Industry officials push for congressional fix for EPA's coal waste disposal rule

Two witnesses from the power and coal ash recycling industries told a U.S. Senate committee on June 17 that more work needs to be done on a final coal combustion waste rule issued last December by the U.S. Environmental Protection Agency so that the rule works for industry.

Danny Gray, the Executive Vice President of Charah Inc. – one of the nation’s leading managers and marketers of coal ash - testified on behalf of the American Coal Ash Association (ACAA). He noted that Charah., based in Louisville, Kentucky, is one of the largest providers of coal combustion product (CCP) management, CCP sales and marketing, and power plant support services for the coal-fueled electric industry.

The June 17 hearing by the U.S. Senate Environment & Public Works Committee was called "Oversight of the Environmental Protection Agency’s Final Rule to Regulate Disposal of Coal Combustion Residuals from Electric Utilities."

Gray said that beginning in 2009, beneficial use markets were affected negatively in at least three ways:

•Consumers of coal combustion products began to remove the materials from their specifications because of uncertainty regarding the safety of the material or because of concern over potential legal liability from using it. For instance, the Los Angeles Unified School District prohibited the use of coal fly ash in its concrete “until the EPA confirms fly ash to be a non-hazardous toxic waste.”

•Manufacturers of products that compete with beneficially used coal ash began fanning the flames by citing the potential EPA “hazardous waste” designation. This occurred in markets for blasting grit, brick manufacturing, lightweight aggregate production, and concrete block manufacturing. One particularly egregious magazine advertisement featured a skull and crossbones for an illustration.

•Commercial liability insurance policies that contain exclusions for companies using products that contain fly ash began to appear.

Supporters of the “hazardous waste” designation said that recycling rates would increase under a “hazardous waste” designation, citing the experience of a handful of other industrial byproducts. The materials cited by EPA include electric arc furnace dust, electroplating wastewater sludge, chat from lead and zinc mining, used oil, spent etchants and spent solvents.

"The problem is that none of those materials are anything like coal ash," Gray wrote in his prepared testimony. "Most of them actually qualify as a hazardous waste based on their toxicity. (Coal ash does not.) Almost all of them are reprocessed prior to recycling. (Coal ash is not.) Most of them get recycled in industrial processes, often by the same companies that produced the materials in the first place. (Coal ash is distributed for recycling by thousands of other companies in tens of thousands of public and residential locations all over the country.) Many of them are produced and recycled in very small quantities. (Coal ash recycling is measured in the millions of tons.)"

Coal ash re-use stalls beginning in 2008

"Coal ash beneficial use stalled after 2008 as EPA reopened its coal ash regulatory agenda," Gray said. "Volume utilization coal ash has been lower than 2008 in every year since. The decline in beneficial use volumes stands in stark contrast to the previous decade’s trend. In 2000, when the recycling volume was 32.1 million tons, the EPA issued its Final Regulatory Determination that regulation of ash as a 'hazardous waste’ was not warranted. Over the next eight years, EPA also began actively promoting the beneficial use of coal ash through the Coal Combustion Products Partnership 'C2P2' program and the recycling volume soared to 60.6 million tons. (EPA abruptly terminated the C2P2 program when it reopened its coal ash regulatory agenda.)

"According to ACAA’s most recently released 'Production and Use Survey,' 51.4 million tons of Coal Combustion Products were beneficially used in 2013 – down from 51.9 million tons in 2012 and well below the 2008 peak. In the closely watched category of fly ash used in concrete, utilization increased only slightly to 12.3 million tons, up by 577,705 tons over 2012, but still below 12.6 million tons in 2008. The greatest irony of the lengthy debate over coal ash disposal regulations is that the debate caused more ash to be disposed. If the past five years had simply remained equal with 2008’s utilization, we would have seen 26.4 million tons less coal ash deposited in landfills and impoundments.

"Analysis of historic production and use data reaffirms that the recent decline in coal ash recycling is largely attributable to regulatory uncertainty and not general economic trends. During five recessionary periods since 1973, fly ash utilization out-performed overall concrete production in all but the most recent economic downturn. The current fly ash market continues to be depressed, even as ready mixed concrete volumes began to increase as early as 2010. In previous economic downturns, we actually saw fly ash utilization increase as concrete producers sought less expensive materials in an effort to reduce costs. That did not happen in our most recent economic downturn as regulatory uncertainty trumped economic incentives."

Gray said that Charah and the ACAA appreciate EPA’s final decision from last December to regulate coal ash as a “non-hazardous” material. "We believe this decision puts science ahead of politics and clears the way for beneficial use of ash to begin growing again – thereby keeping ash out of landfills and disposal ponds in the first place. We are also painfully aware, however, that EPA has made final decisions before only to reverse course in the future. A 'hazardous vs. non-hazardous' debate occurred prior to the Agency’s 2000 Final Regulatory Determination – which eight years later turned out to be not so final.

"Additionally, the 2015 Final Rule’s preamble states that: 'This rule defers a final Bevill Regulatory Determination with respect to CCR that is disposed in CCR landfills and CCR surface impoundments until additional information is available on a number of key technical and policy questions.' We feel that 34 years of study, two reports to Congress, two formal regulatory determinations, and a Final Rule issued after a six-year rule making process – all confirming that coal ash does not warrant hazardous waste regulation - should be enough for EPA to declare this issue resolved and make the rule a truly Final Decision. This would provide the long term certainty to the recycling industry that science says is warranted."

RCRA as currently configured may not be well suited to regulating a material characterized by very low toxicity but huge volumes, Gray said. Specifically, the citizen suit enforcement mechanism available to EPA under the existing RCRA Subtitle D has been criticized by both sides of the debate. Bills previously passed by the U.S. House of Representatives – and HR 1734 which is under House consideration now – would resolve these issues permanently, he said. The bills would put primary enforcement responsibility and authority in the hands of professional state environmental regulators and create new authority for EPA to step in if states don’t do the job.

ACAA has supported and will continue to support actions by Congress to create a more effective regulatory structure than EPA can create with its existing "toolbox," Gray said.

"Despite the changing landscape for American electricity generation, our nation will continue to produce large volumes of coal ash for the foreseeable future. Furthermore, the impending closure of disposal sites that have collected coal ash for decades represents an opportunity to reclaim valued mineral materials for beneficial use. However, developing the capability to use more ash requires investment in technologies for improving and ensuring ash quality, ash storage and distribution facilities, and transportation logistics. Attracting the necessary investment requires real, long term regulatory certainty," Gray concluded.

Rural cooperative representative also says that fixes are needed

Also offering June 17 testimony was Mike Kezar, the General Manager of the South Texas Electric Cooperative (STEC). He testified for STEC and also the National Rural Electric Cooperative Association (NRECA). STEC is involved with a lignite-fired San Miguel Electric Cooperative Inc. power plant, located in Atascosa County, Texas. STEC has a multi-year contract with San Miguel to purchase 50% of the power generated by the plant.

"STEC supports EPA’s decision to regulate CCRs as a nonhazardous waste under Subtitle D of the Resource Conservation and Recovery Act (RCRA) in its CCR Rule," Kezar wrote. "There are two things, however, that EPA’s final rule did not accomplish in the end which warrant legislation as soon as possible. Stated another way, EPA’s rule needs a couple more tools in its CCR toolbox for its regulation of CCRs to be as effective and reliable as possible. First, regulatory certainty for CCR beneficial use markets is needed in the form of a legislative nonhazardous determination to allay concerns about the fact that a hazardous determination could still be in the cards given that EPA’s final rule merely defers the question. Second, EPA needs the statutory clarity of new legislation to give EPA and the states the ability to oversee CCR management through federally-approved state permit programs."

Kezar later added: "In addition to the certainty that legislation can bring to beneficial use markets, legislation is also needed to fill key gaps in EPA’s current statutory authority so that they can implement a permitting program that will be much more comprehensive, science-based and enforceable than the current CCR rule. This would be a dramatic improvement to the current self-implementing nature of the CCR rule which leaves the environmental regulatory agencies out of the picture and depends exclusively on a litigation model whereby citizen suits brought in federal district courts across the country will be the sole method of enforcing the regulatory criteria.

"Without legislation, facilities like San Miguel are left open to vast regulatory uncertainty and potentially extreme litigation costs. Under the current rule, nothing a state or even EPA says about a regulatory question that San Miguel might have will trump an ad hoc decision by federal district court judge in the context of a citizen suit. These costs and risks of inconsistent, scientifically unsound decisions that are likely to be generated by a litigation-only compliance approach cannot be overstated. In every other environmental compliance program area (air, water, mining/reclamation, etc.), San Miguel can reliably turn to state or federal environmental agencies to secure permits, work through highly technical risk management approaches, and ensure that it protects human health and the environment in a site-specific and reliable fashion. The uncertainty that the current CCR rule creates for San Miguel could result in millions of dollars of duplicative expenditures due to the absence of an overseeing regulatory agency without protecting San Miguel from abusive citizen suit litigation tactics that might be motivated by a desire to shut the plant down rather than ensure sound CCR management."

Boxer says EPA's new rule is too weak; cites TVA and Duke Energy ash spills

Sen Barbara Boxer, D-Calif., the committee's ranking minority member, said in her opening statement for the hearing that no fixes are needed. "I strongly believe that the EPA rule must be given a chance to work. While I would have preferred that EPA issue a stronger rule - designating coal ash as 'hazardous waste' - EPA’s new rule is an important step toward addressing the dangers of coal ash. I am dismayed that there is legislation moving through the House that attempts to weaken this rule even further."

Boxer added: "It is hard to believe that it has been more than six years since the devastating spill at the Tennessee Valley Authority’s coal ash pond in Kingston, Tennessee. At 1:00 AM on Monday, December 22, 2008, an earthen wall failed on a 40-acre surface impoundment holding coal ash. More than one billion gallons of waste rushed down the valley like an avalanche, covering more than 300 acres, destroying and damaging homes, and polluting the Emory River. The volume of ash and water was nearly 100 times greater than the amount of oil spilled in the Exxon Valdez disaster. In January 2009, I chaired an EPW Committee hearing on the TVA coal ash spill to explore how the spill happened and how we can prevent events like this from happening again. TVA has spent over a billion dollars cleaning up this spill and has made the business decision to convert all of its facilities from wet to dry handling of coal ash. TVA took this responsible step to protect communities from future spills, and I commend TVA for its actions.

"In the wake of the TVA coal ash spill, I called on EPA to assess the hazards associated with coal ash ponds around the country. EPA identified 44 coal ash ponds in 10 states that present a 'high hazard' – meaning that if the pond were to fail, it would pose a threat to human life. EPA required facilities to submit corrective action plans for those ponds that were found to pose a serious risk of failure. Unfortunately, EPA relied solely on the states and the utilities to follow through with the corrective action plans, which was clearly not enough.

"Duke Energy’s (NYSE: DUK) Dan River facility in North Carolina is one example of a company not following through on a corrective action plan. Duke Energy agreed in its corrective action plan to monitor a metal stormwater pipe for signs of potential failure. In February 2014, that very same pipe rusted out and failed, spilling toxic coal ash into the Dan River, a source of drinking water for communities in North Carolina and Virginia. Since the spill, Duke Energy has pled guilty to criminal charges involving its coal ash ponds. A criminal investigation of the North Carolina state agency charged with protecting public health and the environment is ongoing.

"The EPA rule will provide critical public health protections, including groundwater monitoring, cleanup requirements, transparency, and preservation of each citizen’s right to protect their community from coal ash pollution. For the first time, utilities will have to test the groundwater surrounding their coal ash ponds and post that information online. This will allow citizens to know what is in their water and help prevent pregnant women and children from drinking groundwater that is contaminated with toxins. While I strongly believe EPA should have done more to address the dangers of coal ash, EPA’s rule will go a long way to protecting people from toxic coal ash in the future. 

"Legislation being considered in the House of Representatives would delay many of the rule’s new health and safety protections, including the rule’s mandate to close inactive coal ash ponds. It would also eliminate public access to information about coal ash ponds and remove the rule’s national minimum standard for protection of health and the environment, allowing state programs to eliminate critical safety requirements. It is important that this new rule not be diluted by Congress. EPA should be allowed to move forward with critical new protections for the safety of our communities."

This article was republished with permission from

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