Coal Ash Recycling Stalls During Regulatory Struggle

Regulatory uncertainty over the rules for disposing of coal ash has stalled ash recycling in the U.S. and kept levels below those reported in 2008 for a third consecutive year, a new report from the American Coal Ash Association (ACAA) suggests. But heavy industry lobbying may brunt the impact of new proposed federal regulations on coal ash disposal, scheduled for later this year, which could rejuvenate recycling.

The industry group’s latest “Production and Use Survey” estimates that 43.4% of the 130.1 million tons of coal ash produced in 2011 was “beneficially used.” That recycling rate is slightly higher than the 42.5% utilization rate reported in 2010, but still well below the 44.53% rate charted in 2008, the Nov. 27 report says. 

According to the report, ash utilization also remained down in absolute terms. At the 2008 peak, 60.6 million tons of coal ash were recycled. In 2011, utilization was 4 million tons lower, at 56.6 million tons. “If the past three years had simply remained equal with 2008’s utilization, we would have seen 14.2 million tons less coal ash disposed in landfills and impoundments,” said the ACAA’s executive director, Thomas Adams.

Key individual categories of coal ash use also remained flat. Fly ash used in concrete production was 11.7 million tons in 2011, up slightly from 11.0 million tons in 2010, but still below 12.6 million tons in 2008, the report shows. 

The drop could primarily be attributed to the “ongoing regulatory uncertainty and a drumbeat of misleading publicity about the safety of coal ash [that] are combining to impede the beneficial use of the material,” Adams said. “The loser, unfortunately, is the environment as millions more tons of coal ash needlessly wind up in landfills.”

In large measure due to the Dec. 22, 2008, failure of coal ash containment dikes of the Tennessee Valley Authority’s Kingston Fossil plant in Roane County, Tenn.—which resulted in the spill of more than a billion gallons of coal ash sludge—the Environmental Protection Agency (EPA) has proposed the nation’s first federal rule to regulate disposal and use of coal ash. 

“Throughout the 1990s, recycling rates were in the 20s,” said Adams. “In 2000, when the recycling rate was 29.7%, the EPA issued its Final Regulatory Determination that regulation of ash as a ‘hazardous waste’ was not warranted. Over the next eight years, EPA also began actively promoting the beneficial use of coal ash and the recycling rate soared to 44.5% in spite of steadily increasing volumes of the amount of coal ash produced.”

The EPA estimates that the nation has about 300 coal combustion residual landfills and 584 surface impoundments or similar units. These are used by roughly 495 coal-fired power plants located in 45 states. Under one option offered by the EPA’s 2010-proposed Coal Combustion Residuals rule, coal ash would be regulated under the hazardous waste provisions of the Resource Conservation and Recovery Act (RCRA). Coal ash is currently considered exempt waste under an amendment to RCRA. Under the other option, coal ash would remain under RCRA’s nonhazardous waste provisions, and states would spearhead coal ash regulation.

The coal and electric power industries have viewed EPA’s impending rule as a further threat to the use of coal by labeling coal ash as a hazardous waste, triggering more stringent disposal rules. Industry has been lobbying both Congress and the Obama administration for the less restrictive definition.

Lawmakers in the 112th Congress were working to pass the Coal Ash Recycling and Oversight Act of 2012 (S. 3512), a measure sponsored by Sens. John Hoeven (R-N.D.), Kent Conrad (D-N.D.), and Max Baucus (D-Mont.), which calls for strong state oversight for storage and management of coal residuals and enables states to set up their own permitting programs that must be based on federal standards. A companion bill in the House is H.R. 2273, which passed in October 2011. The bills essentially seek to prevent the EPA from regulating coal ash as a hazardous waste under RCRA and specify that states have regulatory authority. The original Senate sponsors were seeking to attach it as an amendment to a Department of Defense funding bill.

A December report from the Congressional Research Service (CRS), released by Earthjustice and reported in Politico, says that the effect of the two industry-backed bills would be very little additional regulation of coal ash disposal. The CRS report finds that the legislation is so purposefully vague that it would render consistent enforcement by states difficult. The CRS analysis says that “provisions in each bill lack detail comparable to regulatory standards with regard to key issues such as how, when, or to which facilities the permit program would apply. As a result, program requirements would be subject to the interpretation of each state that chooses to implement it.” Earthjustice lawyer Lisa Evans told Politico the CRS report “says the emperor has no clothes.”

Industry officials are defending the legislation. John Ward of Citizens for Recycling First, an industry-backed coal ash recycling group, told Politico, “The assumption behind this report is that states are somehow incompetent regulators and only direct enforcement by the federal EPA is acceptable for coal ash disposal.”

In the meantime, industry lobbying of the White House and EPA may effectively reduce the sting of new rules. Veteran energy reporter Ken Silverstein wrote in Forbes late last year, “While its environmental backers won’t be happy, the president and his Environmental Protection Agency will probably opt to continue regulating that coal combustion byproduct as a solid waste, as opposed to a hazardous waste. The difference is that solid wastes are allowed to be recycled and used in such things as cement and dry wall. A hazardous waste ruling would stigmatize that coal ash and would essentially dry up those secondary markets, which would also increase the amount of refuse that must be dispensed.”

A final coal ash rule from the EPA is expected in June.

—Sonal Patel is a POWER magazine senior editor and Kennedy Maize is MANAGING POWER’s executive editor.