Frequent Questions on the Implementation of the Disposal of Coal
Combustion Residuals (CCR) from Electric Utilities Final Rule
Scope and Purpose
Beneficial Use
Effective Date
Applicability of Other Regulations (including tribal issues)
Definitions
Location Restrictions
Design Criteria
Groundwater Monitoring and Corrective Action
Closure and Post-Closure
Implementation and Solid Waste Management Plans
Miscellaneous
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Scope and Purpose
What is EPA's legal authority to regulate inactive surface impoundments under
subtitle D of the Resource Conservation and Recovery Act (RCRA)?
RESPONSE: The final rule discusses in depth the specific legal authority on which the EPA
is relying to support the regulation of inactive CCR surface impoundments under subtitle D
of RCRA. See volume 80 of the Federal Registe
Is CCR from a closed fossil fuel power plant that is sent for off-site waste
management covered by the rule?
RESPONSE: Any disposal unit that receives CCR from an off-site electric utility or
independent power producer, including from a closed fossil fuel power plant, is covered by
the rule unless it is a municipal solid waste landfill. See title 40 of the Code of Federal
Regulations (CFR) section 257.50(b).
Is CCR generated at an active facility (i.e., part of the NAICS code 221112) but then
sent for management at a facility no longer producing power regulated under the
CCR rule?
RESPONSE: CCR generated at an active facility but then sent off-site for management at a
facility no longer producing power is regulated under the rule. The rule at 40 CFR section
257.50(b) specifies that "this subpart applies to owners and operators of new and existing
landfills and surface impoundments, including lateral expansions of such units, that dispose
&EPA
United States
Environmental Protection
Agency
Updated on November 5, 2018
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Frequent Questions on the Implementation of the Disposal of Coal
Combustion Residuals (CCR) from Electric Utilities Final Rule
or otherwise engage in solid waste management of CCR generated from the combustion of
coal at electric utilities and independent power producers." Even though the facility that
owns the disposal unit may no longer be producing power, it owns and/or is operating an
off-site CCR disposal unit. 40 CFR section 257.50(b) expressly clarifies that the
requirements also apply to CCR disposal units located off-site of the electric utility or
independent power producer.
If an inactive utility begins to generate electricity by starting up a natural gas peaker
plant that is located on-site, will the on-site CCR surface impoundments containing
fly ash from previous coal-burning activities become subject to the rule?
RESPONSE: Yes. If the utility restarts the boilers to generate electricity, regardless of the
fossil fuel used, any CCR surface impoundments at the facility can become subject to the
rule.
Is CCR from a facility that is no longer part of the NAICS code 221112 (Fossil Fuel
Electric Power Generation) because the fossil fuel power plant has closed regulated
under the rule if the CCR is sent for off-site management?
RESPONSE: Yes. The rule applies to the solid waste management and/or disposal of CCR
generated by electric utilities and independent power producers. 40 CFR section 257.50(b).
This includes disposal that occurs at (1) all electric utilities and independent power
producers that produce electricity after the effective date of the rule, irrespective of the fuel
used to produce the electricity; and (2) disposal that occurs off-site of the electric utility,
except for disposal at a municipal solid waste landfill. 40 CFR section 257.50(e) applies to
the electric utilities and independent power producers that have entirely ceased generating
electricity (i.e., have closed) prior to the effective date of the rule, not to the CCR generated
by such facilities.
What requirements apply when CCR from an existing impoundment at an active
power plant is dredged (i.e., pursuant to state legislation or other legal requirement)
and the CCR is moved to a different unlined impoundment at the same site?
RESPONSE: In the situation described, both units would be defined as existing CCR surface
impoundments subject to all the applicable provisions of the rule. The rule does not
prohibit placement of the dredged material (CCR) in another existing unlined surface
impoundment, provided the other unlined unit has not triggered closure by one of three
specific provisions: (1) groundwater monitoring shows an exceedance of a groundwater
protection standard; (2) the facility fails to demonstrate compliance with the minimum
factors of safety to ensure structural stability of the unit; (3) the facility fails to
demonstrate compliance with the location criteria. See 40 CFR section 257.101.
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Environmental Protection
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Updated on November 5, 2018
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Frequent Questions on the Implementation of the Disposal of Coal
Combustion Residuals (CCR) from Electric Utilities Final Rule
Does the final rule address the status of non-slurried non-impounded coal ash that
was formally and remains landfilled?
RESPONSE: CCR landfills that are "active" (i.e., receive CCR on or after the effective date)
are subject to the requirements of the final CCR rule, and must comply with the
requirements for "existing" CCR landfills. However, CCR landfills that do not receive any
CCR on or after the effective date are considered to be "inactive" CCR landfills, and are not
subject to the requirements of the final CCR rule.
If a state-permitted Subtitle D solid waste landfill wants to permit an ash monofill
cell to receive CCR waste as part of their state-permitted area, would the site also
need to meet the CCR rules for that cell from a design, groundwater monitoring, and
data publishing standpoint? Even if the ash cell would fall within the scope of the
state permit and state regulations for a municipal solid waste landfill?
RESPONSE: If the landfill is a permitted municipal solid waste landfill, it is not subject to
the requirements of the CCR rule. All other landfills that accept or manage CCR (e.g., an
industrial solid waste landfill) are subject to all of the landfill requirements of the CCR rule,
whether or not it has a state solid waste landfill permit.
Do the regulations cover CCR landfills only onsite of an existing power plant, or does
it regulate all CCR landfills, regardless if they are onsite of a power plant?
RESPONSE: With one exception, all operating or active CCR landfills are subject to the
requirements of the rule whether they are on-site or off-site of the utility. See 40 CFR
section 257.50(b). The sole exception is municipal solid waste landfills, which the
regulation specifies are not subject to the rule. See 40 CFR section 257.50(i).
Are small ponds containing CCR from uniquely associated wastes such as boiler
washes, air preheater washes, or precipitator washes covered by the rule? If they are
uniquely associated wastes, does that mean they cannot be CCR?
RESPONSE: Uniquely associated wastes, as defined in the revised 40 CFR section 261.4
(see pages 21500 and 21501 of the April 17, 2015 Federal Register Notice) are not CCR but
are solid wastes covered by the Bevill exemption for fossil fuel combustion wastes at 40
CFR section 261.4(b)(4). Small ponds or impoundments that meet the definition of a CCR
surface impoundment would be subject to the rule even if the CCR is co-disposed with
other solid wastes, such as the uniquely associated wastes.
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Updated on November 5, 2018
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Frequent Questions on the Implementation of the Disposal of Coal
Combustion Residuals (CCR) from Electric Utilities Final Rule
Beneficial Use
How does the CCR rule impact CCR that are beneficially used?
RESPONSE: The CCR final rule provides criteria that support and encourage the
appropriate beneficial use of CCR. The final rule retains the Bevill Determination without
revision and does not regulate CCR that are beneficially used. This rule provides a
definition of beneficial use to distinguish between beneficial use and disposal. The rule
clarifies that a use of a CCR that does not meet the definition of a beneficial use is disposal.
How will EPA work with state beneficial use programs and/or end users or
generators of byproducts regarding interpreting the beneficial use criteria?
Secondly, will EPA review evaluations of the criteria or offer opinions?
RESPONSE: EPA can provide assistance to state beneficial use programs and end users
about how to interpret the beneficial use criteria. The Agency is working to provide tools to
assist states and beneficial users with their beneficial use evaluations. EPA does not review
or approve evaluations of the criteria conducted by others.
Where can the "Engineering and Environmental Guidance on the Beneficial Use of
Coal Combustion Products in Engineered Structural Fill Projects" be obtained?
RESPONSE: The Utility Solid Waste Activities Group (USWAG) document, "Engineering and
Environmental Guidance on the Beneficial Use of Coal Combustion Products in Engineered
Structural Fill Projects," referenced in the preamble can be found in the docket to the rule
at http://www.regulations.gOv/#idocumentDetaii lM! 1 II* 1: i 1: s )9-0640-11969.
The preamble to the rule mentions that the EPA is developing a framework for
assessing the risks associated with the beneficial use of unencapsulated CCR. When
does the Agency anticipate completion of this framework?
RESPONSE: The Agency expects to complete the framework for assessing the risks
associated with beneficial use of industrial materials, including unencapsulated uses of CCR
by April 15, 2016.
Would a facility that stores piles of FGD on the ground for ultimate beneficial use as
wallboard greater than the 12,400 ton CCR rule threshold have to meet the
unencapsulated use requirements?
RESPONSE: As EPA noted on pages 21347-21348 of the final rule, in order to be subject to
RCRA, the material must be a solid waste. The statute defines a solid waste as "any garbage,
refuse....and other discarded material..." 42 U.S.C. 6903 (27). As EPA noted in the proposed
and final rule:
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Updated on November 5, 2018
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Frequent Questions on the Implementation of the Disposal of Coal
Combustion Residuals (CCR) from Electric Utilities Final Rule
"For some beneficial uses, CCR is a raw material used as an ingredient in a manufacturing
process that have never been "discarded," and thus, would not be considered solid wastes
under the existing RCRA regulations. For example, synthetic gypsum is a product of the
FGD process at coal-fired power plants. In this case, the utility designs and operates its air
pollution control devices to produce an optimal product, including the oxidation of the
FGD to produce synthetic gypsum. In this example, after its production, the utility treats
FGD as a valuable input into a production process, i.e., as a product, rather than as
something that is intended to be discarded. Wallboard plants are sited in close proximity
to power plants for access to raw material, with a considerable investment involved. Thus,
FGD gypsum used for wallboard manufacture is a product rather than a waste or
discarded material. This use and similar uses of CCR that meet product specifications
would not be regulated under the final rule."
Note that whether the FGD gypsum is being managed as a "waste" or a "product" is a fact-
specific determination. Indications that the FGD gypsum is being managed as a waste or a
product by the utility include the rate at which the material is being used versus being
added, and whether it is being managed as a valuable product (i.e., stored or protected in
the same way virgin products are managed). For example, if more FGD gypsum is being
added to a pile than can actually be used, and if the material is not being managed as a
valuable product, then that would be an indication that it is it not being treated as a
product; and would therefore be a "waste."
For those materials that are "wastes," a power-generating facility that stores piles of FGD
on the ground on-site at the facility for ultimate beneficial use as wallboard greater than
the 12,400 ton threshold would not have to meet the unencapsulated use requirements;
however, the FGD piles must be "containerized" in order to not be considered a CCR Pile
(and by definition, a CCR landfill). The use of the phrase "containerized" is not intended to
require that all activities occur within tanks or containment structures, but merely that
specific measures have been adopted to control exposures to human health and the
environment. This could include placement of the CCR on an impervious base such as
asphalt, concrete, or a geomembrane; leachate and run-off collection; and walls or wind
barriers (see p. 21356 of the final rule).
What if the facility storing the flue gas desulfurization (FGD) gypsum on the ground
is not an electric utility?
RESPONSE: In this case, if the facility treats the FGD gypsum as a valuable input into a
production process, i.e., as a product, rather than as something that is intended to be
discarded, the use would not be regulated under the final rule (see above response). For
those materials that are "wastes," FGD gypsum that is currently being used in compliance
with the definition of beneficial use, including FGD gypsum stored in a temporary pile prior
to being beneficially used, would not be subject to the CCR disposal regulations. As noted at
80 FR 21356 in the final rule preamble,
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Environmental Protection
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Updated on November 5, 2018
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Frequent Questions on the Implementation of the Disposal of Coal
Combustion Residuals (CCR) from Electric Utilities Final Rule
"CCR that is currently being used beneficially—for example, fly ash that has been
transferred to a cement manufacturer and that is stored off-site in a "temporary pile," and
that complies with all of the criteria in the definition to be considered a beneficial use
including the fourth criterion relating to the placement of large quantities of
unconsolidated CCR on the land— would not be subject to the regulations applicable to
CCR disposal."
Although ultimately intended for encapsulated use in wallboard, a pile of FGD gypsum that
is a "waste" is still considered an unencapsulated CCR until it is actually incorporated into
the wallboard; therefore, if the amount of FGD gypsum in a pile awaiting beneficial use
exceeds 12,400 tons, the facility also must comply with the fourth criterion pertaining to
unencapsulated non-roadway uses. One way to ensure the fourth criterion is met is to
containerize the pile; that is, adopt specific measures to control exposures to human health
and the environment, such as placement of FGD gypsum on an impervious base, such as
asphalt, concrete, or a geomembrane; leachate and run-off collection; and/or use of walls
or wind barriers.
Effective Date
What is the effective date of the rule? Some requirements state October 14, 2015 and
others state October 19, 2015.
RESPONSE: The effective date of the rule is October 19, 2015. A technical correction was
published in the Federal Register on July 2, 2015 (80 FR 37988) correcting the effective
date and other associated dates.
Will all CCR disposal sites be subject to the rule equally, or will there be a transition
policy for some sites?
RESPONSE: There is no transition policy or any kind of "grandfathering" for particular
sites or units. All CCR disposal units that are subject to the rule will be subject to the
requirements on the effective date of the rule.
Applicability of Other Regulations fincluding tribal issues!
A state has a CCR disposal facility that is located within a valley that was strip mined.
The facility is regulated under a state wastewater collection, storage or treatment
system permit and an NPDES Permit. The state will continue to regulate the facility.
Will the CCR regulations apply to this site?
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Environmental Protection
Agency
Updated on November 5, 2018
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Frequent Questions on the Implementation of the Disposal of Coal
Combustion Residuals (CCR) from Electric Utilities Final Rule
RESPONSE: If the facility is managing CCR in an active or inactive coal mine, it is not
covered by the CCR rule. Placement in active or inactive underground or surface coal mines
will be addressed under regulations being developed by the Office of Surface Mining of the
Department of the Interior. However, placement of CCR or other management activities in
any other mine would be considered to be disposal subject to the CCR requirements of part
257 unless the placement meets the criteria for defining beneficial use of CCR.
How will the rule be implemented on tribal lands (i.e., at CCR disposal facilities
located on tribal lands) or are there any differences in implementation?
RESPONSE: The requirements of part 257 apply directly to the facilities regardless of
whether the facility is on state or tribal lands, so there will be few differences. Tribes, like
states, can sue to enforce the rules by filing a citizen suit under RCRA 7002. In cases where
notification is required, facility owners/operators should notify the tribal authorities. EPA's
authority to oversee implementation of subtitle D regulations on tribal lands is limited; for
example, EPA cannot approve a tribal Solid Waste Management Plan in the same manner as
a state Solid Waste Management Plan, and therefore, compliance schedule adjustments
under 4005(a) will not be available to facilities on tribal lands.
EPA recognizes that there may be arrangements among tribal and state authorities and
utility managers regarding oversight of utilities. Utility managers should work within these
arrangements on CCR rule implementation.
How do these "self-implementing" regulations fit within existing state permitting
programs for these materials?
RESPONSE: The CCR rule applies directly to the facilities, and the facilities must be in
compliance with those standards on the effective date, irrespective of state requirements.
States may choose to adopt the federal requirements into their existing program or to
impose more stringent standards, but the federal rule does not itself affect states'
permitting programs. As part of their own programs under state law, states may choose to
require permits for CCR disposal units, and may choose to adopt the federal requirements
into their permits as permit conditions. However, a facility must still comply with the CCR
rule requirements, even if the state has issued a permit that contains less stringent
conditions or requirements than those in the CCR rule.
Definitions
Does the rule apply to CCRs that are land applied outside a landfill or impoundment?
If so, how does it apply?
RESPONSE: If the land application does not meet the criteria for beneficial use defined in
40 CFR section 257.53, the land application constitutes disposal and would be considered a
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Environmental Protection
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Updated on November 5, 2018
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Frequent Questions on the Implementation of the Disposal of Coal
Combustion Residuals (CCR) from Electric Utilities Final Rule
landfill, subject to all of the requirements for CCR landfills. (See definition of CCR landfill in
40 CFR section 257.53).
If a state has issued a construction permit for a CCR landfill prior to the effective date
of the federal rule and this landfill has cells that are permitted for construction, but
remain unconstructed after 180 days from the publication of the federal rule, are the
unconstructed cells still considered to fall within the definition of "Existing CCR
Landfill"?
RESPONSE: No. CCR landfill cells constructed after the effective date of the rule are
considered to be new CCR landfills subject to the requirements for new CCR landfills.
Do the new CCR landfill requirements apply to yet-to-be constructed cells of an
existing multi-cell CCR landfill that have already been approved by a State regulatory
agency but have yet to be constructed? Will the new CCR landfill requirements apply
to the next new cell to be constructed, even if those future cells were approved as
part of an overall plan of operation with defined design criteria?
RESPONSE: Yes. If continuous on-site, physical construction begins on a unit after the
effective date of the rule, these are considered new CCR units (in this case, landfills) and
will be subject to the requirements for new CCR units (here, those for new CCR landfills).
The preamble of the CCR rule identifies certain impoundments as not being CCR
surface impoundments - i.e., cooling water ponds, wastewater treatment ponds,
storm water holding ponds, and aeration ponds. Are other types of ponds not
specifically identified in the preamble but that similarly are not used to impound
"significant quantities" of CCR considered not to be CCR surface impoundments?
RESPONSE: The final rule defines CCR surface impoundments as units that are designed to
hold an accumulation of CCR and liquids, and the unit treats, stores, or disposes of CCR.
Units that are not designed to hold an accumulation of CCR, and that do not treat, store, or
dispose of CCR are not CCR surface impoundments. EPA provided examples in the
preamble to the final rule of units that, in EPA's experience, typically would be expected to
fall outside of that definition. These examples were not intended to be exclusive or
definitive. There may well be additional units that do not meet the definition of a CCR
surface impoundment. Similarly, there may be instances in which a particular "wastewater
treatment pond" is in fact functioning as a CCR unit (e.g., a facility uses an existing CCR
disposal unit for wastewater treatment without dredging the CCR out of the
impoundment). Ultimately, the critical determinant of whether a unit is subject to the rule
is whether it meets the criteria in the regulatory definition, rather than whether it was
included as an example in the final rule preamble.
Are coal ash leachate ponds subject to this rule?
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Environmental Protection
Agency
Updated on November 5, 2018
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Frequent Questions on the Implementation of the Disposal of Coal
Combustion Residuals (CCR) from Electric Utilities Final Rule
RESPONSE: No. The rule regulates CCR landfills and CCR surface impoundments. CCR
surface impoundments are defined as impoundments that are designed to hold an
accumulation of CCR and liquids, and that treat, store, or dispose of CCR. A CCR leachate
pond, or impoundment; i.e., an impoundment that only holds leachate from CCR landfills
and not CCR, does not meet this definition.
Are landfill stormwater run-off ponds outside the rule? We do not consider these to
be CCR impoundments since they are not designed to hold an accumulation of CCR.
RESPONSE: The rule only regulates CCR landfills and CCR surface impoundments. CCR
surface impoundments are defined as impoundments which are designed to hold an
accumulation of CCR and liquids, and the unit treats, stores, or disposes of CCR. "Stormwater
run-off ponds" would not generally be expected to meet the definition of CCR surface
impoundment because CCR landfills, if designed in accordance with the requirements of 40
CFR section 257.81, should not contribute CCR material in stormwater run-off to CCR landfill
stormwater ponds. CCR landfills must be designed to prevent the erosion and excessive volume
of run-off to CCR stormwater ponds. If designed in accordance with the requirements of the
final rule and if the only inflow to the unit is in fact stormwater run-off or direct precipitation,
stormwater run-off from CCR landfills retained or detained by a CCR landfill stormwater pond
should not include any CCR material.
Are the following units subject to the CCR surface impoundment requirements?
- Ponds that receive leachate and surface runoff and leachate from dry fly ash
landfills,
- Coal pile runoff ponds,
- Impoundments that receive small amounts of CCR but whose primary
function is not storage or disposal of CCR,
- Evaporation ponds, or
- Stormwater impoundments impacted by some CCR as runoff.
RESPONSE: To be covered by the CCR rule, an impoundment must meet both of the
following criteria: (1) was designed to hold an accumulation of CCR and liquid, and (2)
treats, stores, or disposes of CCR. Surface runoff, coal pile runoff, CCR landfill leachate,
stormwater and evaporation ponds would not generally be expected to meet the definition
of a CCR surface impoundment, because based on their typical design and function, such
units are not usually designed primarily to hold an accumulation of CCR and liquid and
would not be expected to treat, store, or dispose of CCR. However, it is the responsibility of
the owner/operator to evaluate the impoundments at his facility to determine whether or
not they meet the definition of a CCR surface impoundment.
Location Restrictions
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Updated on November 5, 2018
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Frequent Questions on the Implementation of the Disposal of Coal
Combustion Residuals (CCR) from Electric Utilities Final Rule
When EPA proposed the application of location restrictions to existing surface
impoundments, you acknowledged that these location restrictions would force a
majority of the current impoundments to close. Do you have an estimate of how
many will close?
RESPONSE: The final CCR rule contains five location restrictions that apply to new CCR
units and selectively to existing CCR units. These restrictions include: (1) disposal within
five feet of the uppermost aquifer; (2) disposal in wetlands; (3) disposal in unstable areas,
including karst areas; (4) disposal near active fault zones; and (5) disposal in seismic
impact zones. In addition, the current subtitle D regulation (40 CFR section 257.3-1) that
applied to these units before the final rule was issued already restricts facilities that
dispose of wastes in floodplains. For fault areas, seismic impact zones, and unstable areas
(using karst areas as a proxy) the EPA's Regulatory Impact Analysis (RIA) projected that 51
of the 1045 waste management units would be subject to the location restrictions resulting
in an estimated 26 waste management units closing and safely relocating off-site. The
remaining waste management units are expected to make certifications either that they are
not subject to these three location restrictions or that their continued operation in these
areas is protective.
EPA did not have sufficient data to evaluate the number of waste management units subject
to the restrictions against disposal units located within five feet of the uppermost aquifer
or in wetlands. However, in contrast to the proposed rule, the final rule allows owners or
operators to certify that a waste management unit meets an alternate performance
standard, even if it cannot meet the requirement in the proposed rule to demonstrate that
it is five feet above the water table. Similarly, EPA notes that under the wetlands criterion,
owners or operators have the option of purchasing offsets instead of closing existing units.
Both the depth to groundwater and wetland location standards offer protective workable
alternatives that facilities will have the option to consider. For these reasons, EPA does not
believe that many (if any) facilities will close their waste management units in response to
the location restrictions.
What sort of reliability issues could be imposed on the electric grid as a result of the
CCR final rule?
RESPONSE: Electricity market impacts presented in Appendix X of EPA's Regulatory
Impact Analysis(RIA) were conducted using the Integrated Planning Model (IPM) and
include the location restriction costs of the rule as discussed above. The results of this
analysis show that there will be a negligible impact to the electric market.
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Environmental Protection
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Updated on November 5, 2018
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Frequent Questions on the Implementation of the Disposal of Coal
Combustion Residuals (CCR) from Electric Utilities Final Rule
Design Criteria
If plans for a vertical expansion over an existing CCR landfill are approved after the
180 day deadline for defining new CCR landfills, would the vertical expansion be
subject to the requirements for new CCR landfills?
RESPONSE: No. Vertical expansions of existing CCR landfills are not subject to the
requirements for new CCR landfills.
Groundwater Monitoring and Corrective Action
The final rule requires that if a constituent of concern is detected above a
statistically significant level, that the groundwater protection standard must be set
at either the Maximum Contaminant Level (MCL) or at the background
concentration. Whereas, the proposed rule, like the municipal solid waste program,
would have allowed the owner or operator to establish an alternative groundwater
protection standard based on site-specific conditions. Has EPA considered whether
this will impact future and on-going corrective action at coal ash disposal units in
states that utilize risk-based decision making?
RESPONSE: If the Safe Drinking Water Act MCL or background-based cleanup levels are
lower than a risk-based level the state has used, the federal regulations would require that
the corrective action include treating the groundwater in the uppermost aquifer to a level
lower than the risk-based level. If, however, the MCL or background-based cleanup levels in
the federal rules are higher than a risk-based level the state has used, the state regulations
would require that the corrective action achieve a level lower than the federal levels. In
some cases, it is possible that the corrective action provisions in the final rule would
require a more rigorous treatment than required under state law, and in other cases, less
rigorous treatment than required under state law. The potential number of these scenarios
occurring at corrective actions related to coal ash disposal units is unknown.
If a state decides that there is no human receptor for the groundwater and that a
cleanup standard above the MCL or background is appropriate, would that meet the
minimum requirements of the rule?
RESPONSE: The rule requires that the groundwater protection standard (either the MCL or
the background level, whichever is higher) must be met by the chosen corrective action
remedy, in order to preserve the groundwater as a natural resource and for its potential
future use as a source of drinking water.
Closure and Post-Closure
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Frequent Questions on the Implementation of the Disposal of Coal
Combustion Residuals (CCR) from Electric Utilities Final Rule
A facility employs a wastewater treatment system design using multiple CCR surface
impoundments configured in a series. Water and wastewater that enters the system
moves by gravity and/or pumping from one impoundment to the next in the
treatment system before being discharged from a National Pollutant Discharge
Elimination System (NPDES) permitted outfall. The facility identified the surface
impoundments separately under the CCR regulations because each has its own dam,
but operated them collectively as a single wastewater treatment system. The facility
intends to close all of the units within that system through closure by removal
("clean closure"), within the applicable time frames mandated in the CCR
regulations.
After initiating closure and after initial dewatering has been completed, the
impoundments will continue to be used to manage stormwater on site throughout
the closure process, until closure is completed. Rainwater and non-contact
stormwater from precipitation events, which will come into contact with the CCR
that still remains in the units, will be pumped through the system (e.g.,
Impoundment 1 to Impoundment 2 to Impoundment 3, etc.). The material will be
pumped from last impoundment in the series and treated in a wastewater treatment
plant (WWTP) located near the outfall of the last impoundment in the series. The
WWTP will discharge into the river in accordance with the terms and conditions of a
NPDES permit. Do the CCR regulations allow the facility to continue to operate in this
fashion throughout the closure process?
RESPONSE: This question pertains to a situation where closure of multiple surface
impoundments will be accomplished by removal of CCR from the surface impoundments,
so EPA's response is limited to this situation. In addition, the response only addresses the
situation in which the facility chooses to close all units within the system; the analysis
would differ if the facility chose to close only some of the units within the system.
The Title 40 Code of Federal Regulations (CFR) Part 257, Subpart D regulations do not
contemplate a circumstance in which a unit would continue to receive wastes after closure
has been initiated. See 40 CFR section 257.102(e)(l)(i); (e)(3). Moreover, a CCR unit that
must close for cause, pursuant to 40 CFR section 257.101, is expressly prohibited from
placing additional waste in the unit after a specified time. For example, an unlined CCR
surface impoundment whose groundwater monitoring shows a statistically significant
exceedance of a groundwater protection standard must "cease placing CCR and non-CCR
wastestreams into such CCR surface impoundment and either retrofit or close the CCR
unit" within six (6) months of making this determination. 40 CFR section 257.101(a)(1).
Normally EPA would consider that when a facility pumped wastewaters (i.e., the rainwater
and non-contact stormwater from precipitation events, along with any CCR remaining in
the unit) into subsequent impoundments, the facility would be "placing wastes" into the
downstream units. However, in the situation described in the question, EPA would consider
multiple impoundments that operate in a series to be a single "multi-unit system," and
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would consider the entire multi-unit system to be one CCR unit for purposes of closure. As
a consequence, the pumping of the wastewaters from the first impoundment into
subsequent impoundments that are configured in a series would be better characterized as
the movement of waste within a disposal unit, which is generally not regulated under
RCRA, rather than the movement between disposal units, which is typically regulated.
Although the facility originally identified each surface impoundment in the series
separately under the CCR regulations, they operated them collectively as a single
wastewater treatment system, and most critically for purposes of this question, is in the
process of closing them as a single unit (e.g., under the same time frames).
EPA's regulations already expressly provide for the situation in which a series of CCR units
is considered to be a multi-unit system. See, e.g., 40 CFR section 257.53 (defining CCR unit
to include a combination of more than one CCR unit); 40 CFR section 257.91(d)(multi-unit
system for purposes of groundwater monitoring). While the closure regulations do not
include specific requirements for such situations, they do not prohibit a facility from
closing their multi-unit system as a single CCR unit, provided all applicable requirements
and deadlines for closure are followed for the designated single CCR unit—i.e., all CCR units
comprising the multi-unit wastewater treatment system. Thus, should the owner or
operator elect to use this approach, for example, they would need to prepare a written
closure plan that describes the steps necessary to close all of the impoundments that
comprise the multi-unit system. After the CCR units comprising the multi-unit system are
designated as a single CCR unit, the requirements specifying when closure activities must
commence must be met for the entire multi-unit system. Similarly, closure of the entire
system would need to be completed within the regulatory deadline for a single unit (40
CFR section 257.102(f)) (i.e., five years for a CCR surface impoundment); to qualify for any
extensions of the closure time frames, the owner or operator would also need to make the
necessary demonstration(s) for the entire unit, and the total amount of time available
would be based on the aggregate size of the impoundments comprising the multi-unit
system (e.g., if the aggregate size was greater than 40 acres, the time frames in 40 CFR
section 257.102(f)(2)(ii)(B) would apply).
The regulations also specify that, in this situation, if the facility has installed a multi-unit
groundwater monitoring system, all of the unlined impoundments in the system must close
or retrofit under section 257.101(a). 40 CFR section 257.90(d)(2). Similarly, if the facility
has decided to close its units as a multi-unit system as discussed above, in the event that
closure for cause has been triggered under 40 CFR section 257.101(a) for one or more
impoundments in the mulit-unit system, all CCR units within the multi-unit system (i.e., the
designated single CCR unit) would be subject to the 6-month prohibition on receiving CCR
and non-CCR wastestreams. This is because, as noted above, the entire multi-unit system
would be considered one CCR unit for purposes of closure. Note that the regulations do not
compel a facility to treat "connected" units as a single multi-unit system; rather this falls
within the facility's discretion.
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As a designated single CCR unit, however, the movement of CCR and other wastes between
the individual units that make up that system would be permissible throughout the closure
period during closure activities under 40 CFR section 257.101(a)(1); as noted previously,
the movement of waste within a unit is generally not considered to be the "placement" of
waste into a unit. For example, movement of CCR between impoundments within the multi-
unit system to facilitate CCR dewatering and removal activities, even after the 6-month
period would be permissible under this closure approach. Similarly, the continued
pumping of the wastewaters through the multi-CCR unit system toward the NPDES-
permitted outfall during closure (e.g., generated by precipitation or the release of
interstitial water during CCR excavation) would also not be inconsistent with the
placement prohibition under 40 CFR section 257.101(a)(1). However, the addition of CCR
or other wastes from locations external to the multi-unit system would not be permissible,
as this would constitute the placement of waste within the multi-unit system.
Implementation and Solid Waste Management Plans
How long does EPA anticipate it will take to approve a state solid waste management
plan (SWMP)?
RESPONSE: The requirements at 40 CFR Part 256 state that the EPA has six months from
the time of the submittal of the revised plan to either approve or disapprove the SWMP.
Please describe in detail the process that will be followed for approving the state
plans.
RESPONSE: EPA has been working to develop materials and an efficient process
(consistent with the requirements of the 40 CFR Part 256 regulations) for the
review/approval of state plans. The Agency has developed a checklist of relevant sections
of 40 CFR Part 256 (Guidelines for the Development & Implementation of State Solid Waste
Management Plans) that states will be able to consult.
EPA will review the state's plan to determine how it intends to regulate CCR facilities in the
state. EPA has also developed a checklist of the technical requirements included in the CCR
final rule that will be available for the states to consult in developing their revised plans. In
order to approve a revised state SWMP, EPA must, among other things, determine that the
state plan provides enforceable regulatory requirements for the closing or upgrading of
CCR disposal facilities that constitute open dumps. If the state SWMP incorporates the
federal requirements verbatim, it will be straightforward to approve. If the state
requirements for CCR facilities are different from the federal regulations, EPA will compare
them and determine if the alternative requirements are at least as protective of public
health and the environment as the federal minimum requirements.
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Does EPA intend to delegate the authority to approve the revisions to the state plans
to the Regional offices?
RESPONSE: EPA regional administrators have the authority to approve the revisions to
SWMPs. Regions will consult with EPA headquarters to help ensure national consistency.
Many states will need statutory or regulatory changes in order to open the SWMP to
incorporate the final rule. How does EPA anticipate that states will be able to
incorporate the requirements in time to meet the six month effective date of the final
rule?
RESPONSE: EPA does not necessarily expect the revised plans to be submitted by states
before the effective date of the rule which is October 19, 2015. The technical requirements
of the rule that facilities must meet have varying timelines; and many of the most complex
requirements are not immediately effective. For example, the groundwater monitoring
requirements must be met within two years of the effective date. In addition, the EPA's
current regulations do not preclude a state from submitting a SWMP for conditional
approval based on anticipated regulatory or statutory revisions, or a partial SWMP to gain
authority to extend compliance deadlines. However, note that where a partial SWMP is
submitted, the regulations require EPA to establish a timetable for completion of the final
plan in order to grant partial approval. 40 CFR section 256.04(f).
The preamble to the final rule states that once "EPA has approved a SWMP that
incorporates or goes beyond the minimum federal requirements, EPA expects that
facilities will operate in compliance with that plan and the underlying state
regulations." However, isn't it true that the federal requirements remain
independently enforceable through federal citizen suits?
RESPONSE: Once a SWMP that incorporates or goes beyond the minimum federal
requirements is approved, EPA believes that compliance with the state program would be
considered as compliance with the federal CCR rule criteria. In addition, EPA anticipates
that a facility that operates in accordance with an approved SWMP will be able to
beneficially use that fact in a citizen suit brought to enforce the federal criteria. EPA
believes a court will accord substantial weight to the fact that a facility is operating in
accordance with an EPA-approved SWMP. Finally, we note that RCRA section 7002 requires
a citizen group to provide 60 days notification to the EPA and the state prior to filing a suit
to enforce the requirements of the CCR rule. States can take a number of actions in
response to this notification, including: (a) intervening in the suit; or (b) filing their own
action to enforce compliance with the rule, which would preempt the citizen's action.
How will the experience of states implementing the final rule inform EPA's future
analysis? The final rule also identified the possibility that concentrations of
hazardous contaminants in coal ash may rise in the near future.
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Environmental Protection
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RESPONSE: EPA recognizes the critical role that our state partners play in the
implementation and ensuring compliance with the regulations, and the Agency expects that
states will be active partners in overseeing the regulation of CC R landfills and CCR surface
impoundments. Any future analysis will account for the states' implementation of the final
rule, including any revisions to state programs adopted in response to the final rule. In this
regard, EPA is strongly encouraging states to adopt these federal minimum criteria into
their regulations and revise their SWMPs to incorporate these federal requirements. For
those states that choose to submit revised SWMPs, EPA will review and approve those
revised SWMPs, provided they demonstrate that the minimum federal requirements have
been met. EPA expects that the information developed as part of this process will help the
Agency better understand the full extent of a state's regulatory authority over the disposal
of CCR and the manner in which states will implement this oversight.
What is the relationship between the EPA and the states in regard to implementation
of the CCR rule?
RESPONSE: The final rule establishes self-implementing requirements -- primarily
performance standards -- that owners or operators of regulated units can implement
without any interaction with regulatory officials. These requirements apply directly to the
facilities, and facilities must be in compliance with the rule on its effective date, irrespective
of state requirements. States may choose to adopt the federal requirements into their
existing program or to impose more stringent standards, but they are not required to adopt
or implement these regulations, develop a permit program, or submit a program covering
these units to EPA for approval and there is no mechanism for EPA to officially approve or
authorize a State program to operate "in lieu of" the federal regulations.
In order to ease implementation the regulatory requirements for CCR landfills and CCR
surface impoundments, EPA strongly encourages the States to adopt at least the federal
minimum criteria into their regulations.
The federal requirements are independent of state requirements and do not preempt them.
EPA recognizes that some states have already adopted requirements that go beyond the
minimum federal requirements; for example, some states currently impose financial
assurance requirements for CCR units, and require a permit for some or all of these units.
This rule will not affect these state requirements. The federal criteria are minimum
requirements and do not preclude states' from adopting more stringent requirements
where they deem to be appropriate.
Is there any incentive for states to adopt the rule?
RESPONSE: If a state adopts the rule and EPA approves the state's solid waste
management plan, the state may extend compliance times for "open dumps" that meet the
criteria in RCRA 4005; e.g., times to complete structural stability measures.
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What are the consequences if a state does not adopt the rule?
RESPONSE: None. Owners and operators of CCR disposal units are required to comply with
the EPA's CCR rule irrespective of state action or requirements.
Miscellaneous
EPA is required, under the Bevill Amendment, to consider specific factors in
determining whether to regulate coal ash under subtitle C of 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?
RESPONSE: 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 80 FR at
21327, April 17,2015.)
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Environmental Protection
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What factors weighed 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.
RESPONSE: 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.
What information will EPA gather over the next several years to resolve these
technical uncertainties?
RESPONSE: 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 final rule identified 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?
RESPONSE: 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 at 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.
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Environmental Protection
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What will owners of a "legacy impoundment" (an inactive CCR surface impoundment
at a closed or no longer operating utility) need to do to comply with the federal CCR
Rule now that the DC Circuit has issued the mandate in Utility Solid Waste Activities
Group (USWAG) v EPA?
RESPONSE: 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.
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