Coal Combustion Residuals is a material that is being generated in large quantities every day, and with the new rule going into effect in a few short months, utilities will need to quickly assess available options.

William F. Hodges, P.E.

 

In April, the Environmental Protection Agency (EPA) published its final rule on Coal Combustion Residuals (CCR, or coal ash). The rule establishes disposal standards, monitoring obligations, and associated public reporting requirements for CCR landfills, most commonly owned and operated by electric utilities. One of the more controversial aspects of the rule is that the EPA has no authority to actually enforce it. Instead, interpretation and enforcement will ultimately be determined as a result of civil litigation. And that creates significant risk for utilities.

 

Coal Ash as Solid Waste

The reason for this is because the EPA has chosen to regulate coal ash as a solid waste under Subtitle D of the Resource Conservation and Recovery Act (RCRA), which grants enforcement authority to states and citizens instead of the federal government. States may enforce the rule by revising their own solid waste management plans. This is entirely optional however, as the EPA cannot require states to do so. And because regulations are self-implementing, utilities can be held responsible for non-compliance even if a state does not adopt the CCR rule. In short, when the rule becomes effective in October, citizens will be able to sue owners or operators of CCR landfills to enforce any of the rule’s requirements. These suits will mostly likely be pursued by non-governmental environmental groups.

 

Further increasing the likelihood of civil litigation, the rule requires owners or operators of CCR landfills to post compliance data on a publicly accessible Internet site, so environmental groups will be able to review compliance data online and determine if a suit is warranted. The EPA will require those sites to be up and running in October, and failure to comply with the posting requirements will also be enforceable through civil litigation.

 

Using Existing MSW Landfills as a Tool

Clearly, the CCR rule has changed the landscape for utilities, which will now have to prepare for the risk of expensive and unpredictable citizen lawsuits. While utilities should be planning for ways to mitigate risk at their CCR landfills, a tool exists that would allow them to avoid it altogether: municipal solid waste (MSW) landfills, which are exempt under the new CCR rule. Following is from page 21341, Part VI.A.4. of the rule’s preamble entitled “Municipal Solid Waste Landfills”:“EPA recognizes that there are MSWLFs that either accept CCR for disposal, use CCR for daily cover, or both. Since the proposed and final RCRA subtitle D standards for CCR landfills are modeled after the standards for MSWLFs found at 40 CFR part 258, EPA has concluded that disposal of CCR in MSWLFs is as protective as disposal in a CCR landfill and that permitted MSWLFs are not subject to the requirements of this rule. Like the MSWLF requirements, the CCR technical criteria require new units to have composite liners or their equivalent, and all units are subject to location restrictions, run-on and run-off controls, fugitive dust controls, groundwater monitoring and corrective action, closure and post-closure care requirements.”

 

And from the Final Rule itself (not the preamble), on page 21469, Section 257.50(i): “This subpart does not apply to municipal solid waste landfills that receive CCR.”

 

Some utilities may consider permitting their own MSW landfills. However, because MSW landfills are permitted and regulated at the state level, they require local approval. This is typically a lengthy and complicated process, so it is unlikely to be an attractive option for most utilities, especially considering the short timeframe available to prepare for the CCR rule. A better option would be to take advantage of an existing MSW landfill that is already permitted and equipped to receive CCR, and where CCR disposal is not subject to further interpretation or dispute. This would provide utilities with a clean transfer of obligation.

 

Ideally, such a facility would have access to rail, be able to accommodate large numbers of railcar units and also have the capacity to put a utility’s CCR into its own discrete monofill, where it is segregated from CCR generated by other utilities. This is important because it allows utilities to monitor their own CCR and provides assurances that it is being disposed of properly.

 

Meeting the Criteria

Currently, there are not many MSW landfills that meet those criteria. One of the few that does is Arrowhead Landfill in Perry County, AL. I was the principal designer and project manager for the complete redesign of that facility, which included expansion to provide discrete monofills for CCR. By making this change, Arrowhead was able to create separate areas for utilities that want a designated space for their CCR—away from other utilities’ CCR—with their own leachate management systems and their own environmental monitoring network. These changes were made based on lessons learned following the TVA Kingston Fossil Plant coal ash spill in December 2008. Arrowhead accepted four million tons of TVA coal ash waste from that event. Other lessons included optimizing liquid management of both the storm water and the leachate, and developing methods to dewater CCR when it arrived at the facility wetter than what was considered optimum. The facility also learned a great deal about traffic flow and material management, as more than 10,000 tons per day of CCR were arriving by rail transport.

 

CCR is a material that is being generated in large quantities every day, and with the new CCR rule going into effect in a few short months, utilities will need to quickly assess their options. I believe MSW landfills are a viable “safe harbor” solution for safely disposing of CCR and shielding utilities from the civil litigation that will most surely occur. Furthermore, state regulation of MSW landfills will prove much simpler than the citizen lawsuit enforcement envisioned by the EPA’s new rule.

 

William F. Hodges, PE, of Hodges, Harbin, Newberry & Tribble, Inc. (Macon, GA), is a Registered Professional Engineer with specialized experience in civil and environmental engineering. For more than 37 years, he has provided engineering consulting services to a multitude of public and private organizations throughout the U.S. He is recognized as an expert in solid waste and coal ash management. William can be reached at (478) 743-7175 or via e-mail at [email protected].

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