EPA Rules Fly Ash Not Hazardous, Allows Beneficial Use to Continue

The Environmental Protection Agency (EPA) announced today that it will not regulate coal combustion waste, including fly ash, as a hazardous substance and by doing so will preserve the future beneficial use of this product in concrete and most other construction applications. AGC has been actively involved in working to convince EPA that a hazardous designation was unnecessary and would have an extremely detrimental impact on the future use of fly ash and raise liability concerns about its previous use. EPA began work on a rule to regulate the disposal of coal ash following a December 2008 spill from an impoundment at a Tennessee Valley Authority (TVA) facility in Kingston, Tenn. The containment failure put a national spotlight on coal ash impoundment and disposal practices and EPA committed at that to make a decision on how to address the waste by the end of 2009.  EPA submitted a proposed rule to OMB later that year; however, OMB requested an extension. AGC first took action on Nov. 7, 2009, in a letter to EPA Administrator Lisa Jackson stating concerns that the agency was moving too quickly in preparing to propose federal requirements for the future management of coal ash. Subsequently, AGC submitted extensive comments on the rules proposed by EPA in 2011 and again in 2013 and was able to generate 140 letters from members on the proposed rule. AGC also participated in meetings with EPA to discuss construction industry concerns. AGC comments urged EPA to weigh the potential impacts of its regulatory options on the beneficial use of coal ash and take into consideration the real environmental benefits of reusing these materials, as well as the lack of negative reports (i.e., alleged or proven damage cases) associated with the beneficial use of fly-ash in many construction applications including concrete and wallboard. AGC also worked with our Congressional allies to get legislation introduced in the House and the Senate in both the 112^th and 113^th Congresses to prevent EPA from moving forward with a hazardous designation. In the 112^th Congress, H.R. 2273 was passed by the House on Oct. 14, 2011 by a vote of 267 to 144. A federal lawsuit was initiated in 2012 by environmental groups to force EPA to take action. As part of a settlement agreement related to the suit, EPA agreed to take "final action" on coal ash waste disposal rules by Dec. 19, 2014. In commenting on today’s announcement, AGC’s CEO Stephen Sandherr said, ““Our association and its members went to great lengths to make sure that EPA officials appreciated that the construction industry has successfully and safely used fly ash in concrete and other materials for over six decades.  Indeed, construction firms aggressively recycle a host of materials each year, including concrete, steel and asphalt.  And thanks in part to our efforts, they understand that allowing this recycling program to continue will address many of the disposal challenges the energy industry faces with fly ash.” “We look forward to working with agency officials to ensure this rule is implemented in a way that continues to allow for the safe and effective use of coal fly ash in construction.” While today’s rule will allow most beneficial uses of coal ash, some previously approved uses, such as large-scale fill operations, may now be considered disposal and not an approved beneficial use.   AGC will analyze the rule closely in the next few days to identify any changes to current practices that contractors can expect to see.