Federal CCB Regulations: Utility Industry’s Perspective Jim Roewer APPA E&O Conference March 30, 2010

Coal Combustion Byproducts Produced as a result of coal combustion for power generation Fly Ash Bottom Ash Boiler Slag Flue Gas Desulfurization (FGD) Materials

CCB Generation & Utilization >136 million tons CCBs produced in 2008 >60.6 million tons beneficially used (44.5% utilization) Utilization reduces land disposal, utilization of natural resources, energy consumption and GHG emissions Reduction of CO2 emissions >13 million tons

CCB Regulatory Status Subject to State Solid, Industrial or Special Waste Regulations Exempt from Regulation as RCRA Hazardous Waste

CCB Regulatory Chronology 1980 Bevill Amendment 1988 EPA Report to Congress “EPA does not intend to regulate under Subtitle C” 1993 Regulatory Determination (58 Fed Reg 42466) “regulation … as hazardous waste under RCRA Subtitle C is unwarranted.”

CCB Regulatory Chronology 1999 EPA Report to Congress – “disposal … should remain exempt from RCRA Subtitle C” 2000 Regulatory Determination (65 Fed Reg 32214) – “regulation … under Subtitle C of RCRA is not warranted.” – no additional regulations are warranted for beneficial use – “decided to establish national regulations under subtitle D of RCRA “

TVA Kingston Fossil Plant Coal Ash Spill Monday, December 22, 2008, just before 1 a.m., a dike at a coal ash containment area failed at TVA’s Kingston Fossil Plant >1 Billion gallons of ash was released into adjacent waterways and properties

Heightened Focus on Coal Ash Congressional Attention Senate EPW; House Energy & Commerce, Natural Resources, Transportation & Infrastructure EPA Inspections & Rulemaking Dam Safety Environmental Reg ulations Advocacy Environmental Groups Industry (CCB Coalition)

Federal CCB Regulations Regulatory Options Non hazardous regulations (RCRA Subtitle D) Hazardous Waste Regulations (RCRA Subtitle C) Combined Options (Mix of C & D) Proposed Rule sent to OMB October 15 Proposed Rule Published December 2009

Federal CCB Regulations Regulatory Options Non hazardous regulations (RCRA Subtitle D) Hazardous Waste Regulations (RCRA Subtitle C) Combined Options (Mix of C & D) Proposed Rule sent to OMB October 15 Proposed Rule Published January 2010

Federal CCB Regulations Regulatory Options Non hazardous regulations (RCRA Subtitle D) Hazardous Waste Regulations (RCRA Subtitle C) Combined Options (Mix of C & D) Proposed Rule sent to OMB October 15 Proposed Rule Published February 2010

Federal CCB Regulations Regulatory Options Non hazardous regulations (RCRA Subtitle D) Hazardous Waste Regulations (RCRA Subtitle C) Combined Options (Mix of C & D) Proposed Rule sent to OMB October 15 Proposed Rule Published April 2010

Federal CCB Regulations Regulatory Options Non hazardous regulations (RCRA Subtitle D) Hazardous Waste Regulations (RCRA Subtitle C) Combined Options (Mix of C & D) Proposed Rule sent to OMB October 15 Proposed Rule Published ???? 2010

Federal CCB Regulations Regulatory Options Non hazardous regulations (RCRA Subtitle D) Hazardous Waste Regulations (RCRA Subtitle C) Combined Options (Mix of C & D) Proposed Rule sent to OMB October 15 Proposed Rule Published ???? 2010 Final Rule 2011 Implementation

EPA Concerns Enforceability Permitting Wet Handling (Impoundments) Beneficial Use

Federal CCB Regulations – Location Restrictions – Operating Criteria – Design Criteria (e.g., liners) – Groundwater Monitoring – Closure – Financial Assurance – Impoundment Integrity – Restrictions on “Wet Handling” (i.e., pond closure)

Subtitle D Regulations ● Administered and Enforced by the States ● Consistent with 1993 & 2000 Regulatory Determinations ● No Stigma/Barriers to CCB Beneficial Use ● EPA Direct Enforcement May be Limited

Subtitle C Regulations ● Federal Hazardous Waste Rules Supplant State Controls ● Direct Federal Enforceability ● 2–5 Years for Rules to Become Effective ● Disposal Capacity Issues ● Adverse Impact on Beneficial Use

Impact of Subtitle C Regulation on CCB Disposal Re-permitting of Existing Facilities Corrective Action Closure of Existing Facilities Permitting of New Disposal Facilities De Minimis Releases Spill Cleanup

Impact of Subtitle C Regulation on CCB Disposal Disposal Subject to Subtitle C Regulation Qualified Beneficial Uses Exempt from Regulation Cement & Concrete, Wallboard Manufacture OK Unconfined Uses, Land Application Likely Prohibited “Qualified Uses” or “Legitimate” Recycling Assumes Hazardous Secondary Material

Impact of Subtitle C Regulation on CCB Use RCRA Compliance—Regulatory Conditions Similar to Part 261.4(a)(23) Storage to Prevent Release/Spill Response Release = Illegal Disposal? Prohibition on Speculative Accumulation Due Diligence to Ensure Safe Handling/Use Ensuring Legitimate Use & Meeting Legitimacy Criteria

Impact of Subtitle C Regulation on CCB Use Potential Environmental Liabilities Increased Tort Exposure Product Liability Concerns Product Disposal Concerns (Off-Spec Materials, end-of-life Disposal) Reduced Markets Increased CERCLA Visibility

State Environmental Regulatory Agencies ECOS ASTSWMO Arizona DEQ Arkansas DEQ Colorado DPHE Florida DEP Hawaii DLNR Illinois EPA Indiana DEM & DNR Iowa DNR Kansas DHE Kentucky AG Louisiana DEQ Maryland DE Michigan DEQ Minnesota PCA Missouri DNR Mississippi DEQ New Jersey DEP North Dakota DH Ohio EPA Oklahoma DEQ Pennsylvania DEP South Carolina DHEC South Dakota DENR Tennessee DEC Texas CEQ Virginia DEQ West Virginia DEP Wisconsin DNR

Other State Agencies State Associations NCSL Conf of Mayors Public Utility Commissions Indiana URC Louisiana PSC New Mexico PRC North Carolina PUC North Dakota PSC Ohio PUC Pennsylvania PUC State Highway/DOT American Association of State Highway and Transportation Officials (AASHTO) Arizona DOT Colorado DOT Florida DOT Indiana DOT Michigan DOT Minnesota DOT New Hampshire DOT North Carolina DOT Texas DOT Utah DOT

Other Stakeholders Chambers of Commerce US Chamber of Commerce Michigan North Carolina South Carolina Technical/Educational Organizations ACAA ACI CCB End Users American Concrete Paving Assn American Society Concrete Contractors Gypsum Assn National Ready Mix Concrete Assn National Assn of Manufacturers Labor UJAE

State Officials Governors National Governors Association Western Governors Association West Virginia Governor Manchin North Dakota Governor Hoeven State Executive Officials Missouri Lieutenant Governor Kinder Kentucky Attorney General Conway Municipal Governments Colorado Springs Grand Island, NE Hastings, NE Springfield, IL Wyandotte, MI

Congressional Letters Conrad Senate Letter (25) Bayh Senate Letter (27) Senators Burris, Casey, Kyl & Roberts House Letter (74) House Coal Caucus letter (116) Reps Bonner, Leutkemeyer, Platts, Schock, Sires, Skelton and Teague

CCB Coalition Ash Producers (Utilities and Industries), Ash Users—Individual Companies & Associations Seeking Non-hazardous Waste Regulations Seeking to Preserve and Expand CCB Beneficial Use

31 Possible Timeline for Environmental Regulatory Requirements for the Utility Industry Ozone PM 2.5 '08'09'10 '11'12'13 '14 '15 '16 '17 Beginning CAIR Phase I Seasonal NOx Cap HAPs MACT proposed rule Beginning CAIR Phase II Seasonal NOx Cap Revised Ozone NAAQS Begin CAIR Phase I Annual SO 2 Cap -- adapted from Wegman (EPA 2003) Updated Beginning CAIR Phase II Annual SO 2 & NOx Caps Next PM- 2.5 NAAQS Revision Next Ozone NAAQS Revision SO 2 Primary NAAQS SO 2 /NO 2 Secondary NAAQS NO 2 Primary NAAQS SO 2 /NO 2 New PM-2.5 NAAQS Designations CAMR & Delisting Rule vacated Hg/HAPS Final EPA Nonattainment Designations PM-2.5 SIPs due (‘06) Proposed CAIR Replacement Rule Expected HAPS MACT final rule expected CAIR Vacated HAPS MACT Compliance 3 yrs after final rule CAIR Remanded CAIR Begin CAIR Phase I Annual NOx Cap PM-2.5 SIPs due (‘97) 316(b) proposed rule expected 316(b) final rule expected 316(b) Compliance 3-4 yrs after final rule Effluent Guidelines proposed rule expected Water Effluent Guidelines Final rule expected Effluent Guidelines Compliance 3-5 yrs after final rule Begin Compliance Requirements under Final CCB Rule (ground water monitoring, double monitors, closure, dry ash conversion) Ash Proposed Rule for CCBs Management Final Rule for CCBs Mgmt Final CAIR Replacement Rule Expected Compliance with CAIR Replacement Rule CO 2 CO 2 Regulation Reconsidered Ozone NAAQS

Questions? Jim Roewer 202/