1. Coal Combustion Products and Electronic Waste Sean M. Sullivan Williams Mullen 301 Fayetteville Street, Suite 1700 Raleigh, NC 27601 (919) 981-4312 ssullivan@williamsmullen.com

2. Coal Combustion Products Four classes of byproducts resulting from burning coal. –Fly ash –Bottom ash –Boiler slag –Flue Gas Desulfurization Material

3. Coal Combustion Products Two Basic Handling Methods –Wet ash – ash is mixed with water and accumulated in surface impoundments. –Dry ash – ash is handled in dry form and transported for reuse or disposal. Chemical content – Varies but typically includes: Arsenic, Barium, Cadmium, Chromium (6), Lead, Mercury, Selenium and Vanadium.

4. Coal Combustion Products Environmental Risks from Disposal –Groundwater contamination. –Direct human exposure. –Catastrophic failure of surface impoundments. Alternative is beneficial reuse. –Different forms of reuse have different environmental risks.

5. Coal Combustion Products Current Regulatory Framework –Federal Section 3001(b) of RCRA authorizes EPA to list certain wastes as hazardous wastes. Section 3001(b)(3) required EPA to study coal ash before listing it as a hazardous waste. EPA has already done two studies and twice decided not to list coal ash (1993 & 2000).

6. Coal Combustion Products Current Regulatory Framework –Federal Thus, coal ash is currently regulated as solid waste, primarily by the states. Several petitions to list it as hazardous waste are pending with EPA. –North Carolina DWM, DWQ and Land Management all have some jurisdiction over coal ash.

7. Coal Combustion Products Current Regulatory Framework –North Carolina DWM – Notification and self- implementing requirements for disposal. DWQ – Land application of coal ash from wastewater treatment plants. DLM – Enforcement of dam safety rules for surface impoundments.

8. Coal Combustion Products EPA’s Proposal –Two options for regulating coal ash that is destined for disposal. “Special waste” within the hazardous waste program. Enhanced regulations for coal ash disposal sites in the solid waste rules. –Beneficial reuse – ash that will be reused will not be regulated as waste at all.

9. Coal Combustion Products EPA’s Proposal –Beneficial Reuse Preamble clarifies EPA’s understanding of “beneficial reuse.” Use of large quantities of coal ash as fill is not beneficial reuse, it is land disposal. Similar to notion of recycling hazardous waste as a substitute for raw ingredient. –Chemical content must have benefit.

10. Coal Combustion Products EPA Proposal –Beneficial Reuse Because reused materials are not wastes, reuses can continue without regulation. Incorporation into concrete and drywall can continue. Some reuses common in NC may be regulated as disposal. –Large scale fill, traction agent.

11. Coal Combustion Products EPA Proposal –Regulation as a Special Waste Section 3004(x) allows EPA to alter general subpart C rules for coal ash, hence it is a “special waste.” Ban on new surface impoundments. –EPA studies suggest wet ash disposal poses greater risk. –Done through a land disposal restriction on coal ash wastewaters (effective five years after rule is final). –EPA alters definition of wastewaters for coal ash to state if there is more water than ash, it is wastewater. –All solids must be removed and water must meet Universal Treatment Standards.

12. Coal Combustion Products EPA Proposal –Regulation as a Special Waste Existing Surface Impoundments –Dam safety inspections. –Visual inspections every seven days. –Groundwater monitoring. –Must retrofit liners within five years. –Must close existing surface impoundments within seven years.

13. Coal Combustion Products EPA Proposal –Regulation as a Special Waste Net Effect on Surface Impoundments –Existing ponds must cease operation within five years unless they have a liner. –New wastewater LDR prohibits use of all ponds after five years anyway. –So, no one will build a new one and no one will bother with retrofitting a liner on existing ones.

14. Coal Combustion Products EPA Proposal –Regulation as a Special Waste New Landfills –Synthetic liners with leachate collection. –Groundwater monitoring. –TSD Permits. Existing Landfills –Not required to retrofit liners and leachate collection. –Groundwater monitoring. –Expansion triggers new facility standards.

15. Coal Combustion Products EPA Proposal –Regulation as a Special Waste Implementation –Facilities that store newly generated ash or actively manage previously stored ash must get interim status as TSD. –Ultimately must get permits. –Closure, post-closure and financial assurance will apply.

16. Coal Combustion Products EPA Proposal –Regulation as a Special Waste Implementation –Every generator would likely become LQG and subject to 90 day accumulation requirements. »Storage must be in containers, tanks or containment buildings once generated. »Fees. –Transporter rules apply.

17. Coal Combustion Products EPA Proposal –Forced phase-out of surface impoundments. Chosen approach is dry ash disposal in lined, permitted landfills. –LDR for dry ash becomes applicable six months after rules are final. Dry ash must meet Universal Treatment Standards prior to land disposal. Short time frame because EPA expects dry ash will meet standards without treatment.

18. Coal Combustion Products EPA Proposal –Regulation as a Special Waste EPA expects most power plants will need to obtain interim status and permits for existing surface impoundments. Corrective action requirements may apply at a number of sites. Question about stigma of coal ash in beneficial use context.

19. Coal Combustion Products EPA Proposal –Regulation as a Solid Waste Technical standards for landfills are similar to requirements in the Special Waste model. Major difference is that surface impoundments are not banned. –EPA lacks authority to impose land disposal restrictions for solid waste. –Existing ponds must comply with a performance standard, retrofit a liner and leachate collection system or close within five years. –New ponds must meet standard immediately.

20. Coal Combustion Products EPA Proposal –Regulation as a Solid Waste States and local governments are the primary regulatory authorities. EPA has limited authority to regulate solid waste or to oversee state solid waste programs. Groundwater monitoring and corrective action requirements would apply based on state rule requirements.

21. Coal Combustion Products EPA Proposal –Regulation as a Solid Waste Multiple references in the preamble to EPA concerns about limited state resources, sufficiency of oversight and uniformity. NC as an Example –DWM’s regulations allow large-scale use of coal ash as fill material with 30-day notice to state and compliance with self-implementing design criteria. No ongoing monitoring. »Sierra Club report criticizes DWM oversight. –Tougher regulations from DWQ for coal ash removed from ash ponds (regulated as treatment sludge). »Limited applicability.

22. Coal Combustion Products North Carolina commented in favor of the solid waste approach but asked for additional guidance regarding beneficial use. Hard to imagine EPA promulgating rules that it cannot enforce. EPA has asked for data about the stigma associated with the special waste approach.

23. Coal Combustion Products The big issue seems to be surface impoundments. –EPA believes wet ash management is far riskier than dry ash management. –The only way for EPA to ban wet ash management is through the special waste approach. Electricity rates probably aren’t going down any time soon.

24. Electronic Wastes Computers, cell phones, televisions, etc. Commonly contain – Nickel, Cadmium, Lead and Mercury. EPA believes MSWLFs provide sufficient protection to environment, but wants to encourage recycling. Twenty states (including NC) have e-waste recycling laws. –California regulates certain e-wastes as hazardous waste. North Carolina does not.

25. Electronic Wastes EPA has developed a Responsible Recycler (“R2”) certification program. –Goal is to create standard practices that minimize environmental impact of reclaiming and recycling hazardous substances from e-waste. –Helps public identify reliable vendors.

26. Electronic Waste North Carolina E-Waste Recycling Law –NCGS § 130A-309.130, et seq. –Ban on disposal of discarded computer equipment or televisions in solid waste landfills (effective July 1, 2011). Only applies to materials discarded by consumers. –Residences or non-profits with fewer than 10 employees.

27. Electronic Waste Recycling Obligations of Manufacturers –Register with the state and pay fees. –Take responsibility for recycling of products sold in NC. –Annual report of recycling data to state. –Computer Equipment Three types of recycling plans, which vary based on the number of collection stations the manufacturer provides. –Options include mail-ins, collection stations and collection events. –Fees vary based on type of plan. Manufacturers can establish joint collection stations.

28. Electronic Waste Recycling Obligations of Manufacturers –Televisions Must annually recycle or arrange for recycling of manufacturer’s “market share of televisions.” –Calculated based on sales data. Manufacturers can satisfy requirements jointly.

29. Electronic Waste Obligations of Retailers –Ensure all computer equipment and televisions are labeled with manufacturer’s name. –Ensure manufacturer has registered with DENR. Names of registered manufacturers posted on DENR’s website.

30. Electronic Waste Use of Fees Paid by Manufacturers –Paid into state Electronics Management Fund. –DENR may use all television fees and 10% of computer equipment fees to operate the program. –Remaining funds are paid to local governments for management of e- waste.

31. Electronic Waste Local Government Eligibility to Receive Fees –Only one governmental entity per county can receive funds – multiple governments can enter into agreements. –Amend solid waste management plan to address e-waste. –After January 1, 2013 – contract with recycler certified under EPA’s R2 program.

32. Contact Information Sean M. Sullivan Williams Mullen 301 Fayetteville Street, Suite 1700 Raleigh, NC 27601 (919) 981-4312 ssullivan@williamsmullen.com