Coal Waste Regulation -- Utilities Trying to Avoid Regulating their Toxic Wastes by Misdirection

What happens to the toxics that utilities remove from their stacks that used to pollute our skies?  They now pollute our waters.


During the past 30 years, the pollutants that used to go up the stack are now collected in ash. Administrations have been prodded by NRDC lawsuits to regulate these toxic wastes and have found excuses not to do so. The politics changed after the mishandling of this waste lead to the devastating results in Kingston, Tennessee, blogged about by my colleague, Rob Perks.   Now, with new technology that better predicts the high levels of these toxics reaching groundwater, EPA has come forward with a plan to regulate coal ash and its metal components of arsenic, mercury, lead, antimony, and other toxic metals.  Actually, the Administration has come forward with two plans.  One protects the public, I will call that the EPA plan, and the second protects the status quo; I will call that the OMB plan.  This is the first rule in my memory where EPA came out with two opposite options for regulating something – an apparent compromise required by OMB to get the rule out.

The EPA plan requires the disposal of coal ash to meet the standards that are set for all industries that handle hazardous wastes under the Resource Conservation and Recovery Act (RCRA).  These regulatory requirements include ongoing monitoring that toxics are not leaving the landfill, financial assurance that taxpayers won’t be held liable for mishaps and closing of the facilities and federal and state enforcement of the rules.  The industry also would be required, as is every other industry that handles these wastes, to bind the toxic metals into compounds so they remain in the specially designed landfills and don’t leach when they are come into contact with rainwater or runoff.

The OMB option treats the waste under the “rules” for non-hazardous wastes.  I put rules in quotes because these standards are not enforceable by the federal government.  EPA estimates the savings from the OMB option will be due in large part to non-compliance.

EPA held one of seven hearings on the coal ash rule, on Monday, August 30, 2010 in Arlington, Virginia.  This blog is an expansion of my remarks. 


The utilities concern is the cost of complying with the disposal requirements.  However, arguing that the costs are high only gets the utilities so far and so they have created a campaign that diverts attention from proper disposal of toxic coal ash to recycling of fly ash. 

Coal ash is made up of bottom ash and fly ash.  Bottom ash is the pulverized coal that is too large to be carried in the flue gases and collect on the furnace walls or fall through open grates to an ash hopper at the bottom of the furnace.

 Fly ash is removed from the plant exhaust gases by the air emission control devices that are required by the Clean Air Act. Both have toxic properties.

A lot of fly ash can be beneficially used in construction.  It even has properties that are better than virgin cement.  And environmentally, when properly used, it is encapsulated so it also does not leach. Because it comes from a waste, the U.S. Green Building Council, gives recycling credit for the use of fly ash. Understanding that EPA has proposed to regulate the disposal of ash and not touch the present regulation of fly ash.  That has not stopped the utilities from launching a huge campaign in the public and with Congress, that the regulation of coal ash will kill fly ash’s beneficial uses.


On Monday, August 30, 2010, I testified for three minutes on the 139 page rule. I addressed the so-called “stigma” issue.  During my 10 years working for the hazardous waste disposal industry, I noticed that hazardous waste disposal companies lost market share over time to recyclers and beneficial users.  Market economics made this obvious, the higher cost of disposal led to finding cheaper alternatives.  So despite the concerns of every regulated industry that a stigma would attach if EPA regulated their waste as a hazardous waste the market soon proved otherwise and beneficial uses went up.  This will be especially the case with fly ash where EPA has used the “special waste” terminology and specifically avoided the dreaded term “hazardous” for the disposal and clearly, for the first time, specifically avoided any change to the regulations to the material that is going  to be used beneficially.

Some argue that the market has already been affected by the pre-proposal statements of EPA.  If there has been an affect that negative impact was ginned up by the utilities and the fly ash recyclers essentially trying to poison the market for their own product.  It is as if Coke said we put salmonella in Coke-- that would probably hurt Coke sales.  Of course, the utilities concern is not really recycling fly ash; their concern is having to dispose of the toxics they took out of their stack emission, collected in the ash, and now have a difficult time arguing that the toxic ash should be handled as non-toxic waste like kitchen garbage.  Therefore they have created this diversionary battle over stigma.  However, a survey by the Ready Mix Concrete Association shows that companies that use fly ash, over 69% will continue to use it even if it is “hazardous.” The National Precast Concrete Association survey in July 2010 (when EPA was going to use the “hazardous nomenclature) showed that 84% of their members will continue to use fly ash even if the waste was regulated under Subtitle C.

I am betting future surveys, at least those that are released to the public by industry, will be more in line with their lobbying that the EPA option will kill fly ash recycling.