Coal Ash Regulation: Playing the Name Game

What’s in a name? Would coal ash labeled as “special” hazardous waste be as easily recycled as that labeled nonhazardous waste?

That is the crux of the debate sparked by the U.S. Environmental Protection Agency’s (EPA) consideration related to changing coal combustion residuals’ current status as a nonhazardous waste under the Resource Conservation and Recovery Act’s (RCRA) Subtitle D. Existing coal ash regulations are now undergoing close scrutiny in the wake of the massive disaster involving the accidental release of billions of gallons of wet coal ash at the Tennessee Valley Authority’s Kingston, Tenn., plant in December 2008.

Prompted by safety and environmental concerns, on May 4 the EPA issued a two-option proposal: Either regulate coal ash as a nonhazardous waste under Subtitle D with additional tougher management and disposal regulations or regulate these materials as a “special” hazardous waste under RCRA’s Subtitle C, but allow it to still be eligible for recycling and reuse in products such as Portland cement. Public comments concerning the EPA’s proposed rule are being accepted until September 20.

“We have heard some people complain that if you call it hazardous waste, that will stop people from recycling it; we’ve never seen that to be the case,” said EPA Administrator Lisa Jackson, responding to questions about industry’s reaction to the proposed rule change. “However, with a nod toward those concerns, the EPA has said, ‘let’s call it a special waste.’”

Industry Groups’ Reactions

Not surprisingly, many national trade groups representing investor-owner utilities, municipal power companies, and rural electric cooperatives are not in agreement with the EPA’s plan to possibly carve out a “special waste” category for coal ash in the case that it chooses a hazardous waste determination.

“EPA might want to call it something else, but Subtitle C is a hazardous waste,” said Jim Roewer, executive director of the Utility Solid Waste Activities Group, which represents the Edison Electric Institute, the American Public Power Association, and the National Rural Electric Cooperative Association, among other industry groups.

“The Subtitle C label matters. The stigma would still be applied no matter what you call it… and have adverse impacts on producers of coal-fired power,” said Roewer.

Representatives of industry groups assert that such a determination would require expensive management and disposal safeguards for coal ash and could lead to federal calls to close certain, older surface coal ash impoundments. Indeed, on the agency’s website, the EPA states that on a 50-year present value basis at a 7% discount rate, the projected average annual costs to implement the proposed Subtitle C upgrades to coal ash management would total approximately $20.3 billion versus about $8.1 billion to implement the revised Subtitle D upgrades.

Representatives of the recycling industry also argue that classifying coal ash as a hazardous waste would raise liability fears, making it difficult to use coal ash in building materials.

Environmental Groups Weigh In

In stark contrast to the industry groups’ position on the EPA’s proposed rule changes, leading environmental organizations strongly support regulating coal ash as a special waste under Subtitle C.

In a recent joint statement, the Natural Resources Defense Council, the Sierra Club, the Environmental Integrity Project, and other groups said, “The EPA’s ‘special waste’ proposal is the only way to guarantee the closure of the most dangerous waste ponds; ensure strong federal oversight and cleanup of contaminated streams, rivers and drinking water supplies; and protect communities across from the country from coal ash contamination.”

Recent Legislative Hearing

On July 22, a hearing was held by a U.S. House of Representatives subcommittee to examine what impacts the proposed changes to the current laws governing the beneficial use of coal ash would have on small businesses.

During the hearing, Rep. Heath Shuler (D-N.C.), a subcommittee chairman, commented that he is a proponent of creating a new national coal ash standard because small businesses stand to lose a great deal if the material is regulated as a hazardous waste.

“Small businesses involved in the recycling, handling, and transportation of coal ash stand to suffer serious economic harm if the EPA doesn’t get this right,” Shuler said. “I agree that we need strong and enforceable regulations at the federal level for coal ash storage and disposal. I want to work with EPA on a solution to provide better environmental protection without the economic damages of regulating coal ash like a hazardous waste—when it really isn’t.”

He stated that he is currently preparing legislation to help address recycling entrepreneurs’ concerns.

Creating a New Customized Standard

Coal ash waste needs to be regulated under a pragmatic new federal standard that addresses its unique properties without stigmatizing all recycling applications of the material. A specifically tailored standard for coal ash could give the EPA enforcement powers over coal ash management practices that would protect human health and the environment while also promoting the beneficial use of coal ash without the liability exposure of labeling the waste as hazardous.

— Angela Neville, JD, is POWER’s senior editor.