Coal Combustion Residuals: Future Use of Fly Ash Uncertain

On Nov. 19, AGC submitted a comment letter to the U.S. Environmental Protection Agency (EPA) on its proposed rule to classify coal combustion residuals (CCR) as either hazardous or non-hazardous waste.   Even though the construction industry has beneficially used CCRs (primarily fly ash) for decades, thereby eliminating the need to dispose of much of this industrial byproduct in landfills, the future of beneficial use of CCRs is unclear.  The agency is under political pressure to respond to the Kingston, Tenn., ash spill (December 2008) and may seek the most stringent measures for disposal of these materials, which would jeopardize beneficial uses for CCRs. EPA’s proposal put forth two regulatory options for public comment. The first option classifies CCRs bound for disposal as hazardous waste and creates a comprehensive program of federally enforceable requirements for management and disposal under subtitle C of the Resource Conservation and Recovery Act (RCRA). The second option, instead, sets performance standards for waste management facilities under subtitle D of RCRA, which would be enforced primarily through state regulatory agencies and citizen suits – not the federal government. Under both options CCRs not bound for disposal, but rather diverted for approved beneficial uses, would be exempt from new regulations while being beneficially used.  The proposed rule states numerous times that the requirements under subtitle D are sufficient to protect the environment and human health; however, the agency appears to favor the subtitle C option. AGC’s comment letter outlines several concerns with the subtitle C option in the proposed rule and indicates a preference for regulation under subtitle D.  Of top concern is that under the subtitle C option, the beneficial use exemption could disappear upon demolition of the exempted use (e.g., when a road built using fly ash is dug up), or at the end of the useful life cycle of the exempted use (e.g., when certain types of wall board are removed from a building).  This would adversely impact the beneficial use of CCRs, creating a stigma against their use.  The potential for this after-the-fact re-characterization as subtitle C waste means that contractors would face many uncertainties and potential risks related to the storage, handling, use and disposal of those materials as well as in the demolition or renovation of sites where those materials may have been used. Another concern is that the proposal does not clearly identify exactly what beneficial uses will be approved moving forward.  It is possible that several tried-and-true uses for CCRs may not be permissible in the future.  For example, in the proposed rule, EPA sets forth its intention to stop certain beneficial uses (such as large-scale fill) and raises questions about other beneficial uses.  This has created uncertainty for the regulated community even though EPA has “seen no evidence of damages from the beneficial uses of CCRs” including “beneficial construction applications (e.g., cement, concrete, brick and concrete products, road bed, structural fill, blasting grit, wall board, insulation, roofing materials)…,” the proposal also states. AGC encourages members to evaluate their use of fly ash and consider how their practices may change should EPA designate CCRs as hazardous.  The proposed rule left unanswered many questions about the implications of a hazardous designation on the future of beneficial use, such as when the exemption for beneficial use would begin and end, what beneficial uses are permitted, the status of sites that previously incorporated CCRs in a way that may not be permissible under the new requirements and how to manage those sites. The agency repeatedly praises the environmental benefits of these uses and maintains that it does not seek to jeopardize their use – denying that a hazardous designation would create a stigma against beneficial use.  In response to an AGC survey last summer, AGC members anticipated a stigma against these materials should EPA deem them hazardous.  They questioned whether the public would understand how EPA has decided that fly ash is “OK” when used in products that go into their homes and offices but it is “hazardous” when it is instead put in the landfill.  Indeed, recent requests from environmental groups for EPA to re-evaluate all beneficial uses of CCRs demonstrate that the stigma against these materials is real.  In addition, a new report released in late 2010 criticizes EPA for over-estimating the economic benefits of beneficial use. EPA received approximately 400,000 comments on the proposed rule.  The proposed rule, related documents and public comments are online at http://www.regulations.gov (search under EPA-HQ-RCRA-2009-0640). For more information, please contact AGC’s Melinda Tomaino at tomainom@agc.org.