Date: May 15, 2009
Source: News Room
States, industry and activists are all skeptical of the EPA's idea of regulating coal combustion waste (CCW) under a novel "hybrid" approach that would treat the waste as hazardous or solid waste depending on certain conditions, arguing that such rules would be legally dubious, difficult to implement and hard to enforce. Earthjustice and the Environmental Integrity Project (EIP) point to their recently released report showing increased cancer risk from CCW disposal as justification for regulating it as a hazardous substance. The industry argues that regulating CCW as hazardous or under a hybrid scheme would discourage beneficial reuse.
Matt Hale, director of EPA's Office of Resource Conservation and Recovery, told the Environmental Council of the States (ECOS) in March that EPA could issue hybrid CCW rules that may regulate it as a RCRA subtitle D solid waste with less stringent guidelines, but if those guidelines are not followed then stricter subtitle C hazardous waste rules would apply. A hybrid rule would likely be modeled after a Clinton-era rule that was crafted but never finalized or implemented for cement kiln dust. If the ash is disposed of improperly, it would revert to a hazardous listing and require a cleanup.
Both environmentalists and industry say they are skeptical of the hybrid approach. Environmentalists say the fact that a hybrid system has never been implemented could complicate the rule unnecessarily. For example, it is unclear whether the federal government, as in the case of subtitle C, or the states, in the case of subtitle D, would have responsibility for inspecting CCW disposal sites. Meanwhile, the waste industry is concerned that a hybrid approach would discourage beneficial reuses of coal waste. They point out that some 40 percent of all CCW is reused, mostly in the synthesis of Portland cement and concrete, and occasionally as gypsum for sheet rock or as a soil additive in landscaping or road construction.
States have long opposed any federal regulation of CCW and prefer instead to leave the states to establish disposal protocols for the waste as they see fit. Last year ECOS issued a resolution saying any federal regulation of CCW would be duplicative of existing state laws that manage the waste.
Earthjustice and EIP officials point to their recently released study to show that only hazardous rules would be adequate. That study which relies on 2002 EPA data, indicate a higher cancer risk from heavy metals in groundwater around unlined coal ash ponds. A copy is available at: www.earthjustice.org/library/legal_docs/epa-cancer-risk-assessment-for-coal-combustion-waste.pdf.
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