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New Regulations under RCRA for...

New Regulations under RCRA for Coal Combusion Residues

By Bret A. Stone

A new proposed rule for coal fired plants may be one of the most significant waste management rules to be proposed in more than a decade.  Wastes generated as a result of coal combustion (“coal combustion residues” or “CCR”) include fly ash, bottom ash, slag, and flue gas emission control wastes, all of which contribute to climate change.  Although the characteristics of these wastes were considered with respect to the applicability of RCRA, the EPA decided that CCRs from electric utilities should not be regulated as hazardous waste under RCRA Subtitle C and that the Bevill Amendments applied.  Although EPA stated its intent to evaluate the appropriateness of applying the Subtitle D (non-hazardous) regulations, this had not occurred. In part, as a result of the failure of the surface impoundment retaining wall in Kingston, Tennessee in December 2008, which resulted in the release of more than 1.1 billion gallons of sludge, the EPA published a proposed rule signed May 4, 2010, that proposed two options for regulating CCRs from electric utilities and independent power producers under RCRA, with management has hazardous waste under Subtitle C or non-hazardous waste, under Subtitle D both being considered.  A final rule was published on June 21, 2010 (http://edocket.access.gpo.gov/2010/2010-12286.htm)

Under the Subtitle C option, the EPA would no longer apply the Bevill Amendment to exclude the management of CCR as a hazardous waste, thus requiring the waste to be managed in accordance with RCRA. In this instance all storage, transportation, and disposal and record keeping regulations would apply.  All CCRs would be managed at RCRA facilities as detailed in 40 CFR 261 through 268.  The costs associated with hazardous waste management would likely run into the tens of millions of dollars per year.

Under the Subtitle D option, EPA would leave its previous Bevill decision in place, and the CCRs would not be characteristically hazardous.  CCRs would be disposed of in landfills and surface impoundments regulated under RCRA Subtitle D.  Similar to the Subtitle C impoundments, these Subtitle D cells would be required to have composite liners, with monitoring and closure required to meet the standards set forth in 40 CFR 258.  Although existing Subtitle D landfills could receive the CCRs for 5 years, unlined cells would have to cease at that time.

To address the potential for catastrophic releases from surface impoundments, EPA is also proposing RCRA requirements for dam safety and stability for units that have not closed consistent with rule requirements. Proposed standards are similar to those promulgated for coal slurry impoundments regulated by the Mine Safety and Health Administration.

A summary of the primary differences between the proposed Subtitle C and D options was prepared by EPA (http://www.epa.gov/wastes/nonhaz/industrial/special/fossil/ccr-rule/ccr-table.htm) and is provided in the table below.


Subtitle C option

Subtitle D option

Effective date

Timing will vary from state to state, as each state must adopt the rule individually; can take 1–2 years or more

Six months after final rule is promulgated for most provisions; certain provisions have a longer effective date


State and federal enforcement

Enforcement through citizen suits; states can act as citizens

Corrective action

Monitored by authorized states and EPA


Financial assurance


Considering subsequent rule using CERCLA 108(b) authority

Permit issuance

Federal requirement for permit issuance by states


Requirements for storage, including containers, tanks, and containment buildings



Surface impoundments built before rule is finalized

Remove solids and meet land disposal restrictions; retrofit with a liner within five years of effective date; would effectively phase out use of existing surface impoundments

Must remove solids and retrofit with a composite liner or cease receiving CCRs within 5 years of effective date and close the unit

Surface impoundments built after rule is finalized

Must meet land disposal restrictions and liner requirements; would effectively phase out use of new surface impoundments

Must install composite liners; no land disposal restrictions

Landfills built before rule is finalized

No liner requirements, but require groundwater monitoring

No liner requirements, but require groundwater monitoring

Landfills built after rule is finalized

Liner requirements and groundwater monitoring

Liner requirements and groundwater monitoring

Requirements for closure and post-closure care

Yes; monitored by states and EPA

Yes; self-implementing

Although these options would apply to CCRs that are currently being managed in surface impoundments, it is important to be aware that flyash that is currently being used beneficially (for example, as a concrete stabilizer) could continue to be used as such, and would not require management as a waste product.

In its proposed rule, EPA is providing the public 90 days to comment on these options, with all comments due no later than September 20, 2010.  Comments can be submitted to EPA, identified by docket ID No. EPA-HQ-RCRA-2009-0640 at http://www.regulations.gov: or via email at rcra-docket@epa.gov.

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