Coal Ash Hits the Big Time

Regulatory attention is rarely welcome in the best of times. When the attention is focused on a practice that has been standard operating procedure for more than a century—especially a practice that has left thousands of active, inactive, and retired sites across the country in a sector that is already facing stiff economic and regulatory headwinds—it’s hardly surprising that the reaction can be a strong one.

Such is the case with coal ash or, in regulatory terms, coal combustion residuals (CCRs).

Coal has been the dominant source of electricity in the U.S. for well over 100 years, and that’s produced a lot of coal ash. Current estimates are that U.S. coal-fired power plants produce around 110 million tons of CCRs every year. Most of it has been disposed of in ways that have not been subject to much, if any, regulatory oversight, and because of that lack of oversight, no one is quite sure just how many CCR disposal sites—many, retired, buried, and forgotten—are out there, nor in what state they exist. Simply looking at active sites, the Environmental Protection Agency (EPA) in 2015 identified more than 310 on-site landfills (averaging 120 acres and 40 feet deep) and more than 735 surface impoundment sites (averaging 50 acres and 20 feet deep) across the U.S. Those sites take about 60% of the nation’s CCRs; the rest are recycled in various ways.

Something Old, Something New

The regulatory inattention is often said to have come to an end in 2008, when a slurry pond at the Tennessee Valley Authority’s (TVA’s) Kingston Fossil Plant failed, releasing 5.4 million cubic yards of CCRs into the Emory River. This disaster wasn’t officially cleaned up until 2015 and cost TVA more than $1 billion. More significantly, it focused public attention on something few people outside the coal and power sectors gave much thought to.

But CCRs have been on the EPA’s radar screen since the 1970s—it simply hasn’t moved to regulate them until recently. When Congress passed the Resource Conservation and Recovery Act (RCRA) in 1976, the EPA was directed to develop regulations for treatment, storage, and disposal of hazardous wastes. When the proposed rules were issued in 1978, the EPA opted to defer regulating CCRs because of a lack of data on their environmental impact. It reviewed and confirmed that decision in August 1993, and again in May 2000.

There things lay until Kingston. But in June 2010, the EPA reversed course and proposed to regulate CCRs for the first time, though it also proposed two options: as hazardous waste under subtitle C or non-hazardous waste under subtitle D.

Taking the subtitle C approach would—more or less by regulatory fiat—have created billions of tons of hazardous waste across the country and likely shut down most, if not all, CCR reuse. The enormous costs this would have imposed and the huge practical difficulties with compliance, not to mention the potential impacts on electric system reliability, no doubt figured into the EPA’s April 2015 final rule taking the non-hazardous route. Even so, the move ignited substantial opposition, and congressional representatives from coal-friendly states have launched several initiatives to delay or overturn the rule.

Filling Holes

Though space prohibits a full description of the rule, a few things are worth noting. Foremost is the enforcement provision. As the EPA noted, “the rule does not require permits, does not require states to adopt or implement these requirements, and EPA cannot enforce these requirements.” Rather, it leaves enforcement to litigation by states, citizens, and environmental groups, many of which are already gearing up to file suit.

The rule does not apply to facilities that stopped generating CCRs before October 1, 2015, nor to landfills that stopped receiving CCRs before that date, and (in both cases) that are permanently closed by April 17, 2018. Non-utility boilers are exempted, as are plants burning mixed fuel that is less than 50% coal. It does not apply to disposal in coal mines or municipal landfills, nor to CCRs that are recycled for “beneficial use.”

Notably, “beneficial use” is defined narrowly enough to exclude some common uses that have historically been viewed as “recycling,” such as unencapsulated backfill. To qualify as “beneficial use,” the CCRs must provide a functional benefit and substitute for virgin material. Thus, use in cement and gypsum manufacturing qualifies; use as unengineered fill for gravel pits or grading golf courses does not.

The rule contains a long list of requirements for design and construction of new landfills; dewatering and remediation of retired landfills; control of fugitive dust, run-on, and run-off; groundwater monitoring; and many other factors. Compliance deadlines for these requirements vary. Perhaps the biggest challenge, according to regulatory lawyers I’ve spoken to, is that much of an entity’s compliance needs to be certified by a registered professional engineer—and it’s a fair question whether there are enough of them to perform the necessary inspections at the country’s 1,000-plus CCR disposal sites.

Multiple Targets

A discussion of CCR regulation would be incomplete without mention of new attention at the state level, which was also largely spurred by a coal ash spill. Duke Energy has had to make major changes in how it handles coal ash as a result of the February 2014 spill at its Dan River power plant in North Carolina, which released 30,000 to 39,000 tons of ash and 27 million gallons of coal ash wastewater into the Dan River. That disaster shone light on a perhaps too-cozy relationship with state regulators and spawned substantially tougher state regulations, in addition to forcing Duke to clean up and excavate all of its CCR landfills across the state. Duke has also been faced with millions in fines and substantial civil litigation. Meanwhile, other states are looking at tightening their own oversight of CCRs.

How much things change in the long run with how the U.S. handles CCRs remains to be seen. One thing is certain: Employment prospects for professional engineers and environmental lawyers look bright. ■

Thomas W. Overton, JD is a POWER associate editor.