The New Coal Combustion Residuals Rule - An Implementation and Enforcement Nightmare
Article written by John B. King and Valerie L. Mayhall.
Introduction
Importantly, though, the rule leaves the enforcement of those standards to citizens. This method of enforcement exposes owners and operators of CCR units to uncertain outcomes and litigation costs in a variety of different courts.
History
Driven in part by the failure of a surface impoundment retaining wall at a TVA facility in Kingston, Tennessee, which released over one billion gallons of coal ash, EPA began the process of revisiting the exemption or exclusion of CCRs from hazardous waste regulation under the Bevill Amendment. The 2010 proposal sought comments on whether CCRs should be regulated as a special waste under Subtitle C of the Resource Conservation and Recovery Act (RCRA), or as a solid waste under Subtitle D of RCRA, by issuing minimum national standards for surface impoundments and landfills to ensure the safe disposal of CCRs.
EPA issued the pre-publication version of the final rule on December 19, 2014, deciding to regulate CCRs under Subtitle D. The final rule was published in the Federal Register on April 17, 2015. 80 Fed. Reg. 21302. EPA found that risk to human health and the environment posed by surface impoundments and landfills warranted regulatory controls. As a result, EPA has developed and now issued "national minimum criteria for existing and new CCR landfills and existing and new CCR surface impoundments and all lateral expansions consisting of location restrictions, design and operating criteria, groundwater monitoring and corrective action, closure requirements and post closure care, and recordkeeping, notification, and internet posting requirements." Final Rule, December 19, 2014, p. 2.
Under Subtitle D, EPA must ensure that there is no reasonable probability of adverse effects to human health and the environment from the disposal of solid waste. A facility is classified as an 'open dump' if it does not meet this goal. A facility meeting the minimum national standards will meet the goal and avoid the 'open dump' classification. Thus, the minimum national standards for CCR landfills and surface impoundments, as set forth in the rule, must be met; if not, the facility will be classified as an 'open dump' and be required to upgrade (i.e., retrofit to meet the standards) or close.
Coal Combustion Residuals
CCRs include fly ash, bottom ash, boiler slag, and flue gas desulfurization materials when destined for disposal. When destined for beneficial use, these four types of materials are called coal combustion products (CCPs).
Each type of CCR is specifically defined in the rule. Broadly speaking, though, CCRs are generated from combusting coal to create steam for the purpose of powering a generator to produce electricity at coal-fired electric utility plants in NAICS Code 221112 (Fossil Fuel Electric Power Generation). Fly ash, bottom ash, boiler slag, and flue gas desulfurization materials are left over from the combustion process.
CCRs can be generated wet or have water added to them. If so, they are managed in a wet disposal system in which materials are sluiced via pipe to a surface impoundment. CCRs that are generated dry can be sent to landfills for disposal. Constituents in CCRs that are of the most environmental concern are metals such as cadmium, chromium, lead, and mercury.
The Standards
To deal with the risks created by and associated with disposal of CCRs in landfills and surface impoundments, EPA has created and imposed national minimum standards. These standards include location restrictions, liner design criteria, structural integrity requirements, operating criteria, groundwater monitoring and corrective actions, closure and post-closure requirements, and record-keeping, notification, and internet posting requirements. Although there is a great deal of overlap, these standards apply differently based on the type of unit (landfills and surface impoundments) and the status of the unit (new or existing). Lateral expansions of both types of units are generally treated as a new unit.
The rule applies to all existing and new CCR surface impoundments and landfills, and it applies to all lateral expansions of such existing disposal units as well. Regardless of whether the unit is existing or new, the standards imposed by the Rule will be difficult to achieve.
Location Standards - 257.60 to 257.64
There are five location restrictions relating to placement of CCRs in units above the uppermost aquifer, in wetlands, within fault areas, in seismic impact zones, and in unstable areas. Generally, the rule establishes a specific location standard, but also provides an alternative, equally-effective standard which may be met if the location standard cannot be met.
All five location restrictions apply to new landfills, new and existing surface impoundments, and lateral expansions of each. The location of units in unstable areas applies to existing landfills as well.
The base of the unit must be located no less than 1.52 meters (five feet) above the upper limit of the uppermost aquifer. The uppermost aquifer is the geologic formation nearest the ground surface that is an aquifer and includes lower aquifers that are hydraulically interconnected with the aquifer within the facility's property boundary. The upper limit is the highest point the aquifer rises during the wet season. Alternatively, the owner must demonstrate that there will not be intermittent, recurring, or sustained hydraulic connection between the base of the unit and the uppermost aquifer due to seasonal fluctuations in groundwater elevation.
The unit may not be located in wetlands. However, as an alternative, a very stringent showing may be made which includes such standards as a clear and objective rebuttal of the presumption that an alternative to the unit is reasonably available that does not involve wetlands, and that the unit will not cause or contribute to significant degradation of wetlands.
The unit may not be located within 60 meters (200 feet) of the outermost damage zone of a fault that had displacement in Holocene time, unless there is a demonstration that an alternative setback distance of less than 60 meters will prevent damage to the structural integrity of the unit.
The unit may not be located in a seismic impact zone, unless there is a demonstration that all structural components (such as liners and surface water control systems) are designed to resist the maximum horizontal acceleration in lithified earth material for the site. A seismic impact zone is an area having a 2% or greater probability that the maximum expected horizontal acceleration will exceed 0.01 g (gravitational pull) in 50 years.
The unit may not be located in an unstable area, unless there is a demonstration that recognized and generally accepted good engineering practices have been incorporated into the design of the unit to ensure the integrity of the structural components will not be disrupted. An unstable area is one that is susceptible to natural or human-induced events or forces capable of impairing the integrity of the unit, and its structural components, that are responsible for preventing releases from the unit. Unstable areas may include poor foundation conditions and areas susceptible to mass movements.
Design Criteria - 257.70 to 257.74
There are two types of design criteria.The first relates generally to the liner and the leachate collection and removal system. There are different design requirements depending on the type of unit and its status. The second relates to structural integrity of the unit, which applies only to surface impoundments.
A new landfill, and any lateral expansion, must be designed, constructed, operated, and maintained with a composite liner or an alternative composite liner. The composite liner must have at least a 30-mil geomembrane liner overlaying at least two feet of compacted soil with a hydraulic conductivity of no more than 1x10-7 cm/sec. The unit must also have a leachate collection and removal system. The rule contains specific standards for the composite liner, the alternative liner, and the leachate collection and removal system.
An existing surface impoundment must document whether or not the unit was constructed with a minimum of two feet of compacted soil with a hydraulic conductivity of no more than 1x10-7 cm/sec, a composite liner, or an alternative composite liner. A new surface impoundment must have a composite liner or an alternative composite liner. The liner or alternative liners for new and existing surface impoundments must meet the same standards for such liners as set forth for new landfills. A new surface impoundment does not need to have a leachate collection and removal system.
The structural integrity requirements in the Rule apply to both existing and new surface impoundments. These requirements include initial and periodic hazard potential classification assessments. They also required an Emergency Action Plan for some units (i.e., units with high or significant hazard potential). Structural stability assessments, both initial and periodic, are also required, as are initial and periodic safety factor assessments. These requirements will be new to existing CCR disposal units located in Louisiana.
Operating Criteria - 257.80 to 257.84
The required Operating Criteria include a Fugitive Dust Control Plan, which must be certified by a Professional Engineer. An annual fugitive dust control report is also required. Run-on and run-off control systems and plans are required for CCR landfills. CCR surface impoundments have hydrologic and hydraulic capacity requirements. The Rule also contains inspection requirements. Weekly inspections are required, in order to assess potential structural weakness, and annual inspections by a qualified Professional Engineer are also required. For surface impoundments, all CCR unit instrumentation must be monitored monthly.
Groundwater Monitoring and Corrective Action - 257.90 to 257.98
Existing CCR landfills and surface impoundments must be in compliance with the following groundwater monitoring requirements no later than October 17, 2017: installation of a required groundwater monitoring system; development of a groundwater Sampling and Analysis Plan, which includes the selection of the statistical procedures to be used for evaluation groundwater monitoring data; initiate the detection monitoring program, including obtaining a minimum of eight independent samples for each background and downgradient well; commence evaluation of the groundwater monitoring data for statistically significant increases over background levels for the constituents listed in Appendix III. The Appendix III constituents are: Boron; calcium; chloride; fluoride; pH; sulfate; and total dissolved solids. Existing CCR disposal units must also prepare an annual groundwater monitoring and corrective action report. The first of these reports is due on January 31, 2018, and they are subsequently due annually. New CCR disposal facilities must prepare the initial annual groundwater monitoring and corrective action report no later than January 31 of the year following the calendar year that a groundwater monitoring system was established. This report is then due annually thereafter. Minimum requirements are set forth in the Final Rule regarding what information the annual groundwater monitoring and corrective action reports must contain.
Very detailed requirements are also set forth, in Section 257.91, regarding the groundwater monitoring systems. The Rule also contains, in Section 257.93, very detailed requirements regarding the sampling and analysis of groundwater. The monitoring programs under the Final Rule include Detection and Assessment, on a semi-annual basis. Assessment monitoring is required when there is a statistically significant increase over background levels, for one or more of the Appendix III constituents. Within 90 days of triggering an assessment monitoring program, and annually thereafter, the owner or operator of the unit, must sample and analyze the groundwater for all constituents listed in Appendix IV. The Appendix IV constituents are: Antimony; arsenic; Barium; Beryllium; Cadmium; Chromium; Cobalt; Fluoride; Lead; Lithium; Mercury; Molybdenum; Selenium; Thallium; and Radium 226 and 228 combined.
Within 90 days of a finding that any Appendix IV constituent was detected at a statistically significant level exceeding the groundwater protection standard, or immediately upon detection of a release from a CCR unit, the owner or operator must initiate an assessment of corrective measures to prevent further releases, to remediate any releases and to restore the affected area to original conditions.
A remedy that meets the minimum standards set forth in the Rule must be selected based on the results of the corrective measures assessment that was conducted. This must be done as soon as is feasible. Within 90 days of selecting the remedy, remedial activities must be initiated. A remedy is considered complete when the owner or operator of the unit demonstrates that compliance with the groundwater protection standards established pursuant to the Rule has been achieved at all points within the plume of contamination that lie beyond the groundwater monitoring well system that was established. And, the owner or operator must demonstrate that concentrations of the Appendix IV constituents have not exceeded the groundwater protection standards for a period of three consecutive years using the statistical procedures and performance standards set forth in the Rule. Furthermore, all actions required to complete the remedy must be satisfied in order for the remedy to be considered complete.
Closure and Post-Closure - 257.100 to 257.104 One interesting feature of the rule relates to the closure of existing surface impoundments. There are three instances in which the unit must cease accepting all waste and close. First, compliance with all the location standards must be certified by a qualified professional engineer within the required time frame. Second, an existing surface impoundment must also document whether or not such unit was constructed with a minimum of two feet of compacted soil with a hydraulic conductivity of no more than 1x10-7 cm/sec, a composite liner, or an alternative composite liner. If the unit does not have such a liner, it is deemed an existing unlined surface impoundment. As such, if any groundwater sampling event shows concentrations at statistically significant levels above the groundwater protection standard, facility must close the unit. Finally, a failure to complete the initial or any subsequent periodic safety factor assessment or a failure to document that the calculated factors of safety achieve the minimum safety factors will lead to a closure.
Recordkeeping, Notification, and Posting of Information on the Internet - 257.105 to 257.107
The Rule requires CCR disposal units to maintain a written operating record that contains comprehensive documentation of compliance with the Rule. There is a five year requirement for maintaining such information in the record. It is also required that the owner or operator of the CCR disposal unit submit comprehensive amounts of documentation and evidence of demonstrations to either the State Director and/or the appropriate Tribal authority. There are explicit time limitations on said notifications.
It is interesting that the Rule also requires each owner or operator of a CCR unit to maintain a publicly accessible Internet site or CCR Website, which contains copious amounts of information. The website must be titled "CCR Rule Compliance Data information." The same website may be utilized to provide required information for multiple CCR units, as long as each disposal unit is clearly identified. In general, information must be posted to the CCR website within thirty days of the information being placed in the facility's operating record.
Timing
All of the deadlines in the rule are based on the date of publication in the Federal Register. The Rule was published in the Federal Register on April 17, 2015. Obviously, all new units and lateral expansion must meet the requirements prior to placement of CCR into unit.
The rule is effective six months from the date of publication. From the effective date, deadlines range from six months to 42 months depending on the type of existing unit. Unless otherwise mentioned, the following deadlines apply to existing landfills and surface impoundments and are based on the date of publication (April 17, 2015):
- Six months (10/14/15): Effective date of rule
- Prepare a fugitive dust control plan
- Initiate weekly inspections
- Initiate monthly monitoring of instrumentation (surface impoundments)
- Record-keeping, notification, and internet requirements
- Eight months (12/19/15): Install permanent marker (surface impoundments)
- Nine months (1/19/16): Complete initial annual inspection
- Eighteen months (10/19/16):Written closure and post-closure plans
- Prepare initial run-on/run-off control systems plan (landfills)
- Document lined or unlined status (surface impoundments)
- Compile history of construction (surface impoundments)
- Complete initial assessments (surface impoundments)
- Prepare initial inflow design flood control plan (surface impoundments)
- Twenty-four months (4/19/17):Prepare emergency action plan (surface impoundments)
- Thirty months (10/19/17):Groundwater monitoring system
- Forty-two months (10/19/18): Complete demonstration for location criteria (surface impoundments)
- Complete determination for unstable area (landfill)
Beneficial Use
The term "beneficial use" is actually defined in the Final Rule. The definition is comprised of four key components, which are as follows: the CCR must provide a functional benefit; the CCR must substitute for the use of a virgin material; the use of the CCR must meet relevant product specifications, regulatory standards or design standards, when available; and when unencapsulated use of CCRs involves placement on the land of 12,400 tons or more in non-roadway applications, the use must demonstrate and keep records of such and may be required to provide documentation proving that environmental releases to groundwater, surface water, soil and air are comparable to or lower than those from analogous products made without CCRs or that any releases will be at or below pertinent regulatory and health-based standards for receptors.
In the Final Rule, it is stated that EPA deferred its final decision on the Bevill Regulatory Determination because of the regulatory and technical uncertainties that could not be resolved at the time of finalization of the Rule. This pertains to CCRs that are disposed in CCR landfills and surface impoundments. The Final Rule retains the Bevill exclusion for CCR that is beneficially used. The definition of the term "beneficial use" in the Rule may be used to distinguish between actions that constitute beneficial use and those that are disposal.
Enforcement
An interesting feature of the rule relates to the method of enforcement. Under Subtitle D of RCRA, EPA's role is to establish the overall regulatory direction by providing minimum national standards that are protective of human health and the environment, leaving implementation to the States. There is no mechanism or authority for EPA in Subtitle D to enforce the standards so they are designed to be self-implementing. Thus, EPA suggested two types of enforcement: States or citizen suits.
States
EPA strongly encouraged the States to adopt the minimum national standards into their own regulations. Of course, States are free to set more stringent standards. Once properly promulgated, the States may enforce their own rules, using the enforcement mechanisms available to them. For example, they may issue administrative compliance actions, administrative penalties, or seek injunctive relief and penalties in a judicial proceeding.
EPA also stated that it would approve the new rules as part of an approved Solid Waste Management Plan (SWMP). The approval by EPA signals EPA's opinion that the SWMP meets the federal criteria. However, solid waste regulations, even those approved by EPA as part of a SWMP, do not operate 'in lieu of" the federal rules as do approved hazardous waste rules.
A bill, H.R. 1734, was recently introduced in Congress. The bill would allow states to create and enforce their own CCR permit programs. However, it would enable the Environmental Protection Agency (EPA) to directly regulate CCR in any state that fails to set up its own CCR program or in states where EPA determines that the CCR permit program is deficient. In today's political climate, it is unknown whether, if passed, it will be signed into law.
Citizen Suits
However, EPA also very clearly contemplated, and seemed to encourage, a large and active role for citizens in enforcement. EPA stated that citizens may utilize the RCRA citizen suit provision to enforce the standards.
Under the citizen suit provision in RCRA, 42 USCA §6972, a citizen may file a lawsuit against any person who is alleged to be in violation of any permit, standard, regulation, condition, requirement, prohibition, or order which has become effective pursuant to RCRA. Prior to filing suit, notice is required and no action may be filed if a State has commenced and is diligently prosecuting an action in a court of a State to require compliance with such permit, standard, regulation, condition, requirement, prohibition, or order. A citizen may obtain injunctive relief and the court may assess penalties and award attorney fees.
This enforcement mechanism presents a challenge for owners or operators of CCR units. The Sierra Club has made no secret of its opposition to the use of coal. It unabashedly seeks to support 'grassroots' associations to wage their own battles on coal operations. The Sierra Club and its local partners, or other citizen groups, may seek to vigorously enforce the standards by using the citizen suit provision. Several items are noteworthy in this regard.
One prominent feature of the rule is the notification and internet posting requirement. This mandated self-reporting creates a wealth of information that may be utilized by citizens. Indeed, EPA's position is that information provided "in compliance with these regulations remain subject to the penalties for providing false information under 18 U.S.C. 1001." 80 Fed. Reg at p. 21339. In other words, the failure to provide or post truthful information is a crime. Like a Discharge Monitoring Report filed with a state agency, the information submitted to the agency and/or posted on the internet by the company will be difficult, if not impossible, to refute. The citizen's case is proven by the owner's own information.
There is also a question whether a state proceeding based on regulations that are part of an approved SWMP will defeat a citizen suit brought in federal court to enforce the federal rule. An administrative action is not 'an action in a court of a State' and so would not serve to defeat the action. A judicial proceeding, even one based on an approved SWMP, may not either. The rules being enforced by the state are state rules, voluntarily promulgated, which do not, even if part of the approved SWMP, operate 'in lieu of' the federal rule. Thus, a court could find that the state action is based on a "permit, standard, regulation, condition, requirement, prohibition, or order which has become effective pursuant to [RCRA]" because it has become effective pursuant to the state law, not RCRA.
Finally, the rule provides some clear and definitive guidelines but also provides some ambiguous ones that may promote litigation. For example, it is clear that an existing surface impoundment must not be located in wetlands. However, this prohibition applies unless a demonstration is made within 42 months after publication (or three years from the effective date) that several stringent requirements are met. These include such ambiguous requirements as demonstrating 'a clear and objective rebuttal of the presumption that an alternative to the CCR unit is reasonably available that does not involve wetlands' (such as disposal in a solid waste landfill) or the operation of the CCR unit will not cause or contribute to a violation of any water quality standard or jeopardize the continued existence of an endangered or threatened species. Assuming that a demonstration as to all the stringent requirements is filed, the adequacy of the demonstration becomes an issue. Litigation could be filed claiming that the demonstration does not meet the requirements, which will lead to expensive and protracted litigation.
An owner can protect itself by taking at least two important steps. First, make sure that the certification of compliance with the location or liner standard, or the alternative standard as the case may be, is certified by a respected professional engineer and is accurate, supported by reliable evidence, and fully and completely documented. Second, when a citizen suit notice is received (which must be sent 60 days prior to suit), arrange to meet with the group and applicable state agency to go over all of the evidence in an attempt to establish that the standard has been met. Admittedly, this may be problematic for a number of reasons and may not dissuade the most ideological of groups, but the owner will have done what it can to avoid a suit.
Conclusion
The strict requirements in the CCR Rule present such significant compliance obstacles for existing units that many may just elect to stop receiving CCRs or undergo closure. For those that upgrade and attempt to demonstrate compliance, the enforcement mechanism central to the CCR Rule will likely create litigation for these units. Regardless, the CCR Rule will obviously fundamentally alter the compliance and enforcement regime applicable to all CCR units.
John B. King is a partner with Breazeale, Sachse & Wilson LLP in Baton Rouge, La. His practice relates mainly to environmental regulatory permitting, compliance, and litigation, such as defense of citizen suits. Prior to joining the firm in 2003, he served as chief attorney for enforcement for the Louisiana Department of Environmental Quality. For more information, please contact John B. King at jbk@bswllp.com or (225) 381-8014.
Valerie L. Mayhall is an environmental consultant with CK Associates. Her practice pertains mainly to Solid and Hazardous Waste Permitting and Compliance. Valerie previously practiced as an Environmental Attorney in the state of Louisiana. For more information, please contact Valerie L. Mayhall at valerie.mayhall@c-ka.com or (225) 755-1000.
