Last month, the United States Environmental Protection Agency (EPA) took further action that will impact electric utilities and other parties that handle Coal Combustion Residual (CCR), i.e., fly ash, bottom ash, boiler slag, and flue gas desulfurization materials resulting when coal is burned to generate electricity. Specifically, EPA issued a rule proposal that would revise its CCR regulations, 40 C.F.R. 257.50 et seq., which govern CCR disposal and use. The revisions would affect CCR “beneficial use” criteria, temporary storage of CCR, groundwater protection standards, annual groundwater monitoring and corrective action reports, and CCR Rule Compliance websites. In general, the revisions would increase the regulatory burden on producers and users of CCR.
Beneficial Use Criteria
EPA proposes to change one of the criteria for determining whether CCR is being beneficially used, as opposed to disposed. Currently, when 12,400 tons or more of CCR are placed on land for unencapsulated use in non-roadway applications, the use will not qualify as beneficial unless the user demonstrates, among other things, that: 1) release of CCR to the environment is comparable to or lower than that from analogous products made without CCR, or 2) release to the environment will be at or below regulatory and health-based benchmarks for human and ecological receptors. EPA would replace the 12,400-ton trigger with location-based criteria for placement in specific types of locations, such as unstable areas, wetlands, floodplains, fault areas, seismic zones, etc. These alternative criteria would be set based on the risks that the location conditions pose to public health and the environment.
Temporary CCR Storage
EPA is also proposing a single regulatory standard applicable to all unencapsulated temporary storage of CCR on land, including beneficial use sites. It currently treats temporary storage of CCR at beneficial use sites as beneficial use and thus exempt from disposal requirements. The rule proposal calls for an intermediate category between disposal and beneficial use, namely “storage.” Requirements would be set for controlling releases of CCR to the environment from storage piles. Temporary storage of CCR in enclosed structures would be considered exempt from the requirements imposed on disposal and storage of CCR.
Alternative Risk-Based Groundwater Protection Standard for Boron
Having previously proposed adding boron to the list of constituents that trigger corrective action, EPA now proposes a threshold of 4,000 micrograms per liter as the groundwater protection standard for boron.
Annual Groundwater Monitoring and Corrective Action Report Requirements
To its existing requirement for Annual Groundwater Monitoring and Corrective Action Reports for CCR units, EPA would add new executive summary requirements. For each CCR unit, the summary would be required to expressly state/identify: whether the CCR unit is operating pursuant to the detection monitoring program or the assessment program; constituent contaminants and the corresponding wells, if any, for which there is a statistically significant increase over background levels (or if operating under the assessment monitoring program, constituents detected at statistically significant levels above the groundwater protection standard); the date when the assessment monitoring program was initiated for the CCR unit; and corrective measures initiated or completed during the annual reporting period. EPA also seeks comment on whether to require that monitoring and analytical results be presented in a standardized format.
CCR Rule Compliance Website Requirements
Last, EPA’s rule adoption proposes that information required on a CCR facility’s “CCR Rule Compliance Data and Information” website be available to any member of the public, including through printing and downloading, without any need for the member of the public to be approved or provide personal information. A facility would also be required to notify EPA within 14 days of changing its CCR website address, and EPA additionally seeks comment on whether each CCR website must have a “Contact Us” mechanism for the public to notify the facility of information accessibility problems.
All comments are due by October 15, 2019. The rule proposal can be accessed here: https://www.govinfo.gov/content/pkg/FR-2019-08-14/pdf/2019-16916.pdf
Of CounselRyan Benson focuses on environmental and real estate and land use law. He assists clients on a wide range of related issues, including permitting (e.g., freshwater wetlands, flood hazard area and waterfront development), sewer ...
PartnerAs Chair of Connell Foley LLP's Environmental Law practice group, Agnes Antonian draws on her engineering background to address a broad range of complex environmental litigation and land use matters. Her environmental litigation ...