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Coal Ash Decision Hits Home Stretch

Tuesday, November 25, 2014

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So, are ash, slag and other coal combustion waste products hazardous or not?

Nearly five years after federal regulators publicly floated the question, it's time for them to answer it.

Racing a Dec. 19 court-ordered deadline, the U.S. Environmental Protection Agency submitted its Proposed Rule for Disposal of Coal Combustion Residuals [CCRs] from Electric Utilities to the White House Office of Management and Budget on Oct. 27 for final review.

CoalAsh-ACAA
American Coal Ash Association

With 100 million tons of Coal Combustion Residuals generated each year in the U.S., stakeholders on all sides of the disposal issue are demanding a resolution.

According to OMB's site, the rule (RIN: 2050-AE81) is now titled Standards for the Management of Coal Combustion Residuals Generated by Commercial Electric Power Producers and is considered "economically significant."

'A Black Box'

The OMB review is the penultimate stop in the rulemaking process and must be completed quickly in order for EPA to make its announcement next month.

The EPA has told several news outlets that it "fully expects" to meet the Dec. 19 deadline. But nothing in the agency's 2010 proposal has gone smoothly or swiftly, and the final stage may not either.

GreenpeaceProtest
Greenpeace USA

The proposed coal-ash rule was the topic of heated public hearings, including Greenpeace protests, in 2010.

Even if the EPA has set a clear course in the rulemaking, the OMB could up-end it in any direction. As Earthjustice senior administration counsel Lisa Evans blogged recently:

"The OMB regulatory review is a black box—opaque, inscrutable and exceedingly dangerous. Rules never come out the way they go in—the offices of OMB are littered with crumpled pages of strong rules gone soft after revision by the White House."

Hazardous or Not?

At issue is whether the EPA will, for the first time, designate ash and other Coal Combustion Residuals (CCRs) as “hazardous waste” for purposes of disposal under the Resource Conservation and Recovery Act (RCRA).

It is a high-stakes decision for the coatings, construction and abrasive blasting industries, where CCRs are in widespread use.

The EPA has always deemed the material non-hazardous and ripe for beneficial reuse, but all of that changed in December 2008 with the catastrophic coal fly ash slurry spill at the Tennessee Valley Authority Kingston Fossil Plant. The 5.4 million-cubic-yard spill was the worst of its kind in U.S. history, and cleanup continues.

TVA spill TVA spill
Hohum (left); TVA (right) / Wikimedia

The issue of Coal Combustion Residual safety gained urgency in December 2008 with the catastrophic coal fly ash slurry spill at the Tennessee Valley Authority Kingston Fossil Plant. Cleanup is not yet complete.

In 2009, then-EPA Administrator Lisa Jackson sent the White House a proposed CCR rule that would have regulated coal ash as hazardous. That measure languished until the following summer, when EPA issued the recast proposed rule.

The revised 2010 proposal essentially invited the public to weigh in on which regulatory path EPA should follow: hazardous or non-hazardous.

Comments, Hearings and Lawsuits

Since then, the rule has spawned a half-dozen public hearings and nearly a half-million public comments. Nevertheless, EPA has refused to set a deadline for its decision.

CCP - ACAA
ACAA

Continuing uncertainty about the regulatory fate of coal combustion residuals has sharply impacted use of the material in recent years, the coal-ash industry says.

With 100 million tons of CCRs generated each year in the United States, the continuing uncertainty about its handling and disposal has now prompted lawsuits from stakeholders on all sides of the issue.

All parties are demanding a decision.

Stakeholders also note that, new rule or not, EPA has been derelict in its obligation to review and revise the RCRA regulations on coal waste every three years.

Finally, in a January 2014 Consent Decree, EPA agreed to take final action on a coal ash rule by Dec. 19, 2014—four weeks from today.

 

   

Tagged categories: Abrasive blasting; Coal ash; Coal Combustion Residuals; Coal slag; Construction; Environmental Protection Agency (EPA); Good Technical Practice; Laws and litigation; North America; Protective Coatings; Regulations

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