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Tuesday, January 8, 2013

EPA’s Ruling Process: Ash Backwards

As a Catholic Midwesterner of A Certain Age, I was raised to be polite. Yes ma’am, no sir, may I be excused?

And yet, some rude phrases could never be quelled. One was Shut UP! With six kids in the house, shouted symphonies of Shut UP! rang out more than the phone that eight of us shared.

My parents hated it. But Shut UP! was what you unloaded when you were just too mad to think of anything smarter or funnier.

I used up my life’s share of “shut ups” by the time I was 15, but the old saw has been clawing its way out of me again.

I am burning to say it to—scream it at, sky-write it over, staple it to the forehead of—the Environmental Protection Agency.

Paging Lisa Qaddafi

Yes, the EPA—that Great Satan of a bureaucracy reviled for its “overreach” under the Obama Administration. (How reviled? Someone just likened the resignation of EPA Administrator Lisa Jackson to the toppling of Libyan dictator Moammar Qaddafi. I mean, please.)

The EPA is driving me out of my mind. But not for any stance it has taken. No, what’s eating me is the stance it won’t take—on the issue of Coal Combustion Residuals (CCR).

 KTrimble / Wikimedia Commons

 KTrimble / Wikimedia Commons

Fly ash was used in concrete to build Missouri’s Taum Sauk Hydroelectric Power Station in 2009.

Yes, CCRs in all their forms—fly ash, bottom ash, boiler slag, you name it—has become The Issue That Shall Not Be Resolved.

Here’s the question: Are coal combustion products hazardous materials that require special handling?

Here are the possible answers: Yes or no.

Sounds simple? You’d think.

Old King Coal Ash

Coal combustion products have been in commercial use for more than 50 years. The United States has recently been producing about 130 million tons, give or take, each year. About 43 percent is recycled; the rest becomes waste.

Now, one would think that after more than five billion tons of something has been produced, used and disposed of over three generations, government scientists would have a handle on how harmless or harmful that substance is and be able to develop some kind of guidance for it.

But no.

The fact is, we are now closing in on three years since the EPA issued its Proposed Rule for Disposal of Coal Combustion Residuals [CCRs] from Electric Utilities. At the heart of that proposal is a decision critical to the coatings industry: whether to designate CCRs for the first time as “hazardous waste” for purposes of disposal under the Resource Conservation and Recovery Act (RCRA).

After the EPA issued its proposal, recycling of coal ash dropped by more than five million tons in two years, the industry says.

(If you need a refresher on any of this, check out Alison Kaelin’s JPCL article, “EPA’s proposed rule on coal wastes.”)

Clearly, this is a high-stakes decision for the coatings and construction industries. CCRs are a multibillion-dollar industry; they are used in everything from blast media to paints, building materials and fill. A declaration either way—hazardous or not—would alter the future and fortunes of several industries.

Still, as my Dad would have said, what in the name of common sense are they waiting for?

Hurry Up and Wait

In 2000, the EPA issued a Regulatory—and presumably scientific—Determination that beneficial use of coal ash was not harmful. In that view, the agency has never wavered.

Indeed, EPA became such a promoter of coal ash that its own Office of Inspector General finally told the agency in 2011 to tone it down and present the risks—for there are risks to any substance—as well as the benefits. That report was one of three criticizing the EPA for lack of due diligence in evaluating CCR’s risks and benefits.

Amid all of this, the agency unfurled its CCR proposal in June 2010, giving the two options for the products’ future.



Administrator Lisa Jackson is leaving a lot of unfinished business at the Environmental Protection Agency.

With great fanfare, the EPA then hosted a half-dozen public hearings; accepted more than 450,000 comments; deliberated more than two and a half years, and ... Did. Absolutely. Nothing. Since Day 1, the rule has not moved one micrometer.

Worse, EPA won’t even say what year it might finalize the rule. Ask what is going on with the issue—and PaintSquare News has asked countless times—and EPA gives the same non-response: It’s “being evaluated.”

Common Enemy

Which is why coal’s bitterest enemies and dearest friends now find themselves the strangest of all bedfellows.

Because as passionate as both sides are, and with as much as each has to lose, both have concluded that the continuing uncertainty is even worse than a decision against them. (The stock market historically abhors uncertainty for the same reason.)

This isn’t deliberation (much less overreach). It’s paralysis. 

And it is why the EPA is now being sued by everybody on all sides of the issue. The coal ash industry has been trying to force the EPA’s hand since 2011, saying the regulatory sword hanging over it has already harmed its business.

Even ash producers are suing for a decision. So are the Sierra Club and 10 other environmental and public health groups.

Yup, the EPA has actually managed to join environmentalists and the coal industry in complete exasperation. Truly, nothing unites like a common enemy.

Call Me Irresponsible

Last summer, the EPA told PaintSquare News for the umpteenth time that the agency had no timetable for a decision but was “committed to protecting people's health and the environment in a responsible manner."

Funny thing: Look up the meaning of responsible and you’ll find, “Having an obligation to do something as part of a job or role.” Abdicating an important decision doesn’t qualify, and it certainly protects no one.

Look. As things stand, either our nation’s scientific leaders are allowing the wanton use and careless disposal of millions of tons of hazardous waste, or they are allowing baseless insinuations to cripple a tremendous resource and several honest industries.

For the government to allow either is irresponsible; to perpetuate both is outrageous.

Which is why it’s high time for a judge in one of these suits to say to EPA: Put up or Shut UP!

More items for Surface Preparation

Tagged categories: Abrasive blasting; Abrasives; Coal ash; Enforcement; EPA; Government; Protective coatings; Regulations; Surface preparation

Comment from Donald L Crusan, (1/9/2013, 7:06 AM)

Nothing is simple ever, but for the last 30 years, everything has been more murky. We took it out of the ground, let's use it and/or put it back. So much potential for a common byproduct.

Comment from Robert Ikenberry, (1/9/2013, 9:08 AM)

Wel put Mary, and we welcome your blog. Unfortunately, discussions about ANY controversial topic should probably start: "it's complicated, but I think..." Reglations would like real world circumstances to be neat and tidy, but they never are. That doesn't mean regulators can just give up and do nothing.

Comment from John Fauth, (1/9/2013, 9:40 AM)

Ah, the unintended consequences of "simple" bureaucratic decisions. Label CCR's as a hazardous waste because it's potentially dangerous to store in large quantities in poorly engineered retention ponds, and you'll drastically impact safe consumption and sequestration in products like concrete. Net result... you'll have more CCR's in poorly engineered retention ponds and a larger problem. Then there's the inevitable flurry of lawsuits every time someone sawcuts, chisels, removes concrete and releases a hazardous waste into the air. It's the new asbestos abatement! I'm not anti-regulation... just anti "regulating the wrong thing".

Comment from Mary Chollet, (1/9/2013, 10:12 AM)

Gentlemen, you're right. I'm certainly not agitating for a hasty, needless or uninformed regulation. I just feel EPA has a duty, for everyone's sake, to advance the process it has begun.

Comment from John Fauth, (1/10/2013, 8:26 AM)

Mary, here's my beef with this whole issue. This country once had an issue with poorly engineered, privately owned dams (ask the good folks in Johnstown, PA). It was properly identified as an engineering and maintenance issue and no one suggested that we label water as a hazardous waste. But because coal and CCR's have a political component, the real cause (and solution) is obscured. Advancing the EPA's agenda is simply wrong headed, and they're now in the unenviable position of admitting that and alienating a powerful political constituency, continuing to enact harmful regulation with harmful consequences, or dragging this thing out in hopes enough people will forget or they can blame inaction on the next administration. I'm betting on the latter.

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