Nelson Mullins Riley & Scarborough

EPA issues Coal Ash Proposal
Rule may redefine products used in construction and road building

On June 21, EPA published its proposal to regulate coal combustion residuals (CCRs) under the Resource Conservation and Recovery Act (RCRA).  CCR is the technical term for coal-ash waste from coal-fired power plants.  There are a number of coal-ash impoundments across the country and a spill in Tennessee in 2008 that resulted in major damage prompted EPA to propose stricter regulatory controls.

There is tension over new regulations that could define the ash as “hazardous” because the ash is currently used in concrete, wallboard, roads, and for mine reclamation.  Advocates for beneficial reuse of coal ash argue that defining coal ash as “hazardous” will reduce its value because of the stigma and because of increased costs associated with tighter regulatory controls.

EPA’s proposal calls for comment on two different approaches.  One approach is for EPA to set strict disposal criteria.  The other approach is to label the ash as nonhazardous and leave enforcement to the states.

Analysis for SBCRR Subscribers

EPA does not believe that their proposal will significantly impact a substantial number of small entities.  Therefore, the EPA bypassed the requirement for convening a Small Business Advocacy Review Panel prior to proposing the rule.  EPA’s rationale is that 26% of electric utility plants (sector regulated under the proposal) are small entities (municipal governments, companies, and cooperatives).  EPA expects those electric utilities to experience new regulatory costs of less than one percent of annual revenues.

Unfortunately, EPA is only required to analyze the rule’s direct impact on utilities.  The agency’s analysis stops short of estimating the rise in cost for building materials and other costs that represent “indirect impacts” of EPA’s rulemaking.  Small business stakeholders should advise the EPA on how its proposal may result in increased costs that cannot be shouldered by small firms. 

Key Documents 

• EPA’s website on Coal Combustion Residuals:  click here
• EPA's Proposed rule: click here
• News article on EPA’s proposal: click here

Agency Outreach

EPA is holding webinars in August on the agency’s plans to regulate coal ash.  The webinars will include an explanation of the proposal by EPA staff, guidance on how to give official public comment, and an opportunity to address questions from participants. The webinars are not part of the official public comment process.

• Thursday, August 5, 2010, 2:00 pm-3:30 pm - Environmental/Health, Environmental Justice, and Community impacts
• Thursday, August 12, 2010, 2:00 pm-3:30 pm - Industry and Beneficial Use impacts
• To register for the webinars: click here