Miscellaneous Frequent Questions about Implementing the Final Rule Regulating the Disposal of Coal Combustion Residuals (CCR)
EPA developed a list of responses to the many questions the Agency received about implementing the 2015 final CCR disposal rule. Questions that fall under the category of miscellaneous and their responses are below:
- , under the Bevill Amendment, to consider specific factors in determining whether to regulate coal ash under subtitle C of the Resource Conservation and Recovery Act (RCRA): (1) the source and volumes of material generated per year; (2) present disposal and utilization practices; (3) potential danger, if any, to human health and the environment from the disposal and reuse of such materials; (4) documented cases in which danger to human health or the environment from surface run-off or leachate has been proved; (5) alternatives to current disposal methods; (6) the costs of such alternatives; (7) the impact of those alternatives on the use of coal and other natural resources; and (8) the current and potential utilization of such materials (42 U.S.C. § 6982( n)). EPA revisited these eight study factors in the coal ash final rule. What process did EPA use to gather this information and what did EPA find?
In the proposed rule, EPA re-examined the eight Bevill study factors in section 8002(n) of RCRA, and solicited comment on its analysis. As discussed in both the proposed and final rules, the key elements (i.e., factors) of the analysis were EPA's risk assessment, the assessment of state programs and EPA's compilation of CCR damage cases. In response to the proposed rule, the Agency received significant comments on the various elements of the analysis and consequently published several Notices of Data Availability (NODAs) presenting new data and possible revisions to the analysis.
However, as discussed at length in the preamble to the final rule, critical information necessary to a final Regulatory Determination is still lacking on a number of key technical and policy questions. This includes information needed to quantify the risks of CCR disposal, and the potential impacts of recent Agency regulations on the chemical composition of CCR. The Agency also needs further information on the adequacy of the state programs.
In the absence of this information, EPA is unable to reach a conclusion on the issue that is central to a Bevill Determination: whether the risks presented by the management of CCR waste streams can only be adequately mitigated through regulation under RCRA subtitle C. Therefore, EPA deferred a final Regulatory Determination for these wastes. It is worth noting however that CCRs, both those disposed and beneficially used, remain Bevill exempt from RCRA subtitle C regulation and will remain so until EPA changes this determination. EPA will provide the public with an additional opportunity to comment on any proposed Regulatory Determination prior to issuing a final Regulatory Determination. See Volume 80 of the Federal Register (FR) on page 21327, April 17, 2015.
- most heavily on EPA's decision? The final rule identified technical uncertainties that cannot be resolved, including the extent to which risks are managed sufficiently under the final rule.
Of the eight statutory Bevill study factors assessed, three weighed the most heavily in the Agency's decision to defer a final Regulatory Determination: (1) the extent of the risks posed by mismanagement of CCR; (2) the adequacy of state programs to ensure proper management of CCR; and (3) the extent and nature of damage cases.
- EPA gather over the next several years to resolve these technical uncertainties?
Over the next several years, electric utilities will be moving forward in the implementation of this rule as well as the Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category (the ELG rule) and the Carbon Pollution Emission Guidelines for Existing Stationary Sources; Electric Utility Generating Units Clean Power Plant rules.
Until these regulatory requirements are implemented, it is premature to define a path forward for resolving the technical uncertainties identified in the final rule. A reasonable course, however, would be to follow the groundwater monitoring data and other information being posted to companies' websites to see what facilities, CCR landfills, and CCR surface impoundments continue operating, whether liners are leaking, and what concentration of contaminants we are observing. Any information that the EPA gathers in the future will be announced to the public and offered for public comment.
- the possibility that concentrations of hazardous contaminants in coal ash may rise in the near future. Why might that happen? What actions might be necessary if that happens?
In the final rule, EPA specifically noted that there were uncertainties regarding the evolving characterization and composition of CCR due to electric utility upgrades and retrofits of multi-pollutant control technologies and raised concern that these advances in human health and environmental protection could present new or otherwise unforeseen changes in CCR. Therefore, if the Agency determines a t some future time that significant changes have occurred in the characterization or composition of CCR as a result of these increased air pollution control efforts, EPA will then make a determination on how state programs are addressing those risks and whether additional risk analyses are warranted. This determination may be strongly influenced by the monitoring of facility groundwater data to determine if the controls the Agency has put in place as a result of this rule are providing the necessary environmental protections. Any action that the Agency may consider in the future will be announced to the public and offered for public comment.
Until EPA amends the regulations to effectuate the court’s order, facilities are not legally obliged to take any action to comply with the federal CCR regulations. As currently drafted, nothing in title 40 of the Code of Federal Regulations (CFR) section 257.50 would bring legacy units within the scope of the rule.
Want to look at all of the 2015 final rule implementation questions at once? Check out the complete list in PDF format.