Lafarge North America, the largest cement supplier in the United States and Canada, is objecting to EPA’s insistence in its proposal to issue first-time Resource Conservation & Recovery Act (RCRA) rules for coal ash that industry provide hard data to support its concerns that a hazardous waste designation will stigmatise beneficial reuse of coal ash in cement and other products.
The company has comments on the proposed rule rejects EPA’s claim that "parties fearing a ’stigma’ have some burden to prove the stigma with ’data.’" EPA took comment through Nov. 19 on whether it should regulate coal ash and other coal combustion residuals (CCRs) as hazardous waste under RCRA subtitle C or less stringent RCRA subtitle D solid waste rules.
Lafarge says, "We begin our discussion on the stigma issue by objecting to the concept that one could or should have to ’prove’ a stigma if EPA were to regulate CCRs under RCRA subtitle C. The most fundamental problem to such a showing, of course, is that the actual effects of such a stigma will not occur unless or until EPA were to decide to regulate CCRs under subtitle C."
There are expected to be thousands of comments filed on the coal waste plan, and EPA is facing competing claims over whether it can consider the stigmatic effect that strict hazardous waste rules would have on industry’s ability to reuse coal ash, with environmentalists charging that the agency is legally barred from considering stigma while industry says Congress effectively mandated that stigma be a key consideration (Superfund Report, Nov. 15).
In its comments, Lafarge notes how stigma factored into the Clinton administration’s 2000 decision not to regulate CCRs, which are currently subject to the congressional Bevill waste amendment for high-volume, low-toxicity waste. That echoes industry claims that EPA is required to consider stigma as a "threshold" matter, because two of the eight criteria EPA must consider before issuing rules for Bevill wastes is "the impact of those alternatives on the use of coal and other natural resources" and "the current and potential utilization of these materials."
Lafarge says then-EPA Administrator Carol Browner, who now serves as President Obama’s top energy and climate change adviser, "fully accepted the concept of a stigma," which was one of the bases on which EPA determined to reject subtitle C regulation of CCR when it issued its regulatory determination in 2000.
Lafarge quotes Browner’s 2000 decision, "We do not wish to place any unnecessary barriers on the beneficial uses of those wastes because they conserve natural resources, reduce disposal costs and reduce the total amount of waste destined for disposal. . . . We would be particularly concerned about any adverse effect on the beneficial reuse market for these wastes . . . . Normally, concerns about stigma are not a deciding factor in EPA’s decisions under RCRA, given the central concern under the statute for protection of human health and the environment.