New EPA Rule Regulates Disposal of Fly Ash as Nonhazardous; Provides Criteria Guiding Beneficial Use
The U.S. 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. EPA’s new rule regulates the disposal of the waste as non-hazardous and identifies four criteria to define approved beneficial uses. 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.
Commenting on EPA’s announcement of the new rule, 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. 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.” Click here to see the full release. See below for an overview of AGC’s action.
Beneficial Use of CCRs Defined
While the new 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 will need to meet specific requirements in order to be approved beneficial uses. (See below for more details on beneficial use.) 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.
EPA has identified four criteria that apply to beneficial use and expressly distinguished between encapsulated and unencapsulated uses of CCRs. Under the rule, encapsulated and unencapsulated uses must meet the first three beneficial use criteria and then certain unencapsulated uses will also need to meet the fourth criterion. The criteria are as follows:
(1) The CCR must provide a functional benefit [e.g., fulfils material specifications; not superfluous];
(2) The CCR must substitute for the use of a virgin material, conserving natural resources that would otherwise need to be obtained through practices such as extraction [e.g., fly ash as a substitute for cement in concrete or FGD gypsum as a substitute for mined gypsum in wallboard];
(3) The use of CCR must meet relevant product specifications, regulatory standards, or design standards when available [e.g., Department of Transportation and/or ASTM requirements, specifications, tests for fly ash used as a stabilized base course in highway construction or ASTM guidance and methodology for using CCR in structure fill], and when such standards are not available, CCR are not used in excess quantities; and
(4) Unencapsulated uses that incorporate more than 12,400 tons of CCRs would need to follow a fourth criterion in addition to the first three in order to be considered beneficial use and not disposal. When unencapsulated use of CCR involves placement on the land of 12,400 tons or more in non-roadway applications, the user must demonstrate and keep records, and provide such documentation upon request, that environmental releases to ground water, surface water, soil and air are comparable to or lower than those from analogous products made without CCR, or that environmental releases to ground water, surface water, soil and air will be at or below relevant regulatory and health-based benchmarks for human and ecological receptors during use. After the effective date of the final rule, any potential user of CCR that makes the demonstration in the fourth criterion must keep records and provide such documentation upon request. [Roadway applications and associated embankments are excluded.]
Encapsulated beneficial uses are those that bind the CCR into a solid matrix that minimizes their mobilization into the surrounding environment. Examples of encapsulated uses include, but are not limited to: (1) filler or lightweight aggregate in concrete; (2) a replacement for, or raw material used in production of, cementitious components in concrete or bricks; (3) filler in plastics, rubber, and similar products; and (4) raw material in wallboard production.
Per EPA, unencapsulated uses of CCR are numerous and range, in total use, from hundreds of thousands of tons to millions of tons per year. These applications include, as examples, the following: (1) flowable fill; (2) structural fills; (3) soil modification/stabilization; (4) waste stabilization or solidification; (5) use in agriculture as a soil amendment; and (6) aggregate. EPA projects that many of these unencapsulated uses, other than structural fills, are not generally expected to be used in amounts that would require an environmental demonstration under the fourth criterion.
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.
AGC Action and Background Information
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 U.S. House of Representatives and the U.S. Senate in both the 112th and 113th 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 Dec. 19, 2014—a deadline which was met.
Following the release of the rule, the U.S. House of Representatives Environment and Commerce Committee held a hearing on Jan. 22, 2015, to explore concerns with the new rule. Some industry groups are concerned that the rule does not offer businesses regulatory certainty, because EPA has left the door open for a future hazardous designation of the waste and the “self-implementing” provision of the rule relies too heavily on citizen suits.
For more information, contact Melinda Tomaino at firstname.lastname@example.org.
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