In 2010, the U.S. Environmental Protection Agency (EPA) proposed federal rules regulating coal combustion residuals (CCRs) for the first time to address the risks posed by coal-fired power plants’ disposal of such waste byproducts. The need for new regulations remains a topic of debate, heightened by the EPA’s reticence to release the rule. The EPA says that it will release the new rule by the end of this year–over two years late.
In December 2008, a massive amount of coal combustion residuals (CCRs) were accidentally released from the Tennessee Valley Authority’s (TVA’s) Kingston Fossil Plant. The spill flooded more than 300 acres of land with CCRs, damaging homes and property. The released materials flowed into the Emory and Clinch Rivers, filling large areas of those rivers and damaging the riverine ecosystem. The incident heightened national awareness of the problems associated with utilities’ CCR surface impoundments if they are not properly maintained.
|1. Accidental release. In December 2008, the massive spill from TVA’s Kingston Fossil Plant in east Tennessee dumped more than 1 billion gallons of coal ash slurry into the Emory and Clinch Rivers. This aerial photo shows the area called the North Embayment, which was affected by the accidental release. Courtesy: Tennessee Valley Authority|
Since the incident, TVA has worked continuously to restore the areas affected by the spill (Figures 1 and 2). As of December 2011, TVA had spent approximately $750 million of an expected $1.1 billion to $1.2 billion total for cleanup of the affected site.
Regulations governing the disposal of CCRs (also commonly referred to as coal ash or coal combustion by-products) vary considerably from state to state. Currently, there are no national standards governing the maintenance of CCR surface impoundments and their retention dikes, and state standards are haphazard. The U.S. Environmental Protection Agency (EPA) does not currently classify CCRs as hazardous waste.
|2. After cleanup. The same site shown in Figure 1 is shown here after successful cleanup efforts were completed. As of December 2011, TVA had spent approximately $750 million of an expected $1.1 billion to $1.2 billion total for cleanup of the affected site. Courtesy: Tennessee Valley Authority|
POWER has covered the issue of CCR management in previous issues. Examples (all available in our online archives at https://www.powermag.com) include “Constructing Maryland’s First Permitted Landfill for Coal Combustion By-products” (October 2011), “The Better Environmental Option: Dry Ash Conversion Technology” (July 2011), “Added Regulatory Hurdles Will Accelerate Coal Plant Retirements” (May 2011), “Coal Ash Regulation: Playing the Name Game” (September 2010), and “Best Management Practices for Coal Ash Ponds” (March 2009).
In order to examine this complex topic from a variety of viewpoints, in August, POWER interviewed representatives from a leading global engineering, consulting, and construction company; an industry group focused on CCR management; and a national environmental advocacy group. These individuals shared their opinions about legal trends and best management practices for coal-fired power plants trying to deal with the current unsettled regulatory environment.
CCRs’ Current Regulatory Status
The EPA classifies CCRs as exempt waste under an amendment to the Resource Conservation and Recovery Act (RCRA). CCRs—residues from power plants’ coal combustion processes that are captured by pollution control technologies such as scrubbers—include fly ash, bottom ash, boiler slag, and flue gas desulfurized gypsum.
CCRs are one of the largest U.S. waste streams. More than 130 million tons of CCRs were generated in 2010, according to the American Coal Ash Association’s (ACAA) Coal Combustion Product (CCP) Production & Use Survey Report. More than 40% of CCRs are recycled into a variety of products (Table 1).
|CCP categories||Fly ash||Bottom ash||Boiler slag||FGD gypsum||FGD material, wet scrubbers||FGD material, dry scrubbers||FGD, other||FBC ash||CCP production/ utilization totals|
|2010 total CCPs produced, by category||67,700,000||17,800,000||2,332,994||22,000,000||8,670,814||1,405,952||3,740||10,267,914||130,181,364|
|2010 total CCPs used, by category||25,723,217||7,541,732||1,418,996||10,713,138||624,223||584,112||0||8,732,008||55,337,426|
|Application utilization breakout|
|Concrete/concrete products /grout||11,016,097||615,332||0||21,045||0||16,847||0||0||11,009,321|
|Blended cement/raw feed for clinker||2,045,797||949,183||3,000||1,135,211||0||0||0||0||4,133,191|
|Soil modification/ stabilization||785,552||162,065||0||0||0||19,189||0||0||966,806|
|Snow and ice control||0||549,520||41,194||0||0||0||0||0||590,714|
|Blasting grit/roofing granules||86,484||19,914||0||835,536||186,624||0||0||0||1,303,969|
|Gypsum panel products||109||0||0||7,661,527||0||0||0||0||7,661,636|
|Waste stabilization/ solidification||3,258,825||41,233||0||0||0||39,283||0||71,600||3,410,941|
|Summary utilization to production rate|
|2010 totals by CCP type/application||25,723,217||7,541,732||1,418,996||10,713,138||624,223||584,112||0||8,732,008||55,337,426|
|Category use to production rate (%)||37.90||42.30||60.80||48.60||7.10||41.50||85.00||42.50|
Table 1. American Coal Ash Association survey of coal combustion product production and use (2010). This table shows beneficial utilization and production totals, in short tons. Survey data represent over 231 GW of nameplate capacity of nearly 328 GW total capacity, or approximately 67% of the coal-fueled generation as reported by the Energy Information Administration (EIA). All numbers in this survey report were derived from previous, current, and applicable industry-wide available data, including EIA Reports 923 and 860. Source: American Coal Ash Association
The coal combustion by-products typically contain a broad range of metals, including arsenic, selenium, and cadmium, according to the EPA. The leach levels, however, using the EPA’s Toxicity Characteristic Leaching Procedure, rarely reach the RCRA hazardous waste characteristic levels. Potential environmental concerns about CCRs pertain to pollution from impoundments and landfills leaching into groundwater as well as structural failures of impoundments, as was the case in the TVA incident.
In 2010, the EPA proposed new national regulations for CCRs to address the risks from the waste disposal of CCRs from electric utilities and independent power producers. Currently, the agency is considering two possible options under RCRA for CCR management:
- Under the first proposal, the EPA would list these residuals as special wastes subject to stricter regulation under Subtitle C of RCRA when they are destined for disposal in landfills or surface impoundments.
- Under the second proposal, the EPA would regulate coal ash under Subtitle D of RCRA, the section for nonhazardous wastes.
EPA’s Ongoing Assessment of CCR Surface Impoundments
Following the December 2008 TVA spill incident, the EPA took aggressive steps to assess impoundments and other units (such as dams and dikes) that contain CCRs and free liquids. The agency initially conducted a multi-step assessment of CCR surface impoundments to learn if there are any other impoundments that could also pose an imminent risk of failure. Steps taken include: information request letters sent to companies and facilities, site assessments, independent reports on specific units, and facility action plans to implement recommendations to improve the structural stability of these units.
Beginning on Mar. 9, 2009, the EPA started mailing information request letters to electric utilities and corporations that have surface impoundments or similar units that contain CCRs. These letters requested information to assist the agency in evaluating the structural integrity of the CCR management units. The requests were sent to 219 facilities, and in response, the EPA received information on 584 impoundments. Working closely with other federal agencies and the states, the EPA reviewed the information provided to identify impoundments or similar units that need priority attention (Table 2).
|Rating||First round||Second round||Third round||Fourth round||Fifth round||Sixth round||Seventh round||Eighth round||Ninth round|
|Total number of units||43||40||37||70||38||44||56||46||51|
Table 2. Measuring CCR impoundments’ structural integrity. As part of the U.S. Environmental Protection Agency’s (EPA’s) recent efforts to review utilities’ management of coal combustion residuals (CCRs), the agency released the final contractor reports assessing the structural integrity of impoundments containing CCRs (commonly referred to as coal ash) at coal-fired power plants. Expert experience has shown that only impoundments rated as “unsatisfactory” pose immediate safety threats, according to EPA sources. None of the impoundments assessed so far have received an “unsatisfactory” rating. (A “round” represents the EPA grouping of facilities by contract bid for logistical purposes; there are typically 20 facilities per round. Rounds are ordered chronologically; the first round reports were done in 2009, and round 9 reports were completed toward the end of 2011. Earlier rounds typically were assessed as having higher-hazard-potential units, as the EPA made assessments of these particular facilities a priority.) Source: EPA
Using contractors who are experts in dam integrity, the agency conducted site assessments at many impoundments and required appropriate remedial action at facilities that were found to have a unit posing a risk for potential failure.
Special Waste or Nonhazardous Waste?
Andrew Byers, associate vice president of Black & Veatch, an international engineering, consulting, and construction company, shared with POWER his views about the distinction between RCRA’s Subtitle C and Subtitle D rules.
“The practical answer lies in the analysis of the difference in ‘protection’ afforded as proposed under Subtitle C versus Subtitle D in EPA’s rulemaking,” Byers said. “From a technical design standpoint, there is no significant difference in the level of protection afforded under the proposed rulemaking between regulation of CCRs as special hazardous waste under RCRA Subtitle C or as solid waste under Subtitle D.”
The proposed design standards for new CCR landfills and surface impoundments under Subtitle C and D are identical, and therefore would be equally protective of human health and environment, Byers said. Similarly, the land disposal restrictions and retrofit requirements for existing surface impoundments will likely result in phasing out the use of ash ponds in the future.
There could be distinct differences in terms of permitting and enforcement under the two programs, as the EPA would have more authority if CCRs were regulated as a special waste under Subtitle C, according to Byers. In this context, the EPA’s involvement could arguably provide backstop protection in situations where state agencies may lack authority and/or the resources to sufficiently ensure appropriate management practices are being implemented. “So the question of whether the difference in protection provided under Subtitle C is necessary may ultimately revolve more around regulatory authority than technical design of ash management facilities,” Byers noted.
Thomas H. Adams, executive director of the ACAA, told POWER that he feels there is no scientific justification for regulating disposal of coal combustion products under hazardous waste rules. He said that the EPA has made this determination twice before—in 1993, and again in 2000. There is no new science that informs the EPA or the public that these prior determinations were incorrect.
“The only reason the EPA wants to use Subtitle C of the Resource Conservation and Recovery Act is that enforcement authority under Subtitle C lies with the federal government,” Adams said. “In contrast, enforcement authority under Subtitle D, used for nonhazardous wastes such as municipal solid waste, resides with the states. The EPA does not trust the states to regulate disposal.”
Following the ash spill at the TVA’s Kingston, Tenn., facility in December 2008, environmental groups opposed to coal-fired generation filled the media with claims that this was the “greatest environmental disaster” in American history, said Adams. “Yet no deaths nor serious injuries resulted from the spill. Property damage was significant and has been mitigated,” he said.
Adams explained that the Tennessee Department of Health, in cooperation with the U.S. Department of Health and Human Services, issued a report showing virtually no impacts on human health. Studies by academic interests and consultants since the spill show no significant impacts on reproduction of the wildlife found in the area. Nonetheless, the EPA moved quickly and voluntarily agreed to create regulations for disposal of coal combustion products.
“Armed with no new science, no danger to human health and the environment from the Kingston spill, and no mandate from a court or the Congress, the EPA continues to press for the most severe remedy at its disposal,” Adams said. “Could it be that there is more to EPA’s interest in this matter than simply creating better coal ash disposal management?”
In contrast to Byers and Adams, Jared Saylor, an Earthjustice representative, showed support for the proposition of regulating CCRs as special waste when he discussed the issue with POWER. Earthjustice is a national environmental advocacy organization.
“Currently, no federal coal ash regulations exist, yet this material is filled with dangerous chemicals, such as arsenic, lead, mercury, and chromium,” he said. “These chemicals cause cancer, birth defects, organ damage, and other health issues. At nearly 200 coal ash sites, coal ash has contaminated nearby waters, such as lakes, rivers, streams, and aquifers. These waters are used as drinking water in many nearby communities that rely on well water.”
Saylor said that contamination is too common at coal ash sites, and as a result, federal protection under RCRA is absolutely necessary. With nearly 200 proven cases of contamination in dozens of states, it is obvious that state regulations are not effective in protecting public health and the environment.
Earthjustice’s concerns are that “enough coal ash is generated each year to fill train cars stretching from the North Pole to the South Pole,” Saylor said. Much of the waste is dumped into unlined and unmonitored ponds and landfills that often sit near homes and communities. The ponds and landfills, sometimes decades old, have been found to leak coal ash into nearby waters used by these communities for drinking, which is “unacceptable.” Coal ash is a problem across the country, and for decades, coal-fired power plants have not had any requirement to keep the pollution away from those living nearby, according to Saylor.
“As a result of the TVA incident in 2008, the EPA revealed that at more than 40 other coal ash sites, a failure could likely cause a loss of human life,” Saylor said. “Without federally enforceable safeguards adopted and enforced by the EPA, the threat remains. We sincerely hope it will not take another tragedy to spur action pertaining to this significant environmental and public health threat.”
More Stringent CCR Regulations’ Impact on Power Plants
Byers, the Black & Veatch executive, and Adams, the ACAA executive director, both commented on the probable effect that RCRA Subchapter C’s enactment would have on coal-fired power plants.
“It is our expectation that Subtitle C regulation would increase capital and operating costs for all coal-fired power plants, as well as the risks of having to manage and provide disposal facilities for greater amounts of CCRs that previously may have been sent offsite for beneficial reuse,” Byers said. “When considered in the context of all other recent (or pending) EPA regulations affecting coal-fired generation plants, the impact of stricter CCR rules may, by comparison, be less substantial, but nevertheless could prove to be enough to influence or sway decisions related to fuel switching or retirement.” (For an overview of current and expected regulations affecting the coal-fired generation industry, see “THE BIG PICTURE: Regulation Road,” p. 10.)
Byers explained that all coal-fired power plants would have to comply with applicable Subtitle C requirements of generation, handling, storage, transportation, and disposal of “special” hazardous wastes. By extending regulation of CCRs all the way back to the point of generation, the “cradle to grave” regulatory approach would compel many new or additional administrative requirements in terms of permitting, reporting, recordkeeping, and financial assurance obligations. Conversion from wet to dry ash-handling systems at some facilities would require additional equipment and management practices, as well as changes to on-site water management.
Adams agreed with Byers. He said that if hazardous waste rules are promulgated, coal-fired power plants would be forced to manage ash as a hazardous waste from the point of generation to the disposal site, which would cause a dramatic increase in disposal costs. Such costs would be passed on to ratepayers.
“The strategy being employed by anti-coal activists is obvious: By making the regulations covering disposal more onerous, the costs for ash disposal increase. Utility companies are then more motivated to consider other sources of energy,” Adams said.
The engineering standards proposed by the EPA in its 2010 document are virtually identical for Subtitle C and Subtitle D proposals, Adams said. Therefore, there is no more protection afforded by promulgating hazardous waste regulations. Current facilities—landfills as well as impoundments—should be evaluated individually on a performance basis. Hazardous waste rules would, he noted, require special training for plant personnel, special equipment, special handling, increased record-keeping, and compliance documentation and audits. The specific costs vary from plant to plant.
Timetables for Complying with the Subtitle C Rule, If Enacted
The extent to which more stringent Subtitle C requirements may require changes to ash management practices will vary by facility, Byers said. Timeframes for implementing Subtitle C requirements will depend on the extent of the engineering, capital improvements, permitting requirements, regulatory approvals, and financing, as well as the selected contracting approach and availability of equipment and construction labor.
According to Byers, estimated overall timeframes—including design, permitting, and construction—are:
- Two to four years for siting, permitting, and construction of the initial cell of a new landfill, plus leachate and runoff/run-on controls and access roads.
- Two years for adding a new cell to an existing landfill requiring upgrades to the disposal facility.
- Six to 12 months to permit and physically close an existing 50-acre surface impoundment.
- Two to three years to convert from a wet to a dry ash-handling system.
Byers explained that physical modifications to a plant’s CCR-handling equipment will be concurrent with the development of a new disposal facility and may be controlled by the period necessary to bring the new disposal facility online.
Adams also talked about possible implementation timeframes for power plants if they have to comply with Subtitle C requirements. “As we focus on the recycling of coal combustion products, we do not have a good answer for this question. However, we are told that a Subtitle C regulation would take somewhere between seven and 10 years to become fully operational across the country,” he said. “In contrast, a less-stringent version of the Subtitle C rule recently proposed by U.S. Representative David McKinley [R-W.Va.] would be operational in 18 months, according to the Environmental Council of the States.”
Projected Financial Effects of Subtitle C Requirements
Byers explained that costs are relative to the overall size and scope of construction and upgrades. In the case of the stricter Subtitle C rules, compliance costs will depend significantly on a number of factors:
- The need to convert from a wet to dry ash-handling system.
- The size of the generation facility.
- The volume of CCRs produced.
- The size of surface impoundments and the amount of waste that may need to be dredged from existing impoundments, if retrofitted.
- The availability of and distance to temporary or final storage.
- Additional equipment and staff required for operation.
The extent to which existing ash management systems would need to be retrofitted or reconfigured will be reflected in operators’ bottom lines and overall profitability, according to Byers. For many plants, the capacity issues of how a much larger volume of CCRs would have to be managed, the costs and balance-of-plant impacts associated with converting from wet to dry CCR-handling systems, and the feasibility of establishing new disposal facilities in or near each plant may ultimately determine the viability of some facilities.
A Subtitle C Rule’s Probable Effect on CCR Recycling
Byers said, given that approximately 40% of fly ash is recycled in the U.S., there are potential risks of a “stigma” severely reducing the beneficial reuse of these materials. If that occurred, then there would probably be a need to significantly increase the number and size of CCR disposal facilities, which, in turn, would be detrimental from an environmental standpoint. “Although the regulation, as written, would exempt beneficial reuse from regulation, public and consumer perceptions cannot be managed by regulation,” Byers said.
Adams added that utilities would be forced to take the increased cost to the market and seek increases from ratepayers. In order to mitigate the costs for improved ash disposal management in states without good programs at this time, the best solution is to create Subtitle D requirements that not only provide sufficient protection of human health and the environment but also protect the recycling markets from the stigma of a “hazardous waste” designation. “The best solution to disposal concerns is to recycle. Recycling should be encouraged—not disparaged,” Adams said.
Adams explained that a hazardous waste designation would do more than force generators to comply with hazardous waste regulations from the point of generation to the point of disposal; “such rules would effectively destroy the markets for recycling coal combustion products, resulting in a massive amount of valuable material being redirected to landfills. Landfill space is already in short supply in many communities. The hazardous waste designation would put more pressure on landfills.”
Many of the markets for recycled coal ash are consumer-based, Adams said. Consumers are not prone to inviting hazardous waste into their homes, schools, and healthcare facilities. One can literally reach out and touch products containing coal combustion products in homes—from shingles on the roof, to the concrete in foundations and slabs, to drywall, to carpet backing, to concrete counter tops. “Marketers of competitive materials have already started to attempt to scare consumers by insinuating that products containing coal ash are actually vehicles for hazardous wastes,” he said.
Continuing Regulatory Uncertainty
As of press time in September, the EPA still had not decided whether to regulate CCRs as hazardous waste under RCRA Subtitle C or as nonhazardous under RCRA Subtitle D. Even though the agency has not yet issued a final rule, it maintains that it expects to do so by the end of this year.
Adding to the regulatory unpredictability is a recent lawsuit filed against the EPA on Apr. 5, 2012, by a coalition of 11 environmental groups that are advocating for a hazardous designation for CCRs. The lawsuit ( Appalachian Voices v. Jackson), filed in U.S. District Court for the District of Columbia, asks the court to set deadlines for the EPA to review and revise CCR regulations. Earthjustice, representing the environmental coalition, said the EPA has violated RCRA’s Section 2002(b) by not reviewing and revising CCR regulations every three years. Among the other plaintiffs in the lawsuit are Appalachian Voices, the Chesapeake Climate Action Network, the Environmental Integrity Project, Physicians for Social Responsibility, and the Sierra Club.
Likewise, many industry groups, such as the National Rural Electric Cooperative Association (NRECA), are eager to resolve the regulatory uncertainty associated with this issue. Currently, NRECA and other industry groups are actively supporting the Coal Residuals Reuse and Management Act (H.R. 2273/S. 3512), which is legislation to establish a federal regulatory program to ensure the safe management of CCRs as a nonhazardous material. The U.S. House of Representatives passed H.R. 2273 on Oct. 14, 2011, with bipartisan support; S. 3512 was introduced with bipartisan backing in the U.S. Senate on Aug. 1, 2012. Many industry groups are urging the Senate to follow the House’s lead by taking up and approving S. 3512.
Instituting Proper CCR Management Now
It is important to note that just because the EPA has not finalized new rules regulating CCRs, that does not mean power plant staff can ignore potential problems associated with CCR mismanagement. Any accidental CCR releases that affect third parties can expose utilities to expensive litigation and damages even in the absence of federal regulations.
For example, in the Aug. 23 decision handed down by Judge Thomas Varian, the U.S. District Court for the Eastern District of Tennessee ruled in favor of more than 800 plaintiffs when it held TVA liable for the December 2008 failure of CCR containment dikes at its Kingston Fossil plant in Roane County, Tenn.
The ruling determined that TVA did not build the CCR holding ponds according to plan, did not train its inspectors how to inspect the stability of the dikes, and did not properly maintain the facility to prevent failure of the dikes. The ruling allowed litigation stemming from the Dec. 22, 2008, spill—involving more than 60 cases, mostly from residents or business owners near the plant—to proceed to a second round to determine damages.
The court held TVA liable for damages to the individual plaintiffs under negligence, trespass, and private nuisance claims, but it dismissed plaintiff claims regarding negligence per se for violation of federal laws, including RCRA and the Clean Water Act, and several state environmental statutes. It also dismissed claims for recklessness, strict liability, and public nuisance.
To avoid future accidental CCR releases similar to the one that occurred at the TVA facility, personnel at U.S. coal-fired power plants with CCR-containing ponds need to ensure that they are properly managing their facilities’ surface impoundments, inspecting them on a regular basis, and maintaining the integrity of the retention dikes.
— Angela Neville, JD is POWER’s senior editor.