Survey of AGC Members on Proposed Rule to Regulate Fly Ash

On June 20, the U.S. Environmental Protection Agency (EPA) published a proposed rule to classify coal combustion residuals (CCR) as either hazardous or non-hazardous waste. CCRs are used widely in vertical and horizontal construction. AGC asks members to help inform the association's comments on the EPA proposal by completing a short survey by August 16. The EPA proposal calls for public comment on two regulatory options. The first option classifies CCRs bound for disposal as hazardous waste ("special waste") under Subtitle C of the Resource Conservation and Recovery Act (RCRA) and creates a comprehensive program of federally enforceable requirements for management and disposal. The second option would allow all CCRs to maintain the current exemption from Subtitle C requirements and instead use RCRA Subtitle D to set performance standards for waste management facilities, and would be enforced primarily through state regulatory agencies and citizen suits. Under both options CCRs not bound for disposal and rather diverted for limited approved beneficial uses, such as fly ash for use in concrete, would be exempt from new regulations. The construction industry has used CCRs, primarily fly ash, for decades in the building of roads and highways as fill and base material. CCRs 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. Users and distributors of CCRs for beneficial use have commented that any regulation of CCRs under RCRA subtitle C will impose a crippling stigma on their beneficial use, and eliminate or significantly curtail these uses, even if EPA were to regulate only CCRs destined for disposal, without modifying the regulatory status of beneficial reuse. On the other hand, other parties have commented that increasing the cost of disposal of CCRs through regulation under subtitle C will actually increase their usage in nonregulated beneficial uses, simply as a result of the economics of supply and demand. States, at the same time, have commented that, by operation of state law, the beneficial use of CCRs would be prohibited under the states' beneficial use programs, if EPA designated CCRs as hazardous waste when disposed of in landfills or surface impoundments. AGC also is concerned about the transport, storage, and handling of these materials. The potential impacts are multi-faceted; and AGC needs to ensure that the concerns of its members are represented to the Agency.  Please complete a short survey that will help AGC better understand your perspective and respond to the EPA's request for additional information. Please complete the survey by Monday, August 16. Please note: The survey is administered by a third-party. All responses will remain anonymous. More information about the proposed regulation is online at http://www.epa.gov/coalashrule. For more information or to offer additional insight and comments, please contact Melinda Tomaino at tomainom@agc.org or (703) 837-5415.