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Fly ash marketers, users spared ‘hazardous material’ stigma in EPA rule

After five and a half years of proposals, reworking and review of 450,000-plus comments, the Environmental Protection Agency issued a final rule on coal combustion residuals (CCR) from utility power plants, strengthening management guidelines for impoundment- or landfill-bound material while supporting responsible recycling practices best exemplified in ASTM C618-grade fly ash processing and marketing.

 

“The regulatory uncertainty that has impeded the beneficial use of coal ash for half a decade has finally come to an end,” affirms American Coal Ash Association Executive Director Thomas Adams. “EPA’s decision to regulate coal ash as a ‘nonhazardous’ material puts science ahead of politics and clears the way for beneficial use of ash to begin growing again—thereby keeping ash out of landfills and disposal ponds in the first place.”

Such use has trended negatively against historical patterns since the agency initiated CCR management and disposal rulemaking in June 2009. The proposed rule offered two CCR classification options under the Resource Conservation and Recovery Act: Subtitle D, tasking states with significant coal ash handling, storage and disposal oversight; and, Subtitle C, inviting “hazardous waste” labeling of landfill-bound ash and federal scrutiny of material management and disposal. The latter option sparked concern among cement and concrete interests over the stigma fly ash would carry as a material with essentially the same chemical properties as one EPA labeled hazardous. ACAA and allied groups endorsed aspects of the Subtitle D option, the course EPA ultimately chose.

According to ACAA’s most recent “Production and Use Survey,” released days before the EPA final CCR rule late last year, coal ash utilization hovered below 2008 levels for the fifth consecutive year in 2013. If 2009–2013 annual consumption had simply remained equal with 2008 levels, the association estimates, 26.4 million tons less coal ash would have been disposed.

“As an organization devoted to using coal ash in environmentally responsible and technically sound ways, we look forward to finally being able to focus all of our attention back on growing these uses,” Adams affirms. Coal ash has never qualified as a “hazardous waste” based on its toxicity, he adds, as its trace levels of metals are comparable to those materials it replaces in common recycling applications.

EPA VERDICT

“EPA is taking action to protect our communities from the risk of mismanaged coal ash disposal units, and putting in place safeguards to help prevent the next catastrophic coal ash impoundment failure, which can cost millions for local businesses, communities and states,” Administrator Gina McCarthy observes upon releasing the first national coal combustion residuals (CCR) disposal regulations. “These strong safeguards will protect drinking water from contamination, air from coal ash dust, and our communities from structural failures, while providing facilities a practical approach for implementation.”

EPA cites years of studying the effects of coal ash disposal on the environment and public health. In the wake of the 2008 failure of a Tennessee Valley Authority coal ash pond in Kingston, Tenn., the agency began a multi-year effort to help ensure the safety of the nation’s coal ash disposal facilities, including assessing more than 500 facilities across the country. Improperly constructed or managed coal ash disposal units have been linked to nearly 160 cases of harm to surface or ground water or to the air, EPA contends. Agency officials carefully evaluated more than 450,000 comments on the proposed “Identification and Listing of Special Wastes; Disposal of Coal Combustion Residuals (CCR) from Electric Utilities” rule; testimony from eight public hearings; and, information gathered from three notices soliciting comment on new data and analyses. 

The final “Identification and Listing” rule establishing the first federal requirements for impoundments and landfills calls for:

  • Closure of surface impoundments and landfills that fail to meet engineering and structural standards and will no longer receive coal ash; 
  • Reducing the risk of catastrophic failure by requiring regular inspections of the structural safety of surface impoundments;
  • Restrictions on the location of new surface impoundments and landfills so that they cannot be built in sensitive areas such as wetlands and earthquake zones;
  • Protecting groundwater by requiring monitoring, immediate cleanup of contamination, and closure of unlined surface impoundments that are polluting groundwater;
  • Protecting communities using fugitive dust controls to reduce windblown coal ash dust; and,
  • Requiring liner barriers for new units and proper closure of surface impoundments and landfills that will no longer receive CCRs.

In response to comments received on the proposal, the final rule makes a number of changes by providing greater clarity on technical requirements for coal ash landfills and surface impoundments under Subtitle D of the Resource Conservation and Recovery Act, the nation’s primary law for regulating solid waste. Implementation of these technical requirements will be reported through comprehensive and regular disclosure to states, and communities to enable them to monitor and oversee these requirements. 

The rule requires that power plant owners and operators provide detailed information to citizens and states to fully understand how their communities may be impacted. The rule sets out new transparency parameters, including recordkeeping and reporting requirements—posting of each facility’s specific information on a publicly-accessible website among them. This will provide the public with information such as annual groundwater monitoring results, and corrective action reports, coal ash fugitive dust control plans, and closure completion notifications, EPA affirms.

This final rule also supports the responsible recycling of coal ash by distinguishing safe, beneficial use from disposal. In 2012, almost 40 percent of all coal ash produced was recycled, rather than disposed. Beneficial use of coal ash can produce positive environmental, economic and performance benefits such as reduced use of virgin resources, lower greenhouse gas emissions, reduced cost of coal ash disposal, and improved strength and durability of materials.

EPA is committed to working state partners on rule implementation. To ease the process and harmonize the regulatory requirements for coal ash landfills and surface impoundments, the agency encourages states to adopt the federal minimum criteria, revise their Solid Waste Management Plans (SWMPs) and submit these revisions to EPA for approval. A revised and approved SMWP will signal EPA’s opinion that the state SWMP meets the federal criteria.

In a press release, Sierra Club-aligned legal counsel Earthjustice criticized the agency’s decision on the RCRA Subtitle D provision and other agency measures.

“While EPA’s coal ash rule takes some long overdue steps to establish minimum national groundwater monitoring and cleanup standards, it relies too heavily on the industry to police itself,” notes Environmental Integrity Project Executive Director Eric Schaeffer in the release. “The devil is in the details, and we will review the regulation closely for loopholes.