SUBJECT: Notes from Meeting with Beneficial Reuse Industry

FROM: Matt Straus, Advisor

TO: CCR Docket

On March 3, 2010, a meeting was held between EPA and certain companies that beneficially use coal combustion residuals (CCRs), as well as the American Coal Ash Association (ACAA). Present at the meeting were: Mathy Stanislaus, Assistant Administrator for the Office of Solid Waste and Emergency Response (OSWER), Barry Breen, Deputy Assistant Administrator of OSWER, Matt Straus, OSWER, David Cohen and Stephanie Owens from EPA’s Public Affairs Office, Thomas Adams from ACAA, Lisa Cooper, PMI Ash Technologies, and Charles Price, PriceLite. This meeting is a followup to a meeting that the beneifical use industry had with the Administrator of EPA in January 2010. The following are a summary of the points raised/discussed at the meeting:

• It was noted that there are many green jobs created by those companies that beneficially use CCRs, many of which are small businesses, and that if one took a narrow view of defining “green jobs” to the use of fly ash in concrete and fludized gas desulfurization (FGC) sludge in wall board, the industry today has about 4,000 green jobs; the number of green jobs would double in a year to a year and a half if the CCR rule “goes the right way.” If one took a more expansive view of “green jobs,” the beneficial use industry has about 10,000 to 15,000 green jobs.

• They indicated that they are beginning to see the markets being affected by the uncertainty, and that some of their customers are not willing to use such materials containing CCRs due to the uncertainty; they also noted that their competitors, who use other secondary materials, are claiming that their materials are not hazardous and using that against them. Furthermore, they noted that contracts they have signed, at least in some cases, include clauses which suggest that if CCRs are identified as a hazardous waste, or they may be identified as a hazardous waste, that that may be reason to cancel

the contract.• EPA representatives noted that EPA strongly supports the sound beneficial use of CCRs and that based on increased costs alone, the amount of CCRs that are beneficially used should increase and that the Agency does not see what this “stigma”

issue is based on.

• It was noted that they see the utility industry moving away from the use of impoundments, and indicated that from what they have seen, the utility industry (or most of the industry) will not be using this method of management in about 10 years. They also noted that new landfills are being built with composite liners (and they pointed to the new Maryland regulations as a model) and thus, the industry is moving in the right direction. (It was noted by EPA representatives that this may be the case for new units, but still much of the CCRs are managed in

unlined units and will continue to be used in the
future.)

• The beneficial use industry has looked at a number of approaches for regulation of CCRs, such ascontingent management (identify CCRs as nonhazardous and give the states some amount of time to adopt the regulations, such as two years, and if they do not adopt them, regulate CCRs under the hazardous waste provisions), retain the Bevill waste for CCRs, and indicate that CCRs that are beneficially used are not “solid wastes,” and a listing scheme where CCRs are given a different

label. Based on discussions with standards setting organizations and an attorney they hired who is expert in RCRA, they believe the solution is subtitle D of RCRA. They indicated that they were told, particularly by the standard setting organizations, that if CCRs had the label or were regulated under subtitle C of RCRA, it would have a severe impact on the beneficial use of CCRs. The primary reasons they provided were: (1) legal liability and (2) if managed as a hazardous waste

will be considered a hazardous waste no matter what it is called. They also identified other issues, but they appeared to be secondary.

• EPA representatives asked if the CCRs were not
called hazardous waste, but were labeled differently, whether that would have an impact; they indicated that they were told no. The factthat they are subject to subtitle C regulation would be enough to impact the beneficial use of

CCRs.

• EPA representatives then noted that the record is fairly clear that the mismanagement of CCRs does present a risk, and that even under a subtitle D scheme, if that is the approach that is considered, the regulations would be tight and the Agency would need to indicate that these wastes present a risk, based on the risk assessment, thedamage cases, etc (and not that they are nonhazardous) and whether that would impact the beneficial use of CCRs. They said that they would support tight regulation, and indicated that they were informed by the standard setting organizations that if it would not be considered or labeled or managed as a hazardous waste, it would be seen differently.

• They did indicate that they believe that federal oversight of the management of CCRs is important, and that if CCRs were subject to the same management scheme as municipal solid waste, wouldn’t that be protective and wanted to know if EPA would support subtitle D if the RCRA was amended. We indicated that we were not prepared nor was it appropriate to discuss legislation.

• They did suggest that they believed that they were caught in the middle of the dialogue and suggested that EPA sit down with the standard setting organizations, such as ACI, ASTM International, and AASHTO and have the dialogue with them.

• It was also noted that the sister organization to

ACAA in other countries were asked how such a designation would impact the beneficial use of CCRs in their countries, and that once that information is obtained, that they would provide

it to EPA.