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EPA Regulates Coal Combustion Residuals as Solid Waste and Retains Exclusions for Beneficial Use

Today EPA issued a final rule regulating coal combustion residuals (CCR) as solid waste under Subtitle D of the Resource Conservation and Recovery Act (RCRA).  This ends years of speculation regarding whether EPA might decide to regulate CCR as a hazardous waste under the more onerous RCRA Subtitle C “cradle to grave” regulatory scheme.  EPA reported that it received over 450,000 comments on the proposed rule, most of which focused on which regulatory path would be followed: Subtitle C or D.  The final rule may be found here.

Though CCR is not a hazardous waste, EPA has now imposed additional regulatory controls and national criteria for existing and new CCR landfills and surface impoundments.  Lateral expansions will be subject to location, design and operating restrictions, groundwater monitoring and other requirements.   For a subset of existing unlined CCR surface impoundments, the rule may eliminate additional receipt of CCR and may require retrofitting or closing of these impoundments.  Existing CCR landfills and impoundments that cannot meet performance criteria also may need to close.

The rulemaking may pose a number of complexities for those trying to apply it.  No permits are required and states are not required to implement the new rules.  However, states and citizens have the ability to enforce the requirements.  At the same time, existing state law remains enforceable.  Substantive differences between the new requirements and state regulatory programs can be anticipated.  In its preamble to the new rule, EPA “recognizes the significant role states play in implementing these requirements” and encourages states to revise their programs to meet federal standards.      

For beneficial use of CCR (rather than disposal that takes up landfill space), the final rule retains the Bevill exclusion but adds a definition to distinguish between excluded beneficial use and regulated disposal.  The new definition of beneficial use states that the CCR must provide a functional benefit, must substitute for the use of virgin material, and meet other requirements.   This portion of the rule will be of interest to industries and governmental entities that routinely beneficially use CCR.     

© 2020 Beveridge & Diamond PC National Law Review, Volume V, Number 14


About this Author

Bryan J. Moore Environmental Permitting Attorney Beveridge & Diamond Austin, TX

Bryan helps industrial, commercial, and oil and gas industry clients navigate and resolve contested environmental permitting proceedings, compliance audits, enforcement actions, and litigation so they can construct, operate, and expand their facilities. 

Whether in the substantive area of waste, water, or air regulation, Bryan provides comprehensive representation and strategic counseling from the agency rulemaking and permitting process to the administrative hearing and, ultimately, before the court to which an appeal may be taken.  Bryan...

Pamela D. Marks Environmental Litigation Attorney Beveridge & Diamond Baltimore, MD

Pam helps her clients tackle water, waste, and historic contamination regulatory issues and litigation.

Pam offers her clients the experience and judgment from decades of environmental counseling and litigation. She currently co-leads the firm-wide Environmental Practice Group, and formerly has managed Beveridge & Diamond's Baltimore office and led the firm’s Contaminated Properties practice.

Pam focuses her practice on solid and hazardous waste management, contaminated property remediation, water discharges, chemicals regulation, and project development. She counsels clients on environmental regulatory compliance, permitting, and risk management. She also has experience litigating permitting and compliance issues as well as common law claims. She also offers experience with the overlay of bankruptcy and environmental liabilities.

Regarding contaminated properties, Pam represents clients on hazardous substance and petroleum remediation issues arising under state law, CERCLA, RCRA, and FUSRAP. She assists real estate buyers and sellers with environmental due diligence, negotiating environmental liability contractual provisions, and identifying and implementing brownfields risk management strategies. For example, she has helped her clients to assess when and how to pursue state voluntary cleanup programs, and the circumstances under which a purchaser may avail itself of a CERCLA defense for innocent landowners.

Pam's clients have included governmental entities and businesses in the chemical, power generation, manufacturing, land development, biosolids, solid waste treatment, petroleum, retail, and beverage industries, as well as individuals and non-profit organizations.

Before joining B&D, Pam served as a Maryland Assistant Attorney General representing the Maryland Department of the Environment, where in 1997 she received the Attorney General's Exceptional Service Award. She also served as a law clerk for the Honorable Joseph H. Young of the United States District Court for the District of Maryland.

Pam is a former Chair of the Maryland State Bar Association Environmental Law Section Council and former President of the Women's Law Center of Maryland. She has also served on other nonprofit boards.