccr-rule/index.htm
Summary of Proposed Rule
The proposed rule identifies two primary regulatory options for CCRs – and does not identify a
“preferred” option, though in the original proposal submitted to OMB, EPA proposed the Subtitle C
approach:
(1) regulating CCRs destined for disposal in landfills or received (including stored) in surface
impoundments as so-called “special wastes” under
Coal Ash
the hazardous waste program of RCRA Subtitle C
Subtitle C: Hazardous Waste
(2) regulating CCRs destined for disposal in landfills or
Subtitle D: Non-Hazardous Waste
surface impoundments as non-hazardous wastes
under Subtitle D of RCRA.
Under the Subtitle C option, the management of CCRs in surface impoundments would have to cease
within five years of the effective date of the rules and the impoundments would have to close within
two years after the cessation of operations (allowing a possible total of seven years for closing
impoundments after the effective date of the rules). Additionally, under the Subtitle C option, surface
impoundments that have not properly closed prior to the effective date of the rules would be subject to
hazardous waste closure requirements.
Under the Subtitle D option, existing CCR surface impoundments would have to meet location
restrictions and applicable liner and leachate collection requirements within five years of the effective
date of the rules or close (with a possible extension of an additional two years to close in some limited
circumstances). Under both options, existing CCR landfills would not have to meet liner and leachate
control requirements, but would have to meet groundwater monitoring requirements. In addition,
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under both options, surface impoundments would have to meet dam safety requirements to address
the structural integrity of the impoundments to prevent releases.
EPA also seeks comment on a variant of the Subtitle D option – referred to as "Subtitle D
Prime" – under which existing CCR surface impoundments would not have to meet liner requirements
and would not have to close, but could continue to operate for the remainder of their useful lives. Under
this option, CCR surface impoundments would have to meet all other applicable Subtitle D
requirements, including groundwater monitoring and dam safety requirements.
Under both the Subtitle C and Subtitle D options, CCRs that are beneficially used (referred to as coal
combustion products ("CCPs")) would remain excluded from hazardous waste regulation under the
Bevill Amendment. However, beneficial use would not include CCRs that are used in excess quantities,
placed as fill in sand and gravel pits, or used in large scale fill projects, such as for restructuring the
landscape. EPA also reserves the option of establishing controls for "unencapsulated" forms of CCP
beneficial use. The proposal does not address the placement of CCPs in mines, or non-minefill uses of
CCPs at coal mine sites. Instead, the Department of the Interior and EPA will address the management of
CCRs in minefills in a separate rulemaking, consistent with the approach recommended by the National
Academy of Sciences.
The proposed Subtitle C option represents a reversal of EPA's two Reports to Congress and EPA's
corresponding 1993 and 2000 Final Regulatory Determinations under the Bevill Amendment wherein
the Agency concluded that the disposal of CCRs do not warrant hazardous waste regulation. In its 2000
Final Regulatory Determination EPA concluded that regulating CCRs as non-hazardous waste under
Subtitle D of RCRA would be fully effective in protecting human health and the environment.
Under the proposed Subtitle D option, EPA would not reverse its Final 2000 Regulatory Determination
for CCRs, but instead would follow-through on that Determination by promulgating first-of-the-kind
federal non-hazardous waste rules for the disposal of CCRs. Under this approach, CCRs would remain
classified as non-hazardous wastes and EPA would develop national regulations for CCR disposal
facilities enforceable by the states and through citizen suits – these rules would not need to be adopted
by states as would be required under Subtitle C. While EPA would not have direct regulatory
enforcement authority under the Subtitle D option, EPA would retain its broad statutory authority under
RCRA' s imminent and substantial endangerment provision to take judicial or administrative action
against CCR disposal facilities posing an imminent and substantial endangerment to human health and
the environment.
A key difference between the two proposals is that under the Subtitle C option, the CCR hazardous
waste controls would be directly enforceable by EPA and all aspects of CCR management – including
pre-disposal storage and treatment of CCRs – would be subject to full hazardous waste controls. The
application of Subtitle C requirements to all aspects of CCR storage, treatment, transportation and
disposal would extend compliance obligations and costs far beyond the disposal units themselves. In
contrast, the Subtitle D non-hazardous waste rules would apply only to the disposal units and not
regulate other ancillary CCR management activities at the power plant. Also, because the Subtitle C
rules would not take effect in most states (with the exceptions of Alaska and Iowa) until the states
incorporate the rules into their respective hazardous waste programs, it is likely that the non-hazardous
waste rules under the Subtitle D option would be implemented on a faster timetable than would the
hazardous waste rules under the Subtitle C option.
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The following pages present a more detailed analysis of the two primary options presented in the
proposed rule.
Subtitle C Option (Hazardous Waste)
Under the Subtitle C option, CCRs, including fly ash, bottom ash, boiler slag, and flue gas desulfurization
materials, generated by the electric power sector (both electric utilities and independent power
producers) destined for disposal in landfills or received (including stored) in surface impoundments
would be regulated as a listed hazardous waste under RCRA Subtitle C.
Because CCRs would be a listed hazardous waste, any solid waste derived-from the generation,
treatment, storage or disposal of CCRs – such as wastewater generated from the dewatering of
CCRs – would be regulated as a listed hazardous waste under the derived-from rule. Under the Subtitle
C option, CCRs would be subject to hazardous waste controls from their point of generation to their
ultimate disposition in a disposal unit. Under Subtitle C, the "point of generation" is often a case-by-case
determination involving a number of fact-specific issues including, for example, when a waste exits the
"manufacturing process unit and when a decision is made to dispose of the waste. Thus, what
constitutes the "point of generation" for CCRs could differ from plant to plant. CCRs would be subject to
the existing Subtitle C requirements with little modification. The hazardous waste regulations would
include, among other things:

Location Restrictions: There would be no siting of new CCR treatment, storage or disposal units
in seismic impact areas and new units in 100 year flood plains would have to meet certain
performance standards.

Design Requirements: A composite liner and leachate control and removal system would be
required for new CCR landfill1 units and lateral extensions of existing landfill units. Existing
landfills could continue to operate without installing liners and leachate control and removal
systems, but would have to meet applicable groundwater monitoring and related controls. The
disposal of CCRs in sand and gravel pits, quarries, and "other large fill operations" would be
regulated as landfills. Existing CCR surface impoundments would have up to five years to retrofit
and meet the liner and leachate control systems or to cease receiving CCRs and to close two
years after ceasing the receipt of CCRs. EPA expects few, if any, CCR surface impoundments to
be retrofitted to meet the liner requirements and therefore expects most existing CCR surface
impoundments to close.

Operating Requirements: CCR disposal facilities would have to meet the operating requirements
applicable to all hazardous waste facilities, plus certain standards tailored specifically for CCRs,
including:
o
Groundwater Monitoring: All existing and new landfills and surface impoundments
would have to institute groundwater monitoring (detection monitoring, assessment
monitoring and corrective action as necessary).
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APPA recommends that municipalities pay careful attention to the landfill requirements – there are requirements
that may necessitate the closure of landfills that accepted coal ash within 5-7 years of the effective date of the
rule.
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o
Fugitive Dust Controls: Disposal units would have to be managed in a manner that
controls fugitive dust consistent with any applicable requirements developed under a
CAA State Implementation Plan (SIP) or issued by EPA under CAA’s Section 110 and take
measures to control wind dispersal of dust.
o
Closure and Post-closure Care Requirements: Hazardous waste closure and postclosure
requirements would apply to CCR landfills and surface impoundments that close after
the effective date of the rules. In addition, inactive CCR surface impoundments that are
no longer receiving CCRs on the effective date of the rules, but which have not
completed closure by that date, would also be regulated and would have to close under
Subtitle C closure requirements. This would be the first instance in EPA’s
implementation of the RCRA hazardous waste program that units not actively
managing a Subtitle C waste would nonetheless be subject to Subtitle C regulation.
The closure of landfills would require the installation of a cover system over the unit to
prevent the long-term migration of liquids through the closed unit.
o
Financial Assurance2: Owners/operators of CCR landfills and surface impoundments,
tank systems and certain other storage/treatment facilities would have to meet the
applicable Subtitle C financial assurance requirements for closure and post-closure care,
as well as the liability requirements for sudden and non-sudden accidental occurrences
(and facility wide corrective action, as necessary).
o
Storage and Treatment Design Standards: Units used to store or treat CCRs after the
point of generation but prior to their disposal (e.g., tanks, containers, and buildings used
to manage CCRs) would have to meet applicable hazardous waste design and operating
requirements, and obtain a RCRA permit if storage/treatment of the CCR exceeds 90
days in the regulated unit.
o
Permit Requirements: RCRA operating permits (including RCRA interim status) would be
required for the storage, treatment or disposal of CCRs. RCRA facility wide corrective
action would be required for any facility that obtains a permit or interim status (this
would require an assessment of and, remediation as necessary, of all solid waste
management units at the facility, including previously closed disposal units, not just
active CCR land disposal units). Facilities obtaining permits or obtaining interim status
would have to meet RCRA's general facility requirements, including preparedness and
prevention standards, contingency plan and emergency procedures, recordkeeping and
reporting, and manifest retention.
o
Land Disposal Restrictions: RCRA land disposal restriction standards ("LDRs") (i.e., the
requirement that hazardous waste meet certain constituent specific treatment
standards prior to being placed in a land disposal unit) would apply to the placement of
CCRs in landfills and surface impoundments. The LDRs have separate treatment
standards for wastes that are classified as “wastewaters” and wastes classified as “nonwastewaters.” Non-wastewater CCRs (i.e., CCRs with a moisture content of 50% or less)
would have to meet the Universal Treatment Standards ("UTS") for the constituents in
2
See more information on the RCRA Financial Assurance requirements at EPA’s webpage:
http://www.epa.gov/oecaerth/cleanup/rcra/finance.html
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the CCRs before the CCRs could be placed in a landfill. EPA states that “these standards
should be achievable by application of various available technologies, although data
indicate that a great portion (if not virtually all) dry CCRs meet these standards as
generated.” Wastewater CCRs (i.e., CCRs with a moisture content that exceeds 50%)
would have to undergo solids removal so that the wastewater contains no greater than
100 mg/l total suspended solids (TSS) and meet the UTS for any remaining constituents
in the CCR wastewater. The CCR solids removed from the wastewater stream would be
a listed hazardous waste and would have to meet the UTS standard for non-wastewater
CCRs prior to placement in a landfill. The remaining wastewater stream from which the
solids have been removed also would remain a listed hazardous waste. The LDR
treatment standard for wastewater CCRs would have the practical effect of prohibiting
disposal of wet-handled CCRs in surface impoundments 5-years after the effective date
of the regulations (the LDRs for wastewater CCRs would not be applicable until 5-years
after the effective date of the Subtitle C regulations.
o
Stability & Inspection Requirements for Surface Impoundments: New and existing
surface impoundments would have to meet dam safety/stability, weekly inspection and
annual certification requirements patterned after the Mine Safety and Health
Administration ("MSHA") regulations for coal slurry impoundments.
o
Generator and Transporter Requirements: CCR generators would have to comply with
applicable hazardous waste generator rules, including: waste determinations, manifest
procedures, pre-transport procedures, generator accumulation (i.e., 90-day
accumulation requirements), recordkeeping and reporting, and import/export
requirements. CCR transporters would have to comply with applicable hazardous waste
transporter requirements.
Subtitle D Option (Non-Hazardous Waste)
EPA would establish regulations in a new Subpart D for the disposal of CCRs in landfills and surface
impoundments. CCR disposal units that fail to meet these standards would be prohibited “open dumps.”
The Subtitle D regulations would generally be self-implementing, meaning that affected facilities would
have to comply with the new regulations regardless of whether a state adopts the rules at the state
level. Even if the states do not adopt the federal rules, the states, along with citizen groups, could
enforce the federal rules under RCRA’s citizen suit provision. The Subtitle D rules would typically consist
of technical design standards (e.g., the composite liner requirement for landfills and surface
impoundments). For many of the requirements, however, facilities could meet performance criteria in
lieu of the technical design standards provided that facilities demonstrate through certifications by an
independent registered profession engineer that the performance criteria are met.
EPA does not have direct enforcement authority over Subtitle D rules and cannot compel the state to
adopt the regulations or to issue permits for CCR facilities. Therefore, to facilitate state and citizen group
oversight and enforcement of the Subtitle D CCR rules, EPA would require that owners/operators of CCR
disposal facilities verify compliance with many components of the rules through certifications by
independent professional engineers and notification to the state of these certifications and placing them
in the facility’s operating record. In addition, facilities would provide notification to the public of these
certifications by posting notices and the relevant information on a company internet site with a link
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clearly identified as being a link to notifications, reports, and demonstrations required under the CCR
regulations.
Key elements of the Subtitle D (non-hazardous waste) option include the following:

Location Restrictions: Existing CCR landfills could not be located in floodplains or unstable areas
unless certain performance criteria are met. Existing landfills located in “unstable areas” that are
unable to demonstrate that they meet specific performance criteria involving engineering
measures to ensure the integrity of such units, would have to close within five (5) years of the
effective date of the rule, with the ability of obtaining a 2-year case-by- case extension, for a
maximum of 7 years to close. New CCR landfills (including lateral expansions for existing units)
could not be located in floodplains, wetlands, fault areas, seismic impact zones or unstable areas
unless certain performance criteria are met; new landfills would have to be constructed with a
base located a minimum of two feet above the limit of the natural water table.

Design Standards: New landfills and lateral expansions of existing landfills would be required to
have composite liners and leachate collection systems, similar to those proposed for new CCR
landfills under the Subtitle C option. Existing CCR surface impoundments would be required to
be dredged and lined with a composite liner similar to that for CCR landfills within 5 years of the
effective date of the Subtitle D rules, or closed. In addition, owners/operators of existing
surface impoundments that meet certain volume criteria would have to place in the operating
record and make available on the owner/operators' publicly accessible internet site certain
information about the impoundment, including, among other things: (1) the history of the
construction, location, purpose and hazard potential classification of the impoundment, and a
detailed dimensional drawing of the impoundment, and (2) a certification by an independent
registered professional engineer that the design of the impoundment meets current, prudent
engineering practices for the volume of CCRs contained therein, and general provisions for
closure. Existing impoundments would be required to be marked with a permanent
identification marker and, if classified as having a high or significant hazard potential, the
owner/operator would be required to develop an Emergency Action Plan to address a damsafety emergency. New CCR surface impoundments and lateral expansions would be required to
have composite liners and leachate collection systems similar to those for new landfills.
Owners/operators of new CCR surface impoundments also would have to maintain, and make
available to the public via a publicly accessible internet site, the same information regarding the
characteristics of the impoundment described above for existing surface impoundments.

Stability Requirements for Surface Impoundments: Similar to the Subtitle C option, the Subtitle
D rules would impose dam safety/stability standards, including weekly inspection and annual
certification requirements, on surface impoundments patterned after the Mine Safety and
Health Administration ("MSHA") regulations for coal slurry impoundments.

Operating Requirements: All CCR landfills and surface impoundments would have to meet
certain operating requirements, including controls for run-on and run-off, discharges to surface
water, and fugitive dust controls. Owners/operators of CCR landfills and surface impoundments
also would have to maintain records, and make these available on the owners/operators'
publicly accessible internet site, demonstrating compliance with applicable location restrictions,
design criteria, operating criteria, groundwater monitoring, corrective action and closure and
post-closure care. In addition, owners/operators of surface impoundments would be required
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to provide annual updates in their operating records and on their publicly available internet sites
regarding specified characteristics regarding the impoundment.

Groundwater Monitoring and Corrective Action: All new and existing landfills and surface
impoundments would be subject to groundwater monitoring requirements similar to those in
place for MSWLFs. New units would have to comply with the groundwater monitoring
requirements prior to the disposal of CCRs in the units; existing landfills and surface
impoundments would have to implement the groundwater monitoring program within one year
after the promulgation of the Subtitle D rules. Owners/operators of landfills and surface
impoundments would be required to notify the state annually throughout the active and
post-closure life of the unit that the unit is in compliance with applicable groundwater
monitoring and corrective action requirements.

Closure and Post-Closure Care: CCR landfills and surface impoundments could close with CCRs in
place or through “clean closure” which involves CCR removal and decontamination of all areas
affected by the CCR landfill or surface impoundment. Clean closure is complete when the site
meets state specific numeric cleanup levels for the constituents in CCRs. Closure in place for
surface impoundments would require eliminating free liquids or solidifying the remaining
wastes and waste residues; stabilizing the remaining wastes and waste residues to the degree
necessary to support the final cover; and installing a cover meeting specified requirements.
Post-closure care would have to continue for 30-years and, at a minimum, involve maintaining
the integrity of the cover system, groundwater monitoring and the leachate collection and
removal system.

Financial Assurance Not Being Proposed: The Subtitle D option currently does not contain a
financial assurance component for the operation and closure and post-closure care of land
disposal units. Any such financial assurance requirements would be proposed separately. EPA
notes that it is evaluating the establishment of financial responsibility requirements for CCR
management units under CERCLA section 108(b).
Alternative Subtitle D Approaches & Other Regulatory Alternatives Considered
Subtitle D Prime:
EPA seeks comment on a modified Subtitle D option, referred to as “Subtitle D Prime,” that would not
require the closure or installation of composite liners in existing surface impoundments; rather, existing
surface impoundments could continue to operate for the remainder of their useful life. New surface
impoundments would be required to have composite liners and all other proposed Subtitle D
requirements would remain the same.
EPA also seeks comment on a Subtitle D option that would not involve a phase-out of surface
impoundments (and thus presumably would not require existing surface impoundments to retrofit and
meet liner requirements), but rather would involve EPA establishing and funding a program for
conducting annual structural stability assessments of impoundments having a “High” or “Significant”
hazardous potential rating under the National Inventory of Dams rating system. EPA would conduct
these assessments, and take enforcement action as necessary, per existing authorities under RCRA,
CERCLA and/or the Clean Water Act. All other elements of the Subtitle D option would remain the same.
The theory behind this approach is that “annual inspections would be far more cost effective than the
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phase-out of surface impoundments – approximately $3.4 million annually for assessments versus $876
million annually for phase-out.”
Wet C Option
EPA also considered a number of other regulatory alternatives, including the so-called "Wet-C" option,
under which wet-handled CCRs (managed in surface impoundments) would be regulated under Subtitle
C, while dry handled CCRs (managed in landfills) would be regulated under Subtitle D.
Continued Exclusion for Beneficial Use
EPA proposes to retain the Bevill exemption as it applies to the beneficial uses that were identified in
the 2000 Regulatory Determination. EPA maintains that it has not seen evidence of damages from these
uses, especially the use of CCRs in encapsulated products such as wallboard, concrete, and bricks where
CCRs are bound into products. Therefore, CCRs that are beneficially used would continue to remain
exempt from hazardous waste regulation. While unencapsulated forms of CCR beneficial use are
included in the exemption, EPA emphasizes that these uses "have raised concern and merit closer
attention," including especially the "placement of unencapsulated CCRs on the land, such as in road
embankments or in agricultural uses.” EPA makes clear that the use of CCRs for "filling up old quarries
or gravel pits, or the regrading of landscape with large quantities of CCRs" does not constitute beneficial
use (and therefore is not covered by the exemption), but rather constitutes land disposal.
In summary, the exclusion for beneficial use would be conditioned on the following factors:



the CCP must provide a functional benefit
the CCP must substitute for the use of a virgin material, conserving natural resources that would
otherwise need to be obtained through processes such as extraction
the CCP must meet relevant product specifications or regulatory standards when they are
available, or if they are not available must not be used in excess quantities.
EPA clarifies that products created with CCRs (for example, wallboard) do not carry any waste listing
when such products have reached the end of their useful lives and are discarded.
Additional Information
Please see APPA’s webpage, under the Environmental Section, please look under “waste”
Another excellent resource are letters from Congressional, state and local officials, and industry groups
concerning coal ash and its beneficial reuse. These are found on USWAG’s website at (all letters are
publically available):
http://www.uswag.org/ccbletters.htm
APPA Contact:
J.P. Blackford
Environmental Services Engineer
202-467-2956
JPBlackford@APPAnet.org
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