Congress is moving forward on legislation that would prevent coal combustion residuals (CCRs) from being designated as “hazardous” waste—safeguarding the use of fly ash in construction. The U.S. House of Representatives passed AGC-supported legislation, H.R. 2273, the Coal Residuals and Management Act earlier this month. A companion bill has been introduced in the U.S. Senate. Meanwhile, the U.S. Environmental Protection Agency (EPA) will accept comment until November 14 on select data the agency received in response to last year’s proposal to regulate the disposal of CCRs as either hazardous or non-hazardous waste.
AGC has been promoting legislation that would set in place a non-hazardous waste program for the disposal of CCRs, such as fly ash, and allow its continued use in construction. AGC is concerned that recent publicity and fear of a “hazardous waste label” already has stigmatized the material. Most recently, AGC and the AGC co-chaired Transportation Construction Coalition (TCC) sent letters to the House in support of H.R. 2273, which passed on October 14 by a vote of 267 to 144. (To view copies of the letters, click here and here.) The bill gives the states the power to control the disposal of CCRs and address any environmental concerns related to large fill disposal (for example, lining landfills to protect groundwater, monitoring to test water for contamination and controlling dust). The bill allows the EPA to get involved if a state chooses not to act, or the agency finds the state program deficient. The bill’s non-hazardous approach is similar to the non-hazardous regulatory option the EPA proposed as one of two options last year.
Companion legislation to stop EPA from regulating CCRs as a hazardous waste is getting some traction in the Senate and bipartisan support. Sponsored by Sen. John Hoeven (R-ND) and co-signed by nine Senators (four Republicans, five Democrats), the Senate bill (S. 1751) mirrors the House version that would give states a significant oversight and enforcement role, as long as they follow federal guidelines. The bill was introduced on October 20 and has been recommended to Committee on Environment and Public Works for further action.
EPA still has not made a decision on CCRs and has decided to solicit more input from the public. EPA is currently considering two main options on how to regulate CCRs disposal, from giving it a special status as a hazardous waste to classifying it as a solid waste, which comes with fewer requirements. AGC provided comments in November 2010 pointing out that a hazardous designation would limit the beneficial use of fly ash in construction and create new liabilities for contractors who have previously used fly ash. The agency has spent the last year reviewing the more than 450,000 comments it received and now has made available for comment select information submitted during that initial public response. EPA published the Notice of Data Availability (NODA) on October 12 (76 FR 63252) and will accept new comments only on the information identified in the NODA or included in the docket for the NODA. (To access the docket, visit www.regulations.gov and enter docket number EPA-HQ-RCRA-2011-0392.) AGC plans to comment on the new data by the Nov. 14 deadline.
Additional Fly Ash Data Out for Public Comment
EPA has identified a limited amount of new information that is now available for public comment; the majority of the new information deals with large-scale disposal of CCRs. However, EPA also will accept comment on information that previously was submitted on the beneficial reuse of CCR products. The agency specifically identifies two reports on using fly ash as a substitute for cement in concrete (submitted by the American Coal Ash Association and only available by visiting the docket reading room) and “additional data and factual information on the beneficial reuse of CCR, such as the use in concrete, bricks and wallboard” (available in the docket, EPA-HQ-RCRA-2011-0392). At this time, the agency is “soliciting comments on the validity and propriety of the use of all new information, data and potential analyses being noticed” in the NODA; and the agency asks only if it should consider the information on beneficial use in the development of the final rule.
EPA has denied all requests for an extension of the 30-day comment period. In the limited time available for comment, AGC will review the available information and draft a response to EPA and encourages interested chapters and members also to comment via www.regulations.gov (under “Submit a Comment” type in docket number EPA-HQ-RCRA-2011-0392). Comments are due November 14, 2011. EPA has background information on its Web page for the proposed rule.
For more information, please contact Melinda Tomaino at tomainom@agc.org or (703) 837-5415.
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