EPA Proposed Fly Ash Rule Frequently Asked Questions

 1. What is EPA's proposal on coal ash?
EPA is proposing the first-ever national rules to ensure the safe disposal and management of coal ash from coal-fired power plants under the nation’s primary law for regulating solid waste, the Resource Conservation and Recovery Act (RCRA).  
We have put forward two proposals that reflect different approaches to managing the disposal of coal ash and are inviting public comments on these two options.
2. Why is EPA proposing to regulate coal ash? 
EPA wants to ensure the safe management of coal ash that is disposed in surface impoundments and landfills. Without proper protections, the contaminants in coal can leach into groundwater and often migrate to drinking water sources, posing significant health public concerns.
Structural stability concerns associated with coal ash impoundments came to national attention in 2008 when an impoundment holding disposed ash waste generated by the Tennessee Valley Authority broke open, creating a massive spill in Kingston, TN, that covered millions of cubic yards of land and river, displacing residents, requiring hundreds of millions of dollars in cleanup costs and damaging the environment.
EPA believes that additional coal ash specific federal regulations are necessary to protect human health and the environment.  This is the first time national rules have been issued specifically to manage coal ash disposal.
3. What are the two proposals?
The proposal opens a national dialogue by calling for public comment on two approaches available under RCRA for addressing the risks of coal-ash management.  One option is drawn from remedies available under Subtitle C, which creates a comprehensive program of federally enforceable requirements for waste management and disposal.  The other option includes remedies under Subtitle D, which gives EPA authority to set performance standards for waste management facilities which are narrower is scope and would be enforced primarily by those states who adopt their own coal ash management programs. A chart comparing and contrasting the two approaches is available online.
4. What is Coal Ash?
Coal combustion residuals (CCRs), commonly known as Coal Ash, are byproducts of the combustion of coal at power plants and are disposed of in liquid form at large surface impoundments and in solid form at landfills.  These residuals contain contaminants like mercury, cadmium and arsenic associated with cancer and various other serious health effects. EPA’s risk assessment and damage cases demonstrate that, without proper protections, these contaminants can leach into groundwater and often migrate to drinking water sources, posing public significant health concerns.
For the purpose of this proposal, we are only considering coal ash generated by electric utilities and independent power plants. 
5. Why is EPA proposing two options?
EPA decided to co-propose two rules to encourage a robust dialogue on the most effective means to address the human health concerns and structural integrity issues associated with coal ash impoundments and landfills. Both options have advantages and disadvantages.  EPA wants to ensure that the ultimate decision is based on the best available data and is taken with the fullest possible extent of public input.
6.  What are the differences between the two options? 
Both options will provide for the first time on a national basis that liners and ground water monitoring are in place at new landfills handling coal ash in order to prevent leaching of contaminants to groundwater and resulting risks to human health.  Under the Subtitle C proposal, EPA is adopting measures intended to phase out the wet handling of CCRs and existing surface impoundments; under the Subtitle D proposal, existing impoundments would require liners, which will create strong incentives to close these impoundments and transition to safer landfills which store coal ash in dry form. Both proposals will ensure stronger oversight of the structural integrity of impoundments in order to prevent accidents like the one at Kingston, TN. 
The main differences between the two proposals involve implementation and enforcement. A chart comparing and contrasting the two approaches is available online. The Subtitle C option would require the development of state or federal permit programs, would allow for direct federal enforcement, and would include related storage, manifest, transport, and disposal requirements and mechanisms for corrective action and financial responsibility.  Before the Subtitle C rule would become effective, authorized states would need to adopt the rule, a process that could take several years. 
The Subtitle D option would go into effect sooner than a Subtitle C rule, with implementation required approximately six months after promulgation.  However, the Subtitle D option would not require permit programs to be established, although states can establish such permit programs under their own authorities.  Also, the federal Subtitle D proposal would not be federally enforceable, although citizen’s suits could be filed, and would not establish the same extensive management requirements for CCRs destined for disposal. 
For both options, EPA can always take action, if a situation may present an imminent and substantial endangerment to human health or the environment. 
There has been debate among stakeholders on how these two options might affect beneficial use of coal ash and EPA solicits comments on this issue.
7.  Do the proposals set requirements for both existing and new impoundments?
Yes. Under the Subtitle C option, EPA is proposing measures that will effectively phase out existing surface impoundments.  During this interim period, EPA is proposing to require measures relating to the structural integrity of impoundments.  
Under the Subtitle D option, existing impoundments would be required to be retrofitted with composite liners, which will create strong incentives to close these impoundments and transition to safer landfills which store coal ash in dry form. The Subtitle D option also includes requirements designed to ensure stronger oversight of the structural integrity of impoundments in order to prevent accidents like the one at Kingston, TN. 
8. When would the requirements of each proposal take effect?
This will depend on which option gets selected.
For Subtitle D, the rule would be effective six months after promulgation.  For Subtitle C, requirements will go into effect in authorized states when the state adopts the rule.  Timing will vary from state to state. 
9. What is EPA’s position on the effectiveness of existing state programs regulating coal ash disposal?
While a number of states have good programs, we are seeing gaps in coverage that indicate that we need consistent federal standards and a level playing field.  According to a 2009 ASTSWMO (Association of Solid and Territorial Solid Waste Management Officials) survey of states with coal ash generation, of the 42 states with coal fired utilities, 36 have permit programs for landfills used to manage CCRs, and of the 36 states that have CCR surface impoundments, 25 have permit programs. With regard to liner requirements, 36% (15 of the 42 states that responded to this question) do not have minimum liner requirements for CCR landfills, while 67% (24 of the 36 states that responded to this question) do not have CCR liner requirements for surface impoundments. Similarly, 19% (8 of the 42 states that responded to this question) do not have minimum groundwater monitoring requirements for landfills and 61% (22 of the 36 states that responded to this question) do not have groundwater monitoring requirements for surface impoundments. Nonetheless, there may be performance based standards or other state programs that were not considered, and thus we are taking comment on the effectiveness of state programs and will consider these comments in developing a final rule.
10. How do these proposals protect against potential impoundment failures, such as the failure of the TVA impoundment in Kingston, TN?
The Subtitle C option would effectively phase out surface impoundments and require structural stability consistent with the federal Mine Safety and Health Administration (MSHA) requirements.  The Subtitle D option would require structural stability consistent with MSHA requirements.
11. How will the proposals protect groundwater from contamination?
Both options will require liners and groundwater monitoring, and corrective action if there is any contamination detected.  For the Subtitle D Option, the corrective action requirements are not as extensive.
12.  What is beneficial use?
Beneficial use refers to use of material that provides a functional benefit – that is, where the use replaces the use of an alternative material or conserves natural resources that would otherwise be obtained through extraction or other processes to obtain virgin materials. 
13.  Why do companies recycle and reuse coal ash?
The extraction of raw materials from the earth for any product or human activity consumes energy, generates greenhouse gases, decreases the availability of virgin resources, and impacts water resources.  To the benefit of human health and the environment, recycling and use of waste materials avoid disposal and decrease these and other adverse impacts. 
Coal ash is primarily composed of basic minerals like calcium, silica, iron, and aluminum, which are valuable minerals that can be put to beneficial use in many ways that are safe and protective. 
14.  How is coal ash currently being used beneficially?
Coal ash can be reused in two forms -- encapsulated (bound into a product) or unencapsulated.
Encapsulated: EPA believes there are important benefits to the environment and the economy from the use of coal ash in encapsulated form, such as in wallboard, concrete, roofing materials and bricks, where the coal ash is bound into products. Environmental benefits from these types of uses include greenhouse gas reduction, energy conservation, reduction in land disposal, and reduction in the need to mine/process virgin materials.  We have no data showing that encapsulated uses pose a problem for human health or the environment. 
One of the most widely recognized beneficial applications of coal ashs is the use of coal fly ash as a substitute for portland cement in the manufacture of concrete.  The use of coal ash increases the durability of concrete and the process generates fewer greenhouse gas emissions.  For each ton of fly ash that is substituted for portland cement, approximately one ton of greenhouse emissions are avoided.
Unencapsulated: Unencapsulated uses are those where coal ash is in a loose or unbound particulate or sludge form.  EPA has identified concerns with some land-based uses of unencapsulated coal ash, particularly when proper engineering standards have not been met.  The Agency is soliciting comment on whether to regulate unencapsulated uses and, if so, the most appropriate regulatory approach to be taken.
EPA considers certain uses, such as coal ash as fill in sand and gravel pits, and other large scale fill operations, as disposal and not as “beneficial use.” 
15.  How are beneficial uses of coal ash currently regulated?
Currently, state environmental agencies are primarily responsible for regulating beneficial use.  Coal ash being beneficially used is currently excluded from federal regulation under EPA’s May 2000 regulatory determination that the Bevill amendment applies to such uses. Under RCRA, federal action could be taken if there were a finding of imminent or substantial endangerment in a specific circumstance.     
16.  Is the Agency proposing to regulate beneficial use?
EPA continues to strongly support the safe and protective beneficial use of CCRs. The proposed rule maintains the Bevill exemption for beneficial uses, and therefore would not alter the regulatory status of coal ash that is beneficially used.  At this time, EPA is not proposing to regulate the beneficial use of CCRs.  However, EPA has identified concerns with some uses of CCRs in unencapsulated form, such as the use of CCRs in road embankments and agricultural applications, in the event proper practices are not employed.  For those uses, the Agency is soliciting comment on whether to regulate and, if so, the most appropriate regulatory approach to be taken. While EPA does not want to negatively impact the legitimate beneficial use of CCRs unnecessarily, we are also aware of the need to fully consider the risks, management practices, and other pertinent information related to CCRs.
17.  How and where are most CCRs currently generated and disposed?
Currently, approximately 56% of the CCRs generated are disposed of in surface impoundments and landfills, predominantly owned by the electric utilities.  37% are beneficially used and 7% are used as minefill (which is not addressed in this proposed rule).
CCRs are currently disposed of in 45 states.  The Agency estimates that there are approximately 300 CCR landfills and 584 CCR surface impoundments or similar units where CCRs are disposed at roughly 495 coal-fired power plants.
CCRs are currently generated in 45 states.  The most CCRs are generated in KY, TX and Indiana; the least amount of CCRs are generated in OR, CA, and Hawaii.
Here is the entire list of states that generate CCRs, organized from the largest to smallest generators:  KY, TX, IN, PA, WV, OH, FL, IL, TN, NM, NC, AL, GA, AZ, ND, VA, MO, UT, WA, SC, MI, WY, MD, MS, LA, MN, CO, WI, KS, NY, OK, IA, MT, NV, AR, NJ, NE, MA, CT, NH, DE, SD, OR, CA, and HI.
18.  How does the proposal address the minefilling of coal ash?
EPA is not addressing the minefilling of coal ash in either proposed option.  Rather, EPA will work with the Office of Surface Mining Reclamation and Enforcement (OSM) to develop effective federal regulations to ensure that the placement of coal ash in minefill operations is adequately controlled. In doing so, EPA and OSM will consider the recommendations of the National Research Council (NRC), which, at the direction of Congress, studied the health, safety and environmental risks associated with the placement of coal ash in active and abandoned coal mines.
19.  How much CCR is generated/disposed of each year?
Annual generation of CCRs has grown from 118 million tons in 2001 to 136 million tons in 2008.
20. What are the estimated costs to implement each of the two proposals?
The Regulatory Impact Analysis (RIA) estimates the average annual regulatory cost, for the next 50 years, to be $1,474 million a year under the Subtitle C option and $587 million a year under the Subtitle D option.  These estimates include the costs of industry compliance and state and federal government oversight and enforcement costs.  On a 50-year present value basis at a 7% discount rate, these average annual costs total to $20.3 billion (Subtitle C) and $8.1 billion (Subtitle D), respectively.
The major difference in the cost estimates for the two options is largely the result of compliance rates and the retrofit requirement for Subtitle C.  With respect to compliance rates, the analysis assumes a 48% compliance rate under Subtitle D (where we have no enforcement authority) versus a 100% compliance rate under Subtitle C.
21.  What does EPA believe will be the benefits of the rule?
While key provisions of the rule certainly come with costs, the proposed rule also results in numerous beneficial impacts.  Analyses by EPA suggest that the regulation of CCRs under the proposed rule will have widespread environmental and economic benefits. 
Groundwater Protection Benefits (including the prevention of risks to human health and the environment, and the protection of limited water resources, as well as avoided future cancer risks and groundwater remediation costs); Preventing Future CCR Impoundment Catastrophic Failures (including the avoided loss of life, disruption of ecosystem habitats, protection of property, and any associated economic impacts and future cleanup costs); and Induced Effect of RCRA Regulation of CCR Disposal on Future CCR Beneficial Use (including increased incentives for the beneficial use of CCR, and all of the environmental and monetary benefits that accompany such anticipated increases.
22.  Could you describe more fully the information EPA has about the risks posed by improper management of coal ash?
EPA's risk assessment suggests, and damage cases confirm, that the management of CCRs in unlined and clay-lined landfills and surface impoundments may present risks to human health and the environment through leaching.  For landfills and surface impoundments the primary concern is cancer risk from arsenic in drinking water.  Surface impoundments also showed high non-cancer risks from cobalt and nitrate/nitrite in drinking water.  These risks are less likely to occur at sites where the disposal unit is located on a surface water body.  EPA also estimates that risks may exist for people who frequently eat fish from waterways affected by CCR arsenic or selenium contamination from surface impoundments.  Finally, nearby aquatic organisms, and the terrestrial organisms that feed on them, may also have problems from boron, arsenic, cadmium, lead, and selenium.
23.  When does EPA expect to have a final rule?
EPA understands the need to move quickly to address the environmental and public health concerns posed by coal ash. EPA has presented a significant amount of data and analysis and is soliciting comment on a wide variety of topics.  EPA will need to fully evaluate all of the information and comments it receives on this proposal and will consider all of this information in making a final Agency decision.  
24.  How can the public comment on the rule?
Comments on the rule can be submitted for 90 days after the proposal is published in the Federal Register (will be changed with the exact dates after publication).  Comments can be submitted electronically on www.regulations.gov; submitted via email to rcra-docket@epa.gov, Attention Docket ID No. EPA–HQ–RCRA–2009–0640; faxed to 202–566–0272; Attention Docket ID No. EPA-HQ-RCRA-2009-0640; or mailed to the Hazardous Waste Management System; Identification and Listing of Special Wastes; Disposal of Coal Combustion Residuals From Electric Utilities and CERCLA Hazardous Substance Designation and Reportable Quantities Docket, Attention Docket ID No., EPA-HQ-RCRA-2009-0640, Environmental Protection Agency, Mailcode: 5305T, 1200 Pennsylvania Ave., NW., Washington, DC 20460.  Please include a total of two copies if sending by mail.
If there is sufficient interest, EPA will hold a public hearing on the proposed rule.  Please notify EPA within 45 days if interested in a hearing.
ADDITIONAL Q & A on Beneficial Uses
25. Are all CCRs the same?
There are multiple different kinds of residues derived from the combustion of coal, with different physical and chemical characteristics, that can serve well in many different kinds of products and uses.  The CCRs include fly ash; bottom ash; flue gas desulfurization (FGD) materials, including synthetic gypsum; and boiler slag.  When beneficially used, these CCRs can be in either encapsulated form, such as in concrete, or unencapsulated form, such as in fill or agricultural applications.  
26.  What does the May 4, 2010 proposal mean for the use of coal ash in highway applications?
EPA continues to support the use of coal ash in highway applications.  The May 4, 2010 proposal does not affect the current practice of using coal ash beneficially in highway applications.
27. If concrete is made using coal ash, is the concrete a hazardous waste, when disposed at the end of its useful life?
Under the subtitle C proposal, coal ash destined for beneficial use would retain the current Bevill exemption, and so would not be subject to regulation under RCRA Subtitle C. Thus, coal ash used in concrete and other products would not fall within the scope of EPA's proposal to "list" coal ash, either during or after the useful life of the concrete product. When the concrete product is discarded at the end of its useful life, it would be treated the same as any other solid waste.
28. What does the May 4, 2010 proposed rule mean for the use of FGD gypsum in wallboard?
EPA strongly supports the use of FGD gypsum in wallboard.  The proposed rule does not affect this use. 
29.  What does the rule mean for agricultural applications of CCRs?
The proposed rule acknowledges that there are significant benefits that can be derived from the use of CCRs in agricultural applications and that the EPA and the USDA’s Agricultural Research Service are engaged in field studies, expected to conclude in late 2012.  The proposed rule maintains the Bevill exemption for beneficial uses, and therefore would not alter the regulatory status of coal ash that is beneficially used in agricultural applications. The proposed rule also requests comments, information, and data about this use, as it does for use in other unencapsulated applications.
30.  Is flowable fill considered an encapsulated or an unencapsulated beneficial use?
Similar to other beneficial uses, flowable fill and controlled, low-strength concrete would not be regulated under the proposed rules.  For the purposes of the proposed rules, however, EPA considers these to be unencapsulated products and requests comments, information and data about these uses.
31.  What is the status of EPA’s Coal Combustion Products Partnership (C2P2) program which supports the beneficial use of coal ash?
While EPA is engaged in the rulemaking process for coal combustion residuals, the Agency has suspended active participation in the Coal Combustion Products Partnership.  EPA continues to believe that the beneficial use of residuals from coal combustion, when performed properly and in an environmentally safe manner, is beneficial to the environment and EPA is not proposing to modify the existing Bevill exemption for coal ash when beneficially used.  EPA is interested in broadening the dialogue on beneficial uses and encourages all interested parties to review and provide comments and any relevant information and data on the proposed rule.
For more information please go to: http://www.epa.gov/epawaste/nonhaz/industrial/special/fossil/ccr-rule/ccrfaq.htm#26