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Coal Waste Regulation -- Utilities Trying to Avoid Regulating their Toxic Wastes by Misdirection

Scott Slesinger

Posted August 27, 2010

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What happens to the toxics that utilities remove from their stacks that used to pollute our skies?  They now pollute our waters.


During the past 30 years, the pollutants that used to go up the stack are now collected in ash. Administrations have been prodded by NRDC lawsuits to regulate these toxic wastes and have found excuses not to do so. The politics changed after the mishandling of this waste lead to the devastating results in Kingston, Tennessee, blogged about by my colleague, Rob Perks.   Now, with new technology that better predicts the high levels of these toxics reaching groundwater, EPA has come forward with a plan to regulate coal ash and its metal components of arsenic, mercury, lead, antimony, and other toxic metals.  Actually, the Administration has come forward with two plans.  One protects the public, I will call that the EPA plan, and the second protects the status quo; I will call that the OMB plan.  This is the first rule in my memory where EPA came out with two opposite options for regulating something – an apparent compromise required by OMB to get the rule out.

The EPA plan requires the disposal of coal ash to meet the standards that are set for all industries that handle hazardous wastes under the Resource Conservation and Recovery Act (RCRA).  These regulatory requirements include ongoing monitoring that toxics are not leaving the landfill, financial assurance that taxpayers won’t be held liable for mishaps and closing of the facilities and federal and state enforcement of the rules.  The industry also would be required, as is every other industry that handles these wastes, to bind the toxic metals into compounds so they remain in the specially designed landfills and don’t leach when they are come into contact with rainwater or runoff.

The OMB option treats the waste under the “rules” for non-hazardous wastes.  I put rules in quotes because these standards are not enforceable by the federal government.  EPA estimates the savings from the OMB option will be due in large part to non-compliance.

EPA held one of seven hearings on the coal ash rule, on Monday, August 30, 2010 in Arlington, Virginia.  This blog is an expansion of my remarks. 


The utilities concern is the cost of complying with the disposal requirements.  However, arguing that the costs are high only gets the utilities so far and so they have created a campaign that diverts attention from proper disposal of toxic coal ash to recycling of fly ash. 

Coal ash is made up of bottom ash and fly ash.  Bottom ash is the pulverized coal that is too large to be carried in the flue gases and collect on the furnace walls or fall through open grates to an ash hopper at the bottom of the furnace.

 Fly ash is removed from the plant exhaust gases by the air emission control devices that are required by the Clean Air Act. Both have toxic properties.

A lot of fly ash can be beneficially used in construction.  It even has properties that are better than virgin cement.  And environmentally, when properly used, it is encapsulated so it also does not leach. Because it comes from a waste, the U.S. Green Building Council, gives recycling credit for the use of fly ash. Understanding that EPA has proposed to regulate the disposal of ash and not touch the present regulation of fly ash.  That has not stopped the utilities from launching a huge campaign in the public and with Congress, that the regulation of coal ash will kill fly ash’s beneficial uses.


On Monday, August 30, 2010, I testified for three minutes on the 139 page rule. I addressed the so-called “stigma” issue.  During my 10 years working for the hazardous waste disposal industry, I noticed that hazardous waste disposal companies lost market share over time to recyclers and beneficial users.  Market economics made this obvious, the higher cost of disposal led to finding cheaper alternatives.  So despite the concerns of every regulated industry that a stigma would attach if EPA regulated their waste as a hazardous waste the market soon proved otherwise and beneficial uses went up.  This will be especially the case with fly ash where EPA has used the “special waste” terminology and specifically avoided the dreaded term “hazardous” for the disposal and clearly, for the first time, specifically avoided any change to the regulations to the material that is going  to be used beneficially.

Some argue that the market has already been affected by the pre-proposal statements of EPA.  If there has been an affect that negative impact was ginned up by the utilities and the fly ash recyclers essentially trying to poison the market for their own product.  It is as if Coke said we put salmonella in Coke-- that would probably hurt Coke sales.  Of course, the utilities concern is not really recycling fly ash; their concern is having to dispose of the toxics they took out of their stack emission, collected in the ash, and now have a difficult time arguing that the toxic ash should be handled as non-toxic waste like kitchen garbage.  Therefore they have created this diversionary battle over stigma.  However, a survey by the Ready Mix Concrete Association shows that companies that use fly ash, over 69% will continue to use it even if it is “hazardous.” The National Precast Concrete Association survey in July 2010 (when EPA was going to use the “hazardous nomenclature) showed that 84% of their members will continue to use fly ash even if the waste was regulated under Subtitle C.

I am betting future surveys, at least those that are released to the public by industry, will be more in line with their lobbying that the EPA option will kill fly ash recycling.

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Tom PoundsSep 9 2010 11:02 PM

I’m responding as the CEO of CalStar Products, a green building materials company that is using fly ash to make new green building products. We have reinvented bricks and pavers with a dramatically lower embodied energy and carbon footprint than traditional products, and with high recycled content. For our innovations as well as our creation of new green jobs, NRDC President Frances Beinecke recently referenced CalStar as an exemplary green company in her book “Clean Energy Common Sense.” Recently, I have been active in Environmental Entrepreneurs’ radio campaign to advance federal energy and carbon policy. In short, I and CalStar are committed to helping improve our environment, and I offer the following observations and comments in that spirit.

It is clear that many states have neglected to oversee fly ash disposal effectively, and that federal oversight under the EPA is appropriate. Getting the details of this oversight right is essential for the environment in respects that extend beyond the disposal issue.

Unfortunately, this blog raises serious concerns about NRDC’s approach:

1. The stigma concern is genuine, and not a conspiracy by the utility industry. Many tens if not hundreds of professional engineering associations, federal and state building and highway organizations, and private companies across the building and construction industry have raised serious concerns about EPA regulation of fly ash under RCRA C “hazardous” waste rules. These concerns are mischaracterized here as the product of a conspiracy directed by the utility industry as “The Fake Stigma Misdirection Play”.

This is disingenuous, at best. The construction industry’s objections are distinct and separate, and have to do primarily with preserving beneficial use of fly ash, which itself is a huge if under-recognized environmental success story. Fly ash substitution for Portland cement in concrete has reduced CO2 emissions in the U.S. by over 200 million tons since 1990. Continuing and expanding this practice can reduce CO2 emissions by as much as 600 million tons over the next 20 years. Landfill demand is reduced by similar amounts.

Further, the author’s suggestion that beneficial use companies are “ginning up” the stigma issue to poison our own markets is preposterous. As a venture-backed start-up company working to launch sales of new products in a difficult construction market, the last thing we want to do is add confusion and uncertainty around this issue.

2. NRDC’s rhetoric is itself stigmatizing fly ash. This blog artfully inserts “toxic” to describe fly ash in some places and not in others – even though it’s always referring to the same material. The uneasy feeling you’re left with as a result is a perfect illustration of what has come to be known as “stigma.” The author’s reassuring words aside, many people simply have a hard time understanding why they should actively seek to incorporate the very same material in their homes, schools, hospitals, and civic buildings that NRDC condemns as so “toxic” as to require handling as a hazardous waste.

This is precisely the paradox the building and construction industry is concerned about. If fly ash comes to be treated under RCRA C for disposal, many people will be left with the mistaken impression that fly ash should be avoided categorically. I know this because I often meet well-intentioned people who have developed this view based on reading things like this blog. When I point to NRDC’s quiet support for beneficial uses such as ours, they are surprised and often suspicious of how that could be so.

Beating this “toxic” drum is unnecessary to make the legal point NRDC believes is at the crux of this matter, and puts at risk the continued positive impacts of fly ash beneficial use. In doing so, NRDC is working at cross-purposes with its own carbon reduction and climate change missions.

3. Confidence isn’t a strategy. The author’s assertions that recycling rates will increase under a hazardous designation should be considered carefully. Many professionals from across the building and construction industry with decades of experience with building materials and products (and fly ash in particular) believe the opposite could happen. The reality is that nobody knows for sure.

I don’t doubt the author’s anecdotal experience with other materials that have been designated as hazardous. But fly ash is different in important respects from (truly) hazardous materials that are in consumer products – CFLs, TVs, mobile devices, and vehicles – and completely different from commercial products and materials.

For example, substituting fly ash for cement requires an explicit, conscious specification by an architect and engineer for each and every building project. It is easy and riskless to fall back to using 100% Portland cement concrete, with its larger carbon and energy footprint, if any stigma arises around fly ash.

It’s taken decades to achieve today’s beneficial use rates, but that could turn around overnight. The environmental downside associated with that outcome would be huge – and NRDC would be held partially responsible. It is appropriate to seek more than the author’s assurances to ensure that this outcome won’t be an unintended consequence of the EPA’s rulemaking.

* * *

Rather than spinning conspiracy theories and engaging in hyperbole to try to make difficult questions go away, NRDC should be taking the lead in understanding and answering them: What if the stigma issue is real? What more can NRDC do to mitigate that risk? What more can be done to advance appropriate beneficial use, and to extend the associated environmental benefits?

By dedicating as much energy to these issues as to reaching the right answer on the disposal issue, NRDC can help reach a more robust, integrated solution to this challenging, multifaceted problem.


Thomas M. Pounds
CEO, CalStar Products
Member, Environmental Entrepreneurs
Member, NRDC Group of 1000

scott slesingerSep 13 2010 05:06 PM

Mr. Pounds makes some valid points that the discussion of "toxic" coal ash may be adding problems to the marketing of fly ash as competitors and others jump on the proposed rule to unfairly discourage the beneficial use of fly ash. But the major point that needs to be remembered is that reusing fly ash, which NRDC supports, is the tail of this dog. The dog, the reason we want to regulate the now unregulated dangerous DISPOSAL of coal ash is the fact that the present handling of coal ash is causing drinking water contamination, pollution of streams and poisoning of drinking water wells throughout this country. At the hearing in Washington on August 30, 2010, witnesses were talking passed each other. Citizens from communities near coal ash impoundments talked about how their water wells have been contaminated, how they must replace their piping twice a year, about their community’s rare cancer clusters associated with arsenic and how homes had to be abandoned because of deadly water coming from their wells.

The utilities and those who opposed the strong EPA option and users of fly ash talked about the beneficial use of fly ash, how the rule will discourage its use and then supported, without any details or description, a rule option which they called simply "Subtitle D prime," which is essentially the status quo. In most states and almost all states where coal is a major source of power for energy and politics, this means no monitoring of toxics leaving the coal ash impoundments, with no liners, with no encapsulation of the coal ash to stop leaching, no requirement to clean up the contaminated drinking water or inform their neighbors of what toxics are leaching off their property. Recently our allies in the fight for regulation of coal ash, published a new study of additional locations where coal ash contamination exists.
Despite the implied comments of the utilities that the states are doing fine, the study was only able to look at those "enlightened" states that at least require monitoring. The report shows that, at every one of the coal ash dump sites equipped with groundwater monitoring wells, concentrations of heavy metals such as arsenic or lead exceed federal health-based standards for drinking water, reaching as high as 341 times the federal standard for arsenic. Imagine what is going on where the state policy is ignorance is bliss -- where there are no requirements to monitor. This is a status quo we will not support.

Thomas PoundsSep 14 2010 12:38 AM

I understand the author’s frustration in hearing a newfound commitment to fly ash beneficial use from some in the utility industry who have not previously taken such an active interest.

But just because the electric utility industry is speaking out for beneficial use doesn’t mean it shouldn’t be taken seriously.

From an environmental perspective, it’s not appropriate to characterize fly ash beneficial use in building materials as a distracting “tail” wagging behind a larger “dog” of disposal. I’m not aware of other recycling success stories that have been growing steadily and now reduce U.S. CO2 emissions by 13-15 million tons per year – the equivalent of taking 2 - 3 million cars off the road. If managed and promoted properly, this “tail” can help eliminate CO2 emissions by an additional 500 million tons between now and 2030.

Disposal and beneficial use are two independent issues, each one important and worthy of our attention and advocacy. Even as we work to reform the unsatisfactory status quo in disposal, we need to make sure we only protect and advance the desirable status quo in beneficial use.

Nastassja NoellJan 18 2011 11:51 AM

The critical problem with coal fly ash are the *toxins that are in this waste*, which are hazardous and should not be recycled into the cement that children play on, or cisterns that hold drinking water.

Mr. Pounds and the supporters of recycling hazardous waste into the materials of our daily lives -- not to mention food (yes, hazardous waste is allowed to be recycled into fertilizer -- see the book "Fateful Harvest").-- seem to be avoiding the most primary, obvious prescription for the problem of all this toxic fly ash --> !! stop burning coal !!

Or perhaps the money from peddling hazardous waste masked as a consumer item is just too good to pass up?

Brad WaasJan 21 2012 12:18 PM

Here are the facts about the hazardous constituents in fly ash - the fly ash that Calstar uses to make its bricks and pavers.

The data is from the EPA’s - on the toxic metals emitted by the Oak Creek power plant in fly ash. The data was extracted from EPA’s Toxics Release Inventory.

Oak Creek produces about 114,000 short tons of fly ash annually. The fly ash contains the following toxics (annual emissions):
Arsenic: 6,657 pounds
Barium: 214,501 pounds
Chromium: 18,000 pounds
Copper: 20,000 pounds
Lead: 4,600 pounds
Manganese: 13,000 pounds
Nickel: 9,000 pounds
Thallium: 10,000 pounds
Vanadium: 4,750 pounds
Zinc: 6,900 pounds

The total amount of toxics contained in Oak Creek’s annual production of fly ash is over 300,000 pounds.

From the above data you can calculate that JUST ONE FLY ASH BRICK (standard size, residential, 5 lbs) WILL CONTAIN OVER 3 GRAMS OF HIGHLY TOXIC METALS!

Oak Creek fly ash on average has the following concentrations of toxics:
Arsenic: 29 ppm
Barium: 941 ppm
Chromium: 79 ppm
Copper: 88 ppm
Lead: 20 ppm
Manganese: 57 ppm
Nickel: 39 ppm
Thallium: 44 ppm
Vanadium: 21 ppm
Zinc: 30 ppm

Compare this with EPA’s regulations on these toxics in drinking water
Arsenic: 0.01 ppm
Barium: 2 ppm
Chromium: 0.1 ppm
Copper: 1.3 ppm
Lead: 0.015 ppm
Thallium: 0.002 ppm

So, the toxics from just ONE FLY ASH BRICK CAN POTENTIALLY POISON OVER 13,000 GALLONS OF WATER and make it unfit for drinking!

Brad WaasJan 21 2012 12:25 PM

Disinformation from Calstar ( – concerning “Product safety” – I guess that they must have been alarmed that people have picked up on the toxicity of their fly ash bricks.

They claim: “Our commitment to green extends to product safety; we test our products extensively to ensure they are safe throughout their lifecycle, from manufacture to placement to use (and reuse) to end-of-life disposal”

This is very far from the truth – Calstar has not done any manufacturing – not even pilot runs, and have not produced enough bricks to do placement, reuse, disposal or any of the elements of lifecycle testing. Oh, and of course, they have not done an environmental footprint assessment of LCA – because, they know very well that will show what a Greenwash their product is.

They claim: “Our process for making fly ash into bricks binds the materials within a strong crystalline matrix that holds even if exposed to the intense acids found in landfills.”.

This is nonsense. Calstar’s curing process does not form any significant crystalline matrix – the borate-alkanolamine system they use has been known for decades and is known to form an amorphous matrix which degrades over time and is not effective at binding toxic metals. In fact, alkanolamines increase metal leaching, and that is why they are not used in fly ash products. And what strong acids are they talking about? The short-duration leaching tests they cite use very dilute solutions which effect a very mild leach. And their own results show that toxic metals rapidly leach even under these very mild conditions.

They claim: “While hundreds of millions of tons of fly ash have been safely included in concrete buildings and infrastructures around the world for decades”.

Nice spin. Fly ash has indeed been used extensively in concrete around the world – however, in all cases, the fly ash is safely encapsulated with portland cement and/or blast furnace slag – these are known from decades of research to react with the fly ash and effectively bind toxic metals, and the products are known to be stable and safe. This has nothing to do with Calstar’s bricks.

They claim: “CalStar Products, Inc. has undertaken extensive testing of our products to ensure the same levels of safety apply. Test results on our products from respected third-party laboratories have been reviewed and analyzed by Gradient, a respected environmental consultancy in Cambridge, Massachusetts. They find that “the presence of coal fly ash metals in newly manufactured CalStar bricks is not expected to result in any exposures of health concern”.

More spin. Calstar has done no significant safety testing of their product, and has used a contract firm that is associated with the fly ash industry and which promotes fly ash, to certify its products. Important point here – Gradient did not do any of the tests – they were paid by Calstar to “interpret” the tests – hence the careful wording of the safety statement. If Calstar does any meaningful testing, the toxicity of the bricks will become very apparent – Calstar knows this all too well. The irony is that even their very mild preliminary tests show that the bricks are not safe and that metals leach out.

Brad WaasJan 21 2012 03:31 PM

A report released last year confirms yet again that the fly ash used in Calstar’s fly ash bricks and pavers is hazardous and that it leaches toxic metals into water.

WE Energies operates the Oak Creek power plant and has known about toxic metals in the fly ash and how they have leached into the environment and contaminated drinking water.

In 2009, WE Energies informed nearby residents that their water was unsafe to drink and has been providing bottled water.

WE Energies is funding Calstar and their fly ash brick operation. The ash which has contaminated drinking water is the same ash that Calstar is using in their bricks and pavers.

This is the same ash that Calstar has claimed is non-hazardous and does not leach toxic metals.

This report and WE Energies actions prove that the fly ash is hazardous, that it does leach toxic metals, and that WE Energies and Calstar Products have known all along about the toxicity of fly ash. Also Calstar’s own tests on the fly ash bricks show beyond doubt that toxic metals are present on the bricks and leach very rapidly from the bricks.

Brad WaasJan 21 2012 03:36 PM

Julie Rapoport, the VP of Product Development at Calstar Products complains that the (very mild) SPLP leaching test used for fly ash is too aggressive. The SPLP test uses a solution which is weaker than lemon juice or vinegar to leach toxic metals from Calstar’s fly ash bricks. Even under these very mild conditions, a range of toxic metals including arsenic, antimony, beryllium, cadmium, lead, manganese, mercury and nickel leach from the bricks.

The EPA has already admitted that the SPLP test is too mild and outdated and needs to be replaced with a more aggressive test resembling real-world conditions. Calstar is opposed to this - why - because such a test will leach even higher levels of toxic metals from Calstar’s fly ash bricks and further highlight the hazards of these bricks.

Julie Rapoport also claims that “one could leach anything out of any material if it was subjected to severe enough conditions”. This is smoke-and-mirrors nonsense. The comparison here is between Calstar’s bricks which are made of fly ash, and clay bricks. Fly ash has much higher levels of toxic metals than clay, and these toxic metals are highly mobile. TCLP and SPLP leaching tests of clay bricks do not show any significant leaching of toxic metals like arsenic, antimony, beryllium, cadmium, lead, manganese, mercury and nickel - these same metals readily leach from Calstar’s bricks. Simply put, clay bricks do not contain the high levels of toxic metals present in fly ash bricks, and clay bricks are far more resistant to leaching than fly ash bricks. This simple fact is evident from Calstar refusing to compare the leaching results for their fly ash bricks with the leaching of clay bricks - Calstar knows very well how bad their bricks would look in this comparison.

Calstar’s coal fly ash bricks and pavers are known to have serious problems and have failed in field trials and commercial and residential projects. Failures include efflorescence, spalling, flaking and erosion, all resulting in the release of fly ash particles and toxic metals.

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