EPA Proposed Regulation of Coal Combustion Waste Expected in April

According to the Regulation Gateway Web site the U.S. Environmental Protection Agency (EPA) launched this month, the agency expects to release a rulemaking on coal combustion residuals (or waste) in April 2010, with a hazardous designation reported likely. The complexity of the rulemaking has resulted in a delay of a proposed rule that was anticipated before the close of 2009, as promised by EPA Administrator Lisa Jackson, and a request for an extension of the review period by the White House Office of Management and Budget (OMB). The rulemaking has been undergoing review from OMB since October 2009, a process that typically takes 90 days or less.  As previously reported, EPA is responding to concerns about the disposal and storage of large amounts of coal combustion waste by the power industry where a patchwork of state guidelines exists to govern safe practices.  Although EPA has not yet released its proposed regulation, sources indicate that EPA is strongly favoring a hazardous waste designation in order to establish standard and federally enforceable practices.  Certain waste management and disposal methods have come under criticism, most recently precipitated by a containment failure at a site in December of 2008 when approximately 1 billion gallons of coal ash sludge spilled into the adjoining rivers and neighborhood.  A hazardous designation would lead to stringent requirements for the storage, disposal and transport of these materials.  It would also potentially disrupt the use of those materials by other industries, whether through direct prohibition of use in certain applications, stigma associated with perceived risk or actual risk concerns. As often occurs, one industry's waste is a viable material for other industrial applications.  A thriving market currently exists for coal combustion waste products, such as fly ash.  EPA and the American Coal Ash Association estimate that more than 40 percent of coal combustion wastes are beneficially used in other industries such as construction.  There are environmental and economic benefits of using an industrial waste material such as materials conservation, reduced disposal costs for the industry generating the material and often less expensive materials cost for the purchasing or receiving industry.  In the case of construction, fly ash may even improve the performance of concrete by providing it with a greater resistance to chemical attack, increased strength and improved workability.  EPA has fostered and encouraged the beneficial use of industrial materials and has expressed a desire to continue many of the current uses of coal combustion waste, which may lead to a "hybrid" approach to regulation that allows some uses - such as its use in concrete. AGC has expressed its concerns should EPA determine coal combustion waste is hazardous in a letter to the administrator and in meetings with EPA office of solid waste staff.  AGC will report on any new developments and comment on the proposed rulemaking once released. For background information, go to http://newsletters.agc.org/environment/2009/09/30/epa-considers-rules-for-coal-combustion-waste-agc-looks-at-impact-to-construction/. For more information, contact Melinda Tomaino at (703) 837-5415 or tomainom@agc.org.