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CCR Webinar Transcript, August 16, 2010
Highlights
Speakers:
Betsy Devlin
Richard Benware
Betsy's Presentation
Betsy Devlin: I’ve just been told there’s a sound problem, so I’m really going to start with the basics, again. Just to let everyone know we’re doing a brief overview, a very high level overview of the major pieces of this coal proposal.
And just to start with some basics, coal combustion residuals are byproducts from the combustion of coal. They include fly ash, bottom ash, oil and slag, and flue gas desulfurization materials. These materials contain constituents of concern, such as mercury, cadmium, arsenic, and these may leach into the groundwater or be discharged into the surface water when they’re not properly managed.
And why are we concerned about it? Well, in 2008 more than 136 million tons of CCRs were generated, and that makes it one of our largest waste streams. And it’s quite important, therefore, that it be managed properly.
And just so you know in 2008 about 34% or 46 million tons of that were land filled, 22% or 29 million tons were disposed of in surface impoundments. Nearly 37%, however, were beneficially used. Nearly 8% was placed in mines, and so obviously that shows you we have just a very large waste stream.
Again, and where we dispose of this, 75% of our surface impoundments are greater than 25 years old, with 10% greater than 50 years old. And we have approximately 300 landfills and 584 surface impoundments in use at approximately 495 coal-fired plants around the country.
So this shows we have a great number of units, and a number of them are old. So, obviously, again we’re concerned because it’s a very large waste stream, a large number of units managing this waste stream, and a bit of an aging infrastructure.
Okay, so what did we do? On June 21st EPA proposed two approaches for regulating the disposable CCRs under the Resource Conservation Recovery Act, or RCRA. We proposed a Subtitle C approach and a Subtitle D approach.
And our proposal covers those CCRs generated from the combustion of coal at electric utilities and independent power producers. And this is a very specific [NACs] code. And, as you will note, it does not cover coal-fired plants that are used captively by industries or universities. And basically what that means is if a university has a power plant we’re not covering it in this proposal.
Also under our proposal the engineering requirements in both options, like miners groundwater monitoring are very similar. The differences in our proposal are primarily in enforcement and implementation, and we’ll be getting into that in a little bit more detail in a few minutes.
Another key point is that the Bevill exemption remains in place for beneficial uses of CCRs, and what that means is we are not in this proposal proposing to regulate beneficial use. Another exclusion is mine filling, and mine filling is the placement of coal ash in mines, usually to stabilize them, is not covered by this proposal.
Now, having given you a really broad overview of sort of the basics, I want to give you a brief summary of the proposal, the major elements of the proposal under Subtitle C and Subtitle D. However, before I do this I want to mention that the first part of our preamble gives a fairly detailed discussion of a 2000 regulatory determination where the Agency had determined that co-combustion residuals going to beneficial use to not be regulated, but CCRs going for disposal should be regulated under Subtitle D.
And we talk about how we are relooking at that determination based on some new information, and we’re requesting comment on a lot of our new information and the analyses that go with it. And while I’m not going to go into that in this webinar I want to point that out to you and ask that you read it. It is important to read and understand that, to fully understand the rule.
Okay, when we look at the requirements under Subtitle C the first thing is that CCR is being disposed would be listed as “a special waste subject to Subtitle C,” and we would give them the number SW01. This means these would be subject to existing Subtitle C requirements, for example, the generator, transporter, permitting, groundwater monitoring, corrective action, financial assurance, and disposal restrictions, or LDRs, and treatment standards would apply.
We have modified a couple of the requirements using authorities under RCRA, and we would have a single composite liner for a liner requirement, and we would allow five years for surface impoundments to comply with the requirements, and there would be no requirement for [dredging].
We would have structural stability requirements for surface impoundments. These are primarily inspection and engineering requirements. Existing landfills would have to install groundwater monitoring within a year of the effective date of the rule, but they would not need to install composite liners.
New landfills or lateral expansions of existing landfills would have to install composite liners and groundwater monitoring before that landfill begins operation. And surface impoundments would have to meet LDRs and liner requirements within five years of the effective date or close within an additional two years.
And essentially the LDR and the liner requirements would have the practical affect of phasing out surface impoundments. So basically when you look at the Subtitle C proposal it’s basically Subtitle C for these wastes.
Under Subtitle D, this is our co-proposed Subtitle D option, the CCRs going for disposal would remain classified as a nonhazardous waste. We would have national minimum criteria governing facilities disposing of CCRs, and these facilities would have to comply with these criteria. They are mandatory criteria.
Many of the engineering requirements under Subtitle D are very similar to the Subtitle C option. There’s groundwater monitoring. There are liner and structural stability requirements. But the requirements are self-implementing. Basically, there’s no requirement for a permit program.
However, the owner, operator under this option would be required to basically obtain certifications by independent professional engineers, and there would be minimum qualification requirements for those who make the certifications. They would have to document how these various standards are being met. And this documentation would have to be kept in an operating record, and the state would have to be notified.
And they would have to maintain a website available to the public that contains the documentation of how the standards are met. And we’re having the facilities do this under this just so that we have good records of how they’re complying with the requirements.
Now, in this chart I’m going to try to spend some time on the differences between the Subtitle C and the Subtitle D option. And, again, as we go through this you‘ll see that the differences are primarily in enforcement and implementation. And these are the areas on which we are taking or have asked for a great deal of comment.
First, the effective date of the rule. Under Subtitle C the effective date really varies from state to state, as each state is going to have to adopt the rule individually as an amendment to an authorized program. And this can take a year or two for states to do this. So it could be quite a long time before the rule is effective under Subtitle C.
Under Subtitle D we would make the rule effective six months after promulgation from those provisions. However, there may be a longer time for the facility to comply, but the rule would be in effect six months after promulgation.
Under Subtitle C we have state and Federal enforcement. The Federal Government can use its enforcement authorities, the states also. Under Subtitle D the Federal Government doesn’t enforce those requirements. The enforcement would be through citizen states, states can always act as citizens. The Federal Government would maintain authority for imminent substantial endangerment cases, but not for imposing the requirements directly.
For corrective action, there’s corrective action under both Subtitle C and Subtitle D, but under Subtitle C corrective action is monitored by the authorized states and EPA, whereas under Subtitle D corrective action is self-implementing.
For financial assurance, we have financial assurance under Subtitle C, and under subtitle D we would have to consider subsequent rule, and we would probably use authority under (inaudible) 108B, but under – for permit issuance, again under Subtitle C there would be a Federal requirement for permits issued by the states or IEPA, where we want a RCRA program. But under Subtitle D there’s no requirement for a permit.
Requirements for storage including containers, tanks, containment buildings, Subtitle C, yes, there are – generator has a lot of storage requirements. Under Subtitle D, no, under D the rules apply to the disposal unit only, so it doesn’t apply to the other units of a facility.
For surface impoundments that are built before the rule was finalized, under Subtitle C you have to remove the silos to meet the land disposal restrictions, retrofit with the liner within five years of the effective date, and we believe this would effectively phase-out the use of existing surface impoundments. Under Subtitle D they have to remove the silos and retrofit with a composite liner or cease receiving the CCRs within five years of the effective date and close the unit.
For surface environments, again, both after the rule is finalized, under Subtitle C again they’d have to meet land disposal restriction, the liner requirements, but again we believe that the combination of these requirements effectively will phase out surface impoundments. And Subtitle D they would have to install composite liners but there are no land disposal restrictions for Subtitle D.
Landfills built before the rule is finalized, again, they do not have to retrofit, under Subtitle C there’s no retrofit, and they don’t have to have liners, but they do require groundwater monitoring. And the same is true under Subtitle D.
For landfills built after the rule is finalized, again, under Subtitle C, and under both Subtitle C and D we have liner requirements and groundwater monitoring. Requirements for closure and post-closure care, Subtitle C, yes, we have it. It’s monitored by the states and EPA, and under Subtitle D you have the requirements but they’re self-implementing.
We do discuss some other regulatory options in the preamble, a so-called D Prime option, under that option existing surface impoundments are allowed to operate until the end of their useful life, and the other requirements are the same as the D proposal.
We also looked at an option where we would handle [wet handled] CCRs would be regulated under Subtitle C, [dry handled] under Subtitle D. Another option would be to issue Subtitle C regulations, but those would be effective only where a state does not develop enforceable deregulations and submit them to EPA for approval. And if a state failed to develop that program within two years or EPA did not approve it within another year, the Federal Subtitle C rule will be effective in that state.
We also have what we call the “[cement kill invest]” approach, where you would establish detailed management standards under Subtitle D, and if management was in egregious violation of the requirements then the CCRs would be considered special waste under Subtitle C.
And a final option we looked at is just rely on MPDS permits for structural integrity requirements, and this would be using requirements in the Clean Water Act, and that deals with discharges to surface water. So for those units, for the surface [enablements] we’ll just rely on other authorities.
Turning briefly to the costs of the regulation, we’ve estimated regulatory costs and regulatory benefits, benefits include groundwater protection, avoided cancer cases, avoided future cleanup costs, increased beneficial use, we’ve done that for the next 50 years.
And Subtitle C, if we assume that there will not be a reduction in beneficial use, we show a cost of up to $1.5 billion a year but benefits of up to $7.4 billion a year. And for Subtitle D, again, with the same assumption of no reduction in beneficial uses, the costs were up to $587 million a year with benefits of up to $3 billion a year.
It’s important to note, also, that if the full regulatory costs of Subtitle C were passed on from the utility companies to consumers our estimates indicate that electricity prices nationwide would increase by an average of eight-tenths of a percent. And for Subtitle D the potential increase was 0.2%.
Environmental justice, we did collect demographic data on minority and low income populations by zip code, and this data was compared to the demographic data surrounding the coal-fired plants. And we estimated that 256 of the 495 plants, or 52%, had surrounding low income population percentages that exceeded the state low income percentage. And we also estimated that 138 of the 495 plants, or 28%, had surrounding minority population percentages which exceeded their state minority percentages. And what this means is that there may be some environmental justice impacts. Of course, we’re taking comments on this data in the analysis.
Now, a key issue is how does our proposal address beneficial use of CCRs? And EPA supports and encourages environmental, safe and environmentally appropriate beneficial uses. And beneficial use effectively is using CCRs as ingredients or substitutes in mainly industrial products and activities.
Examples of beneficial use include cement, asphalt, and concrete, and these are what we call encapsulated uses. Under all of our regulatory options EPA is proposing to retain the Bevill exemption for beneficial use. This means we are not proposing to regulate beneficial use.
However, as we make it clear in the preamble, concerns with specific uses have been raised to EPA. There is a lot of ongoing research, and we understand that the composition of CCRs are likely changing as a result of more aggressive air pollution controls. And due to all these factors, EPA has requested comment on uses of, beneficial uses of CCR, particularly those unencapsulated uses.
Another key point that we make in the preamble is that EPA does not consider placement of CCRs in sand and gravel pits or large-scale fill operations to be beneficial use. We consider that disposal. And so if this were to occur after the rule, such things would be subject to disposal management and standards. And placement in sand and gravel pits includes filling of old quarries and gravel pits or landscaping with large quantities of CCRs. It includes sand and gravel quarries in Gambrills, Maryland where co-ash fill to sand and gravel quarries that resulted in contamination of local drinking water, wells. And I think it’s fair to say that EPA did not consider this type of use to be beneficial in our May 2000 regulatory determination, and we don’t consider it beneficial use in the current proposal.
So, in summary EPA continues to believe that properly performed beneficial use is the environmentally preferable outcome for CCRs, and we are concerned about regulatory decisions that would limit beneficial uses. And that’s why we’re not proposing to modify the existing Bevill exemption. But we do recognize there’s a disparity in the quality of state beneficial use programs and there’s uncertainty in the future characteristics of CCRs, and uncertainty about the risks associated with some beneficial uses.
So while we’re concerned about that, we also understand the potential environmental benefits of CCRs as substitutes for materials, but we are requesting comment on whether certain beneficial uses present risks to human health and the environment and sometimes should be addressed differently in the final rules, an area where we are again are requesting a lot of comment and a lot of data.
Now, I said I would spend some time talking about the areas on which we are seeking comment. We are seeking comment in three main areas. We’re seeking comment on the regulatory options, the C versus D, and the other ones that I mentioned, all affects of beneficial use and, of course, on our supporting data and analyses. And the analyses include our economics, our risk, our damage cases, et cetera.
So when we say we’re seeking comment on all aspects of our proposed Subtitle C versus Subtitle D. Also, the specific elements of each alternative, you know, composite liners, monitoring, should we have additional flexibilities, structural stability requirements. Again, the specific elements, we’re looking for comment there. And, again, we are also looking for comment on other regulatory approaches, alternatives, either ones that we mentioned in the preamble or ones that we haven’t.
On beneficial uses, we are seeking information on new beneficial uses of CCRs that are coming into the marketplace. We also are looking for comment or data on incentives that EPA could provide that would increase the amount of CCRs that are beneficially reused. Again, with such a very large waste stream we know that it takes up landfill space and disposal capacity, so we also want to increase the amount that are beneficially used.
And we’re seeking information and data on the best means for estimating future quantities and changes in the beneficial use of CCRs, and information and data on beneficial uses that may present a risk to human health and the environment.
One of the key issues that’s been raised to us or an allegation is that a stigma, and the idea is that if we were to regulate the disposal of CCRs under Subtitle C there would be a stigma associated with those materials and, therefore, the beneficial uses would decline.
And so we request comment and data on this, so if EPA were to regulate CCRs of the special waste subject to Subtitle C and stigma turns out to be an issue, what could EPA do that could reduce any stigmatic impact that might arise. And we’re seeking concrete data on actual instances where stigma has adversely affected beneficial use of CCRs, and if known the causes of these adverse affects.
And we ask for specific information on how stigma could cause procedural difficulties for state beneficial use programs and measures EPA might adopt to mitigate these effects. And for those that believe that regulating CCRs under Subtitle C would raise liability issues we ask that folks describe the types of liability and the basis or the data or the information on which the claims are made. And ideas on how to best estimate stigma affects for the purposes of conducting our regulatory impact analyses and provide data or methods to assist EPA in this effort.
Now, again, we are seeking comment on our supporting analyses. On the extent of existing damage cases, we have a good discussion of those in the preamble, but we seek comment on are there others, we seek comment on the extent of risks posed by the mismanagement of CCRs, seek comments on the adequacy of existing state programs to ensure proper management of CCRs. And we seek details on states are currently regulating CCRs. And, again, a comment on our risk and our economic analyses.
If you wish to comment, our official comment period on this regulation ends on November 19th, 2010, and you can make comment on the web. Again, the website is there. Or you may e-mail it to the RCRA docket. You can see that e-mail address there. Or fax it. We ask that if by mail you have to include two copies, and again the address is there. I’m not going to read it to everybody, it’s there.
For public hearings, we’ve already held seven public hearings on this rule, and we will be holding our eighth and final hearing in Knoxville, Tennessee on Wednesday, October 27th, 2010. And registration for this hearing is still open, and so to preregister and guarantee a three-minute slot to speak we ask that you visit our website. Again, it’s there. And sign-up to speak.
We also, as we have at all our public hearings, we will accept written comments at the hearings, and if you provide us written comments we can put them in the docket and they are considered the same as if you had testified at the hearing.
Now, if you have particular questions on this we ask that you type your questions into our question feature, and we will answer as many questions as we can before our 2:30 ending time.
And then just to reference for you, frequent questions people ask on this proposal are available on our website, so that’s a good source of information.
And to let everybody know, this presentation and a transcript from this will be available on the web when this over, so you’ll be able to look at this again.
And, with that, we’re done with the formal presentation, and I think we’re going to take a quick break just to sort of organize the questions, and we will get back to you shortly.
Question for Richard
Richard Benware:Hello, this is Richard Benware. I’m a Risk Assessor at EPA, and here to answer a couple questions that have come-up about the risk of CCRs.
The first of those questions we have from [Celine] was – oh, no, that’s not the right one. From Robert, why did EPA choose to treat all types of CCRs as equally hazardous under the Subtitle C proposal? For example, fly ashes pose more toxic risk than bottom ash, but both will be listed as hazardous waste.
The reason that EPA treated them both the same is that sometimes these waste streams are managed together and in the same liner filled surface, and at the time the EPA conducted its risk assessment the data we had on hand was often for co-managed waste streams, so you’d have fly ashes and bottom ashes together in the same disposal unit. And so that’s why EPA is proposing to treat them the same. However, we do solicit comment, and if people have data that shows significant differences between the two we’ll certainly consider it in the comment period.
The second question about risks, would geo clay liner meet the liner requirements for Subtitle C or Subtitle D? The answer to that question is that it wouldn’t. Under Subtitle C and Subtitle D proposed rule, EPA, in fact, requires a composite liner, which has both a synthetic liner and compacted clay liner. And so a single geo clear liner would not meet that requirement because it’s not a performance standard.
This one, we’re going to take another break and come back with some more answers.
Questions for Betsy
Betsy Devlin:Okay, good afternoon. This is Betsy Devlin, again, and I want to answer a couple of questions. We have one question asking us why this rule was not effective immediately under a Subtitle C rule?
This rule is not a [Hizla] requirement, it’s an amendment to the regular base program, therefore, that means it is not effective until the states adopt it. So that – I’m sorry I didn’t explain that more clearly earlier.
There was another question asking us to compare financial assurance under Subtitle C and Subtitle D? We have not proposed anything under subtitle D, so we can’t really compare the two. Under Subtitle C the financial assurance requirements would be those requirements that are already in the regulations. And I believe they’re in Subpart H, but I would have to check. They are those requirements that apply to hazardous waste treatment and storage disposal facilities, and those are the ones that are already in the regulation, and so those would be the financial assurance requirements we were talking about under Subtitle C.
We did have also a question about CCR disposal in mines or mine filling. Those rules, as we explain in the preamble, the lead for those rules is the Department of Interior, Office of Surface Mining and Enforcement. I think they’ve recently changed their name, but it’s basically the Office of Surface Mining.
EPA is working closely with the Office of the Surface Mining on those rules, and we don’t really have a schedule for when those are going to come out yet. Again, we do have a discussion in the preamble about why we’re waiting on the mine fill issue.
And we also had a question on how EPA would define beneficial use? And in our preamble we have a discussion of that as to what constitutes beneficial use. And we came up with several criteria.
For beneficial use the material must provide a functional benefit, which means so for example CCR is in concrete, increase the durability of concrete so that as providing the functional benefit. The material would substitute for the use of a virgin material thus conserving natural resources that would otherwise need to be obtained through extraction. So, for example, the use of FGD gypsum in the manufacturer wallboard or drywall, that decreases the need to mine natural gypsum. So again, therefore, you’re conserving natural resources.
And the third criteria, where relevant product specifications or regulatory standards are available the materials must meet those specifications. So, and we have a little bit more discussion of that, but that’s what we generally mean by beneficial use.
And you’ll find a pretty extensive discussion of that if you actually in the proposal, beginning on page 35162 of the preamble, the section entitled “what constitutes beneficial use.” And it’s a pretty good discussion of that at that point.
So those were three questions. I had seen a number of questions asking again for the websites, the docket websites and where this was going to be found. I think we’ve replied to those but, again, you’ll find everything, just simply remembering going to epa.gov/wastemanual and you’ll find this entire rule and everything will be there.
Okay, we’re going to take another break to organize the questions.
More Questions for Richard
Richard Benware: I should answer the question? Okay. This is Richard Benware, again. We have a couple questions. One came in about tribal, tribal lands. Some said that they understood that there were some [comp plants] located in your tribal lands, and so I’m going to read a section of the Federal Register notice where we address this.
“Three of the 495 plants are located on tribal lands but are not owned by tribal governments. One Navajo generation station in Coconino County, Arizona, which is owned by Salt River Project. The second is Bonanza Power Plant, which is in Utah and owned by the Desert Generation & Transmission Cooperative. And third the Four Corners Power Plant in San Juan County, New Mexico is owned by the Arizona Public Service Company.”
Another question that came up is why we use demographic data around the power plants as opposed to around the disposal sites? The reason that we did that is that we were only examining onsite disposal, which is what the regulation applies to, and the onsite disposal units were collocated with the power plants, and so using EPA’s existing GIS data we were able to locate each of these facilities in the populations within one mile of them. And so these were the populations that we considered to be affected by the rule, and that we used in our population risk assessment.
We’re going to take another break here, and reorganize a few more questions to answer.
More Questions for Betsy and Closing
Betsy Devlin: Okay, we’re back again. And this is Betsy Devlin, trying to answer a couple additional – a few additional questions. We had a question on fly ash for acid mine water, and we believe that that would be covered under the mine filling rule. It’s not covered under our rule right now. So that answers that question.
We had another question asking would, instead of a single composite liner would two liners be adequate? Well, a double liner system would be of course adequate. It is more stringent than what we are requiring under this rule. Instead of double liners we – our risk assessment showed that single composite liner would be sufficient so we did not require double liners. So it would be adequate, again, it’s more stringent.
We also had a question on if beneficial use decreases and, therefore, we need to dispose of additional quantities of CCRs, where are they going to be disposed in a limited capacity in the United States? That is, of course, an issue.
One of the things that we discussed in the preamble is that we would anticipate that landfills, for example, that receive CCRs right now would be eligible for what we call interim status under our [VIC rules] and it would basically be – to file the required paperwork and they would be permitted as a Subtitle C landfill.
There’s a bit of a permitting process that is basically, what would have to happen is we would have to permit additional capacity in order to deal with disposal issues if, in fact, we need additional capacity. But, of course, we would have to go through that permitting process even if we didn’t need additional capacity because if we did a C regulation, any landfill that is receiving CCRs would have to have the Subtitle C permit. And so we would have to do that.
At the moment, I – we don’t seem to have additional questions from folks. We do hope that this was very useful to you. Again, the comment period on this proposal goes until November 19th. And, again, if you wish to get more information you can go to our website at www.epa.gov/coalashrule. Again, these slides will be up on our website this afternoon, and a transcript of the webinar will be available, as well. And, again, we thank you for your participation, and hope this was useful to you. Thank you very much.