IMPACTS OF SUBTITLE C REGULATION OF COAL 


COMBUSTION BYPRODUCTS 


USEP A is evaluating options for developing federal regulations for coal combustion 

byproducts ("CCBs"), including fly ash, bottom ash, boiler slag, and flue gas desulfurization 

solids (including synthetic gypsum). One option under consideration is regulating CeBs 

through some type of Subtitle e regime. This would most likely involve regulating eeBs as 

a listed hazardous waste (since eeBs rarely exhibit a hazardous waste characteristic). This 

paper identifies certain ofthe regulatory/practical implications for electric utilities associated 

with the regulation ofCeBs as hazardous waste. 

Potential RegulatorylPractical Implications 

Limited Beneficial Use of CCBs: While any hazardous waste regime for eeBs would likely 

include an exclusion for eeBs that are beneficially used, USEP A reportedly would limit any 

exclusion from hazardous waste regulation for only those eeB beneficial uses that involve 

the full encapsulation of the eeBs into a fmished product. Other existing beneficial uses, 

including involving land application and other unconfined uses (e.g., structural fill, 

agricultural use and soil amendment), would likely not enjoy this exclusion and could be 

subject to hazardous waste regulation like any other eeBs that are disposed of. This would 

result in greater volumes of eCBs having to be managed and disposed of pursuant to Subtitle 

e hazardous waste regulation. 

RCRA Compliance Dilemmas for Utility Facilities Managing Listed CCBs: While any 

Subtitle e regime for eeBs would likely focus on the design and performance standards for 

eeB landfills and impoundments, the collateral regulatory and practical consequences of 

listing eeBs as a hazardous waste would extend well beyond CCB disposal units to upstream 

and downstream operations. eertain ofthese implications are discussed below. 

De Minimis CCB Releases: Due to the design features ofpower plant operations and 

the volume and nature of eCBs, certain de minimis volumes of eeBs are inevitably released 

during normal power generation and subsequent ceB handling operations. This can involve, 

for example, (1) permitted fugitive emissions from emission control equipment during the 

combustion of coal, (2) releases from processes related eeB collection systems, such as 

transporting fly ash into hoppers for storage prior to disposal or beneficial use, or loading into 

trucks or rail cars for transport, (3) releases of CCBs from trucks or other conveyor systems 

while being transported to landfills or impoundments, (4) releases of eeBs in the form of 

fugitive dust from disposal units, and (5) eeBs left in covered barges and other transport 

devices used to transport eeBs from the plants to market locations. 

Because eeBs would be a listed hazardous waste, the de minimis release of eeBs in the 

above circumstances would constitute improper hazardous waste disposal and subject power 

plant facility owners/operators to the specter of a perpetual state ofReRA non-compliance. 

Similarly, any accidental release of eeBs during handling operations would be viewed as 

illegal hazardous waste disposal, subjecting the facility owner/operator to immediate ReRA 

liability (e.g., the accidental spillage or release of eeBs prior to loading onto a truck for 
disposal or for off-site beneficial use). Because CCBs would be a listed hazardous waste, 

facility owners/operators would be required under EPA's "mixture rule" (i. e., any solid waste 

mixed with a listed hazardous waste must be managed as a listed hazardous waste) to clean 

up the released or spilled material and manage all associated debris containing any CCBs as 

listed hazardous waste. And any water from ash dewatering operations would remain a listed 

hazardous waste under EPA's "derived-from" rule (i.e., any solid waste, including liquids, 

derived from a listed hazardous waste remains a listed hazardous waste). 

Upstream CollectionlManagement Units: The generation, collection and handling of 

CCBs prior to their placement in a disposal unit involves a series of upstream CCB 

management/storage units whose regulatory status also would pose serious compliance 

concerns under a Subtitle C regime. These intermediate baghouses, precipitators, scrubbers, 

hoppers, containers, sumps, and related conveyance devices would be viewed as "hazardous 

waste" tanks, containers or "miscellaneous units" and would be subject to applicable 

hazardous waste design standards, including secondary containment requirements for tank 

systems. Retrofitting this array of existing upstream management units to meet Subtitle C 

standards would prove impractical in many cases and would expose power plant operations to 

serious compliance concerns. 

Disposal Capacity Shorifalls & Off-Site Disposal Concerns: A combination of 

factors associated with the Subtitle C regulation of CCBs will likely result in a shortfall in onsite CCB disposal capacity, causing more CCBs having to be shipped off-site for disposal in 

commercial Subtitle C facilities. 

First, ifUSEPA mandates the closure ofCCB surface impoundments (see discussion below), 

a significant portion of existing CCB disposal capacity will be eliminated. Second, a 

percentage ofthe remaining CCB landfills not currently designed, permitted or authorized to 

operate under a Subtitle C regime will likely close due to the cost or impracticality of meeting 

new Subtitle C performance standards. Compounding the reduction in disposal capacity is 

that utilities will have greater volumes of CCBs to dispose of. This is' because certain CCB 

beneficial uses will be prohibited and the remaining beneficial uses will likely be subject to 

new regulatory conditions, making these remaining options less attractive to CCB producers 

and end-users. Therefore, utilities will be disposing of greater volumes of CCBs, as opposed 

to beneficially using these materials. It is reasonable to assume that some power plants would 

be forced to shut down temporarily, and in some cases permanently, due to the lack of 

economically viable CCB disposal alternatives. 

The combination of above factors will result in CCB disposal capacity shortfalls, requiring 

utilities to either attempt to expand existing on-site disposal capacity (assuming space is 

available and the facility is able to successfully complete an increasingly contentious multiyear permitting process for what would now be a hazardous waste disposal site) and/or send 

CCBs off-site for Subtitle C disposal. Off-site disposal would trigger RCRA's transportation 

and hazardous waste manifest rules, as well as the attendant potential adverse impacts 

associated with transporting large volumes of materials long distances for disposal in what 

are often out-of-state commercial Subtitle C disposal facilities. 

It is difficult to predict at this stage the amount of CCBs that would have to be shipped offsite for disposal due to the resulting short-fall in on-site disposal capacity under a Subtitle C 

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program. The volume, however, would be significant and would likely result in CCBs 

becoming one ofthe largest (ifnot the largest) categories ofRCRA hazardous waste being 

disposed ofin commercial Subtitle C facilities. Aside from the disposal costs associated with 

this option (estimated to be in the range of between $250 and $450 per ton), there could also 

be a significant short-fall in the capacity of existing commercial hazardous waste disposal 

facilities to accommodate the large volumes of CCBs that would be entering the Subtitle C 

system. The significant increase in demand for existing Subtitle C commercial disposal 

capacity would increase disposal costs for all hazardous waste generators, not just electric 

utilities, and likely create disposal shortfalls for all generators due to the volume of CCBs that 

would need to utilize the available commercial Subtitle C disposal capacity. 

RCRA Permitting and Generator Obligations: Power plants managing CCBs would 

have to undergo RCRA's permitting process, including the re-permitting ofplants that already 

have state Subtitle D permits. Permitting obligations would not be limited to landfills and 

impoundments, but would likely extend to upstream units that manage CCBs prior to final 

disposal, including sumps, hoppers, containers, conveyance systems and other miscellaneous 

units. Permitted facilities will also be subject to applicable RCRA hazardous waste 

preparedness and prevention and general facility standards, training requirements, unit 

specific closure, post-closure and financial assurance requirements as well as hazardous waste 

contingency plan and emergency procedure requirements. See e.g., 40 C.F.R. Part 264, 

Subparts B-D, G-H. Further, facilities obtaining RCRA permits for CCB land disposal units 

would be subject to RCRA facility-wide corrective action, which would require 

environmental assessment and remediation of any solid waste management units at the 

facility, including closed units and units used to manage any solid waste. 

In addition, power plants would be classified as RCRA large quantity generators and would 

be subject to applicable generator requirements, including hazardous waste biennial reporting 

and hazardous waste manifest rules for off-site shipments (see e.g., 40 C.F.R. Part 262). 

ExcavationlDemolition ofPast CCB Beneficial Uses: Because CCBs would be 

listed hazardous waste, any active management of CCBs that have been beneficially used ­

e.g., the excavation of existing CCB structural fill projects - could constitute the generation 

of a hazardous waste. This would subject the owner/operator ofthe excavation project to 

regulation as a hazardous waste generator and would trigger hazardous waste storage 

requirements for intermediate staging operations, as well as requiring any excavated CCBs to 

be transported to a Subtitle C landfill. 

In addition, other discarded products manufactured with CCBs could be subject to hazardous 

waste regulation. For example, roofing materials removed as part of demolition projects 

would have to be characterized to evaluate if any ofthe shingle granules are comprised of 

boiler slag (a common CCB beneficial use practice). If so, the roofing material would be 

subject to applicable hazardous waste generation, storage and disposal requirements. The 

demolition ofstructures containing drywall made with FGD gypsum would present the same 

Subtitle C compliance dilemma. The demolished drywall would be characterized as a 

"discarded" material and could, based on the presence of a listed hazardous waste in the 

discarded material (i. e., FGD gypsum), be regulated as a hazardous waste. 

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Leachate ManagementlZero Discharge: Because leachate collected from CCB 

management units would be derived in part from a listed hazardous waste, the leachate would 

have to be collected, stored and disposed of as a hazardous waste pursuant to EPA's 

hazardous waste "derived from rule" (i.e., any solid waste derived from a listed waste is a 

listed hazardous waste). This would effectively mean that power plants would become "zero 

discharge" facilities for CCB contact water. 

Regulatory Barriers to Site Remediation: Designation of CCBs as a hazardous 

waste would complicate and discourage remediation of sites containing CCBs. As EPA 

knows well, the designation of any material as a hazardous waste creates significant barriers 

to entities interested in conducting site remediation. Any CCB residue remaining on 

buildings, equipment or land, or in on-site disposal units would represent a regulatory and 

financial liability that would pose significant barriers to the clean-up, sale and redevelopment 

of these sites. 

Increased Tort Exposure: While not regulatory in nature, the designation of CCBs as 

a hazardous waste will almost certainly increase the toxic tort exposure to power plants 

generating and managing CCBs. The designation of CCBs as a federal hazardous waste will 

provide "technical" evidence to toxic tort lawyers that CCBs are per se dangerous and pose a 

health threat to power plant employees. Further, FGD gypsum now used as feedstock in the 

manufacturing of drywall for installation in residential and commercial structures will be 

viewed by consumers as a product containing a hazardous waste (the same view would likely 

apply to virtually all end-use products containing CCBs used in commercial and/or residential 

settings). This will increase the exposure ofutilities to toxic tort and related product liability 

and "failure to warn" lawsuits for CCBs that are beneficially used, which in tum will create 

another disincentive for CCB beneficial uses. Utilities may not want to risk this liability and 

would choose to dispose of CCBs rather than introducing into commerce a material that could 

otherwise be beneficially used. 

Surface Impoundment Phase-Out: In addition to the above potential implications reSUlting 

from Subtitle C regulation ofCCBs, USEP A also is considering requiring a mandatory phaseout of all CCB surface impoundments, which could be included in either a Subtitle D or 

Subtitle C regulation. This would require a conversion from wet to dry handling of CCBs by 

the entire electric utility industry. Based on a ten-year phase out period, the total costs for 

this requirement alone are estimated to be in the range of $39 billion. Aunualized over 20 

years, this represents a cost of approximately $2.5 billion per year. These costs were 

calculated under a Subtitle D scenario; the costs would be substantially higher under a 

Subtitle C regulatory program. 

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