### IMPACTS OF SUBTITLE C REGULATION OF COAL COMBUSTION BYPRODUCTS

USEPA is evaluating options for developing federal regulations for coal combustion byproducts ("CCBs"), including fly ash, bottom ash, boiler slag, andflue gas desulfurization solids (including synthetic gypsum). One option under considerationis regulating CeBs through some type ofSubtitle e regime. This would most likely involve regulating eeBs as
a listed hazardous waste (since eeBsrarely exhibit a hazardous waste characteristic). This paper identifies certain ofthe regulatory/practical implications for electric utilities associated withthe regulation ofCeBs as hazardous waste.

PotentialRegulatorylPractical Implications

Limited BeneficialUse ofCCBs: While any hazardous waste regime for eeBs would likely include an exclusion for eeBsthat are beneficially used, USEPA reportedly would limit any exclusion from hazardous waste regulation for only those eeB beneficial uses that involve the full encapsulation ofthe 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 subjectto hazardous waste regulation like any other eeBs that are disposed of. This would result in greater volumes ofeCBshaving to be managed and disposed ofpursuant to Subtitle

e hazardous waste regulation.

RCRA Compliance Dilemmas for Utility Facilities ManagingListed 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.



### DeMinimis CCBReleases: Due to the design features ofpowerplantoperations and the volume and nature ofeCBs, certain 

### de minimis volumes ofeeBs 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 ofcoal, (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 ofCCBs from trucks or other conveyor systems while being transported to landfills or impoundments, (4) releases ofeeBsinthe form of fugitive dust from disposal units, and (5) eeBsleft 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 ofeeBsin the above circumstances would constitute improper hazardous waste disposal and subjectpower plantfacility owners/operators to the specter ofa perpetual state ofReRA non-compliance. Similarly, any accidental release ofeeBs 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 ofeeBsprior to loading onto atruck fordisposal orfor off-site beneficial use). Because CCBs would be a listedhazardous waste, facility owners/operators would be required underEPA's 

### "mixture rule" 

### (i. e., any solid waste mixedwith a listedhazardous wastemustbe 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 wouldremain a listed hazardous waste underEPA'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 unitinvolves a series ofupstream CCB management/storage units whose regulatory status also would pose serious compliance

concerns under a Subtitle C regime. Theseintermediatebaghouses, precipitators, scrubbers, hoppers, containers, sumps, andrelated conveyance devices would be viewed as "hazardous waste" tanks, containers or "miscellaneous units" and would be subjectto applicable hazardous waste design standards, including secondary containmentrequirements for 

### tank systems. Retrofitting this array ofexisting upstream management units to meet Subtitle C standards wouldprove impractical inmanycases and would exposepowerplant operations to serious compliance concerns.


### Disposal Capacity Shorifalls & 

### Off-SiteDisposal Concerns: A combination of factors associated withthe Subtitle C regulation ofCCBs will likely result in a shortfall inonsite CCB disposal capacity, causing more CCBs having to be shippedoff-site for disposal in commercial Subtitle C facilities.

First, ifUSEPA mandates the closure ofCCB surface impoundments 

### (see discussionbelow),

a significantportion ofexisting 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 ofmeeting

new Subtitle C performance standards. Compounding the reduction in disposal capacity is thatutilities will have greater volumes ofCCBs to dispose of. This is'because certain CCB beneficial uses willbe prohibited andthe remaining beneficial uses will likely be subject to

newregulatory conditions, making these remaining options less attractive to CCB producers and end-users. Therefore, utilities will be disposing ofgreater volumes ofCCBs, as opposed
to beneficially using these materials. Itis reasonable to assume that somepowerplants would be forced to shut down temporarily, and in some cases permanently, due to the lack of economically viable CCB disposal alternatives.

The combination ofabove factors will result in CCB disposal capacity shortfalls, requiring utilities to either attemptto expand existing on-site disposal capacity (assuming space is available and the facility is able to successfully complete an increasingly contentious multiyearpermitting process for what would nowbe 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 manifestrules, as well as the attendantpotential adverse impacts associated with transporting large volumes ofmaterials long distances for disposal in what

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

Itis difficultto predict at this stage the amount ofCCBsthat would have to be shipped offsite for disposal due to the resulting short-fall in on-site disposal capacity under a Subtitle C

2program. The volume, however, wouldbe significant and would likely result in CCBs becoming one ofthe largest (ifnotthe largest) categories ofRCRAhazardous waste being disposed ofin commercial Subtitle C facilities. Aside from the disposal costs associated with this option (estimated to be in the range ofbetween $250 and $450 perton), there could also be a significant short-fall in the capacity ofexisting commercial hazardous waste disposal facilities to accommodate the large volumes ofCCBs 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, notjustelectric utilities, and likely create disposal shortfalls for all generators due to the volume ofCCBs that would need to utilize the available commercial Subtitle C disposal capacity.



### RCRAPermitting 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 notbe limited to landfills and impoundments, but would likely extend to upstream units that manage CCBs priorto 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 contingencyplan and emergencyprocedure requirements. 

### See e.g., 40 C.F.R. Part 264, Subparts B-D, G-H. Further, facilities obtaining RCRApermits for CCB land disposal units would be subject to RCRA facility-wide corrective action, which wouldrequire 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 subjectto 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 of Past CCBBeneficial Uses: Because CCBs would be listed hazardous waste, any active management ofCCBs thathave beenbeneficiallyused

­ 

### e.g., the excavation ofexisting CCB structural fill projects

- could constitute the generation ofa hazardous waste. This would subjectthe owner/operator ofthe excavationproject 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 couldbe subjectto hazardous waste regulation. For example, roofing materials removed as part ofdemolition projects would have to be characterized to evaluate ifany ofthe shingle granules are comprised of boiler slag (a common CCB beneficial use practice). Ifso, the roofing material would be subjectto 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 onthe presence ofa listed hazardous waste in the discarded material (i. 

### e., FGD gypsum), beregulated as a hazardous waste.

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### LeachateManagementlZero 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 ofas 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 powerplants would become "zero discharge" facilities for CCB contact water.


### RegulatoryBarriers to SiteRemediation: Designation ofCCBs as a hazardous waste would complicate and discourage remediation ofsites containing CCBs. As EPA knows well, the designation ofany material as a hazardous waste creates significant barriers to entities interested in conducting site remediation. Any CCB residue remaining on buildings, equipment orland, or in on-site disposal units would represent a regulatory and financial liability that would pose significantbarriers to the clean-up, sale and redevelopment ofthese sites.



### Increased TortExposure: While not regulatory in nature, the designation ofCCBs as
a hazardous waste will almost certainly increase the toxic tortexposure to powerplants generating and managing CCBs. The designation ofCCBs 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 powerplant employees. Further, FGD gypsum nowused as feedstock inthe manufacturing ofdrywall for installation in residential and commercial structures will be viewed by consumers as a product containing a hazardous waste (the same viewwould 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 intumwill create another disincentive for CCB beneficial uses. Utilities may not want to risk this liability and would choose to dispose ofCCBs rather than introducing into commerce a material that could otherwisebebeneficiallyused.

SurfaceImpoundmentPhase-Out: In addition to the above potential implications reSUlting from Subtitle C regulation ofCCBs, USEPA also is considering requiring a mandatory phaseout ofall CCB surface impoundments, which could be included in either a Subtitle D or Subtitle C regulation. This would require a conversionfrom wet to dry handling ofCCBs by the entire electric utility industry. Based on a ten-year phase outperiod, the total costs for this requirement alone are estimated to be inthe range of$39 billion. Aunualized over 20 years, this represents a cost ofapproximately $2.5 billionperyear. These costs were calculatedunder a Subtitle D scenario; the costs would be substantially higher under a Subtitle C regulatory program.

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