POWER September 2010 - 26

Coal Ash Regulation:
Playing the Name Game
By Angela Neville, JD
W
hat'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
26
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.
www.powermag.com
POWER | September 2010
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POWER September 2010

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