In response to environmental damage resulting from the December 2008 failure of a coal ash impoundment operated by the Tennessee Valley Authority near Knoxville, the USEPA has, for the first time, proposed rules to regulate the management and disposal of “coal combustion residuals” (CCRs) generated by many electric utilities and independent power producers. CCR includes fly ash, bottom ash, boiler slag, and flue-gas desulfurization materials produced by emissions-control systems. The proposed rules will have a major regulatory and potential economic impact in the Midwest, where most electricity is produced by coal-fired plants. Indiana will be particularly affected, as the EPA lists our state as third in the nation for generating CCRs.

The proposed regulation was published in the Federal Register on June 21, 2010, and lists two regulatory options under consideration by the U.S. EPA. The first option would regulate CCRs as a “special waste” under Subtitle C of the Resource Conservation and Recovery Act. This option would place CCRs destined for disposal in the hazardous-waste category and would subject CCRs to the cradle-to-grave provisions of Subtitle C whereby permits for treating, storing, and disposing of CCRs would be required. Dam safety and stability requirements would also apply to impoundments used for storing or disposing of CCRs.

The second option being considered by the EPA would regulate CCRs under RCRA Subtitle D. This option would not require agency permits. Instead, new CCR landfills and surface impoundments would be subject to minimum national standards enforced via state regulations and by third parties (e.g., citizen suits). Under Subtitle D, composite liners would be required for new CCR landfills and impoundments, and existing facilities would be required to be either retrofitted with liners within five years of the law’s effective date or to stop operating and close.

Both the Subtitle C and D options include provisions for groundwater monitoring, corrective action, unit closure, and post-closure monitoring. Financial assurance requirements would be in effect for the Subtitle C option. The EPA is still soliciting comments on requiring financial assurance under the Subtitle D option.

The EPA is accepting public comments on the proposed rules until September 20, 2010. In either case, these options will place the burden and costs of compliance on utilities that generate CCRs in the course of providing electricity to their customers. The additional cost will, in turn, ultimately be borne by utility customers. The electric utility industry is also concerned that the EPA’s rules will adversely influence the public’s perception of CCRs, which are now safely used for many beneficial purposes, especially in construction materials.

If you would like further information regarding the proposed regulations, please contact Jim King at or call (317) 472-0999.