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Judge Orders EPA to Act on Coal Ash

Monday, November 4, 2013

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After years without action, a federal judge has dropped the hammer on the Environmental Protection Agency to make up its mind on regulating coal waste.

In an order signed Tuesday (Oct. 29), U.S. District Judge Reggie B. Walton gave the agency 60 days to explain exactly when the agency proposes to complete its long-stalled review and revision of regulations concerning coal ash.

Coal Ash
Citizens for Recycling First

About 136 million tons of coal ash was produced in 2008; about 44 percent of it was recycled.

The order came in one of several lawsuits filed in 2012 by parties on all sides of the coal-ash issue trying to force the EPA to move forward on its June 2010 Proposed Rule for Disposal of Coal Combustion Residuals [CCRs] from Electric Utilities.

An EPA spokeswoman said Friday (Nov. 1) that the agency was reviewing Walton's decision.

Hazardous or Not?

At the heart of the proposal is a decision critical to the coatings, construction and blasting industries: whether or not to designate CCRs for the first time as “hazardous waste” for purposes of disposal under the Resource Conservation and Recovery Act (RCRA).

RCRA contains a two-pronged approach for regulating solid wastes: Hazardous waste is regulated under Subtitle C, creating a cradle-to-grave federal regulatory system for its treatment, storage and disposal. All other wastes (including CCRs) fall under Subtitle D.

White's order notes that a waste is considered hazardous and subject to regulation under Subtitle C if it exhibits "any one of the four characteristics of hazardousness: ignitability, corrosivity, reactivity, or toxicity."

Waiting Game

The EPA held public hearings on the proposal several years ago and has received more than 450,000 comments. But it has repeatedly refused to move forward with a decision on the rule, or to say when it will do so, or to say even what it is waiting for.

Kingston coal ash spill
Tennessee Valley Authority

The EPA proposed the coal-ash regulation 18 months after a massive coal ash spill at the Kingston Fossil Plant in Kingston, TN, in December 2008. This photo was taken the day after the spill.

In 2011 and 2012, EPA Assistant Administrator Mathy Stanislaus said the agency was developing methodologies to evaluate the environmental impact of coal ash that is beneficially used, but no further action was forthcoming.

The delays have now infuriated coal-waste defenders and foes alike. Although the EPA has long defended (and regulated) CCR as non-hazardous, coal-ash advocates say that the uncertainty over the possibility of a "hazardous" designation has damaged the slag industry.

Meanwhile, environmentalists and public-health advocates who consider the material hazardous say that continued lack of regulation is harmful to their constituents.

Lawsuits Combined

Walton's order was issued in a case that has now combined an April 2012 lawsuit by 11 environmental and health groups with individual suits filed earlier by Boral Material Technologies and Headwaters Resources. The companies are the two largest processors of coal power plant waste used in building materials.

Greenpeace activist
Greenpeace USA

Heated public hearings on the coal ash proposal in 2010 included the arrest of some Greenpeace activists.

All of the suits demanded that EPA act on the rule, although their proposed deadlines varied. The plaintiffs also all noted that EPA was required to review RCRA's provisions at least every three years—a deadline that EPA has now passed with its 2010 proposal.

Walton's order agrees, saying EPA has had enough time to do its homework on the issue.

'Cannot Permit EPA to Set its Own Schedule'
"The Court is sensitive to the EPA’s desire to conduct its review and revision of the regulations at issue in a responsible fashion and is cognizant that the Agency is in the best position to assess the time in which it will be able to do so," he wrote.
"However, the Court cannot permit the EPA to set its own schedule to the extent that the EPA’s  non-discretionary duty is pursued in a manner dictated solely by the Agency’s discretion.
"In view of the competing considerations at stake here, the Court finds it prudent to require the EPA to submit a proposed scheduling order setting forth a proposed deadline by which it will comply with its statutory obligations, particularly given the progress that the Agency presumably would have already made while the motions that have been addressed in this opinion were being briefed and then were under consideration by the Court."
EPA requested an additional six months to provide its schedule, "but," the judge wrote, "considering the time that has elapsed since that requrest was made, the Court finds that 60 days is sufficient."
Moving Forward?

Having a deadline doesn't guarantee action, however, cautions consultant Alison B. Kaelin, a longtime expert on the regulatory climate of the coatings industry.

Alison Kaelin
KTA-Tator Inc.

Does a deadline mean action? Don't hold your breath, advises consultant Alison B. Kaelin.

"Unfortunately, in today’s partisan environment with rigid lines drawn between business and public protection, it seems the only way to move EPA regulatory action forward is through court orders," Kaelin said Friday.

She notes, for example, that the NAAQS-Lead Standard update in 2008 "only occurred" because of a federal-court decision in September 2005 that "a review of the lead NAAQS should be completed by Sept. 1, 2008. The court-ordered schedule required EPA to propose whether to revise the standards by May 1, 2008, and issue a final rule by Sept. 1, 2008."

Similarly, she added, "the 2012 EPA revisions to the Particulate matter 2.5 standards only occurred due to a court-imposed deadline."

"Simply having a court order does not ensure success or timely promulgation," Kaelin warned. "Nearly every proposed EPA regulation or revision issued these days face an uphill battle getting through House Republicans and the power corporate lobbies.

"In fact, the House passed a bill in July to preclude federal regulation of ash and leaving it to the states."



Tagged categories: Abrasive blasting; Coal ash; Coal Combustion Residuals; Coal slag; EPA; Health & Safety; Laws and litigation; Protective Coatings; Surface preparation

Comment from M. Halliwell, (11/4/2013, 12:00 PM)

I’m not surprised in the slightest at this action. Between intentional foot dragging and the bureaucratic nightmare to get things approved, I find myself amazed that the EPA (and OSHA) are ever able to update their guidelines or get new ones passed at all.

Comment from Tom Schwerdt, (11/5/2013, 8:32 AM)

Classifying the ash as a hazardous waste will likely dramatically reduce the current beneficial uses of the ash, but on the other side, coal as is not the same as household waste. Perhaps they could deal with it under something like the Universal Waste or some other special waste rule. Fly ash is often a major component in structural concrete - it improves durability, and significantly reduces the amount of cement used in the recipe. Replacing 30% of the cement with fly ash is often a reasonable number. Reduced cement means a LOT less CO2 and particulates emitted into the air from cement production, and a lot less fuel required per ton of concrete produced.

Comment from paul mellon, (11/5/2013, 2:46 PM)

I agree with Tom on encapsulated CCRs, however I think it is now apparent to the EPA that they will not be able to continue to allow coal slag abrasives in their new Benefical Program regardless of the EPA's final decision on CCR's as Hazardous or special waste. OSHA's decision to tell the coal slag companies in 2012 to list the highly toxic metal beryllium and other toxins on their MSDS' ends any pretense that the EPA used in the past to claim coal slag abrasives are "safe" for human health or environment. It is clear from OSHA that there are toxins in the slag dust at unsafe levels. This will become even more obvious to the EPA and Industry when OSHA issues their new lower exosure limit for beryllium due in December. The facts speak for themselves.

Comment from John Fauth, (11/6/2013, 8:54 AM)

I'm all for clean air and water, safe food, etc. Lord knows I consume enough of each. But I believe the unintended consequences of regulating CCR's under Subtitle C will be significant.

Comment from Keith Gabbard, (11/7/2013, 1:57 PM)

The SDS's for slags that I have reviewed (coal & copper)generally list Chemical Compositions of Beryllium to be between 0 than .001% by weight in bulk form. How that translates into airborne exposures above OSHA's current PEL of .002 mg/m3 TWA for Beryllium in Blast operations depends entirely on air volume of Blast area, air turns, consumption rate of media & percentage of PM2.5 generated. Monitoring of Blast shop air is the only way to determine airborne levels of heavy metals. As far as EPA is concerned, TCLP's of the spent abrasive waste stream will determine if leachable levels are beyond EPA's limits for particular heavy metals. One more point, I do not believe that this is the proper forum for personal product endorsement via disparaging competitive abrasive products by stating real or hoped for health issues.

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