Fly Ash Update: Developments on Capitol Hill and in the Agencies

AGC continues to track and weigh in on developments that will decide the future for the beneficial use of coal combustion residuals (e.g., fly ash).  The debate over fly ash continues to heat up on Capitol Hill and within the Administration as the U.S. Environmental Protection Agency (EPA) considers rules that dictate how it is used and stored.  Currently, fly ash is used in many construction projects —a practice called beneficial use. In June, AGC urged Congress to support a bill that outlines a common-sense approach to the management of coal combustion residuals; one that empowers state programs to rely on existing programs to regulate coal ash and continues to facilitate beneficial use by regulating the waste as non-hazardous.  (See AGC Article June 23.)  The House Energy and Commerce Committee passed a bill that is closely aligned with AGC’s position and recommendations on July 13 with bipartisan support.  The bill’s non-hazardous approach is similar to the non-hazardous regulatory option the EPA proposed as one of two options last year.  The second option EPA proposed is to regulate the waste as hazardous, which AGC asserts will jeopardize the beneficial use of fly ash. In addition to evaluating its regulatory options, EPA recently has responded to two reports by its own Office of the Inspector General (OIG) that were critical of the agency’s management of its beneficial use programs and its promotion of beneficial use.  (See AGC Article May 31.)  In its June 16 response to the OIG, the agency agrees to further evaluate beneficial use, as recommended, but it must first focus its efforts on finalizing its proposed rule to regulate the management and disposal of coal combustion residuals—to which it received 450,000 comments. The overwhelming response to EPA’s June 2010 proposed rule has resulted in the agency initiating steps to re-open the rulemaking for another public comment period.  EPA announced this new development to an April 2011 House Energy and Commerce Committee panel.  This month, EPA submitted to the Office of Management and Budget a Notice of Data Availability to proceed with public review and comment on the new information.  AGC will report to members when the comment period opens, as well as, review the new material and respond to the agency. Go to EPA’s website to read the June 2010 proposed rule; also, see AGC Comment Letter and Article January 14. For more information, please contact Melinda Tomaino at tomainom@agc.org or (703) 837-5415.