EPA Considers Rules for Coal Combustion Waste; AGC Looks at Impact to Construction

New safety concerns regarding the management of coal combustion wastes may spark first-time federal rules that could jeopardize the future use of fly ash in the construction of roads and buildings.  Last December, a containment failure at a Tennessee-based waste impoundment released approximately 1 billion gallons of coal ash sludge into the adjoining rivers and neighborhood, resulting in more than $1 billion in clean up costs.  The accident has brought the public's attention to the hundreds of similar impoundments nationwide and triggered an evaluation of how effectively states and the federal government are addressing the storage and disposal of coal combustion waste. Coal combustion waste - including fly ash, bottom ash, boiler slag and flue gas desulfurization sludge - is the second largest industrial waste stream.  (Mining waste is the largest.)  Power plants generate this waste by the burning of coal and by the processes they use to clean their air emissions, per Clean Air Act requirements.  In 2007, EPA estimated that coal-fired power plants produce approximately 131 million tons of coal combustion waste each year.  Impending federal clean air standards to further reduce air pollution from power plants will likely increase the amount of coal combustion wastes generated. Currently, the U.S. Environmental Protection Agency (EPA) does not regulate coal combustion wastes on a national level; instead the Agency provides recommendations for its safe storage and disposal and encourages the so-called "beneficial use" of these materials in industrial processes.  (At the state level, a patchwork of requirements exists on the management and use of coal combustion wastes.)  In addition, EPA has repeatedly exempted coal combustion waste from strict hazardous waste management requirements under the Resource Conservation and Recovery Act (RCRA) Subtitle C.  To this end, EPA formally published a regulatory determination in 2000 that coal combustion wastes are not hazardous and that the beneficial use of these wastes poses no significant risk.  EPA Commits To Take Action in 2009 Earlier this year, following the Tennessee spill incident, EPA announced that it would inventory the present amounts and locations of coal combustion wastes and propose first-time national storage and disposal requirements, as needed, by the end of 2009.  EPA's current rulemaking options are: to take no action; to regulate the waste as non-hazardous material under RCRA Subtitle D; to regulate the waste as hazardous material under RCRA Subtitle C; or to propose contingent requirements under RCRA Subtitle C that would facilitate the continued beneficial use of the waste. In recent months, EPA has surveyed power plants on their management practices, solicited feedback from state governments on the Agency's regulatory options and committed to assessing all of the impoundments that pose a high risk for the accidental release of waste.  EPA's recent outreach efforts have identified 584 impoundments in 35 states, 109 of which are at "high risk."  Coal combustion waste is typically stored in wet or dry surface impoundments, disposed of in landfills or used as fill in abandoned surface and underground mine voids.  In addition, more than 40 percent of coal combustion wastes are beneficially used in construction and other industries; EPA and other stakeholders hope to see that percentage reach 50 percent by 2011. Beneficial Use of Coal Combustion Waste in Construction Practices The construction industry has used coal combustion waste, primarily fly ash, since the 1950s in the building of roads and highways as fill and base material.  Coal combustion wastes also have a use in building materials and construction.  Fly ash can be found in mortars, grouts, stucco, cultured stone, masonry blocks, wallboard, ceiling tiles and concrete foundations.  EPA and the Federal Highway Administration have worked with state departments of transportation to increase the use of fly ash as a substitute for cement in concrete.  EPA's Coal Combustion Products Partnership (C2P2), Green Highways Partnership and Resource Conservation Challenge all promote the beneficial use of coal waste, including fly ash, in industrial processes.  In furtherance of its environmental stewardship goals, AGC of America has worked with EPA to facilitate members' efforts in the beneficial use of industrial materials in construction and included information on these materials in its online Recycling Toolkit. According to EPA, some of the benefits of using fly ash in construction include reduced greenhouse gas emissions from avoided cement manufacturing, reduced land disposal requirements and reduced extraction of virgin resources.  EPA estimates that the amount of greenhouse gas emissions from cement manufacturing that are avoided by using fly ash equals approximately 5 million tons each year.  In some applications, fly ash may even improve the performance of concrete by providing it with a greater resistance to chemical attack, increased strength and improved workability. Future Impact on Construction Over the last 30 years, EPA has been evaluating the properties of coal combustion waste, its storage and disposal and the potential for its beneficial use in other industries.  Should EPA now determine that coal combustion wastes are hazardous materials and thereby covered under RCRA Subtitle C, many of these beneficial use initiatives could cease.  Several states allow the beneficial use of coal combustion wastes on the condition that the material is not hazardous.  In 2003, EPA estimated that 13.4 million tons of coal ash are used in concrete or cement production annually.  AGC is concerned that even a conditional use of Subtitle C (one of EPA's regulatory options) would discourage the use of fly ash by increasing the liability associated with its use. This move would effectively remove a key material from the market and cause an increase in the demand for cement that could raise the costs of existing and future construction projects.  AGC also is concerned that construction companies may face liability for past projects that incorporated this "newly hazardous" material. Conflicting Interests Many states and industry representatives have stepped forward to urge EPA to consider non-hazardous waste regulation under RCRA Subtitle D, which would protect the beneficial use of the material while still mandating management practices for storage and disposal.  Protecting beneficial use would give utilities an option other than relying on ever-diminishing landfill space for the large amounts of waste from power plants nationwide.  Additionally, the combined effect of reduced landfill space and increased costs of disposal due to strict requirements under Subtitle C for hazardous waste would likely impact utility rates for consumers.  Environmental and public interest groups are concerned that some of the components of coal combustion waste are known to be dangerous at established levels and that certain management practices can pose a higher risk than others for accidental release into the environment.  The composition of the waste varies depending on the type of coal used and can contain aluminum, arsenic, barium, chromium, iron, magnesium, lead and silicon.  AGC Action AGC has expressed to EPA its concern that a hazardous determination for coal combustion wastes would undermine the decades of its successful beneficial use by the construction industry.  AGC's Environmental Network Steering Committee Members also will address this issue at a meeting with EPA staff in October.  AGC will continue to monitor and report on EPA action and will provide expert comments to EPA at the appropriate time.  Members should look for alerts from AGC about the potential regulations and opportunities for member comment to EPA once the Agency proposes a rulemaking and opens the public comment period.  For more information, contact Melinda Tomaino at tomainom@agc.org or (703) 837-5415.