Coal Ash May Become Regulated as Hazardous Waste

The environmental newsletter of the Association of General Contractors (AGC) sheds some light on the status of EPA’s developing regulation of coal ash or coal combustion products (CCP).  The newsletter indicated that

the agency expects to release a rulemaking on coal combustion residuals (or waste) in April 2010, with a hazardous designation reported likely.

CCP has been exempted from regulation as a hazardous waste through an interpretation of existing hazardous waste law.  Under that interpretation, coal ash was “pardoned” as part of the “Bevill Amendment” – a 1980 amendment to the federal waste management legistration that excluded from regulation certain mining and mineral processing waste.  The amendment also mandated that EPA conduct a study to determine how to manage CCP.

The study was completed and the findings were presented to Congress in 1988 and again in 1999 – both times, EPA recommended that CCP not be regulated as hazardous waste.  Two regulatory determinations were subsequently published – one in 1993 and one in 2000, both again affirming that regulation of CCP as hazardous waste was not warranted.

Although EPA has not yet released its proposed regulation, AGC’s article stated that

sources indicate that EPA is strongly favoring a hazardous waste designation in order to establish standard and federally enforceable practices.

In addition to creating significant direct waste management costs to CCP generators, a hazardous waste designation for CCP would have a detrimental impact on CCP reuse.  CCP-based materials would likely create the potential for third-party liabilities in addition to the costs/questions associated with regulatory compliance.

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