RIN Data

On June 21, 2010, the EPA proposed, under the Resource Conservation and Recovery Act (RCRA) to regulate coal combustion residuals (CCRs) generated from the combustion of coal at electric utilities and independent power producers to address risks from the disposal of CCRs in surface impoundments and landfills. The EPA sought public comments on two regulatory approaches. One proposed option would be to list these residuals as "special wastes," and draws from remedies available under subtitle C of RCRA, which creates a comprehensive program of federally enforceable requirements for waste management and disposal. The other proposed option included remedies under subtitle D of RCRA, which gives the EPA authority to set disposal standards for waste management facilities. Under both options, the EPA proposed not to regulate the beneficial use of CCRs, such as its use in concrete. In addition, this rule did not address CCRs generated from non-utility boilers burning coal, nor would it address the placement of coal combustion residuals in mines or non-minefill uses of CCRs at coal mine sites. Since the publication of the proposed rule, EPA has issued three Notices of Data Availability (NODAs) seeking public comment on additional data and information obtained by the EPA. In the most recent NODA, issued on August 2, 2013, the EPA invited comment on additional information to supplement the Regulatory Impact Analysis and risk assessment; information on large scale fill; and data on the surface impoundment structural integrity assessments. With this NODA, the EPA also sought comment on two issues associated with the requirements for CCR management units, closure and the construction of new units over pre-existing CCR landfills and surface impoundments. Under a consent decree, a final rule must be signed no later than December 19, 2014.

Statement of Need:

The EPA is proposing to regulate for the first time, coal combustion residuals under the Resource Conservation and Recovery Act (RCRA) to address the risks from the disposal of coal combustion residuals in surface impoundments and landfills, generated from the combustion of coal at electric utilities and by independent power producers.

Summary of the Legal Basis:

The CCR rule was proposed under the authority of sections 1008(a), 2002(a), 3001, 3004, 3005, and 4004 of the Solid Waste Disposal Act of 1970, as amended by RCRA and as amended by the hazardous and Solid Waste Amendments of 1984 (HSWA). These statutes, combined, are commonly referred to as "RCRA." RCRA section 1008(a) authorizes the EPA to publish "suggested guidelines for solid waste management." Such guidelines must provide a technical and economic descriptions of the level of performance that can be achieved by available solid waste management practices that provide for the protection of human health and the environment. RCRA section 2002 grants the EPA broad authority to prescribe, in consultation with federal, state and regional authorities, such regulations as are necessary to carry out the function under federal solid waste disposal laws. RCRA section 3001(b) requires EPA to list particular wastes that will be subject to the requirements established under subtitle C. Section 3001(b)(3)(A) generally establishes a temporary exemption for CCRs primarily from the combustion of coal or other fossil fuels and requires the EPA to conduct a study to determine whether these waste should be regulated under Subtitle C or RCRA. Section 3004 generally requires EPA to establish standards for the treatment, storage, and disposal of hazardous waste to ensure protection of human health and the environment. RCRA section 3004(x) allows the Administrator to tailor certain specified requirements for particular categories of wastes. RCRA section 3005 generally requires that any facility that treats, stores, or disposes of wastes identified or listed under subtitle C, to have a permit. RCRA section 4004 requires the EPA to promulgate regulations containing criteria for determining which facilities shall be classified as sanitary landfills (and not open dumps).

Alternatives:

In the proposed rule EPA considered two options for the regulation of CCRs. Under the first option, the EPA would reverse its August 1993 and May 2000 Bevill Regulatory Determinations regarding CCRs and list these residuals as special wastes subject to regulation under subtitle C of RCRA, when they are destined for disposal in landfills or surface impoundments. Under the second option, the EPA would leave the Bevill determination in place and regulate the disposal of such materials under subtitle D of RCRA by issuing national minimum criteria. Under both options, the EPA considered establishing dam safety requirements to address the structural integrity of surface impoundment to prevent catastrophic releases. The EPA also solicited comment on a number of alternatives including several combination approaches, such as regulating surface impoundments under subtitle C of RCRA while regulating landfills under subtitle D or RCRA.

Anticipated Costs and Benefits:

The EPA estimated the potential costs and benefits of the proposed CCR rule in a regulatory impact analysis (RIA) dated April 2010. Although in June 2010 the EPA co-proposed two regulatory options (i.e., subtitle C and subtitle D options) for the CCR rule, the RIA evaluated three regulatory approaches to the proposed rule: subtitle C, subtitle D, and subtitle "D Prime" options. The RIA is available from the regulatory docket as document ID number EPA-HQ-RCRA-2009-0640-0003. Based on a 50-year future period of analysis using a 7% discount rate at year 2009 price level, the RIA estimated the potential average annual future costs of these three options to range between $1,474 million, $587 million, and $236 million per year, respectively. These costs are associated with 12 to 19 different combinations of pollution controls (i.e., engineering controls & ancillary requirements) proposed for each option such as groundwater monitoring, landfill and impoundment bottom liners, fugitive dust controls, and location restrictions, to name a few.

Based on three monetized benefit categories consisting of (a) avoided future groundwater contamination from CCR landfills and impoundments, (b) avoided future CCR impoundment structural failures, and (c) induced future increase in the beneficial uses of CCR as a substitute ingredient in concrete, cement, wallboard, and about a dozen other markets, the RIA estimated the potential future average annual benefits of the three options to range between $6,320 to $7,405, $2,533 to $3,026 and $1,023 to $1,268 per year, respectively . Because some stakeholders during the development of the CCR proposed rule asserted to the EPA a potential future stigma effect in beneficial use markets under the Subtitle C option, the RIA also evaluated a potential dis-benefit decrease in CCR beneficial uses under an alternative scenario, as well as under a no change in beneficial use scenario.

Risks:

The EPA's damage cases and risk assessments all indicated the potential for CCR landfills and surface impoundments to leach hazardous constituents into groundwater, impairing drinking water supplies and causing adverse impacts on human health and the environment. Indeed, groundwater contamination is one of the key environmental risks the EPA has identified with CCR landfills and surface impoundments. Furthermore, as mentioned previously, the legislative history of RCRA specifically evidences concerns over groundwater contamination from disposal units. Composite liners, as modeled in the 2010 draft risk assessment, effectively reduce risks from all constituents to below the risk criteria for both landfills and surface impoundments at the 90th and 50th percentiles. Thus, the requirements for new units to be composite lined will reduce future risks significantly. However, the EPA proposed several regulatory alternatives that may or may not require existing units without composite liners to close.

To this end, groundwater monitoring is a key mechanism for facilities to verify that the existing containment structures, such as liners and leachate collection and removal systems, are functioning as intended. Thus, the EPA believes that, in order for a CCR landfill or surface impoundment to meet RCRA's protection standard, a system of routine groundwater monitoring to detect any such contamination from a disposal unit, and corrective action requirements to address identified contamination, is necessary. EPA's proposed groundwater monitoring criteria require a system of monitoring wells be installed at new and existing CCR landfills and surface impoundments. The proposed criteria also provide procedures for sampling these wells and methods for statistical analysis of the analytical data derived from the well samples to detect the presence of hazardous constituents released from these facilities. The Agency proposed a groundwater monitoring program consisting of detection monitoring, assessment monitoring, and a corrective action program. This phased approach to groundwater monitoring and corrective action programs provide for a graduated response over time to the problem of groundwater contamination as the evidence of such contamination increases. This allows for proper consideration of the transport characteristics of CCR constituents in ground water, while protecting human health and the environment, and minimizing unnecessary costs.