Regulating Coal Combustion Waste Disposal:
Issues for Congress
Linda Luther
Analyst in Environmental Policy
September 21, 2010
Congressional Research Service
7-5700
www.crs.gov
R41341
CRS Report for Congress
P
repared for Members and Committees of Congress
Regulating Coal Combustion Waste Disposal: Issues for Congress
Summary
Coal combustion waste (CCW) is inorganic material that remains after pulverized coal is burned
for electricity production. A tremendous amount of the material is generated each year—industry
estimates that as much as 136 million tons were generated in 2008. On December 22, 2008,
national attention was turned to issues regarding the waste when a breach in an impoundment
pond at the Tennessee Valley Authority’s (TVA’s) Kingston, TN, power plant released 1.1 billion
gallons of coal ash slurry. The cleanup cost has been estimated to reach $1.2 billion.
While the incident at Kingston drew national attention to the potential for a sudden catastrophic
release of waste, it is not the primary risk attributed to CCW management. An April 2010 risk
assessment by the Environmental Protection Agency (EPA) indicated that CCW disposal in
unlined landfills and surface impoundments presents substantial risks to human health and the
environment from releases of toxic constituents (particularly arsenic and selenium) into surface
and groundwater. Those releases are largely prevented when the waste is disposed of in landfills
and surface impoundments equipped with composite liners. In addition to potential risks, EPA has
reported numerous cases of documented damages to surface and groundwater when CCW was
deposited into unlined disposal units or used as construction fill.
The disposal of CCW is essentially exempt from federal regulation. Instead, it is regulated in
accordance with requirements established by individual states. Inconsistencies among state
regulatory programs were identified by EPA in a May 2000 regulatory determination as one
reason that national standards to regulate CCW were needed. More recently, EPA called into
question the effectiveness of some state regulatory programs in protecting human health and the
environment. In particular, EPA cited data from a 2009 state survey that showed that over 60% of
states do not require liners or groundwater monitoring for surface impoundments.
To establish national standards intended to address risks associated with potential CCW
mismanagement, on June 21, 2010, EPA proposed two regulatory options to manage the waste.
The first would draw on EPA’s existing authority to identify a waste as hazardous and regulate it
under the waste management standards established under Subtitle C of the Resource Conservation
and Recovery Act (RCRA). The second option would establish regulations applicable to CCW
disposal units under RCRA’s Subtitle D solid waste management requirements. Under Subtitle D,
EPA does not have the authority to implement or enforce its proposed requirements. Instead, EPA
would rely on states or citizen suits to enforce the new standards.
Industry groups, environmental and citizen groups, state agency representatives, and some
Members of Congress have expressed concern over EPA’s proposal. The primary questions and
concerns regarding the Subtitle C proposal relate to its ultimate impact on energy prices, state
program implementation costs, and CCW recycling opportunities. Concern about the Subtitle D
proposal primarily relates to whether it would sufficiently protect human health and the
environment, given EPA’s lack of authority to enforce it. Commenters have proposed various
legislative options in response to these varied concerns. Some suggest Congress should designate
CCW as hazardous waste under Subtitle C. Alternatively, others suggest prohibiting EPA from
regulating the material under Subtitle C and/or providing EPA with direct authority to develop
criteria applicable to landfills and surface impoundments that receive CCW under Subtitle D.
Congress might also consider a new subtitle under RCRA directing EPA to develop disposal
facility criteria similar to those under Subtitle D, but providing EPA with federal enforcement
authority similar to Subtitle C, without explicitly designating the material a hazardous waste.
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Regulating Coal Combustion Waste Disposal: Issues for Congress
Contents
Introduction ................................................................................................................................ 1
Background and Overview of EPA’s Proposal.............................................................................. 3
The Nature of CCW .................................................................................................................... 6
CCW Management Methods ....................................................................................................... 8
Disposal................................................................................................................................ 8
“Beneficial Use” ................................................................................................................... 9
Risks Associated with CCW Mismanagement ........................................................................... 10
RCRA Provisions Relevant to EPA’s Proposal ........................................................................... 12
Relevant Existing Subtitle C Requirements ......................................................................... 12
Relevant Existing Subtitle D Requirements ......................................................................... 14
EPA’s Proposed Regulatory Options .......................................................................................... 16
Subtitle C Proposal ............................................................................................................. 16
Subtitle D Proposal ............................................................................................................. 18
Economic Impact of the Proposed Options .......................................................................... 19
Possible Approaches for Congress............................................................................................. 20
Tables
Table 1. Selected Requirements Under Subtitle C Proposal........................................................ 17
Table A-1. Description and Proportions of CCW ....................................................................... 22
Appendixes
Appendix. Types of Coal Combustion Waste ............................................................................. 22
Contacts
Author Contact Information ...................................................................................................... 22
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Regulating Coal Combustion Waste Disposal: Issues for Congress
Introduction
Coal combustion waste (CCW) is inorganic material that remains after pulverized coal is burned
for electricity production. A tremendous amount of the material is generated each year—industry
estimates that as much as 136 million tons were generated in 2008, making it one of the largest
waste streams generated in the United States.
Disposal of CCW1 onsite at individual power plants may involve decades-long accumulation of
the waste—with hundreds of thousands, if not millions, of tons of dry ash or wet ash slurry
deposited at the site. On December 22, 2008, national attention was turned to risks associated
with managing such large volumes of waste when a breach in an impoundment pond at the
Tennessee Valley Authority’s (TVA’s) Kingston, TN, plant released 1.1 billion gallons of coal fly
ash slurry. The release covered more than 300 acres and damaged or destroyed homes and
property. TVA estimates that cleanup costs may reach $1.2 billion.
The incident at Kingston brought attention to the potential for a sudden, catastrophic release
related to the structural failure of an impoundment. However, a more common threat associated
with CCW management is the leaching of contaminants likely present in the waste, primarily
heavy metals, resulting in surface or groundwater contamination. For example, the Environmental
Protection Agency (EPA) has determined that arsenic, selenium, lead, and other contaminants can
leach into groundwater and exceed safe limits when CCW is deposited in unlined disposal units.
To address potential threats to human health and the environment associated with improper
management of CCW, on June 21, 2010, EPA proposed for public comments two regulatory
options applicable to the management of CCW. 2 Under the first option, EPA would draw on its
existing authority to identify a waste as hazardous and regulate it under the hazardous waste
management standards established under Subtitle C of the Resource Conservation and Recovery
Act (RCRA, 42 U.S.C. § 6901 et seq.). The second option would establish criteria applicable to
landfills and surface impoundments accepting CCW under RCRA’s Subtitle D solid waste
management requirements. Under Subtitle D, EPA does not have the authority to enforce its
proposed requirements. Instead, EPA would rely on states or citizen suits to enforce its standards.
Since EPA published its proposal, industry groups, environmental and citizen organizations, and
state government representatives have expressed various concerns regarding the proposed
options. Industry groups argue that the Subtitle C option is not justified and would be too costly
to implement. Further, they argue that regulating the waste as hazardous under Subtitle C would
stigmatize it, potentially limiting recycling opportunities. State representatives are concerned
about the costs of implementing a Subtitle C regulatory program. They further argue that EPA has
not demonstrated that existing state regulatory programs are in fact deficient in protecting human
health and the environment. Environmental and citizen groups argue that new data demonstrate
1 In its June 2010 regulatory proposal, EPA refers to the material as coal combustion residuals. It is also commonly
referred to as coal combustion byproducts or materials. How the material is referred to generally depends on the
context in which it is being discussed. For example, coal combustion waste is generally destined for disposal, while
coal combustion byproducts are likely destined for some use such as a component in gypsum wallboard or cement.
Regardless of what it is called, these terms refer to the same substances. Since this report primarily discusses issues
associated with the materials’ disposal, it will be referred to as coal combustion waste (CCW).
2 U.S. EPA, “Hazardous and Solid Waste Management System; Identification and Listing of Special Wastes; Disposal
of Coal Combustion Residuals From Electric Utilities,” 75 Federal Register 35127-35264, June 21, 2010.
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that the waste meets the regulatory criteria necessary to list it as hazardous under Subtitle C and
that EPA lacks the authority to enforce the disposal criteria it proposes under Subtitle D.
Some Members of Congress have also expressed concern over these issues, both before and after
the regulatory proposal.3 They have expressed some of the same concerns expressed by interested
stakeholders, primarily questions and concerns regarding the impact that Subtitle C regulations
may ultimately have on coal-producing states, state regulatory agencies, energy prices, and CCW
recycling opportunities, and concern that human health and the environment would not be
sufficiently protected under the Subtitle D option given EPA’s limited authority to enforce it.
There are several legislative approaches that could potentially address these concerns. Congress
might direct EPA to continue to exempt the CCW from regulation as hazardous waste under
Subtitle C. Instead of (or in addition to) prohibiting EPA from regulating the waste under Subtitle
C, Congress could choose to give EPA additional authority to regulate it under Subtitle D.
Specifically, it might direct EPA to revise existing criteria, applicable to municipal sold waste
(MSW) landfills under Subtitle D, to include landfills and surface impoundments that receive
CCW. Congress could further require states to adopt a permit program to assure that those
facilities meet the revised criteria.
To address issues associated with EPA’s lack of enforcement authority under Subtitle D and the
desire for industry to avoid labeling the material as “hazardous” waste, Congress could also
choose to create a new subtitle under RCRA that would specifically address issues unique to the
management of CCW. Such a proposal could include a number of legislative provisions, but,
broadly, could direct EPA to develop waste management standards applicable to disposal facilities
that accept CCW (similar to Subtitle D), but also provide EPA with federal enforcement authority
to require states to implement those standards (similar to Subtitle C).
To assist Members of Congress in understanding potential legislative approaches, this report
provides an overview of the current rulemaking and relevant background information that applies
to that rulemaking. In particular, the report describes the nature of the waste itself and primary
methods of managing it; discusses potential risks associated with its mismanagement, particularly
as supported by new data EPA has gathered to support the proposed rulemaking; and provides an
overview of EPA’s current regulatory proposal—including an overview of relevant existing
RCRA requirements.
Issues in this report are discussed primarily within the context of EPA’s regulatory proposal and
associated supporting documents. It generally does not incorporate studies or opinions of
interested stakeholders such as industry groups, state agency representatives, or environmental
organizations, except as those positions may be reflected in EPA’s June 21, 2010, regulatory
proposal.
3 See the House Committee on Natural Resources, Subcommittee on Energy and Mineral Resources hearing, “How
Should The Federal Government Address The Health And Environmental Risks Of Coal Combustion Waste?,” June
10, 2008. On February 12, 2009, the subcommittee held a legislative hearing regarding H.R. 493, the Coal Ash
Reclamation, Environment, and Safety Act of 2009. Also, on March 31, 2009, the House Committee on Transportation
and Infrastructure, Subcommittee on Water Resources and Environment, held a hearing, “The Tennessee Valley
Authority’s Kingston Ash Slide: Potential Water Quality Impacts of Coal Combustion Waste Storage,” and on
December 9, 2009, the House Committee on Energy and Commerce, Subcommittee on Energy and Environment, held
a hearing, “Drinking Water and Public Health Impacts of Coal Combustion Waste Disposal.”
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Background and Overview of EPA’s Proposal
Federal requirements specific to the management of solid and hazardous waste were evolving in
the late 1970s and early 1980s. In 1976, Congress enacted the Resource Conservation and
Recovery Act (RCRA, 42 U.S.C. § 6901 et seq.).4 Subtitle C of RCRA created a hazardous waste
management program that, among other provisions, required EPA to develop criteria for
identifying the characteristics of “hazardous” waste and develop waste management criteria
applicable to such waste. Subtitle D of RCRA established criteria applicable to non-hazardous
solid waste disposal. It also established state and local governments as the primary regulating and
implementing entities for the management of solid waste (i.e., household garbage and non-
hazardous industrial solid waste).
As required under Subtitle C, EPA first proposed hazardous waste management regulations in
1978.5 In these proposed regulations, EPA identified six categories of wastes it deemed “special
wastes” that would be deferred from hazardous waste management requirements until further
study and assessment could be completed to determine their risk to human health and the
environment. These special wastes were identified because they typically were generated in large
volumes and, at the time, were believed to pose less risk to human health and the environment
than the wastes being identified for regulation as hazardous waste.
In the months before the hazardous waste regulations were finalized in 1980, Congress was
debating RCRA reauthorization. In February 1980, Representative Tom Bevill introduced an
amendment to the pending legislation that would require EPA to defer the imposition of
hazardous waste regulatory requirements for fossil fuel combustion waste and discarded mining
waste until data regarding its potential hazard to human health or the environment could be
determined. Representative Bevill stated that EPA’s intent to regulate such waste as hazardous
would discourage the use of coal and constitute an unnecessary burden on the utility industry.6 In
anticipation of the enactment of this legislation, according to EPA, the agency excluded the
regulation of fossil fuel combustion waste from its final hazardous waste regulations.7
Ultimately, the Solid Waste Disposal Act Amendments of 1980 (P.L. 96-482) included provisions
commonly referred to as the “Bevill Amendment” or the “Bevill exclusion.” Under those
provisions Congress specifically excluded CCW from regulation under RCRA Subtitle C,
pending EPA’s completion of a report to Congress and regulatory determination on whether
hazardous waste regulations were warranted.8
Subsequently, EPA published its Bevill regulatory determination in May 2000, retaining the
hazardous waste exemption under RCRA. EPA concluded that CCW did not warrant regulation as
hazardous waste. However, EPA stated that it was convinced that national regulations under
Subtitle D were warranted for CCW disposal in landfills and surface impoundments because (1)
4 RCRA actually amends earlier legislation, the Solid Waste Disposal Act of 1965, but the amendments were so
comprehensive that the act is commonly referred to as RCRA rather than by its official title.
5 42 Federal Register 58946, Dec. 18, 1978.
6 Congressional Record, Feb. 20, 1980, p. 1087.
7 45 Federal Register 33084, May 19, 1980.
8 The exclusion is specified at 42 U.S.C. 6921(b)(3)(A)(i); factors EPA was required to study to make the appropriate
regulatory determination are specified at 42 U.S.C. 6982(n).
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the composition of the waste had the potential to present danger to human health and the
environment in certain circumstances; (2) EPA had identified proven cases of damages to human
health and the environment through improper waste management; (3) while industry management
practices had improved measurably, there was sufficient evidence the wastes were being managed
in a significant number of landfills and surface impoundments without proper controls in place,
particularly in the area of groundwater monitoring; and (4) while there had been substantive
improvements in state regulatory programs, EPA identified significant gaps either in states’
regulatory authorities or in their exercise of existing authorities.9
In its 2000 regulatory determination, EPA also stated that it would revise its determination if it
found that a need for regulation under Subtitle C was warranted. On October 16, 2009, after 10
years of additional study, debate, and controversy over the appropriate method of regulating
CCW, EPA submitted a draft proposal to revise its Bevill regulatory determination and list the
material as hazardous waste under Subtitle C of RCRA.10 EPA sent the draft proposal to the White
House Office of Management and Budget’s Office of Information and Regulatory Affairs
(OIRA). Under the draft proposal, EPA would establish land disposal and treatment standards for
CCW. EPA cited several reasons for its determination that regulation under Subtitle C was
needed, including the following:11
• Using new risk analyses and study data, it was determined that, under plausible
management scenarios, CCW samples met the regulatory criteria for identifying
and listing the waste as “hazardous” (40 C.F.R. 261.11(a)(3)). Factors required to
be taken into consideration to make that determination include a waste’s toxicity,
constituent concentration, potential for hazardous constituents to migrate, and
plausible mismanagement of the waste.
• Recent risk assessments have shown that CCW disposal in unlined landfills and
surface impoundments presents substantial risks to human health and the
environment from releases of toxic constituents (particularly arsenic and
selenium) into surface and groundwater. Further, those risks are essentially
eliminated when the waste is disposed of in units with composite liners.12
• EPA has documented numerous cases of damage to surface and groundwater
(e.g., the water exceeded health-based standards for contaminants like lead,
arsenic, selenium, and chromium) when CCW was deposited in unlined disposal
units or used as construction fill.
• Although new disposal units appear to be built with liners and groundwater
monitoring, a large amount of waste is still being disposed into units that lack
necessary protections.
• Recently collected data regarding existing state regulatory programs call into
question whether those programs have sufficiently improved to address the gaps
9 65 Federal Register 32230, May 22, 2000.
10 The original draft proposal is available at http://www.regulations.gov/search/Regs/home.html#documentDetail?R=
0900006480ae5de2.
11 The reasons cited in its October 16, 2009, draft proposal are also included in the June 2010 proposal. See 75 Federal
Register 35149-35150.
12 A composite liner is a system consisting of two components—an upper component that consists of a flexible
membrane liner and a lower component that consists of at least a two-foot layer of compacted soil. It is defined more
specifically at 40 C.F.R. § 258.40(b).
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that EPA identified in its May 2000 regulatory determination and whether those
programs are adequate to protect human health and the environment in the
absence of national minimum standards. While industry practices may be
improving, EPA continues to see cases of inappropriate management or cases in
which key protections (e.g., groundwater monitoring at existing units) are absent.
• Changes in air pollution control technology at coal-fired power plants are
anticipated to further increase both the overall amount of waste and the
contaminants, particularly heavy metals, in the waste.
Further, EPA noted that while corrective action has been taken at sites with proven damage cases,
the federal waste management regulatory program is designed to prevent contamination in the
first place, if at all practicable, rather than simply remedy it after discovery. Its regulatory
proposal sought to implement such preventive requirements.
After the OIRA review, EPA’s draft proposal underwent substantial changes. The final proposal,
published on June 21, 2010, stated that the determination to revise the Bevill regulatory
determination had not yet been made and proposed an additional regulatory option for
consideration. The second option would keep the Bevill exclusion in place, but establish national
criteria applicable to landfills and surface impoundments under RCRA’s Subtitle D non-
hazardous solid waste requirements. The primary reason EPA cited for including the proposal to
regulate CCW under Subtitle D’s solid waste requirements was industry’s argument that the
“hazardous waste” label would stigmatize beneficial uses of the material and ultimately increase
the amount that must be disposed.
Both options in the June 2010 regulatory proposal would establish design and operating criteria
for landfills and surface impoundments, such as a requirement for composite liners, groundwater
monitoring, corrective action, closure of units, and post-closure care, and to address the stability
of surface impoundments. Under the Subtitle C option, EPA would also establish land disposal
restrictions, financial assurance requirements, and a federal permit program under which the
standards would be implemented (that program could ultimately be implemented by authorized
states). Requirements to retrofit existing surface impoundments with a liner, coupled with land
disposal restrictions that would require the removal of solids from wet disposal units, would
effectively phase out surface impoundment disposal of the waste.
An important distinction between the two proposals is EPA’s authority under RCRA to enforce
them. Under the existing Subtitle C requirements, EPA has the authority to reverse the Bevill
exclusion, identify the waste as hazardous, and establish appropriate waste management
standards. Under Subtitle D, EPA has limited authority to revise existing regulations applicable to
solid waste disposal facilities. Instead, any criteria it develops under Subtitle D would be
enforceable by states that choose to do so or through existing citizen suit provisions. Under
current authority, EPA could regulate CCW if it deems the material hazardous under Subtitle C,
but would not have the authority to implement or enforce requirements applicable to CCW
landfills or surface impoundments under Subtitle D. (A discussion of EPA’s existing authority
under RCRA is discussed in the “RCRA Provisions Relevant to EPA’s Proposal” section, below.)
In its proposal, EPA acknowledges that there are differing views on the meaning of the data and
analyses collected to support its rulemaking and the course of action EPA should take to address
that information. Among state regulatory agencies, industry groups, citizen groups, and
environmental organizations, there has been both strong support and opposition for each option.
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Included among the arguments in favor of regulating the waste under the solid waste
requirements (generally supported by state regulatory agencies and industry groups) are the
following: there is not enough evidence that the material poses a significant threat to human
health or the environment to warrant regulation as hazardous waste; regulating it as hazardous
would be unnecessarily costly and burdensome to both industry and state regulators; and current
state regulation of the material is sufficiently protective of human health and the environment.
Also, as mentioned previously, industry groups argue that labeling the material as “hazardous” or
regulating it under Subtitle C requirements would stigmatize the material, thus limiting potential
options for reuse and ultimately increasing the amount of waste sent for disposal.
Environmental and citizen groups in favor of regulating the material under the hazardous waste
requirements argue that recently completed waste characterization studies demonstrate that the
material can have toxicity characteristics that could qualify it to meet the regulatory definition of
hazardous waste. Also, recent risk assessments have shown that improperly managed waste poses
a substantial threat to human health or the environment. Further, they argue that recycling may
actually increase if disposal becomes more costly under the Subtitle C requirements. Their
arguments against the Subtitle D-related proposal hinge on EPA’s lack of authority to enforce it.
They argue that sufficient protections must involve restrictions on land disposal that include
enforceable federal requirements (including the implementation of a permit program to clearly
document facility compliance). Considering EPA’s limited authority to require states to
implement its solid waste regulations, the Subtitle D option would essentially continue to manage
the material in accordance with inadequate state requirements, they say. Further, they argue that
reliance on citizen suits to enforce EPA’s disposal standards (particularly if states do not choose to
implement them) is burdensome on the public and an unreliable method of implementing national
disposal standards. Finally, under the Subtitle D proposal, EPA has no authority to require
financial assurance to insure cleanup if contamination is discovered.
The Nature of CCW
Coal combustion waste consists of inorganic residues that remain after pulverized coal is burned.
At various stages of the coal combustion process, different types of waste are generated. Bottom
ash and boiler slag are generated at the base of the furnace. Electrostatic precipitators remove
solids from the stack exhaust, generating fly ash. Also, power plants often add lime to flue stacks,
through wet or dry processes, to remove sulfur dioxide from exhaust gas (a contributor to acid
rain). This process creates flue gas desulfurization (FGD) products. These residues include both
coarse and fine particles. See Table A-1 in the Appendix for a more detailed description of the
different types of CCW generated.
The physical and chemical characteristics of each type of CCW have bearing on both its potential
for use (e.g., as a component in concrete or gypsum wallboard or as a soil amendment) and its
potential to present some level of risk to human health or the environment. In the 30 years that
EPA has been studying CCW, many stakeholders have argued that the waste is largely benign. In
recent years, EPA has sought to further characterize the waste. Recent data on CCW composition
have identified more than 40 constituents. Contaminants of most environmental concern are
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antimony, arsenic, barium, beryllium, cadmium, chromium, lead, mercury, nickel, selenium,
silver, and thallium.13
The chemical composition of CCW generated at a given plant will depend on the type and source
of coal, the combustion technology used at the power plant, and the air pollution control
technology used. Recently, EPA has focused particularly on the potential for changes in hazardous
constituent levels as a result of the increased use and application of advanced air pollution control
technologies in coal-fired power plants. These technologies are expected to reduce air emissions
of metals and other pollutants. However, they are expected to transfer those pollutants to the fly
ash and other air pollution control residues. As part of its regulatory proposal, EPA discusses
research and information it has gathered in an effort to more accurately characterize the toxicity
levels of CCW; determine how those toxicity levels may change with changes in air pollution
control technology; and more accurately determine the potential for those constituents of concern
to leach from their deposition site.14
In its regulatory proposal, EPA notes that the agency’s Science Advisory Board and the National
Academy of Sciences have raised concerns about the accuracy of test methods traditionally used
to determine toxicity. Specifically, EPA states that considerable evidence has emerged indicating
that the traditional test method, the Toxicity Characteristic Leaching Producer (TCLP), alone is
not a good indicator of the mobility of metals in CCW under realistic disposal conditions.15
Research results discussed in the regulatory proposal used leach test methods determined to more
accurately assess expected CCW management conditions (disposal or beneficial use).16 Among
other findings, it was determined that CCW samples exceed the toxicity characteristic (the
threshold over which it would be deemed a hazardous waste under RCRA) and drinking water
standards for various constituents including for arsenic, selenium, lead, cobalt, barium, and
chromium. Also, leach rates appear to be impacted more by the pH over the range of field
conditions at the deposition site, rather than the total of amount of contaminants in the waste. This
finding is particularly relevant in determining how contaminants may be safely managed for
disposal or beneficial use.
13 75 Federal Register 35138.
14 EPA, Office of Research and Development, and Vanderbilt University reports: Characterization of Mercury-
Enriched Coal Combustion Residues from Electric Utilities Using Enhanced Sorbents for Mercury Control, EPA-
600/R-06/008, Feb. 2006, http://www.epa.gov/ORD/NRMRL/pubs/600r06008/600r06008.pdf; Characterization of
Coal Combustion Residues from Electric Utilities Using Wet Scrubbers for Multi-Pollutant Control; EPA-600/R-
08/077, July 2008, http://www.epa.gov/nrmrl/pubs/600r08077/600r08077.pdf; Characterization of Coal Combustion
Residues from Electric Utilities - Leaching and Characterization Data, EPA-600/R-09/151, December 2009,
http://www.epa.gov/nrmrl/pubs/600r09151/600r09151.htm.
15 75 Federal Register 35139.
16 For more information, see EPA’s Improved Leaching Test Methods for Environmental Assessment of Coal Ash and
Recycled Materials Used in Construction, presented at the Twelfth International Waste Management and Landfill
Symposium, October 5-9, 2009, available through EPA’s “Science Inventory” website at http://cfpub.epa.gov/si/
index.cfm.
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CCW Management Methods
Of the 136 million tons of CCW generated in 2008, approximately 86 million tons was disposed
of. Disposal occurred in landfills (approximately 46 million tons), surface impoundments (29.4
million tons), and mines (10.5 million tons).17 The remaining 50 million tons was beneficially
used in some capacity, primarily in building materials or as a substitute for sand or gravel.18
Disposal
CCWs are managed in either wet or dry disposal systems. In wet systems, the waste is generally
sluiced directly from a power plant to a surface impoundment pond, where solids settle out,
leaving relatively clear water at the surface (which may be re-circulated into the plant or
discharged to surface water). Surface impoundments involve a natural topographic depression,
man-made excavation, or diked area formed primarily of earthen materials (although it may be
lined with man-made materials) designed to hold an accumulation of CCWs containing free
liquids. Solids may accumulate until the impoundment unit is full, or they may be dredged
periodically and taken to another disposal unit such as a landfill.
Landfill disposal involves the deposition of dry waste into an engineered area of land or an
excavation for permanent disposal. EPA’s June 2010 regulatory proposal includes piles, sand and
gravel pits, quarries, and/or large-scale fill operations in its definition of landfills.
EPA estimates there are approximately 300 CCW landfills and 629 CCW surface impoundments
or similar management units in use at roughly 495 coal-fired power plants. The number of surface
impoundments was determined from survey data gathered by EPA after the Kingston release.19 In
March 2009, in an attempt to avoid catastrophic releases such as that in Kingston, EPA sent a
request for information to the owners and operators of CCW impoundment units. The survey was
intended to gather information necessary to determine the structural integrity of surface
impoundment units. EPA identified 629 surface impoundments or similar management units in 42
states.20 EPA did not request data regarding landfills in its 2009 survey.
17 In its June 2010 proposal, EPA does not propose to address placement of CCW in mines. That disposal option is not
addressed in this report.
18 See the American Coal Ash Association (ACAA), “2008 Coal Combustion Product (CCP) Production & Use Survey
Results (Revised),” available at http://www.acaa-usa.org/displaycommon.cfm?an=1&subarticlenbr=3. The ACAA
considers “mining applications” a beneficial use of CCW. The extent to which such applications are actually minefill is
not defined. In this report, the use of CCW as minefill is considered another method of disposal and therefore is not
included in statistics regarding “beneficial use.”
19 EPA requested this information pursuant to its authority under § 104(e) of the Comprehensive Environmental
Response, Compensation, and Liability Act (CERCLA, 42 U.S.C. § 9604(e)), which provides that when the agency has
reason to believe that there may be a release or threat of a release of a pollutant or contaminant, it may require any
person who has or may have information about the release to furnish information relating to the matter to EPA. For
more information about EPA’s request for information, and the response from utilities, see EPA’s “Coal Combustion
Residuals” page at http://www.epa.gov/osw/nonhaz/industrial/special/fossil/coalashletter.htm.
20 In its June 2010 regulatory proposal, EPA identified 584 surface impoundments; on its Web page “Information
Request Responses from Electric Utilities,” EPA stated that there are 629. EPA notes on that Web page that the
numbers changed as a result of new information. The most recent data and a full list of impoundments are available at
http://www.epa.gov/osw/nonhaz/industrial/special/fossil/surveys/index.htm.
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While EPA’s estimate of surface impoundments is based on recent data, the estimated number of
landfills is taken from its May 2000 regulatory determination (which, incidentally, also estimated
that there were 300 surface impoundments). In 2006, in a joint agency effort, EPA and the U.S.
Department of Energy (DOE) conducted a study to determine state regulatory requirements
applicable to CCW landfills and surface impoundments built between 1994 and 2004.21 At the
time, it was estimated that roughly two-thirds of the waste was disposed of in landfills and the
remainder in surface impoundments. However, it is unknown how accurate that estimate was.
Based on the age of the data, the 2006 estimate regarding the proportion of landfills to surface
impoundments, and the inaccuracy of the estimate of surface impoundments (before the 2009
survey), it is unlikely that the estimated number of landfills is accurate.
Although CCW landfills and surface impoundments are generally not regulated under federal law,
that does not mean they are entirely unregulated. Landfills and surface impoundments may be
regulated under state solid waste management programs. Surface impoundments may be subject
to state dam safety requirements and federal wastewater discharge requirements (under the Clean
Water Act in accordance with parameters specified in a National Pollutant Discharge Elimination
System (NPDES) permit).22
In its May 2000 regulatory determination, EPA cited inconsistencies in state requirements as a
reason to propose national standards to regulate CCW disposal. In its current proposal, EPA again
cites a lack of progress in state regulation of CCW disposal units. Primarily, after identifying risks
associated with CCW disposal in unlined landfills and surface impoundments in 2000, states have
still not adequately implemented CCW regulatory programs, according to EPA. In particular,
according to recent survey data, with regard to CCW disposal units, 36% of responding states do
not have minimum liner requirements for landfills, 67% do not have liner requirements for
surface impoundments, 19% of the responding states do not have minimum groundwater
monitoring for landfills, and 61% do not have minimum groundwater monitoring for surface
impoundments.23 EPA states that the survey results are “particularly significant as groundwater
monitoring for these kinds of units is a minimum for any credible regulatory regime.”24 Further,
EPA asserts that, while the states seem to be regulating landfills to a greater extent, given the
significant risks associated with surface impoundments, survey results suggest that there continue
to be significant gaps in state regulatory programs for the disposal of CCWs.
“Beneficial Use”
The size, shape, and chemical composition of CCW lends it to certain potential beneficial uses—
as a component of building materials (cement, concrete, gypsum wallboard) or as a replacement
for other virgin materials such as sand or gravel. Beneficial uses can be in either encapsulated
form, such as in concrete, or unencapsulated form, such as in fill or agricultural applications. In
its regulatory proposal, EPA draws the distinction between uses of CCW that are truly beneficial
and uses that, for all intents and purposes, are disposal. EPA considers the use of CCW to be
“beneficial” when it used in a manner that
21 EPA and the U.S. Department of Energy report, Coal Combustion Waste Management at Landfills and Surface
Impoundments, 1994-2004, August 2006.
22 40 C.F.R. 122.
23 75 Federal Register 35152.
24 Ibid.
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• provides some functional benefit—for example, the use can increase the
durability of concrete, serve the same function in wallboard as gypsum ore, or
can be used as a soil amendment to adjust pH levels to promote plant growth;
• conserves natural resources—the material may act as a substitute for a virgin
material that would otherwise need to be obtained through practices such as
extraction (e.g., it can be used in wallboard, decreasing the need to mine
gypsum); or
• meets relevant product specifications or regulatory standards—for example,
when used in certain commercial products, it may be used in controlled amounts
according to a product standard or specification (where available).
EPA does not consider coal combustion byproducts (e.g., fly ash or FGD material) used in these
three ways to be a waste. However, there are uses that EPA has specifically identified in its
regulatory proposal as not being beneficial.25 Those include disposal in sand and gravel pits and
large-scale fill operations. Both types of use have resulted in proven environmental damages and
would be considered disposal. For example, construction sites that are excavated so that more
coal ash can be used as fill would be considered CCW landfills (and, hence, subject to regulation
under Subtitle C or D, depending upon the final regulatory option selected). Further, EPA
identified an array of environmental issues and concerns associated with unencapsulated uses of
CCW and requested comment on whether such uses warrant tighter federal control.26
Risks Associated with CCW Mismanagement
The fact that hazardous constituents are present in a waste does not in itself mean that it poses a
risk to humans. The degree to which there is actual risk depends on whether those constituents
can find a pathway of human exposure and whether the resulting level of exposure is likely to be
high enough to cause harm.
Stakeholders have long debated the extent to which the hazardous constituents actually can or do
migrate from the point of deposition (e.g., a landfill or surface impoundment or a site where it
may be used as a structural or embankment fill) and subsequently harm or pose a threat to human
health or the environment. In its regulatory proposal, EPA identifies the following primary
pathways of exposure:
• contaminant leaching to groundwater—when water or other liquid is able to
percolate through the waste and transport contaminants off-site;
• the discharge, run-on, or run-off of liquid waste to surface water—this may
occur accidentally or pursuant to the provisions of an NPDES permit; or
• fugitive dust emissions—when fine particulates associated with the dried ash
become airborne.
25 75 Federal Register 35162-35163.
26 75 Federal Register 35163-35165.
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Human exposure to contaminants has been demonstrated through each of these pathways, but has
most commonly occurred through contaminant leaching when the waste was deposited in an
unlined landfill or surface impoundment.
Under the Bevill Amendment, EPA was statutorily required to provide an analysis of both
potential risks and actual documented damages to human health and the environment from CCW
disposal and use.27 In its June 2010 proposal, EPA re-examines its previous Bevill determination
by citing findings and analyses from its revised risk assessment28 and its updated documented
damages from CCW management practices.29
EPA’s documented damages show evidence of 27 cases of proven damages to surface and
groundwater and 40 cases of potential damage associated with the improper management of
CCW. 30 In addition to impacts on human health from surface and groundwater contamination,
EPA’s damage cases document adverse effects to plants and wildlife. Those impacts include
elevated selenium levels in migratory birds, wetland vegetative damage, fish kills, amphibian
deformities, snake metabolic effects, plant toxicity, mammal uptake, fish deformities, and
inhibited fish reproductive capacity.
In April 2010, EPA released its revised study, Human and Ecological Risk Assessment of Coal
Combustion Wastes. Among other findings, the risk assessment determined that there is a high
risk of human exposure to carcinogens, such as lead, selenium, and arsenic, when CCW is
deposited into unlined landfills and surface impoundments. Overall, higher risks were observed
for surface impoundments compared to landfills due to higher waste leachate concentrations and
the higher hydraulic pressure from impounded liquid waste. The assessment noted that this
finding was consistent with reported damage cases reporting wet handling as a factor than can
increase risks from CCW. Further, the risk assessment confirms that with the use of composite
liners, CCWs can be managed safely, but it calls into question the reliability of clay liners,
especially in surface impoundments.
Generally, the findings from the damage cases and risk assessment showed that the majority of
actual damages and highest potential health risks associated with CCW involved its deposition
into unlined disposal units or use sites (e.g., for construction or structural fill). However, more
recent damage cases (such as the Kingston release and a similar, smaller incident in 2005 in
Martins Creek, PA31) are evidence that current management practices can pose additional risks
that EPA had not previously studied—that is, from catastrophic releases due to the structural
failure of surface impoundments.
27 42 U.S.C. 6982(n)(3)-(4).
28 EPA, Office of Solid Waste and Emergency Response, Office of Resource Conservation and Recovery, Human and
Ecological Risk Assessment of Coal Combustion Wastes, April 2010.
29 75 Federal Register 35230-35239.
30 Proven damage cases were those with documented maximum contaminant level (MCL, the highest level of a
contaminant that is allowed in drinking water under the Safe Drinking Water Act) exceedances “measured in
groundwater at a sufficient distance from the waste management unit to indicate that hazardous constituents had
migrated to the extent that they could cause human health concerns.” Potential damage cases were those with
documented MCL exceedances that were measured in groundwater beneath or close to the waste source. For more
information, 75 Federal Register 35131 and 35153.
31 In this case, a dam failure resulted in the release of over 100 million gallons of coal ash and contaminated water into
the Oughoughton Creek and the Delaware River.
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RCRA Provisions Relevant to EPA’s Proposal
RCRA provides the general guidelines under which all waste is managed. It also includes a
congressional mandate to EPA to develop a comprehensive set of regulations to implement the
law (also commonly referred to as RCRA). The evolution of CCW regulation involves a long and
somewhat complicated history. To understand issues associated with CCW disposal regulations
and the current rulemaking process, it is useful to understand EPA’s current authority under
RCRA to regulate solid and hazardous waste and issues associated with the current rulemaking
process—particularly questions regarding EPA’s potential to regulate CCW as solid or hazardous
waste.
Each of EPA’s regulatory options would expand upon existing regulatory requirements applicable
to “solid waste” or “hazardous waste.” RCRA, both the law and its implementing regulations, is
complex. This report does not attempt to provide a comprehensive overview of RCRA. Instead, it
discusses selected provisions of the law and regulatory requirements that are relevant to the
current regulatory proposal. In particular, it discusses requirements EPA would be allowed to
implement under the agency’s existing RCRA authority.
In debating the appropriate regulatory option for managing CCW, one factor has drawn particular
attention. That is, EPA’s authority to implement one option or the other. Broadly, EPA currently
has the authority to implement its Subtitle C-related option. It has limited authority to implement
standards applicable to CCW disposal facilities under Subtitle D. That is, EPA can promulgate
regulations under Subtitle D, but can only encourage states to implement them.
Relevant Existing Subtitle C Requirements
Under Subtitle C, EPA has broad authority to regulate hazardous waste from its generation to its
ultimate disposal (and beyond, if disposal leads to contamination of air, soil, or water). That
authority includes a directive to EPA to
• establish criteria to identify hazardous wastes;
• establish standards applicable to hazardous waste generators;
• establish minimum national standards applicable to owners and operators of
hazardous waste treatment, storage, and disposal facilities (TSDFs);
• establish a permit program applicable to TSDFs; and
• establish criteria for states to administer and enforce their own hazardous waste
program.
RCRA defines solid waste broadly as any discarded material.32 The law specifies that solid wastes
are not limited to materials that are physically solid. They may include discarded liquids, solids,
or semi-solids. A solid waste becomes a hazardous waste33 in one of two ways—it may be
deemed hazardous because it exhibits certain hazardous characteristics (ignitability, corrosivity,
32 See 42 U.S.C. § 6903(27) and 40 C.F.R. 261.2.
33 Hazardous waste is a subset of solid waste. A waste must first be determined to be a solid waste before it can meet
the definition of hazardous waste. Hazardous waste is defined at 40 C.F.R. 261.3.
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reactivity, or toxicity), or it may be deemed hazardous if EPA specifically lists the waste as
such.34 Hence, hazardous wastes are referred to as “characteristic” or “listed” wastes. Industrial
waste generators must determine whether or not a waste exhibits hazardous characteristics by
testing the waste or by using knowledge of the process that generated the waste. A common test
method is the Toxicity Characteristic Leaching Procedure (TCLP). The TCLP test is intended to
simulate conditions that would likely occur in a landfill, and measures the potential for toxic
constituents to seep or “leach” into groundwater. TCLP is not the only approved method to
determine a waste’s toxicity.35
EPA may also conduct a more specific assessment of a waste or category of wastes and list them
as hazardous if they meet certain regulatory criteria.36 Under those criteria, a waste will be
“listed” if it contains certain toxic constituents and is capable of posing a substantial present or
potential hazard to human health or the environment when improperly treated, stored, transported,
or disposed of. EPA must also take into consideration various factors, including the presence of
toxic constituents, the concentration of those constituents, the potential of any hazardous
constituents to degrade and migrate, and the plausible types of improper management to which
the waste could be subject. These factors were considered in EPA’s regulatory option that would
regulate CCW as a hazardous waste.37 In particular, EPA used data from three recent waste
characterization studies that determined, among other findings, that under plausible disposal
conditions, CCW samples exceeded regulated toxicity levels for selenium, barium, arsenic, and
chromium.38 These studies used toxicity test methods that were deemed more accurate than
previous testing methods (i.e., TCLP).39 (For more information, see discussion regarding “The
Nature of CCW,” above.)
If a waste is identified as hazardous, then it may be subject to the requirements of RCRA subtitle
C and the implementing regulations.40 These requirements apply to persons who generate,
transport, treat, store, or dispose of such waste and establish rules governing every phase of the
waste’s management from its generation to its final disposition and beyond (“cradle to grave”).
Facilities that treat, store, or dispose of hazardous wastes require a permit which incorporates all
of the design and operating standards established by EPA rules, including standards for piles,
landfills, and surface impoundments.41 EPA has primary responsibility for that permitting
program.
34 See 42 U.S.C. 6921(a), and implementing regulations at 40 C.F.R 261, “Subpart B—Criteria for Identifying the
Characteristics of Hazardous Waste and for Listing Hazardous Waste.”
35 Other test methods may also be acceptable. For more information, see EPA’s website regarding various test methods
for evaluating solid waste at http://www.epa.gov/waste/hazard/testmethods/index.htm.
36 Specified at 40 C.F.R. 261.11(a)(3).
37 The Bevill Amendment specifically exempted CCW from identification or listing under Subtitle C pending
completion of a study by EPA to determine if it should be regulated as a hazardous waste. Now that that study is
complete, EPA has the authority to choose to regulate it as it deems appropriate.
38 See reports cited in footnote 14 and summary discussion of the report findings in EPA’s regulatory proposal at
75 Federal Register 35139-35142.
39 75 Federal Register 35139.
40 40 CFR parts 260 through 268, parts 270 to 279, and part 124.
41 42 U.S.C. §§ 6924-6925; the regulations implementing RCRA’s requirement to develop a hazardous waste permit
program and standards for owners and operators of hazardous waste treatment, storage, and disposal facilities are found
under 40 C.F.R. 264 and 265.
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EPA will authorize states to implement their own program that is at least as stringent as the
federal program. 42 Currently, EPA implements the hazardous waste management program in
Iowa, Alaska, Indian Country, and the territories, except Guam. All other states implement their
own programs, while EPA maintains oversight of them. If EPA chooses to regulate CCW under
Subtitle C, states could choose to implement their own CCW management program in compliance
with EPA’s Subtitle C requirements.
Under Subtitle C, land disposal of hazardous waste is prohibited unless the waste is first treated to
meet certain treatment standards or the waste is disposed in a unit from which there will be no
migration of hazardous constituents for as long as the waste remains hazardous.43 Facilities
regulated under Subtitle C are required to clean up any releases of hazardous waste or
constituents from solid waste management units at the facility, as well as beyond the facility
boundary, as necessary to protect human health and the environment. RCRA Subtitle C also
requires that permitted facilities demonstrate that they have adequate financial resources (i.e.,
financial assurance) for obligations, such as closure, post-closure care, necessary cleanup, and
any liability from facility operations.
Relevant Existing Subtitle D Requirements
Solid wastes that are neither a listed nor a characteristic hazardous waste, or wastes that are not
specifically exempted from regulation as a hazardous waste, are regulated under Subtitle D of
RCRA. In contrast to its authority under Subtitle C, EPA’s authority to regulate CCW disposal
under Subtitle D is limited. Broadly, EPA has the authority to establish enforceable criteria
applicable only to municipal solid waste (MSW) landfills. It does not have the authority to
establish enforceable criteria for landfills that accept other types of waste or for surface
impoundments that accept any type of waste.
Subtitle D establishes a framework for federal, state, and local government cooperation in
controlling the management of nonhazardous solid waste. The federal role is to establish the
overall regulatory direction by providing minimum nationwide standards for protecting human
health and the environment and technical assistance to states for planning and developing their
own environmentally sound waste management programs. However, the actual planning and
direct implementation of solid waste programs under Subtitle D remain a state and local function.
Under the authority of sections 1008(a)(3) and 4004 of RCRA, EPA first promulgated “Criteria
for Classification of Solid Waste Disposal Facilities and Practices” (40 C.F.R. 257).44 These
regulations established minimum national performance standards necessary to ensure that “no
reasonable probability of adverse effects on health or the environment” will result from solid
waste disposal facilities or practices. Practices not complying with regulations specified under 40
C.F.R. 257 constitute “open dumping” and are prohibited under section 4005(a) of RCRA. EPA
does not have the authority to enforce that prohibition directly. Instead, states and citizens may
enforce the prohibition on open dumping using the citizen suit authority under RCRA (discussed
below). EPA also may intervene if it is determined that waste disposal practices pose an imminent
endangerment to human health or the environment (also discussed below).
42 42 U.S.C. § 6926.
43 RCRA land disposal restrictions are specified under 40 C.F.R. 268.
44 44 Federal Register 53438, September 13, 1979.
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The Hazardous and Solid Waste Amendments of 1984 (HSWA, P.L. 98-616) added Section 4010
to RCRA, requiring EPA to revise its existing criteria for evaluating whether solid waste
management practices and facilities were conducting open dumping.45 Under HSWA, EPA was
directed to establish criteria applicable to solid waste management facilities that may receive
hazardous household waste and hazardous wastes from small quantity generators.46 Subsequently,
EPA promulgated “Criteria for Municipal Solid Waste Landfills” (at 40 C.F.R. 258). Those
regulations include location restrictions, operation and design criteria (e.g., liner, leachate
collection, run-off controls), groundwater monitoring and corrective action requirements, closure
and post-closure care, and financial assurance criteria. The regulations apply only to landfill
operations and specifically exclude requirements applicable to surface impoundments.
Also required under HSWA, states were directed to implement a permit program to assure that
solid waste management facilities that may receive MSW47 complied with the revised landfill
criteria. EPA was authorized to determine the adequacy of the state permit programs. Further, for
states it determined did not have an adequate permit program, EPA was provided with inspection
and enforcement authority under Sections 3007 and 3008 of Subtitle C to enforce the prohibition
on open dumping.
The Subtitle D provisions added under HSWA are relevant to CCW regulation because they
illustrate the limitations on EPA’s authority to develop landfill criteria. That is, EPA was
specifically authorized by Congress to develop landfill criteria applicable to municipal solid
waste landfills (referred to in the law as “hazardous household waste and small quantity generator
waste”). Beyond that, EPA may only expand upon the prohibition on open dumping.
As mentioned above, open dumping prohibitions, specified under the sanitary landfill regulations
(40 C.F.R. 257), are enforced by states or through citizen suits. Citizen suit provisions specified
under Section 7002 of RCRA allow for civil action against any entity that is alleged to be in
violation of any “permit, standard, regulation, condition, requirement, prohibition, or order.”48
Further, citizen suits are allowed where the disposal of any solid or hazardous waste may present
“an imminent and substantial endangerment to health or the environment.”49
In addition to citizen suit provisions, EPA is authorized to take action if disposal of wastes may
present an imminent and substantial endangerment to health or the environment.50 Under Section
7003 of RCRA, EPA can initiate judicial action or issue an administrative order to any past or
present waste generator or owner of a disposal facility who has contributed or is contributing to
the disposal. Section 7003 is available for use in several situations where other enforcement tools
may not be available. For example, it can be used at sites and facilities that are not subject to
45 Previously established under Sections 1008 and 4004 of RCRA.
46 “Small quantity generators” (SQGs) are a category of hazardous waste generators. As specified under Section
3001(d) of RCRA Subtitle C, SQGs are those that generate between 100 and 1,000 kilograms of hazardous waste
during a calendar month.
47 The term “municipal solid waste” is referred to in the regulations, but not RCRA itself. In the law, it is referred to as
“solid waste management facilities that may receive hazardous household waste or hazardous waste due to the
provision of section 3001(d) for small quantity generators.”
48 42 U.S.C. § 6972.
49 42 U.S.C. § 6972(a)(1)(B).
50 42 U.S.C. § 6973.
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Subtitle C of RCRA or any other environmental regulation (as may be the case at CCW disposal
or use sites). Specifically, action may be initiated if each of the following conditions is met:
• Conditions may present an imminent and substantial endangerment to health or
the environment—such conditions generally require careful documentation and
scientific evidence. However, the endangerment standard under RCRA has
generally been broadly interpreted.
• The potential endangerment stems from the past or present handling, storage,
treatment, transportation, or disposal of any solid or hazardous waste.
• The person has contributed or is contributing to such handling, storage,
treatment, transportation, or disposal.51
Under Section 7003, EPA may take action as deemed necessary, determined on a case-by-case
basis. Further, it gives EPA authority to obtain relevant information regarding potential
endangerments.
In summary, under existing Subtitle D provisions, EPA could develop criteria applicable to
landfills and surface impoundments that accept CCW, but would have no authority to implement
or enforce those regulations or require states to implement them. EPA could establish regulations
and standards under Subtitle D that would be enforceable by states (that choose to implement
them) and private citizens. Since most states argue that their existing solid waste management
programs adequately regulate CCW disposal, it is unclear how many states, if any, would adopt
EPA’s Subtitle D regulations, if finalized.
EPA’s Proposed Regulatory Options
In its current regulatory proposal, EPA is reconsidering whether its May 2000 regulatory
determination is appropriate and whether its Bevill determination should be revised. EPA has not
yet determined whether the waste should be regulated under Subtitle C or D. It is seeking
comment on both options. Ultimately, EPA states that its decision must be protective of human
health and the environment and be based on sound science.
Each regulatory option draws on existing requirements or authorities specified under Subtitles C
and D of RCRA and their implementing regulations (discussed above). The proposals also include
regulatory requirements intended to address potential problems unique to managing CCW.
Subtitle C Proposal
EPA’s proposal to regulate CCW under Subtitle C would be predicated on its determination that
the waste meets the regulatory criteria for listing it as hazardous (discussed above). Under this
option, the waste would be regulated under existing Subtitle C requirements (40 C.F.R. Parts 260-
268 and 270-272) that specify, among other things, location restrictions; standards for liners,
leachate collection and removal systems, and groundwater monitoring; closure and post-closure
51 For details on EPA’s Office of Enforcement and Compliance Assurance, see “Guidance on the Use of Section 7003
of RCRA,” October 1997, available at http://www.p2pays.org/ref/03/02645.pdf. For information on legal requirements
for initiating action under Section 7003, in particular, see pp. 9-19.
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care requirements; storage requirements; land disposal restrictions and treatment standards;
corrective action; financial assurance; and permitting requirements. Selected requirements unique
to CCW management are discussed in Table 1.
Table 1. Selected Requirements Under Subtitle C Proposal
Provision Description
Listing CCW as a
Instead of designating CCW as a “listed” or “characteristic” waste, EPA would create a
“special waste”
new subpart to the regulations regarding the identification and listing of hazardous
waste—“Special Wastes Subject to Subtitle C Regulations” (a new Subpart F to 40 C.F.R.
261). This was done primarily to address issues of stigmatization that have been asserted
by the coal ash reuse industry.a
Design criteria
The regulations would require landfills and surface impoundments to install a composite
liner (instead of a double liner) and a leachate collection and removal system. Existing
landfills would not be required to be retrofitted with a liner, but would be required to
install groundwater monitoring systems and implement corrective action as needed.
Surface impoundments receiving CCW would have up to seven years to close the unit or
four years to upgrade it to meet new technology standards. To be eligible for the four-
year grace period, facilities would be required to comply with groundwater monitoring
requirements. Based on previous experience regulating surface impoundments, EPA has
stated that it believes that facilities managing surface impoundments will choose to close
them rather than retrofit.
Surface
To insure structural integrity, surface impoundments would be required to operate in
impoundment
accordance with regulations similar to those promulgated under the Mine Safety and
stability
Health Administration (MSHA) at 30 C.F.R. § 77.216. Among those requirements,
requirements
facilities must submit to EPA, or an authorized state, plans for the design, construction,
and maintenance of existing impoundments; submit closure plans; conduct periodic
inspections; and have the unit certified annually by an independent registered engineer.
Land disposal
Wet (surface impoundment) and dry (landfill) disposal would be required to meet
restrictions
universal treatment standards (UTS) applicable to the land disposal of hazardous waste.
Wastewaters would be required to undergo solids removal to meet the UTS. To
accommodate new restrictions on wet disposal, facilities would have up to five years to
cease receiving wet waste. Dry disposal would meet the UTS if it is managed using new
design criteria (e.g., with a composite liner and groundwater monitoring).
Permitting
Facilities that dispose of, treat, or store CCW must obtain a permit from EPA or from a
requirements
state with an authorized hazardous waste program. Facilities with existing landfills would
be eligible for “interim status” under federal regulations (if the facility has submitted an
application for the appropriate permit). As such, facilities would be subject largely to self-
implementing requirements. Surface impoundments that have not completed closure
would be subject to existing hazardous waste permitting requirements.
Source: This table was prepared by CRS based on an analysis of EPA’s June 21, 2010, regulatory proposal.
a. Representatives from the coal ash reuse industry have asserted that designating the material as a special
waste instead of hazardous would not eliminate the stigma attached to the material. Some have argued that
regulating the material under Subtitle C would create the stigma. Also, under Subtitle C, it is unclear
whether EPA has the authority to create a separate category of hazardous waste.
Permitting and upgrade requirements applicable to existing surface impoundments, coupled with
land disposal restrictions on future wet disposal of CCW, would effectively phase out surface
impoundment disposal.
If the Subtitle C option were to be finalized, it would become effective in six months in states
where EPA implements the hazardous waste management program. States with an authorized
hazardous waste program would be required to adopt the regulations and modify their existing
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state programs. EPA estimates that this could take those states one to two years, depending on
when EPA finalizes the rule.52 Time to comply with requirements that may take longer than six
months is addressed specifically in the regulatory proposal (e.g., facilities may take up to seven
years to meet surface impoundment closure requirements).
CCW beneficially used would be specifically excluded from the definition of hazardous waste.
That is, it would not be subject to Subtitle C regulation from the point of generation to the point
where it is beneficially used (e.g., made into wallboard or concrete).
Subtitle D Proposal
If EPA selects the Subtitle D option, it would leave in place the Bevill exemption from hazardous
waste and establish criteria applicable to CCW surface impoundments and landfills within the
criteria for classifying open dumps. It would modify existing open dumping requirements under
the “Criteria for Classification of Solid Waste Disposal Facilities and Practices” (proposed as a
new Subpart D, under 40 C.F.R. Part 257) to specify criteria for determining which CCW landfills
and surface impoundments pose a reasonable probability of adverse effects on health or the
environment under RCRA.53 Facilities that fail to satisfy these criteria would be considered in
violation of RCRA’s prohibition on open dumping.
Although proposed under the regulations related to open dumping, the Subtitle D proposal is
more similar to existing regulations applicable to municipal solid waste landfills (40 C.F.R. 258).
For example, similar to MSW landfill restrictions, the Subtitle D proposal includes:
• Location restrictions—new disposal units (landfills or surface impoundments)
would be required to be placed above the natural water table and could not be
located in wetlands, within 200 feet of a fault zone, or in a seismic impact zone.
New or existing disposal units could not be located in an unstable area (e.g., a
location susceptible to natural or human-induced events or forces capable of
impairing the integrity of the unit). Existing disposal units in an unstable area
would be subject to closure requirements.
• Design requirements—new landfills and surface impoundments would be
required to be constructed with a composite liner. Within five years, existing
surface impoundments would be required to have solids removed and be
retrofitted with a composite liner. Existing landfills would not be required to be
retrofitted with a liner. Similar to the Subtitle C proposal, surface impoundments
would be subject to stability requirements similar to those promulgated under
MSHA.
• Operating requirements—disposal units would be subject to fugitive dust
controls and liquid run-off/run-on control. Facilities would also have
recordkeeping requirements that would specify that all records, reports, studies,
or other documentation required to demonstrate compliance with the
requirements must be made publicly available at the operator’s facility or on its
52 For more detail on the potential effect on state authorization, see 75 Federal Register 35191-35192.
53 42 U.S.C. §§ 6907(a)(3) and 6944(a) (criteria for sanitary landfills).
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publicly accessible Internet site. The availability of information is intended to
facilitate citizen suits if necessary.
• Groundwater monitoring and corrective action requirements—new and
existing disposal units would be subject to groundwater monitoring requirements.
If certain hazardous constituents (including arsenic, cadmium, or selenium) are
detected at a level exceeding groundwater protection standards, the facility would
have 90 days to assess corrective measures and select a remedy that would
protect human health and the environment.
• Closure and post-closure requirements—closure of a disposal unit would be
required to be done in accordance with a closure plan.
As discussed previously, the most significant element of this option relates to EPA’s lack of
authority to implement the requirements or enforce them. EPA states that it would encourage
states to adopt the criteria, but the agency has no authority to require them to do so or to
implement the criteria upon their finalization. Nor does EPA have authority to require federal
approval procedures for state adoption of the minimum nationwide criteria (e.g., a permit
program). States would be free to develop their own regulations and/or permitting programs using
their solid waste laws or other state authorities.54
EPA notes that if states do not adopt the proposed CCW management standards, facilities would
still have to comply with the proposed Subtitle D criteria, if finalized. For that reason, EPA has
proposed its requirements in a way that would be self-implementing. That is, facilities would be
able to implement them without interaction with regulatory officials. Still, if facilities choose not
to self-implement the proposed criteria (particularly in a state that chooses not to adopt them),
there are limited enforcement mechanisms to require the facility to do so. EPA argues that the
requirement to make facility compliance information available to the public would allow citizens
to enforce the requirements, if a state chooses not to. However, the ability of citizens to gather
necessary information to move forward with a citizen suit could be complicated if a facility does
not disclose the specified information. Again, there are limited enforcement options to compel a
facility to produce that information.
Economic Impact of the Proposed Options
EPA prepared an analysis of the potential costs and benefits associated with its regulatory
proposal in its Regulatory Impact Analysis (RIA). The RIA estimated the average annualized
regulatory cost to be approximately $1.5 billion a year under the Subtitle C option and $587
million a year under the Subtitle D option.55 These estimates include the costs of industry
compliance and state and federal government oversight and enforcement costs.
In addition to the costs, the RIA also took into consideration potential environmental and public
health benefits of regulating CCW. Estimated and monetized benefits in the RIA include
54 For more information, see EPA’s discussions regarding the potential impact of a Subtitle D regulation on state
programs at 75 Federal Register 35211.
55 The average annualized equivalent values were calculated by multiplying the 50-year present values by a 50-year 7%
discount rate “capital recovery factor” of 0.07246. For more information, see 75 Federal Register 35134 and 35211-
35213 and 75 Federal Register 51435, August 20, 2010 corrections to the June 2010, regulatory proposal.
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• groundwater protection benefits consisting of human cancer prevention benefits
and avoided groundwater remediation costs at CCW disposal sites;
• a reduction in economic impacts or cleanup costs associated with catastrophic
surface impoundment failures (i.e., cleanup costs avoided); and
• induced future increase in industrial beneficial uses of CCWs (e.g., increased
recycling due to increased cost of disposal).
Taking into consideration these three potential benefits, EPA estimated annualized “regulatory
benefits” under the Subtitle C option. The estimates ranged widely, depending on potential
changes in the level of beneficial use of the waste. In addition to induced increases in beneficial
uses of CCW (as mentioned above), the RIA also considers potential changes to costs/benefits if
recycling levels remained unchanged and if there were a decrease in beneficial use due to
“stigma” effects of regulating it under Subtitle C. Depending on those factors, EPA speculates that
a decrease in beneficial use could result in increased costs of $16.7 billion, while induced
increases in recycling could result in a regulatory benefit of $7.4 billion a year. Under the Subtitle
D option, the regulatory benefit is estimated to range from $85 million to $3 billion a year (the
RIA did not estimate a potential stigma effect on the Subtitle D option).56
Possible Approaches for Congress
States and utilities argue that data gathered to date do not clearly demonstrate that the waste poses
a threat to human health and the environment and that to regulate its disposal under Subtitle C
would be too costly to implement. States also argue that their current regulatory programs are
sufficient to protect human health and the environment. Industries that advocate for the beneficial
use of CCW argue that regulating the material under Subtitle C, even if there were exemptions for
certain beneficial uses, would stigmatize the material. They are particularly concerned that
liability issues would lead to the elimination of certain uses of the material, such as its use as a
component in wallboard (end users may potentially equate the use of “hazardous” gypsum
wallboard with problems associated with toxic wallboard from China);57 its use as a component in
concrete or cement that is used on bare ground; or as an amendment to regulate pH levels in soil.
Environmental groups argue that EPA has gathered sufficient data to demonstrate that the waste
poses significant risks when deposited into unlined disposal units and that states are not
consistently regulating the waste in a way that sufficiently minimizes potential threats to humans
or the environment. Further, under its existing RCRA authority, EPA has minimal authority to
establish disposal criteria under Subtitle D. If it is to be regulated at all in a consistent way, they
argue, it must be under Subtitle C.
Members of Congress have several legislative options to address concerns expressed by these
groups. Congress may choose to direct EPA to leave the Bevill exemption in place and continue
to exempt the material from regulation as hazardous waste. This may be problematic in that the
original amendment directed EPA to hold the exemption pending a report to Congress on various
factors regarding the waste’s volume, disposal, and actual harm and potential risks associated
with its disposal. For the past 30 years, EPA has been gathering that information and has
56 For more detail on cost estimates, see 75 Federal Register 35134 and 35211-35220.
57 See EPA data on sampling of drywall imported from China at http://www.epa.gov/oswer/docs/chinesedrywall.pdf.
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determined58 that improper management poses significant risks to human health and the
environment and that those risks could be minimized through some form of national regulation.
Instead of (or in addition to) prohibiting EPA from regulating the waste under Subtitle C,
Congress could choose to give EPA additional authority to regulate it under Subtitle D. It may
specifically direct EPA to establish waste management criteria under Subtitle D applicable to
solid waste management facilities that receive CCW. Such provisions could potentially draw from
the existing distinction between an “open dump” and a “sanitary landfill” (a facility from which
there is no reasonable probability of adverse effects on health or the environment from disposal of
solid waste).59 Similar to the HSWA amendments that authorized EPA to establish criteria
applicable to MSW landfills, Congress could specifically authorize EPA to revise existing solid
waste management criteria to include standards applicable to landfills and surface impoundments
that accept coal combustion wastes. Further, Congress could require states to adopt a permit
program to assure that coal combustion waste management facilities within the state meet EPA’s
management criteria.
Congress could also choose to create a new subtitle under RCRA (a Subtitle K) that would
specifically address issues unique to the management of CCW. Such a proposal could include a
number of legislative provisions, but, broadly, could direct EPA to develop waste management
standards applicable to disposal units that accept CCW (similar to Subtitle D), but also provide
EPA with federal enforcement authority to require states to implement those standards (similar to
Subtitle C) while avoiding labeling the material a “hazardous” waste. Such a proposal could also
authorize EPA to specifically regulate certain beneficial uses (such as construction fill).
Congress may also choose to do nothing. That is, Congress may allow the current rulemaking
process to continue and allow EPA to select either its Subtitle C- or D-related proposal.
58 Particularly in its May 2000 regulatory determination and in data gathered since that determination.
59 42 U.S.C. 6944.
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Appendix. Types of Coal Combustion Waste
Table A-1. Description and Proportions of CCW
Percentage of
Total
Waste Type
Description
Generateda
Fly Ash
A product of burning finely ground coal in a boiler to produce electricity.
57%
It is general y captured in the plant’s chimney or stack through a
particulate control device (e.g., electrostatic precipitators or fabric filters).
It consists mostly of silt-sized and clay-sized glassy spheres, giving it a
consistency somewhat like talcum powder.
Flue Gas
Flue gas desulfurization (FGD) is a chemical process implemented in order
24%
Desulfurization to meet emission requirements in the Clean Air Act applicable to sulfur
(FGD)
dioxide (an emission associated with acid rain). The goal of the process is
Material
to chemically combine the sulfur gases released in coal combustion by
reacting them with a sorbent, such as limestone (calcium carbonate), lime
(calcium oxide), or ammonia. Depending on the FGD process used at the
plant, the material may be a wet sludge or a dry powder. The wet sludge
is likely predominantly calcium sulfite or calcium sulfate. The dry material
generally consists of a mixture of sulfites and sulfates.
Bottom Ash
A coarse, gritty material, these agglomerated ash particles are those that
17%
are too large to be carried in flue gases. They impinge on the furnace walls
or fall through open grates to an ash hopper at the bottom of the furnace.
The material is taken from the bottom of the boiler furnace either in its
dry form or as a slurry (via the addition of water). It has a porous surface
structure and is coarse, with grain sizes spanning from fine sand to fine
gravel.
Boiler Slag
This type of ash col ects at the base of certain furnaces that are quenched
<2%
with water. When molten slag comes in contact with quenching water, it
fractures, crystallizes, and forms pellets. This boiler slag material is made
up of hard, black, angular particles that have a smooth, glassy appearance.
The particles are uniform in size, hard, and durable, with a resistance to
surface wear.
Source: Table generated by the Congressional Research Service (CRS) using information from EPA’s “Wastes -
Resource Conservation - Reduce, Reuse, Recycle - Industrial Materials Recycling” Web page regarding Coal
Combustion Products, at http://www.epa.gov/osw/conserve/rrr/imr/ccps/index.htm, and the U.S. Geological
Survey, Fact Sheet 076-01, “Coal Combustion Products,” at http://pubs.usgs.gov/fs/fs076-01/fs076-01.html.
a. The approximate percentage of total CCW generated was determined using data from American Coal Ash
Association (ACAA), “2007 Coal Combustion Product (CCP) Production & Use Survey Results (Revised),”
at http://www.acaa-usa.org/displaycommon.cfm?an=1&subarticlenbr=3.
Author Contact Information
Linda Luther
Analyst in Environmental Policy
lluther@crs.loc.gov, 7-6852
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