Tonnage and pile requirements would be cut back

The EPA is proposing several significant revisions to its 2015 regulations governing coal combustion residuals (CCRs) generated by electric utilities. One part of the proposal would eliminate the existing CCR tonnage threshold that triggers the requirement for an environmental demonstration and replace it with location-based criteria; that is, an environmental demonstration would be required only if the CCR is placed near certain sensitive environmental receptors, regardless of the tonnage. The proposal would also eliminate regulations that differentiate between CCR piles that are on-site at a facility from temporary CCR piles that are off-siteat a beneficial use site. In place of these separate sets of regulations, the EPA wants to promulgate a single regulatory mechanism for all temporary placement of CCR on the land. The proposal would also require that utilities conform to a specific format when posting information about their CCR units on websites.     

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Background

The 2015 rule established regulations for the disposal of CCRs as solid waste under Subtitle D of the Resource Conservation and Recovery Act (RCRA).  Provisions addressing location restrictions; design and operating criteria; groundwater monitoring and corrective action; closure requirements and post-closure care; and recordkeeping, notification, and Internet posting requirements apply to existing and new CCR landfills, existing and new CCR surface impoundments, and all lateral expansions. In July 2018, in response to stakeholder concerns, the Agency issued amendments that increased the authority of states in implementing the federal program. The current proposed amendments respond to both industry petitions and a remand the U.S. Court of Appeals for the D.C. Circuit issued after considering challenges to parts of the rule filed by both industry and environmental groups.

Beneficial use criteria

In the 2015 rule, the EPA said it had determined that CCRs in amounts of 12,400 tons or more at a beneficial use site present potential risks sufficient to warrant regulation. In such cases, the user bears the responsibility to demonstrate that the potential risks do not exist at the particular site or have been adequately mitigated. Accordingly, the rule states that unencapsulated beneficial use applications greater than or equal to 12,400 tons can be conducted without becoming subject to the disposal regulations by using engineering principles such as a liner system and by conducting an environmental demonstration showing that environmental releases to groundwater, surface water, soil, and air are comparable to or lower than those from analogous products made without CCRs or by demonstrating that environmental releases to groundwater, surface water, soil, and air will be at or below relevant regulatory and health-based benchmarks for human and ecological receptors. The rule listed the wide variety factors the EPA expected such demonstrations should include (e.g., hydraulic conductivity of the area, likelihood of contact with water, and characterization of the CCR).

In its proposal, the EPA now says that states that use criteria similar to those in the 2015 rule did not rely on an analysis of the potential risks associated with a specific CCR tonnage. Under these state programs, the proposed use of CCR is prohibited if its placement does not meet these additional criteria, regardless of the amount of CCR used. For example:

• Wisconsin, North Carolina, and Pennsylvania require placement of the CCR to be a minimum distance above the groundwater table.
• Wisconsin, Illinois, and Pennsylvania require chemical analysis of either the CCR bulk content or leachate to demonstrate that concentrations either present in or released from the CCR are below specified levels.
• North Carolina and Pennsylvania require a minimum setback distance from wetlands—one of 50 feet (ft) and another of 100 ft. Pennsylvania has a minimum setback distance of 300 ft from an “exceptional value wetland.”
• North Carolina and Pennsylvania prohibit placement within the 100-year floodplain.
• Wisconsin and Pennsylvania require a minimum setback distance from water supply wells.
• Several other states evaluate all uses, including fill uses on a case-by-case basis, regardless of size.

Based on these findings, the EPA is proposing to replace the mass-based numerical threshold for an environmental demonstration with location-based criteria derived from the existing location criteria for CCR disposal units.

The proposed location-based criteria are distance from the uppermost aquifer; placement in a wetland; placement in an unstable area; placement in a floodplain; distance from a fault area; and placement in a seismic zone. Before the placement of any amount of unencapsulated CCR in areas meeting the location-based criteria can occur and be considered a beneficial use, an affirmative demonstration must be made, presenting evidence that (a) releases to environmental groundwater, surface water, soil, and air are comparable to or lower than those from analogous products made without CCR or (b) that releases will be at or below relevant regulatory and health-based benchmarks for human and ecological receptors during use.

The EPA says that while the available information does not appear to provide strong support for a single numerical mass-based threshold as a general matter, the Agency is soliciting comments on whether to retain a mass-based threshold and what the appropriate value for that threshold should be to trigger an environmental demonstration. The EPA also requests comment on whether a combination of the mass-based threshold and location-based criteria would be an appropriate trigger to require an environmental demonstration for unencapsulated uses.

CCR piles

Under existing regulations, CCR piles are defined as any “non-containerized accumulation of solid, non-flowing CCR that is placed on the land.” The regulations also distinguish piles of CCR on-site (at an electric utility or independent power producer site) from temporary piles of CCR off-site (at a beneficial use site). On-site piles are not being beneficially used even if they will be so used in the future. Accordingly, these piles must be containerized; that is, the facility must adopt measures to control releases and exposures to human health and the environment. Such measures include placement of CCR on an impervious base, such as asphalt or concrete; collection of leachate and runoff; and use of wind barriers. If CCR is not containerized, the pile is a CCR pile and subject to the same requirements as a CCR landfill.

The regulations also indicate that CCR stored in a temporary pile off-site at a beneficial use site meets the regulatory definition of a beneficial use (even though a pile is not itself a beneficial use), is not a CCR pile, and is not subject to disposal requirements.

After the 2015 rule was promulgated, the EPA received petitions for reconsideration from industry stakeholders (for an example, see here). According to one petitioner, regulating any stockpile of CCR temporarily stored on-site as a landfill before the CCR is delivered off-site for a beneficial use greatly and unnecessarily increases the cost to produce baseload electricity using coal.

The EPA agreed that the on-site CCR pile provision should be reconsidered. Accordingly, in the proposal, the Agency states that it is appropriate to establish a single regulatory mechanism for all temporary placement of CCR on the land whether the CCR is on-site or off-site and whether the CCR is subsequently destined for disposal or beneficial use.

Rather than characterizing such activities as either disposal or beneficial use, the EPA proposes to consider that these activities are storage. The proposal has following elements:

• “Temporary accumulation” on the land is defined as accumulation that is neither permanent nor indefinite. To demonstrate that the accumulation is temporary, at some point, all the CCR would need to be removed from the pile at the site. To ensure that a temporary accumulation is identifiable, the entity engaged in the activity would need to have a record, such as a contract, purchase order, facility operation and maintenance plan, or fugitive dust control plan, documenting that all CCR in the pile will be completely removed according to a specific timeline.

• Releases must be controlled. However, the CCR pile would not need to be controlled to the same extent as a CCR landfill. At a minimum, measures would need to control releases through windblown dust, surface transport by precipitation runoff, and releases to soil and groundwater. Examples of control measures include periodic wetting; application of surfactants, tarps or wind barriers to suppress dust; tarps or berms for preventing contact with precipitation and controlling run-on/runoff; and impervious storage pads, geomembrane liners, or tarps for soil and groundwater protection. The EPA is not proposing to impose a specific set of control measures in every case because the amount of CCR stored and the prevailing weather conditions may affect which controls are appropriate.

“Therefore, EPA intends to provide the entities engaged in the activity with flexibility to determine the control measures most appropriate to meet the requirement to control releases at a given site,” the Agency states.

The EPA adds that if control measures are not used or are inadequate for prevailing conditions, increasing the likelihood of CCR being swept away, then the entity engaged in the activity would not have met the requirement to control releases, and the accumulation of CCR would be considered disposal. Visible dust, run-on/runoff, and ponding of the water at the bottom of the pile point to an issue with the choice of control measures.

The Agency is also proposing to exempt accumulations of unencapsulated CCR in enclosed structures from the definition of a CCR storage pile.

Groundwater monitoring

The third major part of the proposal—and one that would add to compliance obligations—addresses the annual report regulated facilities must prepare. The report documents the status of groundwater monitoring and corrective action for the CCR unit; summarizes key actions completed; describes problems encountered; and discusses resolution of the problems, as well as activities for the upcoming year. The EPA found that some facilities provided groundwater monitoring data in formats that were clear and easy for the public to understand while others did not. For example, in some reports, it was difficult to determine whether the analytical results corresponded to background or downgradient wells, whether the CCR unit was operating under the detection or assessment monitoring program, when the assessment monitoring program was initiated for the CCR unit, and whether the facility had initiated corrective action for the unit. In addition, several facilities provided only laboratory printouts of data, potentially making it difficult for the public and other stakeholders to put the results into context within the overall groundwater monitoring program.

Accordingly, the EPA is proposing minimum requirements that would need to be addressed in the summary discussion of the status of the groundwater monitoring and corrective action programs for the CCR unit. The Agency is also soliciting comment on whether to require that the groundwater monitoring analytical results and related information be presented in a standardized format, such as multiple tables, and be included in the annual report.

Finally, the proposal would establish an alternate risk-based groundwater protection standard for boron and revise the publicly accessible CCR website requirements. Among the proposed website requirements, facilities would need to ensure that all information required to be on the websites be made available to any member of the public, including through printing and downloading, without any requirement that the member of the public wait to be “approved” or provide information to access the website.