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JUDGE COMPELS EPA TO PICK UP PACE ON LANGUISHING COAL ASH DISPOSAL RULE

A late-January federal court action establishes a December 2014 deadline for the U.S. Environmental Protection Agency to finalize a rulemaking, initiated in early 2009, that has created uncertainty over the regulatory status for all grades of coal ash, including ASTM C618 product. “The regulatory uncertainty that has impeded the beneficial use of coal ash for half a decade is finally coming to an end,” affirms American Coal Ash Association (ACAA) Executive Director Thomas Adams. “It now appears 2014 is the year for EPA to finally establish federal coal ash disposal guidelines under the ‘non-hazardous’ section of the law.”

In a Consent Decree signed by all of the parties to a federal lawsuit aimed at compelling EPA action, the Agency agreed to a December 19 deadline to finalize the rule, signaling it would be promulgated under the “non-hazardous” Subtitle D of the Resource Conservation and Recovery Act (RCRA). EPA has indicated in a related rulemaking on Effluent Limitation Guidelines that the Agency’s “current thinking” is that a Subtitle D regulation will be appropriate. Published in June 2009, the proposed “Identification and Listing of Special Wastes; Disposal of Coal Combustion Residuals (CCR) from Electric Utilities” rule offered the Subtitle D path as one option, with significant state oversight in coal ash handling, storage and disposal. A second option, subjecting CCR to RCRA Subtitle C guidelines, invited “hazardous waste” classification of landfill-bound ash and much federal agency oversight. That prospect sparked great 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.

“Finalizing coal ash disposal regulations this year will help us to regain momentum for keeping ash out of landfills in the first place,” says Adams. “Ash users have been waiting for EPA to confirm that it will not reverse more than 30 years of federal policy that ash is a non-hazardous material with numerous beneficial uses. That confirmation is now imminent.”

According to ACAA’s most recent “Production and Use Survey,” 51.9 million tons of Coal Combustion Products (CCPs) were beneficially used in 2012—down from 56.6 million tons in 2011 and well below the 2008 peak of 60.6 million tons. In the closely watched category of fly ash used in concrete, utilization remained level at 11.8 million tons, up by only 44,000 tons over 2011 and still below 12.6 million tons in 2008.

The decline in use volumes stands in stark contrast to the previous decade’s trend. “In 2000, when the use volume was 32.1 million tons, the EPA issued its Final Regulatory Determination that regulation of ash as a ‘hazardous waste’ was not warranted. Over the next eight years, EPA also began actively promoting the beneficial use of coal ash and the use volume soared to 60.6 million tons,” notes Adams.

“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. Millions of tons of coal ash will continue to be generated in the U.S. every year. With disposal regulations finally settled, we can refocus energy on productively using those large volumes of material rather than throwing them away.”