EPA Plans to Regulate Coal Ash

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On May 4, 2010, the U.S. Environmental Protection Agency (EPA) proposed two options for the first national rules regulating the disposal and management of coal ash from coal-fired power plants under either Subtitle C or Subtitle D of the Resource Conservation and Recovery Act (RCRA). Regulations under Subtitle C would be stricter, requiring permitting and increased record keeping. In comparison, regulations under Subtitle D would be more lenient, requiring a more performance-based approach. Neither regulation classifies coal ash as a hazardous substance.

The proposed regulations will regulate the disposal of coal combustion residuals, commonly known as coal ash, which are byproducts of the combustion of coal at power plants. Coal ash is typically disposed of in liquid form at large surface impoundments, and in solid form at landfills. Coal combustion residual impoundments can be found in almost all states, most often on the properties of power plants, with close to 900 landfills and surface impoundments nationwide. The new rules will regulate not only the environmental effects of coal ash disposal, but also the structure of coal ash impoundments. Facilities, including pre-existing facilities, will be required to install and/or retro-fit "protective control devices," such as liners and groundwater monitoring devices, or potentially face closure.
The regulations will leave in place the Bevill exemption, which exempts coal ash that is recycled for beneficial uses from regulation. Large quantities of coal ash are recycled as components of products such as concrete, cement, and wallboard. Such uses typically minimize the public's exposure to unsafe coal ash contaminants, such as mercury, cadmium, and arsenic. The EPA believes that the new rules will "promote environmentally safe and desirable forms of recycling coal ash, known as beneficial uses," and force power companies to assess alternative means for coal ash disposal.

The two proposed regulations will be open for public comment for a period of 90 days from the date of publication in the Federal Register. For more information, click here to visit the EPA?s website.

Robert D. Pollitt
Chase Tower - Eighth Floor
707 Virginia Street E.
Charleston, WV 25301
304-353-8137
robert.pollitt@steptoe-johnson.com 



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(304) 353-8137
Charleston, WV