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Federal CCB Regulations: Utility Industry’s Perspective
Jim RoewerAPPA E&O Conference
March 30, 2010
Coal Combustion Byproducts
Produced as a result of coal combustion for power generation Fly Ash Bottom Ash Boiler Slag Flue Gas
Desulfurization (FGD) Materials
CCB Generation & Utilization
>136 million tons CCBs produced in 2008 >60.6 million tons beneficially used (44.5%
utilization) Utilization reduces land disposal, utilization of
natural resources, energy consumption and GHG emissions
Reduction of CO2 emissions >13 million tons
CCB Regulatory Status
Subject to State Solid, Industrial or Special Waste Regulations
Exempt from Regulation as RCRA Hazardous Waste
CCB Regulatory Chronology
1980 Bevill Amendment 1988 EPA Report to Congress
“EPA does not intend to regulate under Subtitle C” 1993 Regulatory Determination (58 Fed Reg
42466) “regulation … as hazardous waste under RCRA
Subtitle C is unwarranted.”
CCB Regulatory Chronology
• 1999 EPA Report to Congress– “disposal … should remain exempt from RCRA Subtitle
C”
• 2000 Regulatory Determination (65 Fed Reg 32214)– “regulation … under Subtitle C of RCRA is not
warranted.”– no additional regulations are warranted for beneficial
use– “decided to establish national regulations under subtitle
D of RCRA “
TVA Kingston Fossil Plant Coal Ash Spill
Monday, December 22, 2008, just before 1 a.m., a dike at a coal ash containment area failed at TVA’s Kingston Fossil Plant
>1 Billion gallons of ash was released into adjacent waterways and properties
Heightened Focus on Coal Ash
Congressional Attention Senate EPW; House Energy & Commerce, Natural
Resources, Transportation & Infrastructure EPA Inspections & Rulemaking
Dam Safety Environmental Regulations
Advocacy Environmental Groups Industry (CCB Coalition)
Federal CCB Regulations
Regulatory Options Non hazardous regulations (RCRA Subtitle D) Hazardous Waste Regulations (RCRA Subtitle C) Combined Options (Mix of C & D)
Proposed Rule sent to OMB October 15 Proposed Rule Published December 2009
Federal CCB Regulations
Regulatory Options Non hazardous regulations (RCRA Subtitle D) Hazardous Waste Regulations (RCRA Subtitle C) Combined Options (Mix of C & D)
Proposed Rule sent to OMB October 15 Proposed Rule Published January 2010
Federal CCB Regulations
Regulatory Options Non hazardous regulations (RCRA Subtitle D) Hazardous Waste Regulations (RCRA Subtitle C) Combined Options (Mix of C & D)
Proposed Rule sent to OMB October 15 Proposed Rule Published February 2010
Federal CCB Regulations
Regulatory Options Non hazardous regulations (RCRA Subtitle D) Hazardous Waste Regulations (RCRA Subtitle C) Combined Options (Mix of C & D)
Proposed Rule sent to OMB October 15 Proposed Rule Published April 2010
Federal CCB Regulations
Regulatory Options Non hazardous regulations (RCRA Subtitle D) Hazardous Waste Regulations (RCRA Subtitle C) Combined Options (Mix of C & D)
Proposed Rule sent to OMB October 15 Proposed Rule Published ???? 2010
Federal CCB Regulations
Regulatory Options Non hazardous regulations (RCRA Subtitle D) Hazardous Waste Regulations (RCRA Subtitle C) Combined Options (Mix of C & D)
Proposed Rule sent to OMB October 15 Proposed Rule Published ???? 2010 Final Rule 2011 Implementation 2013 - 2015
EPA Concerns
Enforceability Permitting Wet Handling (Impoundments) Beneficial Use
Federal CCB Regulations
– Location Restrictions– Operating Criteria– Design Criteria (e.g., liners)– Groundwater Monitoring– Closure– Financial Assurance– Impoundment Integrity– Restrictions on “Wet Handling” (i.e., pond closure)
Subtitle D Regulations
● Administered and Enforced by the States● Consistent with 1993 & 2000 Regulatory
Determinations● No Stigma/Barriers to CCB Beneficial Use● EPA Direct Enforcement May be Limited
Subtitle C Regulations
● Federal Hazardous Waste Rules Supplant State Controls
● Direct Federal Enforceability● 2–5 Years for Rules to Become Effective ● Disposal Capacity Issues● Adverse Impact on Beneficial Use
Impact of Subtitle C Regulation on CCB Disposal
Re-permitting of Existing Facilities Corrective Action Closure of Existing Facilities Permitting of New Disposal Facilities De Minimis Releases Spill Cleanup
Impact of Subtitle C Regulation on CCB Disposal
Disposal Subject to Subtitle C Regulation Qualified Beneficial Uses Exempt from
Regulation Cement & Concrete, Wallboard Manufacture OK Unconfined Uses, Land Application Likely Prohibited
“Qualified Uses” or “Legitimate” Recycling Assumes Hazardous Secondary Material
Impact of Subtitle C Regulation on CCB Use
RCRA Compliance—Regulatory Conditions Similar to Part 261.4(a)(23) Storage to Prevent Release/Spill Response Release = Illegal Disposal? Prohibition on Speculative Accumulation Due Diligence to Ensure Safe Handling/Use Ensuring Legitimate Use & Meeting Legitimacy
Criteria
Impact of Subtitle C Regulation on CCB Use
Potential Environmental Liabilities Increased Tort Exposure Product Liability Concerns Product Disposal Concerns (Off-Spec Materials,
end-of-life Disposal) Reduced Markets Increased CERCLA Visibility
State Environmental Regulatory Agencies ECOS ASTSWMO Arizona DEQ Arkansas DEQ Colorado DPHE Florida DEP Hawaii DLNR Illinois EPA Indiana DEM & DNR Iowa DNR Kansas DHE Kentucky AG Louisiana DEQ Maryland DE Michigan DEQ
Minnesota PCA Missouri DNR Mississippi DEQ New Jersey DEP North Dakota DH Ohio EPA Oklahoma DEQ Pennsylvania DEP South Carolina DHEC South Dakota DENR Tennessee DEC Texas CEQ Virginia DEQ West Virginia DEP Wisconsin DNR
Other State Agencies
State Associations NCSL Conf of Mayors
Public Utility Commissions Indiana URC Louisiana PSC New Mexico PRC North Carolina PUC North Dakota PSC Ohio PUC Pennsylvania PUC
State Highway/DOT American Association of State
Highway and Transportation Officials (AASHTO)
Arizona DOT Colorado DOT Florida DOT Indiana DOT Michigan DOT Minnesota DOT New Hampshire DOT North Carolina DOT Texas DOT Utah DOT
Other Stakeholders
Chambers of Commerce US Chamber of Commerce Michigan North Carolina South Carolina
Technical/Educational Organizations
ACAA ACI
CCB End Users American Concrete Paving Assn American Society Concrete
Contractors Gypsum Assn National Ready Mix Concrete
Assn National Assn of Manufacturers
Labor UJAE
State Officials
Governors National Governors
Association Western Governors
Association West Virginia Governor
Manchin North Dakota Governor
Hoeven
State Executive Officials Missouri Lieutenant Governor
Kinder Kentucky Attorney General
Conway
Municipal Governments Colorado Springs Grand Island, NE Hastings, NE Springfield, IL Wyandotte, MI
Congressional Letters
Conrad Senate Letter (25)
Bayh Senate Letter (27)
Senators Burris, Casey, Kyl & Roberts
House Letter (74)
House Coal Caucus letter (116)
Reps Bonner, Leutkemeyer, Platts, Schock, Sires, Skelton and Teague
CCB Coalition
Ash Producers (Utilities and Industries), Ash Users—Individual Companies & Associations Seeking Non-hazardous Waste Regulations Seeking to Preserve and Expand CCB Beneficial
Use
www.uswag.org/ccbletters.htm
31
Possible Timeline for Environmental Regulatory Requirements for the Utility Industry
Ozone
PM2.5
'08 '09 '10 '11 '12 '13 '14 '15 '16 '17
Beginning CAIR Phase I Seasonal NOx Cap
HAPs MACT proposed
rule
Beginning CAIR Phase II Seasonal NOx Cap
Revised Ozone NAAQS
Begin CAIR
Phase I Annual
SO2 Cap
-- adapted from Wegman (EPA 2003) Updated 2.15.10
Beginning CAIR Phase II Annual
SO2 & NOx Caps
Next PM-2.5
NAAQS Revision
Next Ozone NAAQS Revision
SO2 Primary NAAQS
SO2/NO2 Secondary
NAAQS
NO2
Primary NAAQS
SO2/NO2
New PM-2.5 NAAQS Designations
CAMR & Delisting Rule vacated
Hg/HAPS
Final EPA Nonattainment Designations
PM-2.5SIPs due (‘06)
Proposed CAIR Replacement
Rule Expected
HAPS MACT final rule expected
CAIR Vacated
HAPS MACT Compliance 3 yrs
after final rule
CAIR Remanded
CAIR
Begin CAIR
Phase I Annual
NOx Cap
PM-2.5 SIPs due (‘97)
316(b) proposedrule expected
316(b) final ruleexpected
316(b) Compliance3-4 yrs after final rule
Effluent Guidelines
proposed ruleexpected
Water
Effluent GuidelinesFinal rule expected Effluent Guidelines
Compliance 3-5 yrs after final rule
Begin Compliance Requirements
under Final CCB Rule (ground water monitoring, double monitors, closure,
dry ash conversion)
Ash
Proposed Rule for CCBs Management
Final Rule for CCBs Mgmt
Final CAIR Replacement
Rule Expected
Compliance with CAIR
Replacement Rule
CO2
CO2 Regulation
Reconsidered Ozone NAAQS