New EPA Rule Regulates Disposal of Fly Ash As Nonhazardous; Allows Beneficial Use to Continue

The Environmental Protection Agency (EPA) announced Dec. 19 that it will not regulate coal combustion residuals (CCR), including fly ash, as a hazardous substance and by doing so will preserve the future beneficial use of this product in concrete and most other construction applications.  AGC has been actively involved in working to convince EPA that a hazardous designation was unnecessary and would have an extremely detrimental impact on the future use of fly ash and raise liability concerns about its previous use.  EPA began work on a rule to regulate the disposal of coal ash following a December 2008 spill from an impoundment at a Tennessee Valley Authority (TVA) facility in Kingston, Tenn.  The containment failure put a national spotlight on coal ash impoundment and disposal practices and EPA committed to make a decision on how to address the waste by the end of 2009.  EPA submitted a proposed rule to the Office of Management and Budget later that year; however, OMB requested an extension.  After OMB review, EPA released its proposed rule in June 2010. AGC first took action on Nov. 7, 2009, in a letter to EPA Administrator Lisa Jackson stating concerns that the agency was moving too quickly in preparing to propose federal requirements for the future management of coal ash. Subsequently, AGC submitted extensive comments on the rules proposed by EPA in 2010 and 2011; and in 2013 was able to generate 140 letters from members on the proposed rule. AGC also participated in meetings with EPA to discuss construction industry concerns. AGC comments, based on a survey completed by AGC members, urged EPA to weigh the potential impacts of its regulatory options on the beneficial use of coal ash and take into consideration the real environmental benefits of reusing these materials, as well as the lack of negative reports (i.e., alleged or proven damage cases) associated with the beneficial use of fly-ash in many construction applications including concrete and wallboard. AGC also worked with our Congressional allies to get legislation introduced in the House and the Senate in both the 112^th and 113^th Congresses to prevent EPA from moving forward with a hazardous designation.  Although successful in the House, companion bills in the Senate failed to gain traction.  A federal lawsuit was initiated in 2012 by environmental groups to force EPA to take action.  As part of a settlement agreement related to the suit, EPA agreed to take "final action" on coal ash waste disposal rules by December 19, 2014. In commenting on today’s announcement, AGC’s CEO Stephen Sandherr said, “Our association and its members went to great lengths to make sure that EPA officials appreciated that the construction industry has successfully and safely used fly ash in concrete and other materials for over six decades.  Indeed, construction firms aggressively recycle a host of materials each year, including concrete, steel and asphalt.  And thanks in part to our efforts, EPA understands that allowing this recycling program to continue will address many of the disposal challenges the energy industry faces with fly ash.”  Click here to see the full release. “We look forward to working with agency officials to ensure this rule is implemented in a way that continues to allow for the safe and effective use of coal fly ash in construction.” While today’s rule will allow most beneficial uses of CCRs such as fly ash, some previously approved uses, such as large-scale fill operations, may now be considered disposal and not an approved beneficial use.  Large-scale fill and/or structural fill operations, using more than 12,400 tons, will need to meet specific requirements in order to be approved beneficial uses.  In addition, EPA has determined that placement of CCRs in quarries and sand and gravel pits is now considered landfill disposal, not beneficial use, and the rule applies to those applications.  However, placement of CCRs in old mines is not covered by EPA or this new rule.  Eventually, that application may have new restrictions coming from the Department of the Interior Office of Surface Mining Reclamation and Enforcement.  AGC will continue to analyze EPA’s CCR disposal rule closely to identify and report on any changes to current practices that contractors can expect to see. A pre-publication version of the rule was posted on EPA’s website (click here). Beneficial Use of CCRs in the Construction Industry Coal combustion residuals have been used safely in construction for more than 60 years.  The construction industry recycles an estimated 30 percent of these combustion byproducts each year in concrete, asphalt, grouts, wallboard, etc---that adds up to about 32 million tons annually.  About half of that amount, 12-14 million tons of coal ash, is used in concrete.  Fly ash and other coal combustion wastes are also used in floorings, landscape features, insulation, drywall/wall board, mortars and grouts, masonry blocks and building exteriors.  Coal combustion wastes are also used as base, backfill, foundations and structural fill materials in building construction. For more information, contact Melinda Tomaino at tomainom@agc.org.