Planning for the New CCR Rule: A Focus on Groundwater EPA Expected to Finalize Rule by December 2014

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1 Briefs Planning for the New CCR Rule: A Focus on Groundwater EPA Expected to Finalize Rule by December 2014 By Katie Bland, PE, and Chris Snider, PE Currently, coal combustion residuals (CCRs) are deemed as exempt wastes under the Resource Conservation and Recovery Act (RCRA). In June 2010, the U.S. Environmental Protection Agency (EPA) released a proposed rule regarding future regulation of these wastes. The rule proposes regulating CCRs including fly ash, bottom ash and flue gas desulfurization (FGD) byproducts as special wastes under either Subtitle C or Subtitle D of the RCRA. Regulation of these wastes under Subtitle C would create a federal program under which details of both the transport and disposal of wastes would be regulated. Under Subtitle D, federal performance standards would be set for disposal of these wastes and carried out through state management programs. The proposed rule has not been finalized, but the EPA has been ordered by consent decree to finalize the rule by Dec. 19, The final rule would affect new and existing landfills and impoundments. Rule Requirements Whether the EPA chooses to categorize CCRs under Subtitle C or Subtitle D, it is clear that either option will require groundwater monitoring at new and existing CCR landfills and impoundments. The proposed rule lists several facilities where there have been proven cases of groundwater contamination due to leaching of constituents from CCR landfills and impoundments. Actions required in these instances included groundwater remediation, impoundment closures and advisories against CCR Leachate/Pore Water Sampler CCR Management Unit MW-3 MW-4 MW-8 MW-7 Power Plant MW-1 MW-2 MW-5 MW-6 Surface Water Groundwater Table Background or Upgradient Groundwater Wells Downgradient Groundwater Flow Figure 1: Conceptual Groundwater Monitoring Network Surrounding a Coal Combustion Residuals (CCR) Management Unit

2 consuming fish from affected streams. The risk to human health and the environment is discussed at length by the EPA in the proposed rule in cases of environmental impacts. The final rule will likely require that a system of monitoring wells be installed for both new and existing landfills and impoundments. An example of monitoring well placement at a CCR facility is illustrated in Figure 1. The final rule also is likely to include specific procedures for sampling and methods for statistical analysis of the data derived from groundwater monitoring networks. Under Subtitle D, for example, the proposed rule as currently written would require facilities to install, at a minimum, one upgradient and three downgradient wells at CCR units. The proposed rule notes parameters to monitor for potential indicators of groundwater impacts, including boron, chloride, conductivity, fluoride, ph, sulfate, sulfide and total dissolved solids (TDSs). Who Is Affected? While most coal-fired units will be affected by the finalized rule in some manner, some utilities may benefit from proactively evaluating CCR impoundments before the rule is finalized. If the rule is finalized under the Subtitle D requirements, it would go into effect six months after promulgation, leaving a short timeframe for evaluation and capital planning. Utilities should be evaluating CCR units now and asking some important questions: Do any of your plants have active, unlined impoundments and/or landfills? Are your CCR impoundments and/or landfills near or below groundwater? Are your CCR impoundments and/or landfills at a depth below that of the groundwater? Are you unsure of the hydrogeological characteristics of your plant site? After answering these questions, it is important to consider how to achieve compliance efficiently and cost-effectively. How to Develop an Informed Compliance Plan As utilities develop cost-effective strategies to comply with the new CCR rule, the most important risk management tool is a compliance plan. An effective compliance plan includes managing environmental risks through developing a detailed understanding of the relationship between the CCR management unit and the shallow subsurface environment. An effective CCR rule compliance plan for groundwater monitoring includes: Detailed characterization of the CCRs and CCR deep pore water (leachate) at each management unit; Laboratory testing of leaching characteristics at a range of phs reasonable and representative of phs within the management unit; Development of a hydrogeological model, which may require a hydrogeologic investigation program designed to thoroughly understand site-specific groundwater flow and quality; Development of groundwater sampling and statistical analysis programs capable of truly understanding which impacts, if any, exist; Development of a work plan and agreement with local or federal regulatory officials regarding how a particular site will be monitored and how compliance will be measured from a statistical analysis standpoint. An informed compliance plan is centered on gaining an understanding of the subsurface characteristics of the site. This type of investigation keeps utilities from being put in a position where major compliance actions and decisions are made in the dark, or as a Katie Bland, PE, is a section manager in the Environmental Group at Burns & McDonnell. She earned a Bachelor of Civil Engineering from the Missouri University of Science & Technology and a Master's in Environmental Engineering from the University of North Carolina at Chapel Hill. TECHBriefs 2014 No. 1 2 Burns & McDonnell

3 Leachate Background or Upgradient Groundwater Downgradient Groundwater Constituent of Potential Concern MW-2 MW-4 MW-5 MCL MW-8 MW-1 MW-3 MW-6 MW-7 Monitoring Well Data Figure 2: Theoretical Relationship Among Upgradient, Downgradient and CCR Leachate Water Qualities Chris Snider, PE, PG, is a department manager in the Environmental Group at Burns & McDonnell. He earned Bachelor of Science degrees in Cvil Engineering and Geology at the University of Missouri-Columbia. reaction to a regulatory demand to investigate a perceived environmental impact. Laboratory testing of a particular site s CCRs leaching characteristics should be tailored to a particular waste management unit. For example, deep pore water samples should be collected, if possible, to represent the actual leachate being discharged from the CCR management unit. If pore water samples cannot be collected, the CCRs leaching characteristics should be tested across a range of phs that are expected to represent the actual management unit. This leachate can then be compared to groundwater concentrations as demonstrated in Figure 2. When installing a groundwater monitoring program on a site that has not been monitored or has limited monitoring data, the characterization of background or upgradient water quality is equally important to characterizing the groundwater quality downgradient from the CCR management unit. Ultimately groundwater quality compliance will be measured by exceeding a numerical standard (e.g., a drinking water maximum contaminant level (MCL)) or more likely an exceedance over background water quality. Comparison against background water quality is the way potential impacts from CCR management units are measured, and that is why understanding the background water quality is important For more information, please kbland@burnsmcd.com or csnider@burnsmcd.com. Burns & McDonnell 3 TECHBriefs 2014 No. 1

4 when developing a plan to comply with the new rule. The potential data relationship among upgradient, downgradient, leachate and a drinking water MCL is illustrated in Figure 2, which is a theoretical box and whisker data plot. It is not uncommon for constituents of potential concern to occur naturally in groundwater at concentrations greater than the MCL, which can raise concerns from a regulatory standpoint and further demonstrates the need to conduct a background water quality study. It is not uncommon for constituents of potential concern to occur naturally in groundwater at concentrations greater than the MCL, which can raise concerns from a regulatory standpoint and further demonstrates the need to conduct a background water quality study. The proposed CCR rule is especially challenging because many facilities will be initiating new groundwater programs to monitor CCR management units at facilities that may not have an existing detailed groundwater quality characterization. At the same time, regulators will be interested in understanding if any groundwater impacts have already occurred. Technically appropriate and defensible procedures for statistical data comparison should be documented in the groundwater statistical analysis plan. Groundwater Data Statistical Analysis Am I Compliant? The language addressing groundwater monitoring and reporting in the draft CCR rule appears to mirror the RCRA Subtitle D methodology. Much has been learned over the past two decades by professionals in the municipal solid waste industry with respect to statistical analysis of groundwater data and this practical experience will be useful to the electric power industry. Statistical methods, when used by experienced professionals, are powerful for both detecting releases and evaluating upgradient versus downgradient water quality. The groundwater sampling and analysis, as well as the statistical analysis work plans, are key documents that should be given careful consideration. When installing new groundwater monitoring networks, at least two years of quarterly groundwater quality data is needed, in most cases, to fully assess and compare upgradient versus downgradient groundwater quality. The compliance risk associated with installing new groundwater monitoring networks can be mitigated by developing a technically appropriate statistical analysis plan. Moving Forward As the EPA and other stakeholder groups have given greater attention to the environmental issues associated with CCRs, utilities would be well served to develop an informed groundwater compliance plan. Following finalization of the CCR rule, and depending on the site-specific situation, local regulatory officials are expected to require utilities to report on the groundwater quality surrounding CCR management units. Proactive detailed characterization of CCR management units is the key to managing regulatory and potential remedial cost risks. TECHBriefs 2014 No. 1 4 Burns & McDonnell

5 NIST Cybersecurity Framework High-Level Summary Framework Could Enhance Existing Cybersecurity Programs By Donald Mahala The National Institute of Standards (NIST) released its Preliminary Cybersecurity Framework for review. The framework was developed in response to an executive order issued Feb. 12, 2013, by President Barrack Obama calling for improvements to critical infrastructure cybersecurity. The order called for a cybersecurity framework that provides a prioritized, flexible, repeatable, performancebased, and cost-effective approach for assisting organizations responsible for critical infrastructure services for assets that are vital to the national economy and security of the U.S. The NIST cybersecurity framework: Complements, and does not replace, an organization s existing business or cybersecurity risk management process and cybersecurity program. Rather, the organization can use its current processes and leverage the Framework to identify opportunities to improve an organization s management of cybersecurity risk. Is voluntary and complements rather than conflicts with current regulatory authorities (i.e., the North American Electric Reliability Corporation (NERC) Critical Infrastructure Protection (CIP) Cyber Standards). Leverages existing standards, guidance and best practices and is a good source of references (i.e., NIST, the International Organization for Standardization and Control Objectives for Information and Related Technology). Is designed to be inclusive of and not disruptive to other standards and best practices. Applies to information technology and industrial control systems and the impact and protection of privacy and civil liberties within a cybersecurity program. Leverages a framework core that consists of five disciplines: identify, protect, detect, respond and recover. Leverages a framework profile designed to identify current-state, desired end-state and develop an implementation approach using tiers that are based on an organization s current risk management practices. Leverages risk tolerances to prioritize implementation efforts analogous to NERC CIP Version 5 categorization of low, medium and high bright line criteria. Donald Mahala is a senior reliability compliance specialist in the Business & Technology Services Group at Burns & McDonnell. He has more than 37 years experience working in information technology and compliance for large utilities. For more information, please dmahala@burnsmcd.com. Framework Core Functions Categories Subcategories Informative References Identify Protect Detect Respond Recover Table 1: Sample tool provided by NIST to aid corporations in mapping their cybersecurity core components. Burns & McDonnell 5 TECHBriefs 2014 No. 1

6 NIST Framework Core Discipline Identify Protect Detect Respond Recover NERC CIP Cyber Security Standard NERC CIP-002 NERC CIP-003, CIP-004, CIP-005, CIP-006 and CIP-007 NERC CIP-008 NERC CIP-008 NERC CIP-009 Table 2: Correlation between NIST cybersecurity framework core to the current effecitve version of the NERC CIP Cyber Standards. NIST Framework Components Framework Core The framework core (Table 1) consists of five functions, identify, protect, detect, respond and recover, and four elements that provide a methodology for identifying critical technologies, processes and information critical to an organization. The framework assists organizations by providing the tools and methodology for documenting and implementing a cybersecurity program. Framework Profile The framework profile provides an approach for conducting an analysis of current-state, declaring a desired end-state, identifying resulting gaps, and developing an implementation roadmap that achieves the corporation s desired level of security. For organizations in the earlier stages of implementing their risk management program, the framework profile is a potentially good tool for identifying gaps, developing an implementation plan, and communicating a strategic implementation plan. The tool may better aid in the development and communication of an organization s strategic direction versus the NERC CIP Cybersecurity Standards since those standards do not specifically provide this function. Framework Implementation Tiers The framework implementation tiers identify how an organization manages its cybersecurity risk and determining an organization s tier level is based on the degree of criticality of an asset. The tiers range from partial (tier 1) to adaptive (tier 4) and also identify the degree of maturity and sophistication in an organization s overall risk management practices. The tier selection process considers an organization s current risk management practices, threat environment, legal and regulatory requirements, objectives, and organizational constraints. Protecting Privacy and Civil Liberties The framework s use in the protection of privacy and civil liberties for cybersecurity is designed to address privacy and civil liberties considerations related to the deployment of cybersecurity activities, including the protection of personably identifiable information. The privacy methodology used within the framework is based on the fair information practice principles which were referenced in the executive order. The framework is organized by function and category to correspond with the framework core. Many disciplines in the NIST framework are also provided for and mandated by the current effective version of the NERC CIP Cyber Security Standards. Table 2 demonstrates the correlation of the NIST cybersecurity framework core to the current effective version of the NERC CIP Cyber Standards. Voluntary But Essential Although the NIST Cybersecurity Framework is a young, voluntary and evolving framework, companies should review the framework for opportunities to either adapt wholly or in part its use to further strengthen their existing cybersecurity programs, as well as use the framework to cultivate risk-based discussions about cybersecurity with their stakeholders. A complete copy of the draft NIST Cybersecurity Framework is available on the NIST website: TECHBriefs 2014 No. 1 6 Burns & McDonnell

7 Supreme Court Takes on Greenhouse Gases UARG Questions EPA s Authority to Regulate GHGs for Coal-Fired Plants By Robynn Andracsek, PE, Burns & McDonnell and Seth D. Jaffe, Foley Hoag LLP Robynn Andracsek, PE, is an associate environmental engineer in the Burns & McDonnell Environmental Studies & Permitting Group. She specializes in air quality regulations. Seth D. Jaffe is a partner at Foley Hoag LLP, where here serves as chair of the Administrative Law Department and coordinator of the Environmental Practice Group. For more information, please randracsek@burnsmcd.com. Once again, the future of coal-fired generation is in the hands of the courts. While it is not possible to predict how the U.S. Supreme Court will rule in Utility Air Regulatory Group v. Environmental Protection Agency, it is wise to understand the basics about this possible game-changing court case, which was heard on Feb. 24, At the most basic level, the Supreme Court accepted six petitions, but limited its review to a single question: Whether EPA permissibly determined that its regulation of greenhouse gas emissions from new motor vehicles triggered permitting requirements under the Clean Air Act for stationary sources that emit greenhouse gases. It is equally important to understand both what the Supreme Court decided to review and what it chose to let stand, as well as the position on both sides. Let s first look at what is not in question. The significance of the Supreme Court s decision to review the greenhouse gas (GHG) rules can only be fully appreciated by understanding the petitions it denied. The Supreme Court did not accept the challenge to the U.S. Environmental Protection Agency s (EPA) Endangerment Finding, nor did it accept the challenge to the EPA s tailpipe rules for motor vehicle emissions. The Endangerment Finding stated that the current and projected concentrations of GHGs threaten the public health and welfare of current and future generations. The Cause or Contribute Finding stated that GHGs from motor vehicles contribute to GHG pollution which threatens public health and welfare. Thus, those two issues are off the table. Most fundamentally, the EPA s core decision that GHGs are pollutants that endanger public health is now final. Regarding the question that the Supreme Court is reviewing, what are the arguments on each side? The EPA s position is the Prevention of Significant Deterioration (PSD) program applies to any major source of any air pollutant regulated under the act. Once it concluded through the Endangerment Finding that GHGs are pollutants under the Clean Air Act (CAA) and regulated them under the tailpipe rule, the stationary source rule followed. The petitioners have two different views as to why the EPA s position is wrong. First, the utilities argue any air pollutant actually refers only to those pollutants subject to National Ambient Air Quality Standards (NAAQS). The EPA has not established a NAAQS for GHGs, nor has the EPA made any indication it will do so in the future. According to the utilities, this would essentially prohibit the EPA (at least for now) from regulating GHG emissions from existing stationary sources. Second, the American Chemistry Council (ACC) takes a narrower position and argues that facilities otherwise subject to PSD review due to their emissions of conventional pollutants (e.g., nitrogen dioxide, sulfur dioxide, etc.) may also be subjected to GHG limits. Given that most large emitters such as power plants are subject to PSD anyway, the ACC estimates that this would leave 83 percent of GHG emissions subject to EPA PSD regulations. Separate from the issue of whether GHGs should be regulated under the PSD program are the EPA s other issued and proposed GHG rules. The EPA proposed New Source Performance Standards (NSPS) for new coal-fired boilers that would likely prohibit new construction Burns & McDonnell 7 TECHBriefs 2014 No. 1

8 Briefs Planning for the New CCR Rule: A Focus on Groundwater NIST Cybersecurity Framework High-Level Summary Supreme Court Takes on Greenhouse Gases of coal-fired boilers in the absence of carbon capture and storage. An NSPS for existing coal-fired boilers is expected to be proposed in June 2014 and finalized by June The EPA s development of these NSPSs for GHGs is a separate rulemaking from the PSD issue the Supreme Court will decide. These GHG NSPSs will probably not be significantly affected by any Supreme Court decision. The NSPSs could be slightly delayed if the Supreme Court s decision in the current case causes the EPA to conclude that it needed to issue a separate endangerment finding for stationary sources, but the EPA would presumably be ready to do so without much delay. The backdrop to this court case is an atmosphere of open hostility toward coal combustion by regulators and citizen groups. The Treasury Department is now advising development banks to end U.S. government support of public financing for new coal plants overseas except in very limited circumstances and only where carbon capture and sequestration (CCS) is included. CCS is, according the EPA, the best system of emissions reduction adequately demonstrated. However, CCS has yet to reach commercialscale operation anywhere in the world. As usual, coal-fired U.S. utilities, the backbone of our stable, affordable power grid, are left to operate in a state of uncertainty. We know there s an endangerment; we just don t know what authority the EPA has to address it. After arguments at the Supreme Court, the justices seemed divided as to whether or not the EPA overreached its authority to change the major source threshold for GHGs from 250 tons per year (tpy) to 100,000 tpy. It is fair to say that while speculation is difficult, it appears there might be a majority of justices prepared to recognize that the EPA had at least some authority to regulate GHGs. They certainly seemed very interested in what we have described as the ACC position. With a decision expected by the end of June 2014, this will be an interesting year.