Beveridge & Diamond

EPA Regulates Coal Combustion Residuals as Solid Waste and Retains Exclusions for Beneficial Use

Authors: Pamela Marks and Bryan Moore
Beveridge & Diamond, P.C., December 19, 2014

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Today EPA issued a final rule regulating coal combustion residuals (CCR) as solid waste under Subtitle D of the Resource Conservation and Recovery Act (RCRA).  This ends years of speculation regarding whether EPA might decide to regulate CCR as a hazardous waste under the more onerous RCRA Subtitle C “cradle to grave” regulatory scheme.  EPA reported that it received over 450,000 comments on the proposed rule, most of which focused on which regulatory path would be followed: Subtitle C or D.  The final rule may be found here.

Though CCR is not a hazardous waste, EPA has now imposed additional regulatory controls and national criteria for existing and new CCR landfills and surface impoundments.  Lateral expansions will be subject to location, design and operating restrictions, groundwater monitoring and other requirements.   For a subset of existing unlined CCR surface impoundments, the rule may eliminate additional receipt of CCR and may require retrofitting or closing of these impoundments.  Existing CCR landfills and impoundments that cannot meet performance criteria also may need to close.

The rulemaking may pose a number of complexities for those trying to apply it.  No permits are required and states are not required to implement the new rules.  However, states and citizens have the ability to enforce the requirements.  At the same time, existing state law remains enforceable.  Substantive differences between the new requirements and state regulatory programs can be anticipated.  In its preamble to the new rule, EPA “recognizes the significant role states play in implementing these requirements” and encourages states to revise their programs to meet federal standards.      

For beneficial use of CCR (rather than disposal that takes up landfill space), the final rule retains the Bevill exclusion but adds a definition to distinguish between excluded beneficial use and regulated disposal.  The new definition of beneficial use states that the CCR must provide a functional benefit, must substitute for the use of virgin material, and meet other requirements.   This portion of the rule will be of interest to industries and governmental entities that routinely beneficially use CCR.     

Beveridge & Diamond assists clients in a wide range of industrial sectors with solid and hazardous waste regulatory issues under RCRA, its state counterparts, international treaties, and the laws and regulations of countries around the world.  We also represent clients in regulatory matters and litigation involving handling of coal combustion residuals.  For more information, please contact the authors.




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