EPA Testimony Hints

FHWA Comments on Fly Ash as a Hazardous Waste

As we are all aware, the EPA is attempting to regulate fly ash as a hazardous waste. The following comments were provided by FHWA and obtained through the "Interagency Working Comments on Draft Rule under EO 12866" document in commentary on the new rules. The comments speak volumes on why we need to keep EPA out of the business of regulating fly ash as a hazardous waste. DCS

Department of Transportation Comments

It would be helpful if EPA incorporated some explanatory language in the preamble that CCRs (destined for disposal) listed as hazardous wastes under Subtitle C of RCRA will also be subject to the DOT hazardous materials regulations (HMR) because a material subject to EPA hazardous waste manifest requirements is defined as a hazardous material under the HMR. In the interest of making generators and transporters of this waste aware that the DOT regulations will apply when CCRs are transported in commerce, the Pipeline and Hazardous Materials Safety Administration suggests that EPA incorporate the following: "Generators and transporters of CCRs destined for disposal should be aware that an EPA hazardous waste subject to EPA hazardous waste manifest requirements under 40 CFR Part 262 meets the definition for a hazardous material under the Department of Transportation's Hazardous Materials Regulations (HMR; 49 CFR Parts 171-180) and must be offered and transported in accordance with all applicable HMR requirements, including materials classification, packaging, and hazard communication. See the definition for "hazardous waste" in 49 CFR 171.8."

DOT is concerned about the negative impacts that may result from designating fly ash as a hazardous material. Fly ash is a valuable byproduct used in highway facility construction. It is a vital component of concrete and is important for a number of other infrastructure uses. To designate fly ash, along with other CCRs, as hazardous wastes would likely jeopardize its availability and discourage, if not eliminate, its use.

The Rule would designate all CCRs as hazardous and then exempts beneficial uses. However, DOT is concerned that this approach is confusing, and may still have unintended consequences due to the association with Subtitle C. For example, many States have policies that forbid the use of any hazardous materials. Thus, if fly ash is designated as a hazardous material, it would fall under these general State prohibitions and would legally prevent the use of fly ash in public works structures and highways. Furthermore, an exemption in a Federal regulation probably would not negate State laws. If a material is in any manner considered hazardous, States will not risk future liability. DOT supports EPA's efforts to protect the beneficial uses of CCRs, but we are still concerned that this Rule would significantly diminish the beneficial uses of CCRs.

FHWA suggests that the proposed rule would continue to be effective and protect the beneficial uses of CCRs if the rule focused upon disposal regulations. If the rule focused upon disposal regulations, then there would be no adverse effect on fly ash usage, and both an environmental protection interest and the public works benefit would be preserved.

It should be noted that the incident at a TVA facility which drew attention to this topic involved bottom ash, a product that is handled and stored using a wet process. Fly ash used in concrete is handled using a dry process and has no relationship to the Kingston, Tennessee situation. To designate the material as a hazardous material would likely result in more material requiring disposal, increasing the risk of future unfortunate events that could arise from the disposal effort instead of the current, beneficial utilization.

Fly ash can be used to improve concrete in many ways. The following is a brief list of those concrete properties improved through the utilization of fly ash:

o Setting time is normally delayed. This aids in placement during summer construction.

o Long term strength is increased. Early strength may be reduced but ultimate strength is increased, with strength gain being maintained for many years.

o Heat of hydration of the concrete is normally reduced. This reduces shrinkage and thereby the cracking potential of the pavement or structure.

o Fly ash, particularly Class F fly ash, will mitigate the potential for alkali silica reaction (ASR) in most concrete mixtures. ASR is a major source of early concrete deterioration in many areas of the US. It is such a significant problem that Congress has allocated $8 million to conduct research to seek solutions. At this time, fly ash is the most widely used product to combat this problem and to date very few other solutions have been found to address the issue in a practical manner.

o Fly ash reduces the permeability of concrete. Lower permeability resists the intrusion of deleterious chemicals and prolongs the life of the structure or pavement.

If fly ash is designated a hazardous material, FHWA is concerned that its usage in concrete will greatly diminish. State and local agencies that are responsible for highway systems, as well as commercial users of concrete, would not utilize such a material from either a public safety standpoint or because of State statutes. A diminished use of fly ash in concrete will have the following implications:

o More cement would be used. Today, commonly 20% to 35% of the cementitious material in many, if not most, concrete mixtures is fly ash. Fly ash unavailability would mean the same percent of cement would be added back into the mixtures and thus increase the carbon footprint by that same amount.

o Cement is more costly than fly ash. In some areas, it is as much as twice the cost. Agency budgets have already been decimated by the increase in fuel and asphalt costs of recent years, and this would be another challenge to maintaining our highway system.

o Agencies would no longer have practical, economical means to address ASR. In some states this affects millions of dollars directed toward bridges and pavements. As renewed emphasis is being placed on our nation's infrastructure, removing a valuable tool such as fly ash would be devastating to the long term effectiveness of that effort.

o Concrete durability would be reduced. This would shorten the life of pavements and structures, further straining our aging transportation system.

o The potential for cracking in concrete would increase. In both pavements and structures, cracking reduces the service life and increases maintenance costs. On page 69 of the preamble, the following statement is made: "As described previously, EPA has identified 27 proven damage cases - 17 cases of damage to groundwater, and ten cases of damage to surface water, including ecological damages in seven of the ten cases."

Comment: All cases cited involve either ground water or surface water. Throughout the proposed rule, the justification for the hazardous waste designation is water pollution relating to improper disposal. There is no documented evidence that fly ash used for beneficial uses has created any adverse effect since the May 2000 Regulation or Determination that concluded Subtitle C was not warranted. Infrastructure utilizes dry fly ash. FHWA suggests that EPA address certain types of CCRs that are stored in wet or dry form. This would free those materials most used for beneficial use from Subtitle C and also avoid adverse effects on beneficial uses of CCRs.

References cited in DOT's comments:

U.S. Environmental Protection Agency. April 2005. Using Coal Ash in Highway Construction: A Guide to Benefits and Impacts, EPA-530-K-05-002.

Federal Highway Administration. August 1995. Fly Ash Facts for Highway Engineers, FHWASA-94-081.

Rens, L. September 2009. Concrete Roads: A Smart and Sustainable Choice. Brussels, Belgium: European Concrete Paving Association. www.eupave.eu.

Helmuth, Richard. 1987. Fly Ash in Cement and Concrete. Skokie, IL: Portland Cement Association