Inspector General Questions EPA’s Support for Beneficial Use of Fly Ash

The Inspector General (IG) of the U.S. Environmental Protection Agency (EPA) has just published a report recommending that the agency evaluate the risks involved in putting coal combustion residuals (CCRs), such as fly ash, to beneficial use before providing any further encouragement for the use of the material  in construction or other applications, such as agriculture. AGC has welcomed EPA’s past support for the beneficial use of these materials, particularly to improve the performance of concrete and hot-mix asphalt, and AGC is therefore finds the IG’s report to be troubling.  The report does not, however, make any specific criticism of the  beneficial use of such material, and states: “EPA efforts to seek reuse opportunities and establish reuse goals for a very large waste stream such as CCRs are an important and necessary part of its environmental protection mission.” EPA is still reviewing the more than 450,000 public comments that it has received on its recently proposed rule on the disposal of coal combustion residuals.  AGC doubts that EPA will manage to finalize that rule in 2011 and some speculate that EPA will not announce a final rule before the 2012 elections.  In any case, the proposed rule gives EPA two broad options: characterize these materials as hazardous under subtitle C of the Resource Conservation and Recovery Act (RCRA) or non-hazardous under subtitle D of the same statute.  Both options would allow certain beneficial uses to continue but AGC is deeply concerned that characterizing this material as hazardous would have the practical effect of ending its use in construction. In its proposed rule, EPA states it would like to safeguard the beneficial use of CCR products.  At the same time, the agency explains that some large-scale fill uses may be more aptly defined as “disposal” (rather than beneficial reuse) and likely would be treated as such in the future.  In addition, the agency announces its plans to evaluate all beneficial uses to determine which ones should be allowed to continue in the future.  All in all, the proposed rule is very ambiguous about the future of beneficial use, other than to point out that those uses identified in EPA’s May 2000 Regulatory Determination would likely be acceptable moving forward.  These uses include many construction applications such as use in cement, concrete, brick and concrete products, road bed, structural fill, blasting grit, wall board, insulation, and roofing materials. In its November 2010 comment letter to EPA, AGC urged the agency to make a non-hazardous waste designation for coal combustion residuals, thereby ensuring the continued beneficial use of those materials.  Indeed, in its proposed rule, EPA admitted that the requirements under subtitle D (non-hazardous waste) are sufficient to protect human health and the environment. Inspector General Reports The inspector general report, March 2011, recommends that EPA define and implement risk evaluation practices (1) to determine the safety of CCR beneficial uses EPA promotes, and (2) to determine if further action is warranted to address historical CCR structural fill applications.  The report does not identify any new damage cases—documented cases in which danger to human health or the environment has been proved—associated with beneficial use.  It does mention seven cases associated with large-scale fill that EPA previously identified in its proposed rule and proposed to treat as disposal not beneficial use. An earlier inspector general report, October 2010, found that EPA violated its ethics policies and communications guidelines by appearing to endorse commercial products on its Web pages devoted to its Coal Combustion Products Partnership (C2P2) program.  The report also criticized EPA for not making readily available on the C2P2 Web pages the seven damage cases associated with large-scale fill or disposal (mentioned above).  Partly in response to this report and due to the CCR disposal rulemaking in progress, EPA closed the C2P2 program, removed the information from its website and ceased actively promoting the beneficial use of CCRs. Damage Cases As AGC mentioned in its comments to EPA on the proposed rule, and EPA itself has clearly stated, there is no evidence of damages from the beneficial uses of CCRs.  To date, AGC is not aware of any damages or injuries that have resulted from the beneficial use of these materials in construction.  These materials have been successfully used in construction for more than 60 years.  The estimated use of fly ash in concrete, concrete products and grout was 14,015,616 tons in 2008.  Another 8,533,732 tons were used in gypsum panel products and 1,802,025 tons as road base and sub-base that same year.  (Source: Office of Inspector General analysis of C2P2 data, March 2011 inspector general report, page 6.)  The seven damage cases the agency did report on in its proposed rule involved the large-scale placement of fly ash and bottom ash in sand and gravel quarries and one involved the use of 1.5 million yards of fly ash to contour a golf course—which it stated is akin to disposal.  Furthermore, EPA acknowledged that these large-scale “disposal” uses are not typical of the construction industry’s beneficial use of CCRs either encapsulated such as in concrete or unencapsulated. Future Outlook AGC expects EPA to re-open the rulemaking record on the on the proposal to regulate the disposal of CCRs at some point this year, providing the association with an opportunity to respond to the inspector general and other information EPA has obtained since it published the proposal in June 2010.  AGC also will inform members of any new EPA risk assessments on beneficial use as a result of the inspector general reports. See, Observer article January 2011, AGC’s November 2010 comment letter to EPA and the EPA website for more details. For more information, please contact Melinda Tomaino at tomainom@agc.org or (703) 837-5415.