Gary J. Pendergrass, PE, RG Midwest Environmental Compliance Conference May 13, 2015 | Overland Park, Kansas USEPA Coal Combustion Residuals Rule: Impact on Utilities and CCP

Rule Chronology The proposed rule was published in the Federal Register on June 21, Two regulatory options were proposed – regulate CCR as non- hazardous (subtitle D) or as a special waste (subtitle C). The agency received over 450,000 comments, conducted 8 public hearings, and published 3 Notices of Data Availability (NODAs). USEPA finalized the rule under subtitle D. On December 19, 2014, USEPA Administrator, Gina McCarthy signed the final CCR rule. On April 17, 2015, the Final Rule was published in the Federal Register.

Rule Overview The rule establishes nationally applicable minimum criteria for disposal of CCR in landfills and surface impoundments. CCR includes fly ash, bottom ash, boiler slag, and flue gas desulfurization (FGD) materials. EPA deferred a final Bevill Regulatory Determination, and reaffirmed that CCR going for beneficial use (BU) remain Bevill exempt. The rule provides a definition of beneficial use to clarify the distinction between BU and disposal.

Regulation of CCR under Subtitle D Rule establishes national minimum criteria for disposal of CCR in landfills and surface impoundments. Provides comprehensive regulatory program to address risks posed by: ─Groundwater Contamination ─Structural failures of CCR impoundments ─Fugitive dust emissions CCR units posing an unacceptable risk must retrofit or close. Unacceptable risks are: ─CCR surface impoundments failing to achieve or determine “factors of safety” must close. ─Improperly sited CCR landfills or surface impoundments (including inability to make required engineering demonstrations) must close. ─Leaking unlined surface impoundments must retrofit to a composite liner or close.

Regulation of CCR under Subtitle D Rule is “self-implementing” EPA cannot enforce the CCR regulations Facilities must comply with requirements without regulatory oversight States are encouraged, but not required, to adopt or implement the regulations or develop a permit program. EPA can still use RCRA Section 7003 to address “imminent and substantial endangerment” The rule requires owner/operator to develop a publicly accessible website, post compliance information, and notify State Directors of actions taken to comply with the requirements. The rule requires a qualified Professional Engineer (PE) to certify that the technical requirements of the rule are being met.

Timeframes for Compliance The rule becomes effective six months after publication in the FR (October 2015). New CCR landfills, new CCR surface impoundments, and all lateral expansions must meet the technical criteria before any CCR is placed in the unit. Existing CCR surface impoundments and existing CCR landfills are subject to timeframes established for individual technical criteria. Timeframes are designed so the O/O will not have to make decisions about CCR units without full knowledge of other requirements. ─Effluent Limitations Guidelines and Standards (ELG Rule). ─Carbon Pollution Emission Guidelines (Clean Power Plan).

Key Technical Components of the Final Rule Applicability Definitions Location Restrictions Design Standards ─Liners ─Structural Integrity Operating Standards ─Fugitive Dust Controls ─Run-on/run-off for Landfills ─Hydrologic/Hydraulic Capacity Requirements for Surface Impoundments ─Inspections for Surface Impoundments and Landfills

Key Technical Components of the Final Rule Groundwater Monitoring and Corrective Action Closure and Post-Closure Care Recordkeeping, Notifications and Internet Posting Beneficial Use

Location Restrictions Rule establishes 5 location restrictions: ─Placement above the uppermost aquifer ─Wetlands ─Fault areas ─Seismic impact zones ─Unstable area Units are prohibited from being sited in these areas unless specific demonstrations can be made. Demonstrations must be certified by a qualified PE. Existing surface impoundments have 42 months to complete the demonstrations.

Liners Rule requires new CCR units to have either a composite liner or alternative composite liner. Leachate collection and removal system must maintain less than 30 cm depth of leachate over liner. Existing CCR landfills, regardless of liner type, can continue to operate. Existing CCR surface impoundments may continue to operate, but must identify liner type (composite, alt. composite, 2 feet of 1 x soil) within 18 months. CCR surface impoundments that do not meet the criteria will be designated as “unlined.” Unlined CCR surface impoundments which do not meet the groundwater protection standard must retrofit or close.

Structural Integrity Surface impoundments above 5 ft./20 acre-ft. or 20 ft. ─Compile history of construction within 18 months. ─Conduct periodic structural stability assessments within 18 months. o Identify structural stability deficiencies, recommend and implement fixes. ─Conduct periodic safety factor assessments within 18 months. o Static FOS of 1.30 under end-or-construction loading o Static FOS of 1.5 under long term, maximum storage pool conditions o Static FOS of 1.4 under maximum surcharge pool loading conditions o Seismic FOS of 1.0 o Liquefaction FOS of 1.20 ─Units that fail to meet FOS must stop receiving CCR and initiate closure. ─New units must meet all structural stability requirements prior to placing CCR in unit.

Operating Standards Fugitive dust controls Run-on and Run-off Controls for CCR Landfills Hydrologic/Hydraulic Capacity Requirements for CCR Surface Impoundments Inspection Requirements for CCR Surface Impoundments Inspection Requirements for CCR Landfills

Groundwater Monitoring and Corrective Action Groundwater Monitoring ─All CCR surface impoundments, landfills and lateral expansions must install a groundwater monitoring system and conduct groundwater monitoring. ─Facilities must comply with requirements (detection monitoring and determination of background levels within two years. ─An annual report certifying compliance must be posted on the facility’s website. ─Groundwater requirements must be met throughout the active life and the closure/post closure period.

Groundwater Monitoring and Corrective Action Groundwater Monitoring ─System must consist of a sufficient number of wells, at appropriate locations and depths, to yield groundwater samples from the uppermost aquifer that accurately represent background quality and groundwater passing the waste boundary. ─Minimum of one upgradient and three downgradient wells. ─May install a multi-unit monitoring system, but PE must certify that it is equally capable of detecting monitoring constituents at the waste boundary of the CCR unit as the individual system.

Groundwater Monitoring and Corrective Action Groundwater Sampling and Analysis ─Must specify S&A procedures, test methods, and statistical procedures. Groundwater Detection Monitoring ─Must monitor semi-annually for Appendix III parameters. ─Must determine if there has been SSI increase over background. ─If SSI detected, must establish assessment monitoring within 90 days. Groundwater Assessment Monitoring ─Must analyze for both Appendix III and Appendix IV parameters and constituents, and resample within 90 days. ─Must establish Groundwater Protection Standards (GWPS) for each Appendix IV constituent. ─GWPS is MCL or background, whichever is higher. ─If any Appendix IV constituents found to have SSI above GWPS, must characterize nature and extent, install additional groundwater monitoring wells, and (within 90 days) initiate an assessment of corrective measures.

Assessment of Corrective Measures, Selection of Remedy, and Implementation of the Corrective Action Program Assessment of effectiveness of potential corrective measures. Conduct public meeting to discuss assessment prior to selection of remedy. Remedies must obtain GWPS for three consecutive years. Remedies must remove from the environment as much contaminated material as is feasible. Specify schedule for implementing and completing corrective action. Initiate remedial activities within 90 days of remedy selection. Implement interim measures as necessary.

Closure and Post-Closure

Recordkeeping, Reporting, and Publicly Accessible Internet Site

Beneficial Use Aspects of Final Rule Does not regulate beneficial use of CCR. Provides comprehensive definition of beneficial use to distinguish between beneficial use and disposal. Beneficial uses started six months after publication of the rule need to determine compliance with definition of beneficial use. Use of CCR that does not meet the definition of beneficial use is considered disposal.

Beneficial Use Aspects of Final Rule Types of beneficial uses ─Encapsulated beneficial use binds the CCR into a solid matrix (concrete aggregate). ─Unencapsulated beneficial uses do not bind the CCR into a solid matrix (flowable fill). Criteria for beneficial uses ─CCR must provide a functional benefit. ─CCR must substitute for the use of a virgin material. ─Use of CCR must meet relevant product specifications, regulatory standards, or design standards. ─When unencapsulated use of CCR involves placement on the land of 12,400 tons or more in non-roadway applications, user must demonstrate that environmental releases are comparable to those from analogous products made without CCR.