Coal Combustion Waste Regulation

1. Coal Combustion Waste Regulation Stephen A. Cobb Governmental Hazardous Waste Branch Land Division adem.alabama.gov

2. Regulatory History • 1980– Bevill Amendment to RCRA temporarily exempts CCW and certain other wastes from hazardous waste regulation pending further study • 1988, 1999– Reports to Congress regarding CCW • 1993 – Regulatory Determination regarding certain CCWs finding that Subtitle C regulation not warranted • 2000 – Regulatory Determination regarding remaining CCWs finding that Subtitle C regulation not warranted, Beneficial Use regulations not needed, but Subtitle D regulations needed for certain wastes. • Dec 2009 – Kingston, TN - Surface Impoundment Retaining Wall Failure • June 21, 2010– Proposed Rule for Disposal of CCW from Electric Utilities

3. The Central Question • What is the appropriate level of regulatory control for Coal Combustion Waste? • Subtitle C Hazardous Waste? • Subtitle C Special Waste? • Subtitle D Solid Waste? • Other?

4. Affected Parties • Electric Utilities • Ratepayers/Taxpayers • Disposal Companies • Beneficial Users • Consultants • Generators, etc. of other similar wastes?

5. The Issues • Safe Management of Coal Ash • Groundwater Protection • Drinking Water Protection • Dam Safety/Structural Stability of Impoundments • Capacity Issues • Beneficial Use • Cost of Implementation

6. Alabama’s Challenge • “For example, Alabama does not currently regulate CCR disposal under any state waste authority and does not currently have a dam safety program (although the state has an initiative to develop one).” • “Going back to the period of the 1988 Report to Congress to 2005, two states (Alabama, and Florida) are reported to have relaxed portions of their standards, while not tightening any other portions of their program.” Source: EPA CCR Proposed Rule (6/21/2010) – pp. 35151-35152

7. Proposed Federal Rules • Published June 21, 2010 Federal Register • 138 pages • 90 day comment period from FR publication date • 64 specific requests for comments and/or detailed information (as identified in Issue Summary (Section XIV – pp. 35221-35224) of the proposal) • Additional questions imbedded within text of proposal

8. ASTSWMO Phase I Survey • 3 focus areas related to State management of CCW: • general information • landfills • surface impoundments • 42 States responded • 9 States do not have CCW disposal • 13 States do not have CCW surface impoundments

9. Phase I Survey Results

10. Phase I Survey Results

11. Phase I Survey Results

12. Phase I Survey Results

13. Phase I Survey Results • At least 15 States are considering revisions to CCW disposal regulations • Results show a large number of States require the following for landfills: • Bottom liners • Leachate collection systems • Final cover systems • Post closure care • Corrective action

14. ASTSWMO Phase II Survey • Survey solicited State input impact of hazardous waste designation on: • Cost • Workload • Availability of expertise • Quick turnaround • 50 States & DC responded • Remarkable participation • Indication of State concern

15. Phase II Survey Q: Does your State oppose Subtitle C regulation of CCW? Only 2 of the States that responded did not oppose Subtitle C

16. Phase II Survey Fiscal Impact of Subtitle C • At least 38 States will need additional FTEs • Most States could not guess how many • 18 States estimated they would need 40 FTE @ $4M/year total

17. Phase II Survey Q: Can your State add FTEs to your program? In August 2009, 94% of States said “NO”

18. Public Perception “The [S]tates have proven that they can’t regulate this waste adequately, and that’s seen in the damage that is occurring all over the United States,” said Lisa Evans, a former E.P.A. lawyer who now works on hazardous-waste issues for the environmental advocacy group Earthjustice. “If the [S]tates could regulate the industry appropriately, they would have done so by now.” New York Times, January 6, 2009 ASTSWMO State survey results appear to demonstrate States are regulating these materials

19. Pre-Proposed Rule State Comments on EPA CCW Regulatory Approach • CCW Should not be designated hazardous: • Coal ash passes TCLP test • Municipal waste has more constituents of concern, such as organics, that are regulated under Subtitle D • Hazardous designation would impair beneficial use • Avoid adverse impact on existing State programs • Funding, Funding, Funding

20. Applicability to Other Wastes? • CCR is proposed to be Special Waste S001 • Will there be future S002, S003, …, etc.? • Other “Special Wastes” ? (high volume/low toxicity) • Cement kiln dust • Mining waste • Oil and gas drilling muds and oil production brines • Phosphate rock mining, beneficiation, and processing waste • Uranium waste • Other fossil fuel combustion waste

21. Applicability to Other Units? • Under the NPDES program, large volume non-hazardous wastewaters are routinely managed in surface impoundments – are they next in line for Subtitle C regulation? • Other Surface Impoundments? • Dam Safety • Groundwater Protection • Drinking Water Protection

22. More Information • EPA CCR Website: • http://www.epa.gov/epawaste/nonhaz/industrial/special/fossil/ccr-rule/index.htm • Proposed Rule Document • Frequent Questions • Key Differences Between Subtitle C and Subtitle D Options • EPA Docket: • http://www.regulations.gov (Docket ID No. EPA-HQ-RCRA-2009-0640) • 100+ documents • Federal Register • http://edocket.access.gpo.gov/2010/pdf/2010-12286.pdf • Publication Date – June 21, 2010

23. Questions? • Stephen A. Cobb • (334) 271-7739 • sac@adem.state.al.us