1 State BU Programs and “Hazardous Waste” April 16, 2009

We compiled a list of regulations that discuss beneficial use pr ograms and if classifying coal combustion fly ash as hazardous waste would have an impact on those programs. States were identified as major users or generators of coal combustion fly ash through (1) conversations with the American Coal Ash Association and (2) exam ining the USGS annual reports on use of fly ash in cement. The applicable sections of th e regulations are linked or repeated here, with pertinent sections highlighted.

Of the eight states identified as major users of co al combustion fly ash, seven of these states have use of industrial materials regulations or statutes that are available on-line. Six of these seven states (Wisconsin, Pennsylvania, Texas, Florida, Illinois, and Minnesota) limit beneficial use to non-hazardous waste. Indiana regulations limit th e disposal of coal combustion products if they
are hazardous waste but do not so limit beneficial use. If coal combustion fly ash is classified as hazardous waste, then its benefici al use would be severely affect ed in these states.



### 1. Wisconsin
http://www.legis.state.wi.us/rsb/code/nr/nr538.pdf NR 538.02 Applicability. (1) Except as otherwise provided, this chapter governs the beneficial use of industrial byproducts, except hazardous waste and metallic mining waste.



### 2. Pennsylvania
http://www.depweb.state.pa.us/la ndrecwaste/cwp/view.asp?A=1239&Q=510772
What Is Residual Waste?
Residual waste is nonhazardous industrial waste. It includes waste material (solid, liquid or gas) produced by industrial, mining and agricultural operations. It excludes certain coal mining wastes and wastes from normal farming activities.



### 3. Texas
http://www.tceq.state.t x.us/files/rg-240.pdf_4443350.pdf Recycling Nonhazardous Industrial Waste. In general, the r ecycling of nonhazardous industrial waste is subject to signi ficantly less regulation than is the recycling of hazardous waste (which can come from either i ndustrial or nonindustrial sources). For an explanation of terms, see the glossary section at the end of this document. In most cases, the recycling of non hazardous industrial waste is subject only to the following requirements of 30 TAC Sections 335.4 (General Prohibitions) and 335.6 (Notificat ion Requirements). The specifi c regulations for recycling
nonhazardous industrial waste can be f ound in 30 TAC Section 335.24(h). Certain non hazardous industrial wastes can be directly applied to land. Under 30 TAC Section 335.1(131)(H), the waste may not even be a waste at all (see the table on pages 3–4, “Is My Material a Waste or Recyclable?”). If a non hazardous industrial waste is legitima tely recycled by land application, it is generally not subject to the deed recordation. To be sure, consult the requirements of 30 TAC Section 335.5 (Deed Recordat ion). In most cases, fac ilities that recycle only non hazardous2 industrial wastes are not subject to permitting re quirements. However, there are exceptions (see 30 TAC Section 335.24(i)). Those facilities that recycle nonhazardous industrial wastes that are “combustible” or pose a significant threat to human health and the enviro nment may be subject to certain financial assurance requ irements (see 30 TAC Section 335.24(j)).

4. Georgia ( Jim McNamara at GA DNR 404.656.7802)

391-3-4 Solid Waste Management Rule (27) "Industrial Waste" means solid wast e generated by manufacturing or industrial processes that is not a hazardous waste regulated unde r the Hazardous Waste Management Act and regulations promulgated by the Board of Natu ral Resources, Chapter 391-3-11. Such waste includes, but is not limited to, wastes resul ting from the following manufacturing processes: Electric power generation; fertilizer/agricu ltural chemicals; food and related products/byproducts; inorganic chemicals; iron and steel manufacturing; l eather and leather products; nonferrous metals manufacturing/foundries; in organic chemicals; plastics and resins manufacturing; pulp and paper i ndustry; rubber and miscellaneous plastic products; stone, glass, clay, and concrete products; textile manufacturing; trans portation equipment; and water
treatment. This term does not include mining waste or oil or gas waste.



### 5. Florida
http://www.dep.state.fl.us/waste/categories/solid_waste/pages/beneficialuse.htm Florida’s regulations do not di scuss industrial byproduc ts, but Florida’s statutes do. Under the Resource Recovery and Management section, it states (FS 403.7045) http://www.leg.state.fl.us/sta tutes/index.cfm?App_mode=Displ ay_Statute&Search_String=&UR
L=Ch0403/SEC7045.HTM&Title=->2008->Ch0403->Section%207045#0403.7045 : (1) The following wastes or activities sh all not be regulated pursuant to this act: (f) Industrial byproducts, if: 3. The industrial byproducts are not hazardous wastes as defined under s. 403.703 and rules adopted under this section.



### 6. Indiana
http://www.epa.gov/epawaste/cons erve/rrr/imr/pdfs/indian1.pdf Beneficial use is managed by IDEM through a combination of rules and programs. Indiana Statute (IC 13-19-3) governs the use of coal combustion products (IC 13-19-3-3), foundry sand (IC 13-19-3-7) and iron and steel mill slag (I C 13-19-3-8). Other uses of byproducts are evaluated under Indiana’s Solid Waste Rules (329 IAC 10-3-1) on a case-by-case basis. Finally, land application uses are addressed unde r the State’s Water Rules (327 IAC 6.1).

Kim’s note and interpretation: It appears that only the disposal portion makes the hazardous vs.
nonhazardous distinction. The use statutes and ru les do not make that distinction. The ASTM
standard cited makes no distinction as to h azardous or non-hazardous. Thus, under current IN statute and rules allowing BU, it would not ma tter whether coal ash was deemed a hazardous waste. However, Lori Freeman, IDEM Environm ental Manager, indicated that the issue would likely be re-examined, were EPA to deem CCPs a hazardous waste.3 IC 13-19-3-1 Regulation of solid and hazardous waste and atomic radiation; review orders; development of operating policies Sec. 1. The solid waste management board shall do the following: (1) Except as provided in sections 3 through 4 of this chapter, adopt rules under IC 4-22-2 to regulate solid and hazardous waste and atomic radiation in Indiana, including rules necessary to the implementation of the federal Resource Conservation and Recovery Act (42 U.S.C. 6901 et seq.), as amended. (2) Develop operating policy co ncerning the activities of the department. (3) Carry out other duties imposed by law. As added by P.L.1-1996, SEC.9. Amended by P.L.25-1997, SEC.14.
IC 13-19-3-3 Prohibited areas of regulation Sec. 3. The board may not adopt rules under section 1 of this ch apter to regulate the following: (1) The disposal of waste indigenous to the coal mining process and coal combustion products (as defined by ASTM E- 2201-02a), including fly ash, botto m ash, boiler slag, fluidized bed combustion ash, or flue gas desulfurization material produced from the combustion of coal or the cleaning of stack gases on coal combustion units if the material: (A) is not included in the definition of hazar dous waste or is exempt from regulation as a hazardous waste under 42 U.S.C. 6921; and (B) is disposed of at a facility regul ated under IC 14-34. (2) The use of coal combustion pr oducts (as defined by ASTM E-2201-02a), including fly ash, bottom ash, boiler slag, fluidized bed combusti on ash, or flue gas desulfurization material produced from the combustion of coal or the clean ing of stack gases on coal combustion units, if the use includes one (1) of the following uses: (A) The extraction or recovery of materials and compounds contained within coal combustion products. (B) Bottom ash as an antiskid material. (C) Raw material for manufacturing another product. (D) Mine subsidence, mine fire control, and mine sealing. (E) Structural fill when combin ed with cement, sand, or water to produce a controlled strength fill material. (F) A base in road construction. (G) Cover for coal processing wa ste disposal locations to inhibit infiltration at surface and underground mines subject to IC 14-34, so long as a demonstration is made in concurrence with the department of natural resources that the materials and methods to be employed are appropriate for the intended use. (H) Providing buffering or enhanci ng structural integrity for refuse piles at surface and underground mines subject to IC 14- 34, so long as a demonstration is made in concurrence with the department of natural resources that th e materials and methods to be employed are appropriate for the intended use. (I) Agricultural applications, when applied using appropriate agronomic amounts to improve crop or vegetative production. As added by P.L.1-1996, SEC.9. Amended by P.L.215-2003, SEC.4.4 

### 7. Illinois
http://www.ipcb.state.il.us/SLR/T heEnvironmentalProtectionAct.asp (415 ILCS 5/3.135) (was 415 ILCS 5/3.94) Sec. 3.135. Coal combustion byproduct; CCB. (a) "Coal combustion byproduct" (CCB) means coal combustion waste when used beneficially in any of the following ways: (1) The extraction or recovery of material compounds c ontained within CCB. (2) The use of CCB as a raw ingredient or mineral filler in the manufacture of the following commercial products: cement; concrete and concrete mortars; cementious products in cluding block, pipe and precast/ prestressed components; asphalt or cementious roofing products; plastic products in cluding pipes and fitti ngs; paints and metal alloys; kiln fired products includ ing bricks, blocks, and tiles; ab rasive media; gypsum wallboard; asphaltic concrete, or aspha lt based paving material. (3) CCB used (A) in accordance with the Illinois Department of Transportation ("IDOT") standard specifications and s ubsection (a-5) of this Section or (B) under the approval of the Department of Transportation for IDOT projects. (4) Bottom ash used as antiskid material, athletic track s, or foot paths. (5) Use in the st abilization or modification of so ils providing the CCB meets the IDOT specifications for soil modifiers. (6) CCB used as a functionally equi valent substitute for agricultural lime as a soil
conditioner. (7) Bottom ash used in non IDOT pavement subbase or base , pipe bedding, or foundation
backfill. (8) Structural fill, when used in an engineered application or combined with cement, sand, or water to produce a controlled strength fill material and covered with 12 inches of soil unless infiltration is prevented by the materi al itself or other cover material. (9) Mine subsidence, mine fire control, mine sealing, a nd mine reclamation. (a-5) Except to the ex tent that the uses are otherwis e authorized by law without such restrictions, the uses specified in items (a)(3)(A) and (a)(7) thr ough (9) shall be subject to the following conditions: (A) CCB shall not have been mixed w ith hazardous waste prior to use. (B) CCB shall not exceed Class I Groundw ater Standards for metals when tested utilizing test method ASTM D398785. The sample or sample s tested shall be representative of the CCB being considered for use. (C) Unless otherwise exempted, users of CCB for the purposes described in items (a)(3)(A) and (a)(7) through (9) of this Section shall provi de notification to the Agency for each project utilizing CCB documenting the quantity of CCB u tilized and certificati on of compliance with conditions (A) and (B) of this subsection. Notifica tion shall not be required for users of CCB for purposes described in items (a)(1), (a)(2), (a)(3)(B), (a)(4), (a)(5) and (a)(6) of this Section, or as required specifically under a beneficial use de termination as provided under this Section, or pavement base, parking lot base, or building base projects utiliz ing less than 10,000 tons, flowable fill/grout projects utilizing less than 1,000 cubic yards or other applications utilizing
less than 100 tons. (D) Fly ash shall be managed in a manner that minimizes the generation of airborne particles and dust using techniques such as moisture conditioning, granulating, inground application, or other demonstrated method.5 (E) CCB is not to be accumulated sp eculatively. CCB is not accumulated speculatively if during the calendar year, the CCB used is e qual to 75% of the CCB by weight or volume accumulated at the beginning of the period. (F) CCB shall include any prescribed mixture of fly ash, bottom ash, boiler slag, flue gas desulfurization scrubber sludge, fl uidized bed combustion ash, and stoker boiler ash and shall be
tested as intended for use. (b) To encourage and promote the u tilization of CCB in pr oductive and beneficial applications, upon request by the applicant, the Agency shall make a written beneficial use
determination that coal combustion waste is CCB wh en used in a manner other than those uses specified in subsection (a) of th is Section if the applicant dem onstrates that use of the coal combustion waste satisfies all of the following criteria: the use will not cause, threaten, or allow the discharge of any contaminant into the e nvironment; the use will otherwise protect human health and safety and the environment; and the use constitutes a legitimate use of the coal combustion waste as an ingredient or raw material that is an eff ective substitute for an analogous ingredient or raw material. The Agency's beneficial use determinations may allow the uses set forth in items (a)(3)(A) and (a)(7) through (9) of this Section without the CCB being subject to the restrictions set forth in subdivisions (a5)(B) and (a)(5 )(E) of this Section. Within 90 days after the r eceipt of an application for a beneficial use determination under this subsection (b), the Agency shall, in writing, appr ove, disapprove, or approve with conditions the beneficial use. Any disapproval or approval with conditions sha ll include the Agency's reasons for the disapproval or conditions. Failure of the Ag ency to issue a decision within 90 days shall constitute disapproval of the beneficial use re quest. These beneficial use determinations are subject to review under S ection 40 of this Act. Any approval of a beneficial use under this subsection (b) shall b ecome effective upon the date of the Agency's written decision and remain in effect for a period of 5 years. If an applicant
desires to continue a beneficial use after the e xpiration of the 5-year pe riod, the applicant must submit an application for renewal no later than 90 days prior to the expiration. The beneficial use approval shall be automatically extended unle ss denied by the Agency in writing with the Agency's reasons for disapproval, or unless the Ag ency has requested an extension for review, in
which case the use will continue to be allo wed until an Agency determination is made.
Coal-combustion waste for which a beneficial use is approved pursuant to this subsection (b) shall be considered CCB during the effective peri od of the approval, as long as it is used in accordance with the approval and any conditions. Notwithstanding the other provisions of this subsection (b), written beneficial use determination applications for the use of CCB at sites governed by the federal Surface Mining Control and Reclamation Act of 1977 (P.L. 95-87) or the rules and regulations thereunder, or by any law or rule or regulation adopted by the State of Illinois pursuant thereto, shall be reviewed and approved by the Office of Mines and Minerals within the Department of Natural Resources pursuant to 62 Ill. Adm. Code §§ 1700-1850. Further, appeals of those determinations shall be made pursuant to the Illinois Administrative Review Law. The Board shall adopt rules establishing stan dards and procedures for the Agency's issuance of
beneficial use determinations under this subsec tion (b). The Board rules may also, but are not required to, include standards and procedures for the revocation of the beneficial use
determinations. Prior to the eff ective date of Board rules adopte d under this subsection (b), the6 Agency is authorized to make beneficial use de terminations in accordance with this subsection (b). The Agency is authorized to prepare and distribute guidance doc uments relating to its
administration of this Section. Guidance documents prepared under this s ubsection are not rules for the purposes of the Illinois Administrative Procedure Act. (Source: P.A. 94-66, eff. 1-1-06.)

(415 ILCS 5/3.140) (was 415 ILCS 5/3.76)
Sec. 3.140. Coal combustion waste. "Coal combustion waste" means any fly ash, bottom ash, slag, or flue gas or fluid bed boiler desulfur ization byproducts generate d as a result of the
combustion of: (1) coal, or (2) coal in combination with : (i) fuel grade petroleum coke, (i i) other fossil fuel, or (iii) both fuel grade petroleum coke and other fossil fuel, or (3) coal (with or without: (i ) fuel grade petroleum coke, (ii) ot her fossil fuel, or (iii) both fuel grade petroleum coke and other fossil fuel) in combination with no more than 20% of tire
derived fuel or wood or other ma terials by weight of the material s combusted; provided that the coal is burned with other materials, the Agency has made a written determination that the storage or disposal of the resultant wastes in accordan ce with the provisions of item (r) of Section 21 would result in no environmental impact greater than that of wastes genera ted as a result of the combustion of coal alone, and the storage dispos al of the resultant wa stes would not violate applicable federal law. (Source: P.A. 92-574, eff. 6-26-02.)



### 8. Minnesota

7035.2860 BENEFICIAL USE OF SOLID WASTE. Subpart 1. Applicability. This part establishes a procedure for determining when use of a material classified as a solid
waste is a beneficial use. The uses listed in s ubpart 4 as standing beneficial use determinations
have been reviewed and determined to be benefici al uses of solid waste by the agency. All other proposed uses of solid wastes must obtain case -specific beneficial us e determinations in accordance with the procedures in subpart 5.

7035.0300 DEFINITIONS. Subpart 1. Scope. As used in parts 7035.0300 to 7035.2915 , the following terms have the meanings given them in this part. Subp. 100.
Solid waste. "Solid waste" means garbage, refuse, sludge from a water supply treatment plant or air contaminant treatment facility, and other disc arded waste materials and sludges, in solid, semisolid, liquid, or contained gaseous form, re sulting from industrial, commercial, mining and agricultural operations, and from community activ ities, but does not include hazardous waste;7 animal waste used as fertilizer; earthen fill, boulders, rock; sewage sludge; solid or dissolved material in domestic sewage or other common pollutants in water resources, such as silt, dissolved or suspended solids in industrial waste water effluents or discharges which are point sources subject to permits under section 402 of the Federal Water Pollution Control Act, as amended, dissolved materials in irrigation return flows; or source, spec ial nuclear, or by-product material as defined by The Atomic Energy Act of 1954, as amended.



### 9. Iowa

Iowa Administrative Code 567—108.3(455B,455D) Definitions.
Defines “beneficial use” and “beneficial use determinations” are exclusive to a “solid byproduct.”
Defines “Solid by–product” means a secondary material or residual, produced or created by an industrial, commercial or institutional proc ess or activity, that has been source separated by the generating entity and that would otherwise be disposed of as solid waste. Solid by–products are composed of materials suitable for dispos al as solid waste in a sanitary landfill. Defines “Suitable for disposal as solid wa ste in a sanitary landfill” means that the material is in compliance with all state and fede ral rules and regulations pertaining to what may be disposed of in an Iowa sanitary landfill. Such materials are at a minimum nonhazardous and nonradioactive, are solid or semisolid, and do not c ontain free liquids pursuant to the Paint Filter Liquids Test (Reference: 40 CFR 258.28).



### 10. Utah
On March 26, 2009, Governor signed SB 224, “Reuse of Industrial Byproduct.” See http://le.utah.gov/~2009/htmdoc/sbillhtm/SB0224S 01.htm In part, the law directs the Utah DOT to encourage reuse of industrial byporducts and the Solid and Hazardous Waste Control Board to grant approvals of reuse of industrial byproducts. However, the law defines “industrial byproducts” to exclude “hazardous waste.”.