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State BU Programs and “Hazardous Waste” 

April 16, 2009 

We compiled a list of regulations that discuss beneficial use programs 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) examining the USGS annual reports on use of fly 

ash in cement. The applicable sections of the regulations are linked or repeated here, with 

pertinent sections highlighted. 

Of the eight states identified as major users of coal 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 the 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 beneficial use would be severely affected 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/landrecwaste/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.tx.us/files/rg-240.pdf_4443350.pdf

Recycling Nonhazardous Industrial Waste. In general, the recycling of nonhazardous 

industrial waste is subject to significantly less regulation than is the recycling of hazardous waste 

(which can come from either industrial or nonindustrial sources). For an explanation of terms, 

see the glossary section at the end of this document. In most cases, the recycling of nonhazardous 

industrial waste is subject only to the following requirements of 30 TAC Sections 335.4 (General 

Prohibitions) and 335.6 (Notification Requirements). The specific regulations for recycling 

nonhazardous industrial waste can be found in 30 TAC Section 335.24(h). Certain nonhazardous 

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 nonhazardous industrial waste is legitimately 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 Recordation). In most cases, facilities that recycle only nonhazardous 
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industrial wastes are not subject to permitting requirements. 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 environment may be subject 

to certain financial assurance requirements (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 waste generated by manufacturing or industrial processes 

that is not a hazardous waste regulated under the Hazardous Waste Management Act and 

regulations promulgated by the Board of Natural Resources, Chapter 391-3-11. Such waste 

includes, but is not limited to, wastes resulting from the following manufacturing processes: 

Electric power generation; fertilizer/agricultural chemicals; food and related products/byproducts; inorganic chemicals; iron and steel manufacturing; leather and leather products; 

nonferrous metals manufacturing/foundries; inorganic chemicals; plastics and resins 

manufacturing; pulp and paper industry; rubber and miscellaneous plastic products; stone, glass, 

clay, and concrete products; textile manufacturing; transportation 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 discuss industrial byproducts, but Florida’s statutes do. Under the 

Resource Recovery and Management section, it states (FS 403.7045) 

http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&Search_String=&UR

L=Ch0403/SEC7045.HTM&Title=->2008->Ch0403->Section%207045#0403.7045: 

(1) The following wastes or activities shall 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/conserve/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 (IC 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 under 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 rules do not make that distinction. The ASTM 

standard cited makes no distinction as to hazardous or non-hazardous. Thus, under current IN 

statute and rules allowing BU, it would not matter whether coal ash was deemed a hazardous 

waste. However, Lori Freeman, IDEM Environmental Manager, indicated that the issue would 

likely be re-examined, were EPA to deem CCPs a hazardous waste. 
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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 concerning 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 chapter 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, bottom 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 hazardous waste or is exempt from regulation as a 

hazardous waste under 42 U.S.C. 6921; and 

 (B) is disposed of at a facility regulated under IC 14-34. 

 (2) The use of coal combustion products (as defined by ASTM E-2201-02a), including fly 

ash, bottom 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 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 combined with cement, sand, or water to produce a controlled 

strength fill material. 

 (F) A base in road construction. 

 (G) Cover for coal processing waste 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 enhancing 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 the 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.
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7. Illinois 

http://www.ipcb.state.il.us/SLR/TheEnvironmentalProtectionAct.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 contained 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 including block, pipe and precast/prestressed components; asphalt 

or cementious roofing products; plastic products including pipes and fittings; paints and metal 

alloys; kiln fired products including bricks, blocks, and tiles; abrasive media; gypsum wallboard; 

asphaltic concrete, or asphalt based paving material. 

 (3) CCB used (A) in accordance with the Illinois Department of Transportation ("IDOT") 

standard specifications and subsection (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 tracks, or foot paths. 

 (5) Use in the stabilization or modification of soils providing the CCB meets the IDOT 

specifications for soil modifiers. 

 (6) CCB used as a functionally equivalent 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 material itself or other cover material. 

 (9) Mine subsidence, mine fire control, mine sealing, and mine reclamation. 

 (a-5) Except to the extent that the uses are otherwise authorized by law without such 

restrictions, the uses specified in items (a)(3)(A) and (a)(7) through (9) shall be subject to the 

following conditions: 

 (A) CCB shall not have been mixed with hazardous waste prior to use. 

 (B) CCB shall not exceed Class I Groundwater Standards for metals when tested utilizing 

test method ASTM D398785. The sample or samples 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 provide notification to the Agency for each project 

utilizing CCB documenting the quantity of CCB utilized and certification of compliance with 

conditions (A) and (B) of this subsection. Notification 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 determination as provided under this Section, or 

pavement base, parking lot base, or building base projects utilizing 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. 
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 (E) CCB is not to be accumulated speculatively. CCB is not accumulated speculatively if 

during the calendar year, the CCB used is equal 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, fluidized bed combustion ash, and stoker boiler ash and shall be 

tested as intended for use. 

 (b) To encourage and promote the utilization of CCB in productive and beneficial 

applications, upon request by the applicant, the Agency shall make a written beneficial use 

determination that coal combustion waste is CCB when used in a manner other than those uses 

specified in subsection (a) of this Section if the applicant demonstrates 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 environment; 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 effective 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 receipt of an application for a beneficial use determination under this 

subsection (b), the Agency shall, in writing, approve, disapprove, or approve with conditions the 

beneficial use. Any disapproval or approval with conditions shall include the Agency's reasons 

for the disapproval or conditions. Failure of the Agency to issue a decision within 90 days shall 

constitute disapproval of the beneficial use request. These beneficial use determinations are 

subject to review under Section 40 of this Act. 

 Any approval of a beneficial use under this subsection (b) shall become 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 expiration of the 5-year period, 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 unless denied by the Agency in writing with the 

Agency's reasons for disapproval, or unless the Agency has requested an extension for review, in 

which case the use will continue to be allowed 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 period 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 standards and procedures for the Agency's issuance of 

beneficial use determinations under this subsection (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 effective date of Board rules adopted under this subsection (b), the 
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Agency is authorized to make beneficial use determinations in accordance with this subsection 

(b). 

 The Agency is authorized to prepare and distribute guidance documents relating to its 

administration of this Section. Guidance documents prepared under this subsection 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 desulfurization byproducts generated as a result of the 

combustion of: 

 (1) coal, or 

 (2) coal in combination with: (i) fuel grade petroleum coke, (ii) 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) other 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 materials by weight of the materials 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 accordance with the provisions of item (r) of Section 21 

would result in no environmental impact greater than that of wastes generated as a result of the 

combustion of coal alone, and the storage disposal of the resultant wastes 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 subpart 4 as standing beneficial use determinations 

have been reviewed and determined to be beneficial uses of solid waste by the agency. All other 

proposed uses of solid wastes must obtain case-specific beneficial use 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 discarded waste materials and sludges, in solid, 

semisolid, liquid, or contained gaseous form, resulting from industrial, commercial, mining and 

agricultural operations, and from community activities, but does not include hazardous waste; 
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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, special 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 process 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 disposal as solid waste in a sanitary landfill. 

Defines “Suitable for disposal as solid waste in a sanitary landfill” means that the 

material is in compliance with all state and federal 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 contain 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/SB0224S01.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.”.