April 2009 – EPA’s Ongoing Regulatory Review May Impact Fly Ash Disposal Requirement

On March 31, 2009, NAEM, the national Association of EHS Management Team (a non-profit, non-partisan educational association) hosted a webinar entitled “60 Days into the Obama Administration:  The Likely Impacts on EHS, Energy and Sustainability Policy”.

The webinar featured a panel discussion with Charlie Grizzle, Chairman of The Grizzle Company; Steve Brown, Executive Director of the Environmental Council of the States; and John Walke, Clean Air Director/Senior Attorney of the Natural Resources Defense Council.  The webinar was intended to provide insight into the priorities and workings of the new Obama administration, and discuss topics such as the top priorities of 2009 and beyond.

The presenters indicated that a rulemaking will emerge in the near future concerning the regulation of fossil fuel (coal) combustion waste (e.g., coal fly ash).  According to the presenters, the U.S. Environmental Protection Agency (EPA) will address coal fly ash and have a statement ready for comment by the end of 2009.  Specifically, if it is to continue to be regulated under Subtitle D (non-hazardous solid waste) of RCRA, or if the risk associated with fly ash will cause it to be regulated under Subtitle C of RCRA as a hazardous waste, and is it safe for reuse.

The EPA previously determined that coal combustion waste was not to be regulated as a hazardous waste.  Further studies were later conducted like the “Human and Ecological Risk Assessment of Coal Combustion Waste” prepared for the EPA by RTI International in 2007 [1].  The EPA is currently analyzing the 2007 risk assessment and other available data as described in the “Notice of Data Availability on the Disposal of Coal Combustion Wastes in Landfills and Surface Impoundments; Reopening of Comment Period”, published in the Federal Register on February 5, 2008 [2].  There have been a few major recent releases regarding fly ash, which is driving the evaluation and additional scrutiny.  The presenter’s indicated the EPA will continue to review the recent risk assessment and prepare an updated statement on their position concerning the risks associated with fly ash by the end of 2009.

EHS Support will continue to monitor this situation and keep you updated as new information is released by the EPA concerning this evaluation.  If you would like to discuss this regulatory change in more detail, please contact Amy Bauer at amy.bauer@ehs-support.com or 251-533-6949.


[1] RTI International.  Draft Human and Ecological Risk Assessment of Coal Combustion Waste.  Prepared for the Environmental Protection Agency.  August 6, 2007.

[2] Federal Register.  Environmental Protection Agency.  Notice of Data Availability on the Disposal of Coal Combustion Wastes in Landfills and Surface Impoundments; Reopening of Comment Period.  Volume 73, Number 24 (February 5, 2008).  Page 6723-6724.



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