CH A M B E R O F CO M M E R C E

O F T H E

UN I T E D ST A T E S O F AM E R I C A

WI L L I A M L . K O V A C S

S E N I O R VI C E P R E S I D E N T

E N V I R O N M E N T , T E C H N O L O G Y &

R E G U L A T O R Y AF F A I R S

1 6 1 5 H S T R E E T , N . W .

W A S H I N G T O N , D . C . 2 0 0 6 2

( 2 0 2 ) 4 6 3 - 5 4 5 7

November 17, 2009

Re: EPA Proposed Rule Regulating Coal Combustion Byproducts

under RCRA Subtitle C

Mr. Mathy Stanislaus

Assistant Administrator, Office of Solid Waste and Emergency Response

U.S. Environmental Protection Agency

1200 Pennsylvania Avenue, NW

Mail Code 5101-T

Washington, DC 20460

Dear Mr. Stanislaus:

As your office evaluates regulatory options for managing coal combustion

byproducts (CCBs) and prepares to issue a proposed rule setting forth new federal

management standards, the U.S. Chamber of Commerce, the world’s largest business

federation representing more than three million businesses and organizations of every

size, sector, and region, urges you to consider the potentially devastating economic

effect of regulating CCBs as “hazardous waste” under Subtitle C of the Resource,

Conservation and Recovery Act (RCRA).

While the Chamber recognizes the need for and supports regulation that is

protective of human health and the environment, your agency – and virtually every

State agency – has already concluded that regulating CCBs as non-hazardous under

RCRA Subtitle D is the appropriate regulatory approach. In two separate reports to

Congress, in 1988 and 1999, and more recently in a 2000 regulatory determination,1

the Environmental Protection Agency (EPA) determined that CCBs do not warrant

regulation as hazardous waste. In addition, there are robust State programs already in

place that effectively implement CCB regulation and ensure their safe management as

a non-hazardous waste under a Subtitle D program.

1 65 Fed. Reg. 32214 (May 22, 2000).
William L. Kovacs

November 17, 2009

Page 2 of 3

EPA’s decision to revisit its regulatory approach to CCBs followed the recent

release from a wet coal ash impoundment owned and operated by the Tennessee

Valley Authority in Kingston, Tennessee. EPA subsequently conducted a survey of

coal ash surface impoundments nationwide in an effort to assess their structural

integrity and determine what improvements, if any, were necessary.2 The Chamber

believes this survey was both an appropriate and necessary precaution for identifying

potential problems and ensuring that public health and welfare were being adequately

protected, and where deficiencies were noted, the Chamber would support

reexamining existing safety regulations for these impoundments. However, setting

new federal management standards for all CCBs (i.e., fly ash, bottom ash, boiler slag,

and flue gas desulfurization gypsum) and regulating them as hazardous waste, is

unnecessary, will do nothing to further protect human health or the environment, and

will have a significantly adverse economic impact. As such, the Chamber would

strongly oppose any proposed rule that would regulate CCBs as a hazardous waste

under RCRA Subtitle C.

Regulating CCBs as hazardous waste will increase the price of electricity for

both businesses and consumers as power generators face higher compliance,

transportation, storage, handling, and disposal costs. Gypsum manufacturers that

have made capital investments in new synthetic gypsum plants in reliance on EPA’s

previous regulatory determination that CCBs are non-hazardous, would face

catastrophic losses. Because CCBs are routinely used in a vast number of

manufacturing processes, including concrete, paints, wood and plastics products, and

even agricultural applications (as a soil conditioner), regulating them as hazardous will

have widespread economic repercussions.

Even a proposed rule that includes an exception for “beneficial uses” will still

create a stigma for CCBs and reduce its utilization. Manufacturers will likely employ

alternative ingredients in light of potential tort liability implications, increasing the

consumption of raw materials and raising product costs that ultimately will be passed

on to consumers. This, in turn, will also increase greenhouse gas emissions as fewer

industries – such as the cement industry, which uses substantial amounts of coal ash

in its manufacturing processes – may be inclined to forgo utilizing CCBs altogether.

2 EPA’s initial conclusion was that some impoundments needed repairs, but none of them were in imminent danger

of collapse or failure.
William L. Kovacs

November 17, 2009

Page 3 of 3

The Chamber would welcome the opportunity to discuss with you further any

of the issues raised in this letter. Thank you for considering our concerns.

Sincerely,

William L. Kovacs

cc: Cass Sunstein

Kevin Neyland

Cortney Higgins

Matt Hale