The American Coal Ash Association 15200 East Girard Avenue, Suite 3050 Aurora, Colorado 80014-3955

720 870 7897 Phone 720 870 7889 Fax info@acaa-usa.org www.acaa-usa.org April 9, 2009

The Honorable Lisa Jackson

Administrator United States Environmental Protection Agency

Room 3000 Ariel Rios Building 1200 Pennsylvania Avenue, NW Washington, DC 20460

Dear Administrator Jackson:

The American Coal Ash Association (ACAA) is strongly opposed to possible actions by the U.S. Environmental Protection Agency ( EPA) that would regulate fly ash and bottom

ash as hazardous wastes.

Fly ash, bottom ash, and air emission contro l residues are generally referred to by the electric utility industry as coal combusti on products (CCPs); however, some states call them coal combustion by-products (CCBs) or coal combustion residues (CCRs). They are, for the purpose of our di scussion, the same. Any designation of these materials as

hazardous wastes would have si gnificant and long-lasting effects upon this nation’s willingness to beneficially use or reuse fly ash or bottom ash in sustainable construction applications. Even a “contingent” Subtitle C approach would have the same effect, as the industry would consider a c ontingent classification the equiva lent to full Subtitle C.

If EPA determines that national standards for fly ash and bottom ash disposal must be enacted, EPA’s action can and should be a ccomplished without designating CCPs as hazardous or contingent haz ardous wastes. Either desi gnation would unnecessarily stigmatize CCPs. These materials have safe beneficial uses which EPA should continue to promote, allowing our society to move closer to zero waste, reducing consumption of natural resources, and assisting with clim ate change.

ACAA believes that a recent letter from the Association of State and Territorial Solid Waste Management Officials (A STSWMO) to Matt Hale dated April 1, 2009, is most pertinent when it states, “...it is critical that all relevant factors be considered in deciding an appropriate course of action. ” Furthermore, “...the vast State experienc e with testing CCBs shows that they are generally not char acteristically hazardous. Coal combustion byproducts rarely, if ever, fail the criteria by which materials are determined to be hazardous. To artificially classify t hem as hazardous will needlessly limit the management options for both the CCBs and other wastes legitimately classified asTo: EPA Administrator Lisa Jackson
From: American Coal Ash Association Date: 9 April 2009 Page: 2 of 3

hazardous, which will be compet ing with CCBs for limited haz ardous waste disposal capacity while not produci ng any greater degree of envir onmental protection. Transportation, manifesting, and licensing re quirements for CCBs as a listed hazardous waste are excessively burdensome without sufficient evidence of a benefit.”

In two previous determinations in 1993 and 2000, EPA found fly ash and bottom ash to be safe when properly managed, and there was no requirement to manage them
under Subtitle C of the Res ource Conservation and Recovery Act (RCRA). In President Obama’s March 9, 2009, Order on Scientific Integrity, he stated, “Science and the scientific process must inform and guide decis ions of my Administration...” Extensive scientific study under the direction of bot h Democrat and Republican administrations
has concluded that beneficial use of CCPs is safe for public health and has determined

these materials should not be considered hazardous.

Based on these previous decisions, beneficial use of these materials has grown to be a multibillion-dollar industry. Our fragile economy would suffer another significant blow

if the beneficial use of fl y ash and bottom ash ceased, which would be the direct consequence of a hazardous waste designati on. Job losses related to beneficial use

would be measured in the tens of thousands and substantia l environmental benefits

would be forfeited. In a re cent 2009 report by the Freedonia Group, it was reported that recycled-content (e.g., fly ash, blast furnace slag) concrete sales reached $9.5 billion in 2008, representing 15% of green building material dem and. Demand for recycledcontent concrete is forecast to grow 8.4% per year to $14.3 bill ion in 2013, accounting for an increasing share of total concrete us ed. Loss of these valuable mineral resources to this sector of our green economy would be severe if they were to be designated by

EPA as hazardous or cont ingent hazardous wastes.

Each year, significant reductions in greenhou se gas emissions are achieved worldwide by fly ash reuse. As a nation, we need to take advantage of real and quantifiable greenhouse gas reductions related to the use of fly ash as a partial replacement for portland cement in concrete products. The international community, EPA, and individual states have recognized the value fly ash reuse has to reduce greenhouse gas

emissions. We need to be ardent in ensur ing that actions to address permanent disposal of coal ash in appropriate fac ilities do not damage legitimate green economy uses that allow our economy and society to move toward lo wer carbon dioxide emissions and significant ly reduce waste disposal activities.

EPA actions should seek to reinvigorate safe and environmentally sound beneficial reuse. Current EPA programs include the Comprehensive Procurement Guidelines and Environmentally Preferable Purchasing prac tices, which require federal agencies to purchase green products and services, including recycled-content products. For example, federal concrete projects used an es timated 5.3 million metric tons of coal fly ash in 2004 and 2005 combined. Greater focus by EPA on these guidelines could drive these numbers much higher. Federal purchasi ng and procurement guidelines also set a model for green supply chain activities. Arch itects, builders, and project owners follow federal leadership, and they also adher e to construction recommendations likeTo: EPA Administrator Lisa Jackson
From: American Coal Ash Association Date: 9 April 2009 Page: 3 of 3

Leadership in Energy and Environmental Design (LEED) and the Green Building Initiative to promote more sustainable construction.

We believe EPA should not classify CCPs as hazardous wastes but rather:

• Work with other federal agencies like the U. S. Department of Transportation and U.S. Army Corps of Engineers to increas e fly ash utilization in concrete and other proven applications that support a growing green supply chain.

• Develop monetary and regulatory incentives to promote CCP reuse in order to reduce volumes of materials that would otherwise need disposal.

• Encourage research that demonstrates the advantages of using CCPs as

sustainable construction materials that help conserve natural resources.

• Develop regulatory schemes that credit the use of fly ash in concrete as a
greenhouse gas offset, building upon st ate models in existence today.

The passage of the recent economic stimul us package related to infrastructure construction provides numerous opportunities to launch these types of efforts, as will upcoming legislative efforts des igned to further define our nat ion’s green economy.

We would like to work with you and the Agen cy to minimize CCP disposal. EPA efforts to designate these materials as hazardous wastes for purposes of disposal will not have the desired effect, but rather will have a significant negative impact on beneficial use. Similarly, a hybrid approach wherein they might be considered safe for beneficial use but would require disposal under RCRA Subtitle C for disposal would have the same negative impact on reuse. A hazardous waste des ignation for disposal will cripple the ability to use CCPs productively – potentiall y creating 130 million tons of “waste” annually and eliminating millions of tons of greenhouse gas emission reductions. Disposal standards can and shou ld be addressed without unnec essarily stigmatizing resources that support sustainability through beneficial use and are preferred alternatives to disposal. A hazardous determi nation is not supported by science or three decades of experience where proper management activities have been protective of public health and the env ironment.

Sincerely, Sincerely,

Thomas H. Adams Mark M. Bryant
Executive Director Chair

American Coal Ash Association American Coal Ash Association

cc: Robert Sussman, EPA - AA; Matt Hale , EPA - ORCR; Maria Vickers, EPA - ORCR