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Judge compels EPA to move on languishing coal ash disposal rule

Source: American Coal Ash Association (ACAA), Farmington Hills, Mich.

A 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 fly ash.

“Uncertainty that has impeded the beneficial use of coal ash for half a decade is finally coming to an end,” affirms ACAA Executive Director Thomas Adams. “It now appears 2014 is the year for EPA to 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.) Published in June 2009, the proposed rule, “Identification and Listing of Special Wastes; Disposal of Coal Combustion Residuals (CCR) from Electric Utilities,” offered the Subtitle D path as one option, with significant participation from state authorities in overseeing handling, storage and disposal of coal ash. A second option, placing CCR under RCRA Subtitle C, invited “hazardous waste” classification of any landfill-bound ash. 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.

“Finalizing coal ash disposal regulations this year will help us to regain momentum for keeping ash out of landfills,” says Adams. “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 were beneficially used in 2012—down from 56.6 million tons in 2011 and well below the 2008’s 60.6-million-ton peak. 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, Adams contends, noting: “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.”