On June 21, 2010, the EPA proposed to regulate the disposal of coal combustion residuals (CCRs) generated from the combustion of coal at electric utilities and by independent power producers. In a Federal Register notice on Thursday, Aug. 19, 2010, the agency proposed several administrative corrections in the preamble to the proposed rule, noting that additional support documents are available for public inspection in the rulemaking docket.

Under the first proposal, the EPA reversed its August 1993 and May 2000 Bevill regulatory determinations regarding CCRs, rather listing fly ash as a special waste subject to regulation under subtitle C of the Resource Conservation and Recovery Act (RCRA), when they are destined for disposal in landfills and surface impoundments. Under the second proposal, the agency would rather eave the Bevill Regulatory Determinations in place, and regulate the disposal of such materials under subtitle D of RCRA by issuing national minimum criteria.

The agency also produced a table comparing the two options, which is reproduced below:

Key Differences Between Subtitle C and Subtitle D Options

	SUBTITLE C	SUBTITLE D
Effective Date	Timing will vary from state to state, as each state must adopt the rule individually-can take 1 – 2 years or more	Six months after final rule is promulgated for most provision: certain provisions have a longer effective date
Enforcement	State and Federal enforcement	Enforcement through citizen suits; States can act as citizens.
Corrective Action	Monitored by authorized States and EPA	Self-implementing
Financial Assurance	Yes	Considering subsequent rule using CERCLA 108 (b) Authority
Permit Issuance	Federal requirement for permit issuance by States	No
Requirements for Storage, Including Containers, Tanks, and Containment Buildings	Yes	No
Surface Impoundments Built Before Rule is Finalized	Remove solids and meet land disposal restrictions; retrofit with a liner within five years of effective date. Would effectively phase out use of existing surface impoundments	Must remove solids and retrofit with a composite liner or cease receiving CCRs within 5 years of effective date and close the unit
Surface Impoundments Built After Rule is Finalized	Must meet Land Disposal Restrictions and liner requirements. Would effectively phase out use of new surface impoundments.	Must install composite liners. No Land Disposal Restrictions
Landfills Built Before Rule is Finalized	No liner requirements, but require groundwater monitoring	No liner requirements, but require groundwater monitoring
Landfills Built After Rule is Finalized	Liner requirements and groundwater monitoring	Liner requirements and groundwater monitoring
Requirements for Closure and Post-Closure Care	Yes; monitored by States and EPA	Yes; self-implementing

Both alternatives are under consideration, and under both alternatives, the May 2000 regulatory determination will remain for recycled or "beneficial-use" CCRs, which are currently exempt from the hazardous waste regulations under Section 3001(b)(3)(A) of RCRA.

The agency also extended the deadline for commenting on the fly ash rule to Nov. 19, 2010, and scheduled two additional public hearings.

Read the proposed rule: www.epa.gov/epawaste/nonhaz/industrial/special/fossil/ccr-rule/index.htm

SOURCE: Federal Register notice.