The public comment period on EPA’s proposed rule regarding the federally enforceable regulation of “coal combustion residuals” (“CCR”) ended on November 19, 2010. CCR, which is essentially coal ash and related product, is used in a variety of applications, including: concrete; road base; structural fill; wallboard; and agricultural use. Therefore, EPA’s potential regulation of CCR impacts a variety of industries.

EPA sought comment on the two different regulatory options presented in its proposed rule: 1) regulation of CCR under RCRA Subtitle D (non-hazardous) regulations, a lower, but still significant, cost option; or 2) regulation of CCR as “hazardous waste” under RCRA Subtitle C, which would impose immense compliance costs. Regarding potential hazardous waste regulation, the American Concrete Institute acknowledged that if CCR were regulated as hazardous waste, its organization could not endorse the use of CCR in concrete because of the perceived exposure and product liability risks associated with such a regulatory label. Likewise, ASTM International, one of the largest voluntary standards development organizations in the world and a trusted source for technical standards, warned that a "hazardous waste" designation for CCR, even with an exclusion for beneficial use, would cause the ASTM standard for CCR to be removed from project specifications due to concerns over legal exposure, product liability, and public perception. This could cause crippling economic impacts to certain authorized uses of CCR.

Throughout the comment period, a number of different entities voiced their opposition to EPA’s proposed regulation of CCR as a hazardous waste, including: a bi-partisan group of 165 members of Congress; 45 U.S. Senators; virtually all the states; other federal agencies; municipal and local governments; CCR marketers and users; unions; state Public Utility Commissions; and many other third parties. Underlying this opposition are concerns over the potential compliance costs for entities that would be subject to the rule’s requirements and the impact that any “hazardous waste” regulation would have on the CCR market. 

It is expected that it will take EPA several months to evaluate the comments it received before publishing its final rule.

For more information on EPA’s regulation of coal ash, please contact Katie Grgic or any member of Taft’s environmental practice group.