Disposal of Coal Combustion Residuals

Anne Roberts Brody

The Disposal of Coal Combustion Residuals (CCRs) from Electric Utilities final rule was signed on December 19, 2014, and published in the Federal Register on April 17, 2015. The rule finalized federal regulations to provide a comprehensive set of requirements for the safe disposal of CCRs, commonly known as coal ash, from coal-fired power plants.

On July 26, 2016, the administrator of the U.S. Environmental Protection Agency (EPA) signed a direct final rule and a companion proposal to extend the compliance deadlines for certain inactive CCR surface impoundments. These revisions were in response to a partial vacatur ordered by the United States Court of Appeals for the District of Columbia Circuit on June 14, 2016. The direct final rule was published in the Federal Register on August 5, 2016, and became effective October 4, 2016.

Since 2016, there have been 52 legislative measures addressing CCRs in seven Southern states. The majority came from Virginia, with 17 pieces of legislation introduced. Meanwhile, Georgia introduced 11 pieces of legislation, North Carolina 10 and Missouri eight. Alabama, South Carolina and Texas also considered legislation related to CCRs.

In Virginia, structurally compromised surface impoundments located near the Chesapeake Bay Watershed have caused groundwater contamination. Likewise, the low-lying area is vulnerable to sea level rise and hurricanes, which could cause impoundment breaches. This legislative session, lawmakers reached an agreement (HB 2786/SB 1355) requiring the closure of specific CCR impoundments and the beneficial reuse of approximately 25 percent of CCRs in the area. The remaining 75 percent must be transferred to modern, lined landfills. The bill also limits how much utilities can charge ratepayers for the cleanup.

In 2014, a breach at a Duke Energy CCR impoundment caused approximately 39,000 tons of coal ash to be released into the Dan River in North Carolina. Following this breach, the state Department of Environment and Natural Resources created a task force to review all CCR impoundments in the state and develop procedures to prevent future environmental disasters at these facilities. House Bill 630 of 2015 requires CCR operators to provide replacement drinking water supplies to households located within a ½-mile radius of certain CCR impoundments. The bill also makes changes to the classifications of CCR impoundments and requires the processing and beneficial reuse of CCRs. Concerns about the management of CCR units recently were highlighted in the state when flooding caused by Hurricane Florence inundated two surface impoundments, leading to discharges in two rivers.

In 2018, the Missouri General Assembly approved three bills related to CCR management. As a whole, the bills give the state Department of Natural Resources the authority to promulgate rules and approve site-specific target levels for the management, closure and post-closure of CCR units in accordance with the Resource Conservation and Recovery Act and approve site-specific groundwater criteria.

Since the final rule was published, 11 pieces of legislation (eight bills and three resolutions) addressing CCR management have been introduced in Georgia, though as of March 1, 2019, none have been enacted. Two resolutions (HR 1782 of 2015 and HR 513 of 2017) called for the creation of a House Study Committee on coal ash, while HR 257 of 2019 urges Georgia Power, a wholly owned subsidiary of The Southern Company, to remove an unlined coal ash pile at a specific location and move it to a lined landfill. Other legislation has focused on providing public notification related to landfills accepting CCRs or dewatering CCR impoundments, imposing excise taxes and disposal fees on CCRs, and protecting ground and surface water.

In South Carolina, House Bill 4857 of 2015 requires CCRs at some locations to be placed in a Class 3 landfill* and directs the state Department of Health and Environmental Control to promulgate regulations on beneficial reuse. The bill contains a sunset clause of five years from the effective date. This year, House Bill 3483 seeks to extend the sunset clause.

In 2017, the Alabama Legislature approved House Resolution 94, urging the EPA to analyze the combined potential impact of its future regulations for coal-fired power plants, including regulations impacting CCRs, and to share such analysis with all states. Although Texas considered two pieces of legislation in 2017, both failed.

* A Class 3 landfill is one that accepts municipal solid waste, industrial solid waste, sewage sludge, nonhazardous municipal solid waste incinerator ash and other nonhazardous waste. These landfills are required to have a “Special Wastes Analysis and Implementation Plan” to identify and manage special wastes. These landfills are lined and must meet requirements related to location, design, operation and closing. In South Carolina, all Class 3 landfills must be approved and permitted by the state Department of Health and Environmental Control.

Coal Combusion Legislation in Southern States

Alabama – HR 94 (2017) – Adopted

A resolution concerning the combined impacts of future U.S. EPA regulations for coal-fired power plants.

Notes

Urges the U.S. EPA to analyze the combined potential impact of its future regulations for coal-fired power plants and share the analysis with state governments.

Georgia – HR 1782 (2015) – Failed

A resolution creating the House Study Committee on coal ash and for other purposes.

Notes

Creates a committee to study the conditions, needs, issues and problems of coal ash disposal.

Georgia – HB 879 (2017) – Failed

A bill to amend Article 2 of Chapter 5 of Title 12 of the Official Code of Georgia Annotated, relating to control of water pollution and surface-water use, so as to provide notice to local governing authorities prior to the dewatering of coal combustion residual surface impoundments; provide for minimum notice requirements to the public of such dewatering; provide for definitions; provide for related matters; repeal conflicting laws; and for other purposes.

Notes

Requires owner/operators to notify local government officials, as well as the public, after the commencement of dewatering of a CCR surface impoundment.

Georgia – HR 513 (2017) – Failed

A resolution creating the House Study Committee on Coal ash and for other purposes.

Notes

Creates a committee to study the conditions, needs, issues and problems of coal ash disposal.

Georgia – HB 975 (2017) – Failed

A bill to amend Article 2 of Chapter 8 of Title 12 of the Official code of Georgia Annotated, relating to solid waste management generally, so as to provide for collection of a fee by local governing authorities for the disposal of coal combustion residuals in municipal solid waste disposal facilities; amend Chapter 12 of Title 48 of the Official Code of Georgia Annotated, relating to specific, business and occupation taxes so as to provide for an excise tax on the disposal of coal combustion residuals; provide for the method for the collection of the excise tax; provide for the enforcement and implementation of the excise tax; provide for definitions; provide for related matters; repeal conflicting laws; and for other purposes.

Notes

Allows cities operating municipal solid waste disposal facilities to assess a fee of up to 25 cents per ton, or volume equivalent, for the disposal of CCRs. Requires fees assessed and collected to be paid to the state Environmental Protection Division. Establishes a state excise tax of $2.50 per ton, or volume equivalent, to be imposed on the owner/operator of any facility that produces CCRs disposed of in municipal solid waste disposal facilities in the state. Authorizes the promulgation of rules and regulations necessary for enforcement.

Georgia – HB 880 (2017) – Failed

A bill to amend Part 1 of Article 2 of Chapter 8 of Title 12 of the Official Code of Georgia Annotated, relating to general provisions relative to solid waste management, so as to provide for safe disposal of coal ash in municipal solid waste and commercial industrial solid waste landfills; provide for definitions; provide requirements for siting new or expanded landfills receiving coal combustion residuals; provide for such landfills permitted prior to July 1, 2018; provide for ground-water monitoring; provide for related matters; repeal conflicting laws; and for other purposes.

Notes

On and after July 1, 2018, any modification of an existing permit to allow for the receipt of CCRs at a landfill in which the CCRs will be comingled with other waste and the ratio of the CCRs received daily at the landfill is 1:10 or greater, shall be considered a major modification. Requires public notification for minor modifications. Requires the state Environmental Protection Division to make applications for modifications allowing for the receipt of CCRS at landfills publicly available on the division’s website. Establishes new permitting requirements to protect water quality.

Georgia – HB 387 (2017) – Failed

A bill to amend Article 2 of Chapter 8 of Title 12 of the Official Code of Georgia Annotated, relating to general provisions relative to solid waste management, so as to regulate the disposal of coal combustion residuals; require a permit or permit notification and additional requirements prior to the dewatering of surface impoundments for coal combustion residuals; require certain electric utilities and power producers to convert to dry storage of coal combustion residuals after a certain date; provide for related matters; repeal conflicting laws; and for other purposes.

Notes

Requires owner/operators of unlined existing CCR surface impoundments to stop disposing of CCRs and all other waste into said CCR surface impoundments and to initiate closure of the impoundments, consistent with federal law. The provisions do not apply to unlined existing CCR surface impoundments if a retrofit, in accordance with federal law, has been initiated. Allows for flexibility if timelines are not achievable. Establishes permits and requirements. Requires public notification of dewatering.

Georgia – SB 165 (2017) – Failed

A bill amend Article 2 of Chapter 8 of Title 12 of the Official Code of Georgia Annotated, relating to solid waste management, so as to impose liability on any producer of coal ash who disposes of such coal ash in this state in the event of a release; provide for definitions; require financial security and testing measures; provide for causes of action; provide for exceptions; provide for related matters; repeal conflicting laws; and for other purposes.

Notes

To dispose of CCRs at any disposal site, the originator must own at least $100 million in assets in the state or post a surety bond with the state Department of Natural Resources in an amount sufficient to cover any liability. Authorizes the state Environmental Protection Division to require the testing of CCRs for toxic materials determined to be hazardous to health and safety prior to disposal at any disposal site. Establishes liability.

Georgia – HB 388 (2017) – Failed

A bill to amend Part 1 of Article 2 of Chapter 8 of Title 12 of the Official Code of Georgia Annotated, relating to general provisions relative to solid waste management, so as to regulate the disposal of coal combustion residuals in landfills; require a management plan from certain landfills prior to receiving or continuing to receive coal combustion residuals; provide for requirements and duties under such plans; provide for related matters; repeal conflicting laws; and for other purposes.

Notes

Requires a CCR management plan to be submitted to the state Environmental Protection Division for any landfill that disposes of CCRs or uses CCRs as daily cover. Directs the division to consider whether the modifications proposed would impact the facility’s ability to adequately protect human and environmental health. Establishes standards and requirements for CCR management plans.

Georgia – HR 257 (2019) – Introduced; referred to committee

A resolution urging Georgia Power to remove the unlined coal ash pile at the McDonough-Atkinson Power Plant and place the coal ash in a lined landfill; and for other purposes.

Notes

Urges Georgia Power to remove the unlined coal ash pile at the McDonough-Atkinson Power Plant and place the coal ash in a lined landfill. Directs the clerk of the House of Representatives to distribute the resolution to the state Department of Natural Resources, Environmental Protection Division and the U.S. EPA.

Georgia – HB 94 (2019) – Introduced; referred to committee

A bill to amend Part 1 of Article 2 of Chapter 8 of Title 12 of the Official Code of Georgia Annotated, relating to general provisions relative to solid waste management, so as to provide for safe disposal of coal ash in municipal solid waste and commercial industrial solid waste landfills; provide for definitions; provide requirements for siting new or expanded landfill receiving coal combustion residuals; provide for such landfills permitted prior to July 1, 2019; provide for ground-water detection monitoring; provide for related matters; repeal conflicting laws; and for other purposes.

Notes

Requires landfill owner/operators to provide public notification when seeking modifications to permits in order to allow for the receipt of CCRs at a given landfill and establishes a timeline for notification. Restricts landfills located in specific proximities to aquifers from receiving CCRs under certain circumstances. Requires semi-annual groundwater monitoring of certain landfills receiving CCRs.

Georgia – HB 93 (2019) – Introduced; approved by committee

Notes

Requires owner/operators to notify local government officials, as well as the public, after the commencement of dewatering of a CCR surface impoundment.

Missouri – HB 1162 (2017) – Failed

An act to repeal section 260.370 of the Revised Statutes of Missouri and enact in lieu thereof two new sections relating to the state Hazardous Waste Commission.

Notes

Gives the Hazardous Waste Commission authority to promulgate rules for the management and risk-based closure of coal combustion residual units. Directs the commission to promulgate rules.

Missouri – SB 489 (2017) – Failed

An act to repeal section 260.370 of the Revised Statutes of Missouri and enact in lieu thereof two new sections relating to the regulation of coal combustion residual units.

Notes

Directs the state Hazardous Waste Commission to draft rules to meet requirements for federal approval for the regulation of CCR units. Sets forth standards and requirements.

Missouri – SB 405 (2017) – Failed

An act to repeal sections 67.990, 67.993, 190.327 and 260.242 of the Revised Statutes of Missouri and enact in lieu thereof four new sections relating to public safety.

Notes

Gives the state Department of Natural Resources authority to promulgate rules for the management, closure and post-closure of CCR units in accordance with, but not more restrictive than the Resource Conservation and Recovery Act. Directs fees to a designated fund.

Missouri – HB 571 (2017) – Failed

An act to repeal sections 260.242 and 319.318 of the Revised Statutes of Missouri and enact in lieu thereof four new sections relating to natural resources.

Notes

Missouri – SB 917 (2018) – Enacted

An act to repeal section 260.242 of the Revised Statutes of Missouri and enact in lieu thereof one new section relating to coal ash.

Notes

Gives the state Department of Natural Resources authority to promulgate rules for the management, closure and post-closure of CCR units in accordance with the Resource Conservation and Recovery Act and to approve site-specific groundwater criteria. Establishes fees and funds.

Missouri – SB 659 (2018) – Enacted

An act to repeal sections 260.242, 260.262, 260.391, 319.129, 414.032 and 640.620 of the Revised Statutes of Missouri and enact in lieu thereof ten new sections relating to the state Department of Natural Resources.

Notes

The portions pertaining to CCR management are ordered and numbered differently, but identical in meaning and effect as those in SB 917.

Missouri – HB 2041 (2018) – Failed

An act to repeal section 260.242 of the Revised Statutes of Missouri and enact in lieu thereof one new section relating to solid waste management.

Notes

Gives the state Department of Natural Resources the authority to promulgate rules and approve site-specific target levels for the management, closure and post-closure of CCR units. Rules must be as protective as the Resource Conservation and Recovery Act. Directs the department to promulgate rules. Establishes fees and funds. Establishes a legislative taskforce to evaluate fees.

Missouri – SB 782 (2018) – Enacted

An act to repeal sections 260.242, 260.262, 260.380, 260.391, 260.475, 319.129, 444.772, 640.648, 644.054 and 644.057 of the Revised Statutes of Missouri and enact in lieu thereof sixteen new sections relating to the Department of Natural Resources.

Notes

Gives the state Department of Natural Resources the authority to promulgate rules and approve site-specific target levels for the management, closure and post-closure of CCR units in accordance with the Resource Conservation and Recovery Act and approve site-specific groundwater criteria. Directs the department to promulgate rules. Establishes fees and funds. Establishes a legislative taskforce to evaluate fees.

North Carolina – HB 448 (2015) – Failed

A bill to extend by one year the prohibition on the use of coal combustion products as structural fill.

Notes

Extends the prohibition by one year.

North Carolina – SB 716 (2015) – Enacted

An act to direct the North Carolina Utilities Commission to render an expedited decision, under certain conditions, on an application for a certificate of public convenience and necessity for an application to construct a generating facility that uses natural gas as the primary fuel and modify certain requirements under the Coal Ash Management Act of 2014 for coal surface impoundments located on sites at which all coal-fired generating units present on those sites will permanently cease operations by January 31, 2020.

Notes

Extends by three years the closure deadline for CCR surface impoundments located at the Asheville Seam Electric Generating Plant, owned and operated by Duke Energy Progress.

North Carolina – HB 732 (2015) – Failed

A bill to prohibit recovery of costs related to management of coal combustion residuals.

Notes

Prohibits utilities from recovering costs related to the management of CCR surface impoundments.

North Carolina – HB 656 (2015) – Failed

A bill to amend the Coal Ash Management Act of 2014.

Notes

North Carolina – SB 71 (2015) – Vetoed

An act to require a coal combustion residuals impoundment owner to provide permanent alternative water supplies for residents in areas surrounding coal combustion residuals surface impoundments; extend the period for public comment and review of proposed risk classifications for coal combustion residuals surface impoundments; and modify appointments to the Coal Ash Management Commission, Mining Commission and Oil and Gas Commission, in accord with the holding of McCrory v. Berger.

Notes

Additional context provided in the preamble.

North Carolina – HB 630 (2015) – Enacted

An act to require a coal combustion residuals impoundment owner to provide permanent alternative water supplies for residents in areas surrounding coal combustion residuals surface impoundments; repeal statutory provisions related to the Coal Ash Management Commission; modify the closure requirements for coal combustion residuals surface impoundments under the Coal Ash Management Act of 2014; and modify appointments to the Mining Commission and Oil and Gas Commission.

Notes

Requires CCR operators to provide replacement drinking water supplies to households located within a 1/2-mile radius of the established compliance boundary of a CCR impoundment. Changes the classifications of CCR impoundments. Requires the processing and beneficial reuse of CCR. Makes changes to the appointment process for the Mining Commission and the Oil and Gas Commission. Strikes all mention of the Coal Ash Commission.

North Carolina – SB 657 (2017) – Failed

A bill to study adverse impacts on drinking water of residents in divided neighborhoods surrounding coal combustion residuals surface impoundments.

Notes

Directs the state Department of Environmental Quality to conduct a study of the distribution and levels of hexavalent chromium in the groundwater beneath a divided neighborhood to determine if all households in the partially impacted neighborhood should receive a permanent replacement water supply.

North Carolina – HB 567 (2017) – Failed

A bill to study adverse impacts on drinking water of residents in divided neighborhoods surrounding coal combustion residuals surface impoundments.

Notes

Identical to SB 657.

North Carolina – HB 687 (2017) – Failed

A bill to amend various provisions related to coal ash cleanup.

Notes

Prohibits electric utilities from recovering the costs of managing CCR surface impoundments and unlawful discharges, including the costs of complying with corrective actions imposed by state or federal law. Directs the department to consider various risks to public and environmental health and safety, as well as structural integrity. Requires dewatering and closure of all CCR surface impoundments.

South Carolina – SB 1061 (2015) – Failed

A bill to add section 58-27-255 to the 1976 Code of Laws and provide for coal combustion residuals that result from the production of electricity to be placed in a Class 3 Landfill, with some exceptions.

Notes

South Carolina – HB 4857 (2015) – Enacted

An act to amend the Code of Laws of South Carolina, 1976, by adding section 58-27-255 to require coal combustion residuals resulting from the production of electricity to be placed in a Class 3 Landfill and provide exceptions.

Notes

Requires CCRs to be placed in a Class 3 Landfill unless the CCRs are located contiguous with the electric generating unit; intended to be beneficially reused; placed into beneficial reuse; or placed in an appropriate landfill owned and operated by the entity that produced the CCRs. Allows the state Department of Health and Environmental Control to promulgate regulations on beneficial reuse. Contains a sunset clause of five years from the act’s effective date.

South Carolina – HB 3483 (2019) – Introduced; passed chamber of origin

A bill to repeal section 3 of Act 138 of 2016 relating to the automatic repeal of statutory provisions requiring certain coal combustion residuals to be placed in a Class 3 Landfill.

Notes

Relates to HB 4857 of 2015 (same as Act 138 of 2016).

Texas – SB 1629 (2017) – Failed

A bill relating to systems of prior authorization for the control, management and disposal of certain nonhazardous, industrial solid wastes for which there are minimum federal requirements.

Notes

Allows the commission, via rulemaking, to require a registration that requires prior approval for the control, management, or disposal of industrial solid wastes for which there are minimum federal requirements under the Resource Conservation and Recovery Act of 1976.

Texas – HB 4058 (2017) – Failed

A bill relating to systems of prior authorization for the control, management and disposal of certain nonhazardous, industrial solid wastes for which there are minimum federal requirements.

Notes

Identical to SB 1629.

Virginia – SB 1398 (2016) – Enacted

An act to require evaluation of closure of coal combustion residuals units.

Notes

Requires the owner/operator of every CCR surface impoundment located within the Chesapeake Bay Watershed to assess each CCR surface impoundment regarding the closure of any such units. Sets out minimum requirements for the assessment.

Virginia – SB 1383 (2016) – Failed

A bill to amend the Code of Virginia by adding a section numbered 10.1-1402.03, relating to coal ash treatment by utilities.

Notes

Requires utilities to treat and sell a portion of stored CCR at each facility each year. Establishes a formula to determine each utility’s portion.

Virginia – SB 767 (2018) – Introduced; referred to committee

A bill to amend the Code of Virginia by adding in Article 2.1 of Chapter 14 of Title 10.1 a section numbered 10.1-1413.3, relating to coal combustion residuals surface impoundments; flaws in closure plans; delay of permit.

Notes

Allows the director of the state Department of Environmental Quality to suspend, delay or defer the issuance of flawed closure permits and to mandate corrective actions and decline to issue the permit until such mandatory corrective actions are complied with and the flaw is fully addressed. Requires local public hearings for each permit.

Virginia – SB 1534 (2018) – Failed

A bill to amend and reenact Section 56-585.1 of the Code of Virginia, relating to utilities; coal combustion residuals; cleanup costs.

Notes

Requires utilities to cover cleanup costs related to CCRs in the Chesapeake By Watershed, costs must be recovered over a 25-year period. Adjustments cannot be made for compensating the utility for carrying the costs, nor length of reimbursement, nor interest on funds advanced by the utility or any rate of return on such funds.

Virginia – HB 467 (2018) – Failed

A bill to amend the Code of Virginia by adding a section numbered 10.1-1402.03, relating to coal ash recycling or reuse.

Notes

Requires recycling unless there is proof that recycling is not cost effective.

Virginia – HB 1493 (2018) – Failed

A bill to amend and reenact Sections 56-576 and 56-585.1 of the Code of Virginia, relating to electric utility regulation; recovery of costs of coal combustion by-product management.

Notes

Would allow utilities to petition for rate adjustments to cover costs related to CCR management.

Virginia – SB 807 (2018) – Enacted

An act relating to the closure of coal combustion residuals impoundments and other units; permits; request for proposals for recycling or beneficial use projects.

Notes

All permits for CCR closures are suspended or deferred through July 1, 2019.

Virginia – SB 1743 (2018) – Failed

A bill to amend the Code of Virginia by adding in Chapter 3.1 of Title 62.1 an article numbered 2.7, consisting of sections numbered 62.1-44.15:85 through 62.1-44.15:91, relating to Coal Ash Management.

Notes

Prohibits the expansion or construction of any new CCR unit and sets out closure requirements.

Virginia – HB 2105 (2018) – Failed

A bill to amend the Code of Virginia by adding in Article 2.1 of Chapter 14 of Title 10.1 a section numbered 10.1-1413.3, relating to coal combustion residual units; closure; beneficial use.

Notes

Relates to the closure of CCR units located in the Chesapeake Bay Watershed. Sets out requirements. Requires closure to be completed by contractors that pay fair wages.

Virginia – SB 1533 (2018) – Failed

A bill to amend the Code of Virginia by adding in Article 2.1 of Chapter 14 of Title 10.1 a section numbered 10.1-1413.3, relating to coal combustion residuals units; closure; beneficial use.

Notes

Identical to HB 2105.

Virginia – HB 2786 (2018) – Enrolled; pending governor’s signature

An act to allow closure of certain coal combustion residuals impoundments.

Notes

Requires the closure of specific CCR units and that the CCR be beneficially reused or disposed of at a site that meets federal standards. Requires that owner/operators beneficially reuse a total of at least 6.8 million cubic yards from no fewer than two of the sites listed. Requires the development of a transportation plan, in consultation with the locality, that minimizes impact to surrounding communities. Sets requirements for the transportation plans. Requires the owner/operator complete closure within 15 years and provide a connection to a municipal water supply for any residence within ½-mile of the CCR unit. Sets reporting requirements and provides for cost recovery under certain conditions.

Virginia – SB 1355 (2018) – Enrolled; pending governor’s signature

An act to allow closure of certain coal combustion residuals impoundments.

Notes

Identical to HB 2786.

Virginia – HB 182 (2018) – Failed

A bill to amend the Code of Virginia by adding in Article 2.1 of Chapter 14 of Title 10.1 a section numbered 10.1-1413.3, relating to coal combustion residuals impoundments; Chesapeake Bay Watershed; closure requirements.

Notes

Requires the closure of all CCR surface impoundments located within the Chesapeake Bay Watershed.

Virginia – SB 708 (2018) – Failed

Notes

Identical to HB 182.

Virginia – SB 1009 (2018) – Failed

Notes

Nearly identical to HB 182 and SB 708. The differences are of no material consequence.

Virginia – SB 808 (2018) – Introduced; referred to committee

A bill to amend and reenact Section 56-585.1:1 of the Code of Virginia, relating to electric utilities; transitional rate period; coal combustion residuals landfills.

Notes

Would allow utilities to expense up to 80 percent of costs associated with closure by removal of CCR landfill or surface impoundments against overearnings.

Virginia – SB 768 (2018) – Introduced; referred to committee

A bill to amend the Code of Virginia by adding a section numbered 56-585.1:4, relating to electric utility regulation; costs associated with closure in place of coal combustion residuals landfills and surface impoundments.

Notes

Outlines when cost recovery for closure is not allowed.