The U.S. Environmental Protection Agency (EPA) on December 19, 2014, issued a much anticipated and certain to be controversial final rule under the Resource Conservation and Recovery Act (RCRA) on the RCRA regulatory status of coal combustion residues (CCRs) from coal-fired power plants. EPA issued the final rule largely in an effort to protect communities from coal ash impoundment failures, like the Kingston, Tennessee spill in 2008. The rule establishes the first-ever federal regulations for the management of CCRs and is intended to prevent groundwater contamination and air emissions from coal ash disposal. In the final rule, however, EPA chose to regulate CCRs as non-hazardous solid waste under RCRA, opting to not regulate the large volumes of CCRs as hazardous waste.

In the wake of the failure of the coal ash pond in Kingston, EPA began a multi-year effort to help ensure the safety of the nation’s coal ash disposal facilities, including assessing more than 500 facilities across the country. According to the final rule, improperly constructed or managed coal ash disposal units have been linked to nearly 160 cases of harm to surface or ground water or to the air. Consequently, the final rule imposes the following requirements:

·   The closure of surface impoundments and landfills that fail to meet engineering and structural standards specified in the rule;

·   Requiring regular inspections of the structural safety of surface impoundments;

·   Restrictions on the location of new surface impoundments and landfills so that they cannot be built in sensitive areas such as wetlands and earthquake zones;

·   Protecting groundwater by requiring monitoring, immediate cleanup of contamination, and closure of unlined surface impoundments that are polluting groundwater;

·   Protecting communities using fugitive dust controls to reduce windblown coal ash dust; and

·   Requiring liner barriers for new units and proper closure of surface impoundments and landfills that will no longer receive CCRs.

In response to comments received on the proposal, the final rule makes a number of changes by providing greater clarity on technical requirements for coal ash landfills and surface impoundments under Subtitle D of RCRA. Implementation of these technical requirements will be reported through comprehensive and regular disclosure to states, and communities to enable them to monitor and oversee these requirements. The rule requires that power plant owners and operators provide detailed information to citizens and states to understand how their communities may be impacted. The rule sets out new transparency requirements, including recordkeeping and reporting requirements, as well as the requirement for each facility to post specific information to a publicly-accessible website. This will provide the public with information such as annual groundwater monitoring results, and corrective action reports, coal ash fugitive dust control plans, and closure completion notifications. EPA also tries to promote the responsible recycling of CCRs in the final rule. In 2012, almost 40 percent of all CCRs was recycled rather than disposed. EPA states that beneficial use of coal ash can produce positive environmental, economic and performance benefits such as reduced use of virgin resources, lower greenhouse gas emissions, reduced cost of coal ash disposal, and improved strength and durability of materials.