Update & Overview of the Coal Combustion Residuals Proposed Rule

1. Update & Overview of the Coal Combustion Residuals Proposed Rule United States Environmental Protection Agency Region 4 Frank Ney February 2012

2. Background • 1980 Bevill Amendment temporarily excluded many mining and mineral processing wastes from Subtitle C regulation. • EPA was sued for failing to timely make a final regulatory determination. • May 2000 EPA published its determination that regulation of CCR disposal in Landfills and Surface Impoundments is not warranted under Subtitle C. • August 2007 EPA Issued a Notice of Data Availability (NODA) which included: additional information on damage cases, a revised risk assessment and new information on industry management practices. The comment period on this NODA ended February 11, 2008.

3. Background (Continued) New Information in the NODA: • Risk Assessment – EPA’s Revised risk assessment suggests greater risk than did earlier assessments • Greater risks from arsenic in unlined landfill; surface impoundment arsenic risks were considerably higher • Non-cancer risks for boron and cadmium for unlined surface impoundments

4. Background (Continued) New information in the NODA (con’t) • Composite liners effectively reduce the risk for both pathways for surface impoundments and landfills • Damage Cases – EPA Identified a total of 27 proven cases of damage • 17 cases involved contaminated groundwater (typically arsenic) • 10 involved contaminated surface water • 15 of the Groundwater cases involved unlined units; the liner status not clear in 16th unit • Not long after the publishing of this new information the Coal Ash Surface Impoundment at the TVA Kingston Plant breached

5. Tennessee Valley AuthorityKingston, TN • December 22, 2008, a containment structure failed at TVA Kingston • Estimated 5.4 million cubic yards (CY) of fly ash released into the Emory River and surrounding areas • May 11, 2009, TVA and the EPA entered into an AOC • Approximately 3+ million CY of ash has been addressed under time-critical removal . Looking south across failed dredge cell toward power plant.

6. Location and Plant History Failed Dredge Cell Harriman, Tennessee Emory TVA Kingston Fossil Plant Clinch Kingston, Tennessee Tennessee

7. Dredge

8. AOC Non-time-critical Cleanup Requirements • Approved by EPA in May 2010. • Removal and consolidation on-site of approximately 2.5 million cubic yards of ash. • Protective dike around the coal ash disposal area. • Closing of disposal area will include a two foot clay cover and one foot of top soil. • Phase III (residual ash in river system) to be addressed under separate Environmental Evaluation Cost Assessment (EE/CA). Draft Phase III Sampling and Analysis Plan currently under regulatory review.

9. Coal Combustion Regulations Proposal (Continued) We have seen the new damage and risk info from the 2007 NODA, and the TVA devasting surface impoundment failure, what is the current status of CCRs and CCR management: • Current Management Practices – While most landfills and surface impoundments constructed between 1994 and 2004 had liners and ground water monitoring, there are still many older units – particularly surface impoundments – lacking liners and ground water monitoring.

10. Coal Combustion Regulations Proposal (Continued) Current information (Con’t) • However, even though most landfills and surface impoundments constructed between 1994-2004 have liners, EPA has estimated that in 2004, only 69% of CCR landfills and 38% of surface impoundments had liners compared to 57% and 26%, respectively, in 1995; and • 90% of CCR landfills and only 42% of surface impoundments had ground water monitoring in 2004 compared to 85% and 38%, respectively, in 1995. • In 2007, approximately 131 million tons of CCRs were generated, 36% (47.4 million tons) of CCRs were landfilled, 21% (27.7 million tons) were disposed of in surface impoundments, 38% (49.3 million tons) were beneficially used (excluding minefilling), and 5% (6.7 million tons) were used for minefilling.

11. Coal Combustion Regulations Proposal What Action is EPA Taking? EPA is proposing two approaches for regulating the disposal of coal combustion residuals (CCRs) in landfills and surface impoundments generated by electric utilities and independent power producers. The proposal will not cover CCRs that are beneficially used or used for minefilling. • Option 1: RCRA Subtitle C hazardous waste regulation. • Option 2: RCRA Subtitle D non-hazardous waste regulation.

12. Overview • Technical requirements of each option are very similar; differences are primarily in enforcement and implementation. • Bevill exemption remains in place for beneficial uses of CCRs. • Minefilling is not covered by the proposal. • Principles for EPA decisions: • Protective of Public Health and Environment • Sound Science • Transparency and Greatest Degree of Public Participation

13. Major Elements of the Subtitle C Proposal • CCRs will be listed as a “special waste subject to subtitle C” – S001. • CCRs and the facilities that manage them will be subject to the existing Subtitle C requirements, e.g., generator, transporter, permitting, ground water monitoring, corrective action, and financial assurance. • Land Disposal Restrictions (LDRs) and treatment standards apply. • Modifying certain requirements, using Section 3004(x) • Single composite liner

14. Major Elements of Subtitle C Proposal (continued) • Structural Stability Requirements • Existing landfills must install groundwater monitoring within 1 year of effective date of rule, but do not need to install composite liners. • New landfills or lateral expansions of existing landfills must install composite liners and groundwater monitoring. • Surface impoundment must meet LDRs and liner requirements within 5 years of effective date of rule or close within an additional 2 years after cessation of receipt of waste.

15. Major Elements of Subtitle D Proposal • CCRs remain classified as a “non-hazardous” waste. • National minimum criteria governing facilities disposing of CCRs. • Standard is “no reasonable probability of adverse effects on health or the environment” from disposal of solid waste at the facility. • Many of the technical requirements are similar to the Subtitle C option, e.g., groundwater monitoring, liner and structural stability requirements and dust suppression. • Requirements are self implementing – typically a design standard, and/or performance criteria which a facility could meet in place of the design standard which provides the facility flexibility– often in circumstances where the appropriate requirement is dependent on site-specific conditions.

16. Major Elements of Subtitle D Proposal (continued) • Owner/operator required to obtain certifications by independent professional engineers/minimum qualification requirements for those who make certifications. • Owner/operator required to document how various standards are met. Must be kept in the operating record and the State notified. • Owner/operator required to maintain a web site available to the public that contains the documentation that the standard is met.

17. Key Differences Between Subtitle C and Subtitle D Options

18. Key Differences Between Subtitle C and Subtitle D Options

19. Key Differences between Subtitle C and Subtitle D Options (continued)

20. Key Differences between Subtitle C and Subtitle D Options (continued)

21. Some Subtitle C Advantages and Disadvantages Subtitle C Advantages: • Allows direct federal enforcement of regulations • Supported by damage cases and draft risk assessment • Requires permits Subtitle C Disadvantages : • Regulation will take 2-5 years or longer to become effective after promulgation • Could raise disposal capacity issues, complicate and add to expense of cleanup/ removal actions • Could have adverse impacts on beneficial uses

22. Some Subtitle D Advantages and Disadvantages Subtitle D Advantages: • Environmental standards in place in all states on the effective date of the regulations • No perceived stigma on beneficial use Subtitle D Disadvantages: • EPA cannot directly enforce the regulations • EPA cannot require a permit program under Subtitle D • Financial Assurance requirements are more limited

23. Coal Combustion Regulations Proposal (Continued) Regardless of the regulatory option chosen, the proposed regulations will require: • No placement of CCRs in fault zones, floodplains, and below the natural ground water table. • Synthetic liners in new CCR disposal units. • Groundwater monitoring at all new and existing disposal units.

24. Coal Combustion Regulations Proposal (Continued) Regardless of the regulatory option chosen, the proposed regulations will require: • Fugitive dust controls. • Surface-impoundment integrity and inspections. • Closure and post-closure care.

25. Beneficial Use • EPA supports and encourages safe and environmentally appropriate beneficial uses. • Beneficial use has significant benefits – conserves resources, provides improved material properties, reduces GHG emissions, lessens need for disposal units, and provides significant domestic economic benefits. • EPA recognizes, however, important issues and uncertainties associated with specific uses, considerable recent and ongoing research, and that the composition of CCRs are likely changing as result of more aggressive air pollution controls.

26. Beneficial Use (continued) • In EPA ‘s proposal: • Beneficial use retains the Bevill exemption • Beneficial use is defined as a use which: • Provides a functional benefit • Replaces the use of a virgin or other alternative material, conserving natural resources • Meets relevant product specifications and regulatory standards (where available). • Use of CCRs in excess quantities, placement as fill in sand and gravel pits, or use in large scale fill projects, such as for restructuring the landscape, are not beneficial use.

27. Beneficial Use (continued) • Concerned with potential “stigma” on beneficial use, if CCRs are regulated under Subtitle C. Solicits comments and specific data on stigma. • Do not have information on concerns associated with encapsulated uses (e.g, concrete). • Aware of issues with unencapsulated uses and will fully consider risks, management practices, state controls, ongoing research and other information. Specifically solicit comment on whether to regulate and, if so, the most appropriate regulatory approach to be taken.

28. Additional Options Considered • D Prime --surface impoundments allowed to operate until end of useful life; other requirements same as the D proposal. • Wet-handled CCRs regulated under Subtitle C; Dry-handled under Subtitle D

29. Additional Options Considered (continued) • “CKD Approach” • Establish detailed management standards under Subtitle D • If CCRs were in egregious violation of the requirements, then the CCRs would be considered “special wastes” under Subtitle C • Rely on NPDES Permits for structural integrity requirements • No regulations

30. Solicitation of Comments • EPA solicits comments on numerous matters and most fall into four main areas of analyses: • Extent of existing damage cases • Extent of risks posed by mismanagement of CCRs • Adequacy of state programs to ensure proper management of CCRs • Extent to which unencapsulated uses of CCR should be defined as “Beneficial Use” and parameters to ensure unencapsulated beneficial use is protective of human health and the environment

31. Public Hearings Arlington, VA – August 30, 2010, Hyatt Regency, 2799 Jefferson Davis Highway, Arlington, VA 22202, Phone: (703) 418-1234, www.crystalcity.hyatt.com. Denver, CO – September 2, 2010, Grand Hyatt, 1750 Welton Street, Denver, CO 80202, Phone: (303) 295-1234, www.granddenver.hyatt.com. Dallas, TX – September 8, 2010, Hyatt Regency Dallas, 300 Reunion Boulevard, Dallas, TX 75207, Phone: (214) 651-1234, www.dallasregency.hyatt.com. Charlotte, NC – September 14, 2010, Holiday Inn Charlotte (Airport), 2707 Little Rock Road, Charlotte, NC 28214, Phone: (704) 394-4301, www.hicharlotteairport.com. Chicago, IL – September 16, 2010, Hilton Chicago, 720 South Michigan Avenue, Chicago, IL 60605, Phone: (312) 922-4400, http://www.chicagohilton.com/hotels__hiltonchicago.aspx. Pittsburgh, PA – September 21, 2010, Omni Hotel, 530 William Penn Place, Pittsburgh, PA 15219, http://www.omnihotels.com/FindAHotel/PittsburghWilliamPenn.aspx Louisville, KY – September 28, 2010,Seelbach Hilton, 500 Fourth Street, Louisville, KY 40202-2518, http://www.seelbachhilton.com/ Knoxville, TN – October 27, 2010, Knoxville Marriott, 500 Hill Avenue, SE, Knoxville TN, 37915, Phone: (805) 637-1234

32. Public Comments The public comment period closed on November 19, 2010. EPA has received over 450,000 comments. EPA announced a Notice of Data Availability (NODA) on October 12, 2011. The NODA invited comment on additional information obtained during the comment period such as: chemical constituent data from CCRs; facility and waste management unit data; additional alleged damage cases; adequacy of State programs; and information on Beneficial Use. The comment period closed for the NODA on November 14, 2011.