New Requirements Governing the Beneficial Use of Coal Ash Anticipated

December 8, 2008
Client Alert Newsletter December 2009

On November 7, 2009, the Pennsylvania Environmental Quality Board ("EQB") published in the Pennsylvania Bulletin extensive proposed changes to Pennsylvania's residual waste regulations governing the beneficial use of coal ash. The proposed regulations continue to authorize the beneficial use of coal ash for various purposes but add a variety of new and expanded requirements that must be met. For example, the proposed regulations include various analytical and testing requirements for coal ash, limit locations where coal ash may be beneficially used, impose expanded coal ash certification requirements, include new performance standards for coal ash storage, impose extensive groundwater monitoring requirements at sites where coal ash is beneficially used, increase annual fees and include new performance standards for certain uses of coal ash. As such, the proposed regulations are likely to have a significant impact on those that generate coal ash as well as those that use coal ash for various purposes.

The preamble to the proposed regulations acknowledges that large amounts of coal ash has successfully been beneficially used under Pennsylvania's existing regulations. The preamble to the proposed regulations also estimates that the regulated community is saving at least $220,000,000 per year by being able to beneficially use coal ash rather than having to dispose of coal ash in landfills. The thrust of the preamble suggests that the expected increase in costs to comply with the new regulations will be more than offset by the savings resulting from being able to continue to beneficially use coal ash. Public meetings regarding the proposed regulations are scheduled to take place in early December, and are open for public comment until December 22, 2009.

At the same time that Pennsylvania is moving forward with expanding its regulatory requirements regarding the beneficial use of coal ash, the U.S. Environmental Protection Agency ("EPA") is considering whether coal ash should be regulated as a hazardous waste. On the heels of the massive coal ash release from an impoundment in Tennessee in late 2008, EPA has focused on developing new standards for managing coal ash. According to a recent U.S. Government Accountability Office report to Congress regarding the status of EPA's efforts to regulate the disposal of coal combustion residues, EPA is considering an array of options, including regulating coal ash as a hazardous waste, continuing the current regulation of coal ash as a non-hazardous waste or adopting a hybrid approach where coal ash could be considered non-hazardous in certain circumstances and hazardous under other scenarios. Many of those in the regulated community are strongly opposed to the potential regulation of coal ash as a hazardous waste based on the lack of technical justification for such a determination and the chilling effect such a determination would likely have on the ability to beneficially use coal ash. EPA is expected to unveil its proposed regulations by the end of 2009.