Fly Ash Disposal Now Being Deliberated by All Branches of Government

No EPA Decision Expected Until 2013. As the U.S. Environmental Protection Agency (EPA) continues to evaluate whether or not to regulate coal combustion residuals (CCRs) as hazardous waste, the other branches of government go at it on their own and inch forward toward a resolution.  Meanwhile, the regulated industry remains focused on empowering the states to manage the waste and safeguarding the beneficial use of CCRs, such as fly ash.  EPA also is taking a closer look at the potential risks of reusing the waste materials in construction activities. In Congress On August 2, a bipartisan group of Senators released a new piece of companion legislation that would instruct EPA and the states on how to manage the disposal of CCRs.  Senators have been working to gain momentum on an AGC-supported bill that passed with bipartisan support in the House last October.  A provision identical to the House bill was removed at the eleventh hour from the final transportation bill that passed in late June.  The Aug. 2 bill is intended as a compromise to get the votes necessary to have it approved in this Congress. The House legislation and recent attempts in the Senate are aimed at providing an alternative to the more onerous of the regulatory options EPA is considering to manage the disposal of CCRs.  The House legislation (H.R. 2273) would preempt EPA from regulating the waste as hazardous and would instead empower states to establish disposal programs. In the Courts In April several groups stepped up the pressure on EPA to finalize its regulatory decision.  Conservation groups filed a lawsuit on April 5, 2012, to release the long-awaited rules; and a coal ash recycling company filed a complaint against EPA on April 13 citing EPA’s delay in issuing guidelines or a final rule as detrimental to the recycling industry.  The lawsuit and the complaint were both filed in the US District Court for the District of Columbia.  Environmental activists are advocating for the hazardous waste regulatory option.  Industry and many state regulators prefer the non-hazardous waste option that would safeguard the recycling of the waste in construction and other uses—or forgoing federal rules altogether and instead relying on state regulatory programs. Even though both groups are seeking the intervention of the courts to prompt EPA to act, recent reports only serve to highlight their differing viewpoints.  In late April, Environmental Integrity Project released a review of data from EPA that appears to indicate that disposal sites have contaminated groundwater at approximately 49 power plants.  In June, the American Coal Ash Association released a report that used data from the US Geological Survey and found that concentrations of metals in coal ash were similar to those in soil. At the Agencies EPA is still weighing a final decision on whether to regulate coal combustion residuals as hazardous (subtitle C) or non-hazardous (subtitle D) waste under the Resource Conservation and Recovery Act (RCRA), proposed in 2010.  (Read AGC’s comments that urge the Agency to either rely on state requirements or establish non-hazardous waste requirements that protect the beneficial use of fly ash in construction, here and here.)  After pushing back its decision multiple times, a final rule is not anticipated until 2013. Industry also awaits the results of EPA’s investigation into the beneficial use of coal ash in construction—in response to an Inspector General report that found EPA promoted recycling of the waste without assessing the potential risks of using those materials.  Initial risk assessments are said to cover the use of ash in concrete and wallboard and were to be completed by April but are now anticipated for late 2012.  The agency also plans to study the reuse in construction and demolition (C&D) materials.  Finally, EPA will assess unencapsulated uses of coal ash such as in embankment and structural fill by 2014.  EPA has released no further information about the risk assessments. Lastly, a recent confirmation by the Interior’s Office of Surface Mining that it will develop regulations for the use of coal ash in mine reclamation further stirred up public debate on the beneficial uses of coal ash.  Mining applications are a major use of coal ash and numerous states already allow the practice, which environmental activists describe as dumping. EPA began its work on a rule to regulate the disposal of CCRs following a December 2008 spill of coal ash slurry from an impoundment at a Tennessee Valley Authority (TVA) facility in Kingston, Tenn.  The containment failure released approximately 1 billion gallons of coal ash sludge into the adjoining rivers and neighborhood and put a national spotlight on impoundment and disposal practices of CCRs.  On August 23, 2012, the U.S. District Court for the Eastern District of Tennessee ruled that TVA’s “nondiscretionary conduct” contributed to the accident and that the power authority is liable for damages. For more information, contact Melinda Tomaino at (703) 837-5415 or tomainom@agc.org.