U.S. ENVIRONMENTAL PROTECTION AGENCY
OFFICE OF INSPECTOR GENERAL
Evaluation Report
EPA Promoted the Use of
Coal Ash Products With
Incomplete Risk Information
Report No. 11-P-0173
March 23, 2011

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Report Contributors:
Carolyn Copper
Steve Hanna
Tapati Bhattacharyya
Anne Declerck
Richard Jones
Chad Kincheloe
Brooke Shull
Abbreviations
C2p2
Coal Combustion Products Partnership
CCR
Coal combustion residual
EPA
U.S. Environmental Protection Agency
FBC
Fluidized bed combustion
GAO
U.S. Government Accountability Office
IWEM
Industrial Waste Evaluation Model
OIG
Office of Inspector General
ORCR
Office of Resource Conservation and Recovery
OSWER
Office of Solid Waste and Emergency Response
RCC
Resource Conservation Challenge
TCLP
Toxicity characteristic leaching procedure
Cover photo: Spreading and compacting fly ash structural fill. (EPA photo)

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S7">q v
. U.S. Environmental Protection Agency	n-p-0173
I jQ % Office of Inspector General	March 23 2011
At a Glance
Why We Did This Review
We initiated this review to
determine whether the U.S.
Environmental Protection
Agency (EPA) followed
accepted and standard
practices in determining that
coal combustion residuals
(CCRs) are safe for the
beneficial uses it had promoted
on its Coal Combustion
Products Partnership (C2P2)
program website.
Background
CCRs are generated from
burning coal. More than
136 million tons of CCRs were
generated in 2008. EPA
defines beneficial use of CCRs
as one that provides a
functional benefit, replaces the
use of an alternative material,
conserves natural resources,
and meets relevant product
specifications and regulatory
standards. Beneficial uses of
CCRs include concrete
manufacture or soil
enhancement, among others.
For further information,
contact our Office of
Congressional, Public Affairs
and Management at
(202) 566-2391.
The full report is at:
www.epa.aov/oia/reports/2011/
20110323-11 -P-0173.pdf
Catalyst for Improving the Environment
EPA Promoted the Use of Coal Ash Products
With Incomplete Risk Information
What We Found
EPA did not follow accepted and standard practices in determining the safety of
the 15 categories of CCR beneficial uses it promoted through the C2P2 program.
EPA's application of risk assessment, risk screening, and leachate testing and
modeling was significantly limited in scope and applicability. Without proper
protections, CCR contaminants can leach into ground water and migrate to
drinking water sources, posing significant public health concerns.
EPA officials told us they relied on individual state beneficial use programs to
review and approve specific CCR beneficial uses, and to manage associated risks.
EPA established, but did not implement, plans in 2005 to identify environmentally
safe and beneficial use practices. Had EPA implemented its plans, it may have
known earlier about risks from large-scale disposal of CCRs described as
beneficial use.
EPA documented these risks in damage cases presented in its June 2010 proposed
rule to regulate certain CCRs. EPA stated in the proposed rule that certain uses of
CCRs, in sand and gravel pits as well as large-scale fill operations, represent
disposal rather than beneficial use. After release of its proposed rule, EPA stopped
promoting beneficial uses of CCRs through the C2P2 program. Further, in response
to a recommendation from the OIG, EPA removed access to the C2P2 website.
In the proposed rule, EPA sought public comment on approaches for regulating
CCRs, to include information and data on beneficial uses, particularly
unencapsulated uses that may present a risk to human health and the environment.
Such information will help EPA make informed decisions about safe beneficial
use of CCRs. EPA should also have a sound process for evaluating and analyzing
risk information that forms the basis of Agency promotions on safe beneficial use
of CCRs.
What We Recommend
We recommend that EPA define and implement risk evaluation practices for
beneficial uses of CCRs, and that it determine if further action is warranted to
address historical CCR structural fill applications. EPA agreed with these
recommendations, which were revised in response to EPA suggestions. In its final
response to this report, EPA should describe its specific corrective actions to
address the recommendations and provide estimated completion dates for these
actions.

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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
THE INSPECTOR GENERAL
March 23, 2011
MEMORANDUM
SUBJECT: EPA Promoted the Use of Coal Ash Products
With Incomplete Risk Information
Report No. ll-P-0173
FROM: Arthur A. Elkins, Jr.
Inspector General
TO:
Mathy Stanislaus
Assistant Administrator for Solid Waste and Emergency Response
This is our report on the subject evaluation conducted by the Office of Inspector General (OIG)
of the U.S. Environmental Protection Agency (EPA). This report contains findings that describe
the problems the OIG has identified and corrective actions the OIG recommends. This report
represents the opinion of the OIG and does not necessarily represent the final EPA position.
Final determinations on matters in this report will be made by EPA managers in accordance with
established resolution procedures.
The estimated direct labor and travel costs for this report are $759,649.
Action Required
In accordance with EPA Manual 2750, you are required to provide a written response to this
report within 90 calendar days. Your response should include a corrective action plan for agreed-
upon actions, including actual or estimated milestone completion dates. Your response will be
posted on the OIG's public website, along with our comments on your response. Your response
should be provided in an Adobe PDF file that complies with the accessibility requirements of
section 508 of the Rehabilitation Act of 1973, as amended. Please e-mail your response to
Carolyn Copper at copper. carolyn@epa. gov. If your response contains data that you do not want
to be released to the public, you should identify the data for redaction. We have no objections to
the further release of this report to the public.
If you or your staff have any questions regarding this report, please contact Wade Najjum at
(202) 566-0832 or naiiurn. wade@epa.gov, or Carolyn Copper at (202) 566-0829 or
copper.carolyn@epa.gov.

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EPA Promoted the Use of Coal Ash Products
With Incomplete Risk Information
11-P-0173
Table of C
Chapters
1	Introduction		1
Purpose		1
Background		1
Noteworthy Achievements		2
Scope and Methodology		3
Prior Evaluation Coverage 		4
2	EPA Did Not Follow Accepted and Standard Practices in
Determining the Safe Beneficial Uses of Coal Ash		5
EPA Had Incomplete Risk Information on Coal Ash		5
EPA Has Not Defined Accepted and Standard Practices for
Assessing Risks of CCR Beneficial Uses		9
Conclusions		11
Recommendations 		12
Agency Response and OIG Evaluation		12
Status of Recommendations and Potential Monetary Benefits		13
Appendices
A Agency Response to Draft Report and OIG Comment	 14
B Distribution	 27

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Chapter 1
Introduction
Purpose
The purpose of this review was to evaluate whether the U.S. Environmental
Protection Agency (EPA) followed accepted and standard practices in
determining that coal combustion residuals (CCRs) are safe for the beneficial uses
it had promoted.1
Background
CCRs are the residuals produced from burning coal for the generation of
electricity. CCRs represent one of the largest waste streams in the United States.
EPA records as of 2008 show that approximately 136 million tons are produced
each year. In 2001, the EPA Office of Resource Conservation and Recovery
(ORCR2) started the Coal Combustion Products Partnership (C2P2), a cooperative
effort among EPA and more than 170 public and private partners to promote the
beneficial use of CCRs. The goal of the program was, "By 2011, [to] increase the
use of coal combustion ash to 50 percent from 32 percent in 2001."
According to EPA, CCRs contain a range of metals such as arsenic, selenium,
cadmium, lead, and mercury, in low concentrations. Without proper protections,
these contaminants can leach into ground water and migrate to drinking water
sources, posing significant public health concerns. Other concerns associated with
CCRs include the exposure of vegetation to airborne dust and contamination, and
resulting impacts on the food chain. Beneficial use of CCRs includes both
encapsulated and unencapsulated uses. Encapsulated uses are bound in products
such as concrete or bricks. Examples of unencapsulated uses are land applications
in agriculture and road embankments.
The Bevill amendment of the Solid Waste Disposal Act Amendments of 1980
included CCRs as a "special waste" considered temporarily exempt from
regulation as hazardous waste under Resource Conservation and Recovery Act
1	In the 2010 proposed rule, EPA listed the following criteria to appropriately define legitimate beneficial use:
(1) the material used must provide a functional benefit; (2) the material substitutes for a virgin material, conserving
natural resources that would otherwise need to be obtained through practices such as extraction; (3) where relevant
product specifications or regulatory standards are available, the materials meet those specifications, and where such
specifications or standards have not been established, they are not being used in excess quantities; and (4) in the case
of agricultural uses, CCRs would be expected to meet appropriate standards, constituent levels, prescribed total
loads, application rates, etc.
2	ORCR was formerly known as the Office of Solid Waste.
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(RCRA) subtitle C, until further study was completed. A 2000 EPA regulatory
determination stated that:
•	Fossil fuel combustion wastes [CCRs] do not warrant regulation as
hazardous waste and the exemption for these wastes is retained.
•	Regulation under RCRA subtitle D for nonhazardous wastes is needed
for CCRs disposed in surface impoundments and landfills.
•	Beneficial uses of CCRs, other than minefills, pose no significant risk
and no additional national regulations are needed.
On December 22, 2008, an estimated 5.4 million cubic yards of coal ash sludge
were accidentally released from a disposal containment dike at a Kingston,
Tennessee, power plant. The ash extended over approximately 300 acres of land.
An estimated 3 million cubic yards of the coal ash entered the Emory River in
Tennessee and adjacent tributaries. In the aftermath of this catastrophe, EPA
initiated a review to determine the need to regulate coal ash waste disposal. On
May 4, 2010, EPA for the first time released a prepublication version of a
proposed rule to regulate CCR disposal. The proposed rule was published in the
Federal Register on June 21, 2010.
During the course of this review, we determined that risk information on EPA's
C2P2 website was incomplete, and that information on the website appeared to
inappropriately endorse commercial products. After we informed EPA of these
findings in an early warning report,3 EPA removed the website. In addition,
following release of its May 2010 proposal to regulate CCRs, EPA stopped
promoting beneficial uses of CCRs through the C2P2 program.
Noteworthy Achievements
•	Following the December 2008 catastrophe in Kingston, Tennessee, EPA took
steps to identify and assess the structural integrity of impoundments, dams, or
other management units within the electric power generating industry that
hold wet-handled CCRs. This effort led to reports on the structural stability of
these units, and recommendations for actions. EPA is monitoring the
implementation of these actions. EPA has made all of the information on these
assessments available to the public on its website. EPA is continuing its
assessment activities on units holding "wet" CCRs.
•	In June 2010, EPA proposed a rule to regulate coal ash under RCRA for the
first time, to address the risks from the disposal of the wastes generated by
electric utilities and independent power producers.
3 EPA OIG, Website for Coal Combustion Products Partnership Conflicts with Agency Policies, Report No.
ll-P-0002, October 13, 2010.
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•	EPA has held eight public meetings across the nation to provide the public an
opportunity to hear the contents of the proposed rule and offer comments.
These public meetings are in addition to existing opportunities to provide
written comments on the proposed rule.
•	EPA has held three webinars on the proposed rule. The webinars 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.
•	EPA stopped its participation in the C2P2 program and removed access to
incomplete C2P2 website content while it is taking and assessing comment on
the beneficial use of CCRs through the CCR proposed rulemaking. EPA
continues to support safe and protective beneficial reuse of CCRs.
•	EPA and the U.S. Department of Agriculture are conducting a multiyear study
on the use of flue gas desulfurization gypsum in agriculture. The results of
that study should be available in late 2012.
Scope and Methodology
We conducted our work from March to December 2010 in accordance with
generally accepted government auditing standards. Those standards require that
we plan and perform the evaluation to obtain sufficient, appropriate evidence to
provide a reasonable basis for our findings and conclusions based on our
objectives. We assessed whether EPA followed accepted and standard practices in
determining that CCRs are safe for the beneficial uses it has promoted. We
believe the evidence obtained provides a reasonable basis for our findings and
conclusions based upon our objectives.
We interviewed staff from ORCR and the EPA Office of Research and
Development. We reviewed ORCR documents to identify existing accepted and
standard practices that could be used to determine the safety of beneficial uses of
CCRs. We also reviewed:
•	Existing guidance, policies, and procedures governing EPA's industry
partnership programs and promotion of beneficial use materials
•	Regulatory documents related to the management and use of CCRs
•	Prior EPA risk assessments of CCRs, as well as other materials
developed by EPA to assist with beneficial use decisions
•	C2P2 website materials, including the types of beneficial uses of CCRs
promoted and the information provided about safety concerns
•	Beneficial use data from the American Coal Ash Association, which
EPA uses to track progress toward its goal of recycling 50 percent of
CCRs by 2011
•	Information from EPA evaluations of other industrial materials, such
as foundry sand and cement kiln dust
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Prior Evaluation Coverage
The following recent EPA Office of Inspector General (OIG) and U.S.
Government Accountability Office (GAO) reports addressed issues related to the
scope of our review:
•	EPA OIG, Website for Coal Combustion Products Partnership
Conflicts with Agency Policies, Report No. ll-P-0002, October 13,
2010
•	EPA OIG, Response to EPA Administrator's Request for Investigation
into Allegations of a Cover-up in the Risk Assessment for the Coal Ash
Rulemaking, Report No. 10-N-0019, November 2, 2009
•	GAO, Coal Combustion Residue: Status of EPA 's Efforts to Regulate
Disposal, GAO-10-85R, October 30, 2009
•	EPA OIG, Voluntary Greenhouse Gas Reduction Programs Report,
Report No. 08-P-0206, July 23, 2008
•	EPA OIG, Voluntary Programs Could Benefit from Internal Policy
Controls and a Systematic Management Approach, Report No.
2007-P-00041, September 25, 2007
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Chapter 2
EPA Did Not Follow Accepted and Standard Practices
in Determining the Safe Beneficial Uses of Coal Ash
EPA did not follow accepted and standard practices in determining that the
15 categories of CCR beneficial uses it promoted through the C2P2 program were
safe for those uses. According to EPA, CCRs contain a range of metals, such as
arsenic, selenium, cadmium, lead, and mercury, in low concentrations. Without
proper protections, these contaminants can leach into ground water and migrate to
drinking water sources, posing significant public health concerns. EPA's
application of risk assessment, risk screening, and leachate testing and modeling
was significantly limited in scope and applicability. EPA has not defined
procedures for applying such practices to CCR beneficial use analyses and
believed it could rely on state programs to manage risks associated with CCR
beneficial use. As a result, EPA promoted beneficial uses of CCRs based on
incomplete information, without knowing the risks associated with each type of
beneficial use.
EPA Had Incomplete Risk Information on Coal Ash
EPA did not take sufficient action to ensure that its promotion of CCR beneficial
use would not result in unacceptable risk to human health or the environment.
EPA initiated a risk assessment for the residuals of one specific coal combustion
process,4 but the risk assessment was never finalized and remains a draft
document. EPA did not finalize the risk assessment or take other actions to
determine the risks of CCR beneficial uses. EPA could have completed additional
risk assessments, evaluated whether reliance on state actions sufficiently
addressed risks associated with beneficial uses of CCRs, gathered additional
leachate data, and developed additional modeling procedures to determine the
risks of CCR beneficial uses.
Risk Assessment
EPA only initiated a risk assessment for one beneficial use of CCRs from one
specific combustion process, and the results were never finalized or peer
reviewed. The draft assessment is not representative of the 15 categories of CCR
beneficial uses promoted by EPA through the C2P2 program (figure 1).
4 The risk assessment addressed CCRs (fly and bottom ashes) from the fluidized bed combustion process. Fly and
bottom ashes from other combustion processes, as well as boiler slag and flue gas desulfurization gypsum, were not
studied in this risk assessment.
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Figure 1: Beneficial uses of coal ash in 2008
Blended cement/raw
feed for clinker:
4,198,198
Waste stabilization/
solidification: 3,784,546
Road base/sub-base:
1,802,025
Blasting grit/roofing
granules: 1,637,867
Soil modification/
stabilization: 1,251,968
Miscellaneous/other:
1,120,232
Aggregate: 901,462
Snow and ice control:
700,913
Agriculture: 320,863
Mineral filler in asphalt:
265,587
Flow able fill: 93,132
Source: OIG analysis of EPA C P data.
Note: Numbers indicate total tons for each type of beneficial use.
In 1998, EPA issued a draft final risk assessment for fluidized bed combustion
(FBC) waste in a specific agricultural (land) application.5 EPA stated in the
proposed rule that agriculture was selected as the beneficial use for study because
"use of CCRs in this manner is likely to raise concerns from an environmental
point of view." The draft risk assessment concluded that there were no
unacceptable human health risks associated with use of FBC waste as an
agricultural soil amendment, and that ecological risks were unlikely. However,
this draft risk assessment is limited by the following:
• The draft risk assessment was not finalized and remains identified as a
draft final not to be cited or quoted. The document states it did not
undergo a thorough external or internal review and does not represent
Agency policy.
- This assessment looked at land application of FBC waste as a liming agent for soils. We use the term "assessment"
instead of "analysis" in this report, consistent with EPA's terminology in the proposed rule.
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•	The draft risk assessment was not peer reviewed. EPA policy states,
"Peer review of all scientific and technical information that is intended
to inform or support Agency decisions is encouraged and expected."
•	The draft risk assessment for FBC waste (fly and bottom ashes) does
not represent all CCRs. In 2008, FBC waste represented only about 7
percent of all CCRs, and was mostly used in minefilling. Although
EPA has promoted the beneficial use of other fly and bottom ashes and
flue gas desulfurization gypsum for agricultural purposes, these CCRs
were not included in the risk assessment.
Risk Screening
EPA initiated, but never finished, two risk screening practices to evaluate risks of
CCR beneficial uses—the draft risk compendium and the never-completed risk
information assessment. EPA could have finalized and used either as an accepted
practice for evaluating risks of CCR beneficial uses, but did not.
Risk Compendium—The purpose of EPA's draft risk compendium, Evaluating
Risk of Industrial Materials Recycling: A Compendium of Information and Tools,
is to provide information to states, users of industrial materials, and the general
public on how to evaluate such materials to ensure that the materials are recycled
and reused in an environmentally sound manner. The compendium is designed to
provide a flexible approach, highlighting current best practices for evaluating
potential risks associated with industrial materials recycling, including CCRs.
The draft compendium describes a three-tiered approach to be used depending on
the significance of the risk scenario and the amount of time, resources, and data
that are available. According to the draft compendium, the three approaches may
be used independently or together. The first two "are applicable to a variety of
scenarios and will lead to a streamlined, defensible, risk-informed decision." The
third is intended to provide "the tools needed to evaluate a detailed risk
assessment conducted by a risk assessment professional." The tiers are:
1.	Lines of Evidence Approach—This approach uses relevant, existing
information to make a risk-informed decision about the safety of a
nonhazardous, industrial material proposed for reuse. Information may
include prior beneficial use decisions or case studies published in peer-
reviewed journals. The results may establish a defensible decision
about the appropriateness of the beneficial use, or may identify
questions or data gaps to be answered using another approach.
2.	Screening Approach—This approach is designed to quickly, yet
conservatively, estimate risks. Screening approaches do not provide
definitive estimates of risk. They may look at possible worst-case
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scenarios, or they may screen out a list of chemicals to identify those
that require additional research.
3. Risk Assessment Modeling Approach—This approach uses computer
models to evaluate human or ecological impacts at a specific site, and
is the most data intensive of the three approaches. Risk assessment
models often improve the accuracy and precision of the risk estimates,
but require more time and resources.
EPA began developing the risk compendium in 2006 to assist state and local
programs in evaluating the potential human and ecological health risks of
recycling nonhazardous industrial materials, including CCRs. EPA staff stated
that EPA could have developed a screening approach (i.e., a "fast analysis") to
determine safe beneficial uses, but did not.
Risk Information Assessment—In preparation for a 2006 beneficial use
conference, EPA initiated the risk information assessment. The assessment was a
risk screening template structured to collect information on CCR beneficial uses
from all offices within ORCR. The template requested the following information:
1.	Whether adequate data existed to characterize the material and the
potential risks for all beneficial uses of CCRs
2.	Whether each ORCR division agreed with each type of beneficial use
3.	Existing EPA documents or past analyses addressing beneficial use
4.	Risk assessment tools available to address concerns about beneficial
use
5.	Additional data sources, such as research studies and scientific journal
articles
6.	Relevant regulations and data from state programs
According to an ORCR division director, the compilation of risk information was
stopped in favor of developing the draft compendium, which has never been
finalized and distributed. Therefore, the risk information assessment was not used
by EPA to assess risks associated with CCR beneficial uses.
Leachate Testing and Modeling
EPA's promotion of CCR beneficial uses to date has been based, in part, on
limited leachate testing data that may not be applicable to beneficial use
scenarios. In 1999, EPA used the toxicity characteristic leaching procedure
(TCLP) to assess the mobility of CCR constituents, such as metals, and in 2000
determined that CCRs are not hazardous wastes. Recent research by the EPA
Office of Research and Development shows that TCLP may not be the most
accurate predictor of the mobility of metals under some beneficial use conditions.
Therefore, use of the TCLP test may be limited for understanding risks of
beneficial use of CCRs. TCLP attempts to mimic landfill conditions by measuring
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leaching at a single pH point. However, actual CCR beneficial use applications
may differ from a landfill scenario and require testing at different pH values. EPA
has acknowledged in its 2010 proposed rule that TCLP alone is not a good
predictor of the mobility of metals from CCRs under a variety of conditions. The
Agency has, therefore, also gathered data using the synthetic precipitation
leaching procedure, as well as the multiple pH Kosson approach, to evaluate
leaching of CCR constituents.
EPA's Industrial Waste Evaluation Model (IWEM) assists in determining the
most appropriate waste management process to minimize ground water
contamination. This model was initially developed by EPA to help states
determine the type of disposal liner necessary to minimize adverse ground water
impacts caused by leachate from recycled industrial materials, such as CCRs.
IWEM can now be used to model the use of industrial materials in roadway
construction, a common beneficial use of CCRs. Although EPA could use IWEM
to evaluate risks of CCR beneficial uses, it has not expanded IWEM to model
other beneficial uses of CCRs. While there are some limitations of IWEM, we
learned that ORCR management has discouraged further expansion of IWEM
because CCR beneficial uses are not regulated by EPA.
EPA Has Not Defined Accepted and Standard Practices for Assessing
Risks of CCR Beneficial Uses
EPA did not apply accepted and standard practices to analyze the beneficial uses
of CCRs. Further, EPA has not defined a process for identifying and utilizing
appropriate risk analysis tools that could be established as accepted and standard
practices. As a result, significantly limited risk evaluations have taken place for an
unrepresentative set of CCR beneficial uses.
EPA has relied on individual state beneficial use programs to review and approve
specific CCR beneficial uses, and to manage associated risks. The ORCR director
in place when EPA instituted CCR beneficial use promotion, as well as other
managers, stated that the burden to determine the safety of CCR beneficial uses
was on the states and the end users of CCR products. However, only 34 states
currently have beneficial use programs for recycled industrial materials, and
beneficial use requirements vary in scope and rigor from state to state. States may
rely on EPA for technical guidance and assistance because many do not have
sufficient resources. In addition, EPA did not conduct oversight of states'
beneficial use determinations. EPA believes it has communicated CCR beneficial
use precautions to states and industry in three published documents.6
6 Using Coal Ash in Highway Construction: A Guide to Benefits and Impacts, April 2005; Agricultural Uses for
Flue Gas Desulfurization (FGD) Gypsum, March 2008; and User Guidelines for Byproducts and Secondary Use
Materials in Pavement Construction, July 28, 2008.
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In its 2005 Resource Conservation Challenge (RCC) Action Plan, EPA stated that
sound technical assessments of the safety of the materials is a strategic component
central to EPA's role in increasing appropriate beneficial use practices. The
RCC's overall objective related to industrial materials recycling is to increase the
amounts of three industrial nonhazardous wastes, including CCRs, that are
beneficially used in an environmentally sound manner. To achieve this objective,
EPA's RCC Action Plan included two strategies: (1) analyze and characterize the
target materials, and (2) identify environmentally safe and beneficial practices.
The first strategy states, "We need these data to . . . provide a repository of
information about these materials for use by the public, including States
conducting beneficial use determinations." The second strategy states, "While
other federal agencies such as DOE [U.S. Department of Energy] and DOT [U.S.
Department of Transportation] play important roles in fostering beneficial use
(e.g., demonstrating the efficacy of fly ash as a supplemental cementitious
material in road construction), EPA's core mission is to protect human health and
the environment. As a result, the public looks to us to assess and explain the
safety of beneficial use practices." EPA could not provide evidence that it
implemented these two strategies.
Had EPA acted on its 2005 RCC Action Plan to identify environmentally safe and
beneficial uses, it may have recognized potential risks from large-scale
application of unencapsulated coal ash used for structural fill. EPA's current
position on the proposed rule is that the use of coal ash in large-scale structural
fill applications, including sand and gravel pits, constitutes disposal, not
beneficial use. Problems with large-scale structural fill applications, such as
ground water contamination, have been documented in damage cases EPA
presented in the proposed rule. The large volumes of unencapsulated coal ash
reportedly used for structural fill beneficial use applications may represent a large
universe of inappropriate disposal applications with unknown potential for
adverse environmental and human health impacts.
From 2001 through 2008, information from the American Coal Ash Association7
shows a total of 70 million tons of coal ash used in structural fill applications.
This type of application increased more than any other reported beneficial use of
unencapsulated coal ash (figure 2).
7 EPA has relied on American Coal Ash Association data to determine the volumes of coal ash used in beneficial use
applications.
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Figure 2: Beneficial uses of unencapsulated CCRs
Source: OIG analysis of American Coal Ash Association data.
Conclusions
EPA efforts to seek reuse opportunities and establish reuse goals for a very large
waste stream such as CCRs are an important and necessary part of its
environmental protection mission. However, innovative but untested approaches
to resource conservation and environmental protection should consider best
management practices and sound scientific principles. EPA's work to develop
regulations for the management of CCRs has resulted in several key
improvements in the promotion and characterization of CCR beneficial uses. EPA
will evaluate additional information on beneficial uses that present a risk to
human health and the environment during the ongoing rulemaking. This
additional information may help EPA to complete its risk information and lead to
a stronger scientific foundation for EPA's promotion of CCRs. New information
and disclosures that come from the rulemaking activities may include new
definitions of beneficial use (versus disposal) and information on potential risk
areas. EPA has an opportunity to evaluate this new information to identify new or
previously unknown potential risks to human health and the environment. In our
opinion, the good intentions underlying beneficial use activities do not supersede
EPA's mission to protect human health and the environment. EPA should define
and implement the accepted practices it will use for assessing the risks and safety
of the CCR beneficial uses it promotes.
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Recommendations
We recommend the Assistant Administrator for Solid Waste and Emergency
Response:
1.	Define and implement risk evaluation practices to determine the safety
of the CCR beneficial uses EPA promotes.
2.	Determine if further EPA action is warranted to address historical
CCR structural fill applications, based on comments on the proposed
rule and other information available to EPA.
Agency Response and OIG Evaluation
The Office of Solid Waste and Emergency Response (OSWER) provided Agency
comments. We reviewed OSWER's comments, met with OSWER officials to
discuss the comments, and made changes to the report, as appropriate.
Appendix A provides the full text of OSWER's response and the OIG's
comments.
In its response, EPA emphasized, "while the Agency recognizes the need for
regulations for the management of CCRs in landfills and surface impoundments,
EPA strongly supports the legitimate, beneficial use of CCRs in a protective,
environmentally sound manner because of the significant environmental benefits
that accrue both locally and globally."
The Agency agreed with recommendation 1, with a modification. EPA agreed to
reexamine the range of risk evaluation practices that may be appropriate and
determine how to proceed after evaluating the comments received on the CCR
proposal, particularly for unencapsulated uses. We modified the recommendation
as suggested, replacing "risk assessment" with "risk evaluation." In its 90-day
response to this report, EPA should include a detailed corrective action plan with
estimated milestone dates for defining and implementing these practices. This
recommendation is open with agreed-to actions pending.
The Agency agreed with recommendation 2, with a modification. EPA agreed to
determine if further action is warranted to address historical CCR structural fill
applications based on comments on the proposed rule and other available
information. We modified the recommendation as suggested. In its 90-day
response to this report, EPA should include a detailed corrective action plan with
estimated milestone completion dates for recommendation 2. This
recommendation is open with agreed-to actions pending.
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Status of Recommendations and
Potential Monetary Benefits
RECOMMENDATIONS
POTENTIAL MONETARY
BENEFITS (In $000s)
Rec.
No.
Page
No.
Subject
Status1
Action Official
12 Define and implement risk evaluation practices to
determine the safety of the CCR beneficial uses
EPA promotes.
12 Determine if further EPA action is warranted to
address historical CCR structural fill applications,
based on comments on the proposed rule and
other information available to EPA.
Planned
Completion
Date
Claimed
Amount
Ag reed-To
Amount
Assistant Administrator
for Solid Waste and
Emergency Response
Assistant Administrator
for Solid Waste and
Emergency Response
1 0 = recommendation is open with agreed-to corrective actions pending
C = recommendation is closed with all agreed-to actions completed
U = recommendation is undecided with resolution efforts in progress
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Appendix A
Agency Response to Draft Report and
OIG Comment
(Received February 4, 2011)
MEMORANDUM
Subject: Response to the Draft OIG Report: EPA Promoted the Use of Coal Ash Products
With Incomplete Risk Information: Project No. OPE-FY10-007
From:	Mathy Stanislaus
Assistant Administrator
To:	Arthur A. El kins, Jr.
Inspector General
The Office of Solid Waste and Emergency Response (OSWER) appreciates the
opportunity to review the Office of Inspector General's (OIGs) subject draft report and its
recommendations. The purpose of this memorandum is to transmit our response to the OIG draft
report and its recommendations. Our response addresses four main concerns with the draft report:
•	EPA's technical work related to beneficial use of coal ash is much more extensive
than recognized in the draft report.
•	Proven damage cases associated with sand and gravel pits (which have always
been considered disposal, not beneficial use) should not be used to draw
conclusions regarding beneficial use.
•	Important distinctions need to be recognized between encapsulated and
unencapsulated beneficial uses, as well as the different manner in which EPA
addressed those uses.
•	Since EPA is still in the process of assessing the comments received on the
proposed rule, the OIG draft report should be very cautious in treating the
proposal as a final statement.
With regard to the two recommendations, OSWER suggests some clarification for the first
recommendation, and cannot agree with the second recommendation as currently written.
EPA's Technical Work
EPA's technical work related to the beneficial use of coal ash is much more extensive
than recognized in the draft report.
Specifically, for the majority of beneficial uses covered by the Coal Combustion Product
Partnership (C2P2) program, EPA was relying on the assessments conducted to support the May
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2000 Regulatory Determination (65 FR 322214, http://www.epa.gov/fedrgstr/EPA-
WASTE/2000/May/Day-22/fl 1138.htm). As part of that Regulatory Determination, EPA
concluded that the beneficial uses identified were not likely to present risks to human health or
the environment. EPA's conclusion was based on a detailed Report to Congress (RTC),8 and
was reached only after a robust public process that included both notice and comment and public
hearings. Specific findings in the May 2000 Regulatory Determination that support this
conclusion are attached. (See Attachment A)
OIG Response: The only risk assessment EPA performed in the 2000 regulatory determination
was a draft risk assessment for a portion of CCRs. This risk assessment does not cover a
"majority of beneficial uses," as implied in EPA's response. Rather, as the OIG reports on pages
6-7, the risk assessment used for the 2000 regulatory determination (1) was not finalized and is
identified as a draft document not to be cited or quoted, (2) did not go through external or
internal review and does not represent Agency policy, (3) was not peer reviewed, and (4) used
FBC fly and bottom ashes that do not represent all CCRs. In its response to this report, OSWER
did not disagree with the above OIG findings.
Further, in the proposed rule for coal ash (page 35160) EPA states, "EPA did not conduct specific
risk assessments for the beneficial use of these materials, except as noted below and elsewhere in
this preamble. Instead, it generally described the uses and benefits of CCRs, and cited the
importance of beneficially using secondary materials and of resource conservation, as an
alternative to disposal." The risk assessment "except as noted below" is the same risk assessment
mentioned in points 1-4 above. The risk assessments "elsewhere in this preamble" include one
looking at flue gas desulfurization gypsum in agriculture (the OIG mentions this in the
Noteworthy Achievements section) and other references that are not risk assessments performed
by EPA.
Thus, EPA's position on the beneficial use of coal combustion residuals (CCRs) was built
upon the 19889 and 1999 Reports to Congress on fossil fuel combustion wastes and the May
2000 Regulatory Determination. Subsequent reports, public comments, and related studies (for
example, the development of the Guide for Industrial Waste Management, February 2003, which
included the Industrial Waste Evaluation Model (IWEM) and further materials applicable to
beneficial use concerns; the Land Disposal Restrictions program which helped form our
understanding of metal stabilization; the Chat Rule, 72 Fed Reg 393331-39353, which
demonstrates the effectiveness of asphalt in encapsulating metals; and numerous literature
articles that EPA directly referenced or provided links to other sites, such as the Recycled
Materials Resource Center, a federal-university partnership) also supported the Agency's
position on the beneficial use of CCRs10.
8	In the March 1999 Report to Congress: Wastes from the Combustion of Fossil Fuels, page 3-6, EPA explained
that the reason for maintaining the Bevill exemption for beneficial uses "... is based on one or more of the following
reasons for each use or resulting product: absence of identifiable damage cases, fixation of the waste in finished
products which immobilizes the material, and/or low probability of human exposure to the material."
9	Report to Congress on Wastes from the Combustion of Coal by Electric Utility Power Plants, February 1988.
111 In the June 21, 2010 Federal Register notice, EPA proposed to regulate the disposal of CCRs in landfills and
surface impoundments, while at the same time proposed to retain the Bevill exclusion for the beneficial use of
CCRs. However, the Agency did seek comment on the beneficial use of CCRs, particularly the unencapsulated uses
of CCRs because of its potential to create risks and need more site-specific review.
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While the OIG draft report does reference EPA's efforts to address highway applications
by providing a module to address roadway construction, it also criticizes EPA for failing to
expand IWEM for other beneficial uses of CCRs. The OIG draft report needs to acknowledge
the broader applicability of IWEM, as well as available non-EPA risk assessment tools.
Specifically, EPA encouraged the use of the IWEM model (in particular the land application
portion) for agricultural use, and prior to the development of the highway module, EPA
recognized the use of IWEM (the landfill component) as appropriate for fill applications. In
addition, there are non-EPA models (such as WiscLEACH, MODFLOW, etc.) that are also
available to states and industry to address beneficial uses, and references to such models were
cited in publicly available EPA reports.
OIG Response: The 1988 and 1999 Reports to Congress do not provide evidence that EPA
applied standard and accepted risk assessment or evaluation practices to reach decisions about
the risks of beneficial uses of CCRs. In addition, as we have stated previously, the risk
assessment that formed the basis for the 2000 regulatory determination is silent on most forms of
the CCR beneficial uses that EPA has promoted.
Our report does acknowledge the development of IWEM and its expansion to highway
construction. However, we also note that IWEM could have been expanded for other CCR
beneficial uses but, according to EPA staff, this expansion was discouraged by ORCR
management.
As a further example, EPA and USD A have been engaged in an extensive agricultural
use study that is not mentioned in the OIG draft report, but which should provide further support
for the Regulatory Determination position that national regulation is not warranted. Through
conferences, newsletters, and other communications, those potentially involved in such
beneficial uses were well informed that agricultural use was an area EPA believed warranted
further study, and that EPA was so engaged with USD A.
OIG Response: A bullet has been added to the Noteworthy Achievements section on page 3 to
acknowledge the joint effort between EPA and the U.S. Department of Agriculture. However,
EPA promoted the beneficial use of flue gas desulfurization gypsum in agriculture applications
through the C2P2 program prior to completing this study.
Finally, in raising concern regarding the toxicity characteristic leaching procedure
(TCLP) leachate testing methods and not mentioning any other data sources available to EPA,
the OIG draft report gives the impression that EPA's view of beneficial use is significantly
flawed based on TCLP analyses. The OIG draft report should recognize that the Agency
considered a wide variety of data sources in reaching its conclusions regarding the potential risks
of various beneficial uses: TCLP, the synthetic precipitation leaching procedure (SPLP) test
method, the Kosson leaching test method, total constituent analysis, as well as data from direct
sampling of actual leachate. All of these types of data sources help formulate the Agency's
understanding of this material, and its potential environmental risks. Employing a variety of data
sources and methodologies has given the Agency a broader perspective, allowing the Agency to
consider potential risks in diverse scenarios.
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OIG Response: The OIG's report does not state "significantly flawed based on TCLP analyses."
Rather, our report states, "EPA's promotion of CCR beneficial uses to date has been based, in
part, on limited leachate testing data that may not be applicable to beneficial use scenarios. In
1999, EPA used the TCLP to assess the mobility of CCR constituents, such as metals, and in
2000 determined that CCRs are not hazardous wastes. Recent research by the EPA Office of
Research and Development shows that TCLP may not be the most accurate predictor of the
mobility of metals under some beneficial use conditions. Therefore, use of the TCLP test may be
limited for understanding risks of beneficial use of CCRs." In addition, our report states, "EPA
has acknowledged in its 2010 proposed rule that TCLP alone is not a good predictor of the
mobility of metals from CCRs under a variety of conditions." Our report also acknowledges the
Agency's efforts to evaluate leaching of CCR constituents at the top of page 9.
Damage Cases
Proven damage cases associated with sand and gravel pits (which is disposal, not
beneficial use) should not be used to draw conclusions regarding beneficial use.
The OIG draft report concludes that "EPA promoted beneficial uses of CCRs based on
incomplete information," in part, based on the fact that in the 2010 CCR proposed rule, EPA
identified damage cases resulting from disposal of unencapsulated CCRs into sand and gravel
pits and from large-scale fill operations. This is inaccurate in several regards. Placement of
CCRs in sand and gravel pits has always been considered by EPA to be disposal, not beneficial
use. Disposal of CCRs in sand and gravel pits makes up the vast majority of the proven damage
cases identified in the May 2000 Regulatory Determination. Precisely because of the associated
damage cases, EPA viewed placement in sand and gravel pits as disposal, not beneficial use.11
With respect to the placement of CCRs in large scale fill operations, the May 2000
Regulatory Determination had not identified any such damage cases, although one can view the
disposal of CCRs in sand and gravel pits as a type of large scale fill operation.12 Thus, in
developing the proposed rule, the Agency also decided that it was appropriate to propose
designating large-scale fill operations as disposal. This reflects the evolution of EPA's thinking
since the RTC that large-scale placement of unencapsulated CCRs may, and has, posed greater
risk than other types of fill. Thus, damage cases at sand and gravel pits should not be used to
claim that problems exist generally with all beneficial uses, nor should our recent action of
proposing that large scale fill be considered disposal form a basis for characterizing the
environmental risks associated with the breadth of beneficial use operations.
11	Sand and gravel pits are a mining operation, and had EPA not intended to regulate placement in sand and gravel
pits as disposal, the operation would fall under minefilling.
12	While beneficial use includes "fill" operations, not all "fill" operations are part of the beneficial uses promoted by
EPA. For example, minefilling is a "fill" operation. Consistent with the May 2000 Regulatory Determination, our
intent is to deal with minefilling through rulemaking under SMCRA and/or RCRA.
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OIG Response: We disagree with EPA's characterization of OIG conclusions. The statement in
the OIG draft report, "EPA promoted beneficial uses of CCRs based on incomplete information,"
contrary to EPA assertion, is not based on language in the 2010 CCR proposed rule related to
damage cases for sand and gravel pits. Rather, the OIG's conclusion that "EPA promoted
beneficial uses of CCRs based on incomplete information" is based on OIG findings that "EPA's
application of risk assessment, risk screening, and leachate testing and modeling was
significantly limited in scope and applicability. EPA has not defined procedures for applying
such practices to CCR beneficial use analyses and believed it could rely on state programs to
manage risks associated with CCR beneficial use."
In its response, EPA states that it has always considered that coal ash in sand and gravel pits is
disposal and not beneficial use. The OIG cannot attest to what EPA has "always considered."
However, as stated in our October 2010 report, Website for Coal Combustion Products
Partnership Conflicts with Agency Policies, (text boxes on pages 9 and 10) the OIG does not
agree that EPA has consistently and clearly communicated a position that coal ash in sand and
gravel pits is disposal and not beneficial use. Further, EPA has not provided additional evidence
here to support its position.
Furthermore, discussion of the Kingston catastrophe should be deleted as it was not
associated with beneficial use, and does not reflect any known risk scenario associated with
beneficial use. [Note: If the final report continues to mention the discussion of the Kingston
spill, we would note that the report should correct the statement on page 2 under "Noteworthy
Achievements" that EPA's efforts to assess the structural integrity of units after the Kingston
catastrophe led "... to the creation of the National Inventory of Dams hazard potential ratings,
which address the potential consequences of failure or misoperation of dams." because it is not
accurate. The National Inventory of Dams (which addresses a much larger universe of dams -
approximately 83,000) has been in place since 1975, and is the source of the hazard potential
rating system. Prior to EPA's assessment, many of the coal ash dams were already part of the
National Inventory of Dams, and were classified according to their hazard potential. EPA
adopted the existing rating system, and used the criteria to classify those units that had not
previously been categorized. EPA suggests the IG reword this paragraph to say something like:
This effort led to reports on the structural stability of these units, and recommendations for
actions. EPA is monitoring the implementation of these actions. EPA has made all of the
information on these assessments available to the public on our web site. EPA is continuing its
assessment activities on units holding "wet" CCRs.]
OIG Response: EPA states that the OIG should delete mention of the Kingston catastrophe in
the Background section of our report because the spill was not associated with beneficial use. We
included reference to the Kingston catastrophe because it is associated with the development of
the proposed rule and the rule is associated with beneficial use of CCRs. However, we have
modified the language in the Noteworthy Achievements as suggested by EPA.
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Encapsulated Versus Unencapsulated Beneficial Uses
Important distinctions need to be recognized between encapsulated and unencapsulated
beneficial uses, as well as the different manner in which EPA addressed those uses.
The OIG draft report fails to recognize that the risks associated with CCRs are distinct,
based on the different types and applications of CCRs. Thus, the risks associated with the
beneficial use of encapsulated CCRs, such as in cement, gypsum panels, or waste stabilization,
which account for a substantial portion of beneficially used CCRs, do not present the same level
or type of potential risk associated with the use of CCRs in unencapsulated uses, such as in soil
modification or deicing operations. Stemming from the Agency's May 2000 Regulatory
Determination, the manner in which EPA addressed unencapsulated beneficial uses differs
substantially from encapsulated uses. EPA concluded that, nationally, unencapsulated beneficial
uses could pose problems in some cases, and therefore warranted more site-specific evaluation
by the state and/or user to account for the specific characteristics of the coal ash being used, the
site conditions, the quantity of material placed, and other site-specific factors. EPA was clear
that it was incumbent on state authorities and/or industry to conduct the appropriate site-specific
assessments to determine whether the particular unencapsulated beneficial uses would be safe.
The following are three illustrative quotations from publicly available EPA documents (which
also demonstrate how EPA has also provided guidance to states and industry):
"Conduct an evaluation of local groundwater conditions prior to using coal combustion
products as a fill material. Numerous groundwater models are available such as EPA's
Industrial Waste Evaluation Model... "(Using Coal Ash in Highway Construction: A Guide
to Benefits and Impacts, April 2005)
"In determining the environmental suitability of FGD gypsum for a particular location, you
may find the USEPA's Industrial Waste Management Evaluation Model (IWEM) and the
chapter on land application (Chapter 7) in the associated Guide for Industrial Waste
Management (http://www.epa.gov/epawaste/nonhaz/industrial/guide/index.htm) to be useful
resources. You should also consult with your State's department of environmental protection
to comply with any regulations pertaining to the management of CCPs. You may also find it
helpful to consult with your State's department of agriculture and agricultural extension
service, and with the USDA Natural Resources Conservation Service."(Agricultural Uses for
Flue Gas Desulfurization (FGD) Gypsum, March 2008)
"Unencapsulated use, however, has the potential for trace element leaching. Use of fly ash in
stabilized base or embankments requires good management to ensure the environment is not
impacted negatively. Although studies have shown that coal fly ash is typically safe to use in
unencapsulated applications, precautions must still be taken to ensure environmental impacts
f28* 29* 30*31^
are acceptable. ' ' ' ; An evaluation of groundwater conditions, applicable state test
procedures, water quality standards, and proper construction are all necessary considerations
in ensuring a safe final product.(10) "(User Guidelines for Byproducts and Secondary Use
Materials in Pavement Construction, July 28, 2008)
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OIG Response: EPA's response states, "The OIG draft report fails to recognize that the risks
associated with CCRs are distinct, based on the different types and applications of CCRs. Thus,
the risks associated with the beneficial use of encapsulated CCRs, such as in cement, gypsum
panels, or waste stabilization, which account for a substantial portion of beneficially used CCRs,
do not present the same level or type of potential risk associated with the use of CCRs in
unencapsulated uses, such as in soil modification or deicing operations." While it may be widely
believed that different risks are imparted from different forms of CCRs, EPA did not provide
sufficient information to support this belief. The OIG's finding (page 5) is, "EPA did not follow
accepted and standard practices in determining that the 15 categories of CCR beneficial uses it
promoted through the C2P2 program were safe for those uses." These categories include both
encapsulated and unencapsulated CCRs. EPA's completion of recommendation 1, "Define and
implement risk evaluation practices to determine the safety of the CCR beneficial uses EPA
promotes," should begin to address EPA's assertion about the safety of encapsulated CCR use.
EPA's response also states, "EPA was clear that it was incumbent on state authorities and/or
industry to conduct the appropriate site-specific assessments to determine whether the particular
unencapsulated beneficial uses would be safe." EPA further provides three examples/documents
to support its assertion. We disagree that the statements in these documents make EPA's position
clear, i.e., "that it was incumbent on state authorities and/or industry to conduct the appropriate
site-specific assessments to determine whether the particular unencapsulated beneficial uses
would be safe." Further, our October 2010 report, Website for Coal Combustion Products
Partnership Conflicts with Agency Policies, found that EPA's C2P2 website, its chief means of
promoting beneficial use of CCRs, "did provide some general precautions on beneficial use,
[however] the C2P2 Website did not identify large-scale fill applications as disposal, did not list
known beneficial use damage cases, and did not emphasize EPA's concerns about beneficial use
of unencapsulated CCRs in road embankments and agricultural applications." The C2P2 websites
on "CCP Benefits and Risks" and "Environmental and Health Information" did not state that "it
was incumbent on state authorities and/or industry to conduct the appropriate site-specific
assessments."
Finally, as the OIG reports here, reliance on state programs may have its limits. Only 34 states
currently have beneficial use programs for recycled industrial materials, and beneficial use
requirements vary in scope and rigor from state to state. States may rely on EPA for technical
guidance and assistance because many do not have sufficient resources.
EPA's use of differing approaches in addressing encapsulated and unencapsulated uses
was reaffirmed in the 2010 CCR proposed rule:
"EPA is proposing this approach in recognition that some uses of CCRs, such as
encapsulated uses in concrete, and use as an ingredient in the manufacture of wallboard,
provide benefits and raise minimal health or environmental concerns. That is, from
information available to date, EPA believes that encapsulated uses of CCR, as is common
in many consumer products, does not merit regulation. On the other hand, unencapsulated
uses have raised concerns and merit closer attention. For example, the placement of
unencapsulated CCRs on the land, such as in road embankments or in agricultural uses,
presents a set of issues, which may pose similar concerns as those that are causing the
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Agency to propose to regulate CCRs destined for disposal. Still, the amounts and, in
some cases, the manner in which they are used—i.e., subject to engineering specifications
and material requirements rather than landfilling techniques—are very different from
land disposal." (75 Fed. Reg. 35160)
Furthermore, as stated in the 2010 CCR Proposed Rule:
"The beneficial uses that EPA identifies as excluded under the Bevill amendment, for the
most part, present a significantly different picture, and a significantly different risk
profile. As a result, EPA is explicitly not proposing to change their Bevill status
(although we do take comment on whether "unconsolidated uses" of CCRs need to be
subject to federal regulation). (75 Fed. Reg. 35186)
OIG Response: The OIG acknowledges that EPA describes differing approaches to address
encapsulated and unencapsulated uses in the proposed rule. However, this position comes after
years of supporting and promoting both categories of beneficial uses of CCRs through the C2P2
program, in the absence of adequate risk information. EPA's concerns about unencapsulated uses
of CCRs further support the OIG's recommendation 2 in this report.
Additionally, while the Agency recognizes the need for regulations for the management
of CCRs in landfills and surface impoundments, EPA strongly supports the legitimate, beneficial
use of CCRs in a protective, environmentally sound manner because of the significant
environmental benefits that accrue both locally and globally.
OIG Response: EPA's continued support of CCR beneficial uses is acknowledged in the
Noteworthy Achievements section on page 3, and in the Agency Response and OIG Evaluation
on page 12.
The OIG draft report also criticizes EPA's reliance on states in the context of site-specific
evaluations. However, EPA's message was not a statement that unencapsulated beneficial use is
advocated solely on compliance with whatever state standards are in place, but rather that: "an
evaluation of groundwater conditions, applicable state test procedures, water quality standards,
and proper construction are all necessary in ensuring a safe final product." (User Guidelines for
Byproducts and Secondary Use Materials in Pavement Construction, July 28, 2008). It should
also be recognized that CCRs are currently a RCRA Subtitle D waste, and outside of the
municipal solid waste context, under RCRA Subtitle D, it is states, not EPA, who have primary
regulatory authority over the disposal and recycling (beneficial use) of CCRs. EPA's role is to
establish minimum national criteria, which we have done, but otherwise have no direct authority
to enforce or implement those requirements.
OIG Response: EPA established the
C2p2
program to encourage beneficial use of all types of
CCRs. In establishing such a program, EPA has a responsibility to ensure that it is promoting
safe practices and is clearly communicating any risks. As we identified in our October 2010
report, the risks were not clearly or fully communicated, which resulted in EPA removing access
to the C2P2 website. While EPA quotes a precaution from 2008 guidelines for pavement
construction, this does not represent a clear communication of concerns about risks associated
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with all unencapsulated CCRs. EPA's position that states are responsible for determining the
risks of CCR beneficial uses is inconsistent with its stated position in the 2005 RCC Action Plan.
As we note on pages 9 and 10 of this report, the 2005 RCC Action Plan included a strategy to
characterize target materials and identify safe and beneficial use practices. According to the
RCC, this information is needed to "provide a repository of information about these materials for
use by the public, including States conducting beneficial use determinations." The action plan
further states, "EPA's core mission is to protect human health and the environment. As a result,
the public looks to us to assess and explain the safety of beneficial use practices." It appears that
EPA used its management discretion, versus a specific authority, to seek to implement the goals
of the RCC (also a voluntary program).
The Risk Assessment section of the OIG draft report, Chapter 2 (page 5), states that
"EPA only initiated one risk assessment for beneficial use of a single type of CCR..." This
reference is to an FBC13 analysis for agricultural use. As indicated previously, EPA concluded
that, nationally, unencapsulated beneficial uses could pose problems in some cases, and therefore
warranted more site-specific evaluation by the state and/or user. Therefore, when we issued the
March 2008, Agricultural Uses for Flue Gas Desulfurization (FGD) Gypsum, the Agency did not
provide direction that the FBC analysis (referenced in the OIG draft report) indicated it was safe,
but rather provided direction to the reader to consider using the land application module of the
IWEM to assess risks, along with contacting the state environmental and agricultural authorities.
OIG Response: EPA's response states, "As indicated previously, EPA concluded that,
nationally, unencapsulated beneficial uses could pose problems in some cases, and therefore
warranted more site-specific evaluation by the state and/or user." EPA has not provided
sufficient evidence that it either reached or clearly communicated this conclusion. In fact, the
2000 regulatory determination does not specifically mention unencapsulated beneficial uses.
References to FBC wastes in the report have been modified based on EPA's comments in
footnote 6 of its response.
Finally, in a number of places, the OIG draft report refers to EPA's failure to follow
"accepted and standard practices in determining that CCRs are safe for the beneficial uses it has
promoted." EPA agrees that assessment of risk is a critical component in the decision-making
associated with beneficial use. There are many different and appropriate ways to evaluate risk,
and we believe we have generally conducted the risk evaluations that were appropriate to the
circumstances, e.g., IWEM, RTC with public comment, damage cases, case studies, and weight
of evidence. We also believe that there are situations where site-specific conditions are of
critical importance (i.e., unencapsulated uses), and that any national risk evaluation could not
adequately substitute for a site-specific assessment. In such cases, we highlighted that states or
users should do a more extensive site-specific evaluation. We need to retain the flexibility to
determine the best evaluation method given the risks, our resources, and state and industry
capabilities and responsibilities.
13 The report describes FBC wastes as one type of CCR. This is inaccurate. We define CCR as fly ash, bottom ash,
boiler slag, and flue gas desulfurization sludge. FBC is a type of combustion device; not a waste type.
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OIG Response: The definition of accepted and standard practices for determining the risks of
CCRs is important to objectively identify the process that will be followed for the public
determination of risk. In our opinion, this does not necessarily mean that EPA must perform site-
specific assessments for every beneficial use application of CCRs. The practices could be
defined to clarify that a site-specific assessment should be performed under specific conditions.
EPA did not provide sufficient evidence that its promotion of beneficial uses was preceded by
completion of appropriate risk assessments or evaluations, or that other controls were in place to
ensure that risks, for all forms of CCRs promoted by EPA, were properly characterized, studied,
and communicated. Had EPA implemented its 2005 RCC plans to characterize target materials
and identify safe and beneficial use practices, it may have had a sufficient basis to responsibly
promote many uses of CCRs.
Proposed Rule
Since EPA is still in the process of assessing the comments received on the proposed ride,
the OIG draft report should be very cautious in treating the proposal as a final statement.
The proposed CCR rule included positions on a wide range of issues and solicited
comment on those issues. Over 450,000 comments were received. EPA needs to assess and
respond to those comments before issuing a final rule that will establish final Agency positions,
including possible additional work that may be needed in the area of risk evaluation. The OIG
needs to exercise greater caution in its final report in recognition of the fact that EPA's
evaluation of the comments could affect the positions taken on various issues in the final rule.
For example, in the proposed rule, the Agency solicited comment on a wide range of issues
associated with unencapsulated beneficial uses, such as the need for and propriety of various
leach tests, and the safety of agricultural uses and construction practices, etc. (65 Fed Reg
35165.) The OIG draft report appears to inappropriately use the solicitation of comment as a
justification to infer a conclusive determination that problems currently exist with the beneficial
use of CCRs.
OIG Response: The OIG has evaluated its references to the proposed rule and used due care in
how we characterize Agency positions stemming from the rule.
The Recommendations
As an overall comment, further actions taken by EPA on the beneficial use of CCRs will
be done in a manner that is consistent with decisions made as part of the CCR rulemaking effort.
As previously noted, EPA received over 450,000 comments from the comment period and
hearings on the proposed CCR rule. Given the magnitude of comments and the time it will take
for EPA to process this information, EPA recommends the OIG add language to the final report
acknowledging that the Agency has proposed regulation and solicited comment on the beneficial
use of CCRs, particularly as related to the unencapsulated uses of CCRs, and that the Agency
will consider those comments in making final decisions.
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The draft's first recommendation is:
Define and implement risk assessment practices to determine the safety of CCR
beneficial uses EPA promotes.
As discussed above, many unencapsulated uses will necessitate evaluation of safety by
the state and/or user, because of the site-specific nature of such uses. The Agency has evaluated
a number of CCR beneficial uses already as noted above, but agrees that it will reexamine the
range of risk evaluation practices that may be appropriate and determine how to proceed after
evaluating the comments received on the CCR proposal, particularly on CCR unencapsulated
uses.
In addition, EPA recommends that the OIG use the phrase "risk evaluation," rather than
"risk assessment," as the latter is a term of art and in recognition of the fact that there are various
ways that the safety of beneficial uses could be reviewed and evaluated.
OIG Response: The Agency agrees to reexamine the range of risk evaluation practices that may
be appropriate and determine how to proceed after evaluating the comments received on the
CCR proposal, particularly on CCR unencapsulated uses. We have replaced "risk assessment"
with "risk evaluation" in recommendation 1.
This recommendation is open with agreed-to actions pending. In its 90-day response to this
report, EPA should include a more detailed corrective action plan with estimated milestone dates
for defining and implementing these practices.
The second recommendation is:
Evaluate data on coal ash structural fill applications to identify and assess potential
risks to human health and the environment resulting from inappropriate disposal
described as beneficial use.
We agree with the OIG that the safe beneficial use of CCRs is important. However, this
recommendation appears to contemplate actions that are not feasible due to lack of information
and ability to collect needed information. The draft OIG report on page 11 calls for ".. EPA to
retrospectively evaluate existing high-risk coal ash applications to identify potential risks to
human health and the environment." The apparent intent is for EPA to identify where coal ash
has been historically used in structural fill applications and conduct environmental assessments
at those sites. This is not feasible. EPA had no requirements for record-keeping or reporting of
such activities. We do not know whether states required records to be kept or reported to them.
Further, it is not clear that the power plants that generated the CCRs have that information. In
short, without a readily available source of information and data, it would be infeasible and
impractical for EPA to undertake this recommendation.
As noted previously, the OIG has not presented any evidence to justify the need for a
special national assessment of CCR structural fills. The risks that the draft OIG report
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referenced in the proposed rule relate to the placement of CCRs in sand and gravel pits and the
use of CCRs for large-scale fill operations. Of the damage cases identified in the proposed rule,
corrective action has been taken at each site, and thus it is not clear why EPA would need to
reassess those sites. We have examined the current and proposed Superfund National Priorities
List14 and out of approximately 1,700 sites, only four sites were listed on the National Priorities
List (and none of them are currently listed). EPA is in the process of going through the over
450,000 comments to the proposed rule. We do not know yet whether there is sufficient
justification to conduct a special national assessment of coal ash structural fill operations based
on the comments submitted on the proposed rule, but at this point, it is premature to assume such
action is warranted.
Prospectively, EPA will address large-scale fill operations in the rulemaking. We
therefore suggest the recommendation be modified to call for EPA to determine if further EPA
action is warranted to address historical CCR structural fill applications, based on comments on
the proposed rule and other information available to EPA.
OIG Response: EPA's response states that it will "prospectively . . . address large-scale fill
operations in the rulemaking." EPA also suggested a modification to recommendation 2 that it
"determine if further EPA action is warranted to address historical CCR structural fill
applications, based on comments on the proposed rule and other information available to EPA."
The OIG agreed to this modification and in a subsequent meeting, EPA agreed to the
recommendation.
This recommendation is open with agreed-to actions pending. In its 90-day response to this
report, EPA should include a corrective action plan with estimated milestone completion dates
for the agreed-to recommendation.
In conclusion, OSWER appreciates the opportunity to review the OIG's subject draft
report. OSWER takes these issues very seriously, and will continue to evaluate these issues as
part of the rulemaking effort.
14The National Priorities List (NPL) is the list of national priorities among the known releases or threatened releases
of hazardous substances, pollutants, or contaminants throughout the United States and its territories. The NPL is
intended primarily to guide the EPA in determining which sites warrant further investigation.
(http://www.epa.gov/superfund/sites/npl/)
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ATTACHMENT A
The specific findings in the May 2000 Regulatory Determination are excerpted below (see 65
Fed Reg. 32229-32230).
"Beneficialpurposes include waste stabilization, beneficial construction applications
(e.g., cement, concrete, brick and concrete products, road bed, structural fill, blasting
grit, wall board, insulation, roofing materials), agricultural applications (e.g., as a
substitute for lime) and other applications (absorbents, filter media, paints, plastics
and metals manufacture, snow and ice control, waste stabilization). "
"For beneficial uses other than minefilling, we have reached this decision because:
(a) We have not identified any beneficial uses that are likely to present significant
risks to human health or the environment; and (b) no documented cases of damage to
human health or the environment have been identified. Additionally, we do not want to
place any unnecessary barriers on the beneficial use of coal combustion wastes so
that they can be used in applications that conserve natural resources and reduce
disposal costs."
"Currently, the major beneficial uses of coal combustion wastes include:
Construction (including building products, road base and sub-base, blasting grit and
roofing materials) accounting for approximately 21%; sludge and waste stabilization
and acid neutralization accounting for approximately 3%; and agricultural use
accounting for 0.1%. Based on our conclusion that these beneficial uses of coal
combustion wastes are not likely to pose significant risks to human health and the
environment, we support increases in these beneficial uses of coal combustion
wastes."
"Off-site uses in construction, including wallboard, present low risk due to the coal
combustion wastes being bound or encapsulated in the construction materials or
because there is low potential for exposure. Use in waste and sludge stabilization and
in acid neutralization are either regulated (under RCRA for hazardous waste
stabilization or when placed in municipal solid waste landfills, or under the Clean
Water Act in the case of municipal sewage sludge or wastewater neutralization), or
appear to present low risk due to low exposure potential. While in the RTC, we
expressed concern over risks presented by agricultural use, we now believe our
previous analysis assumed unrealistically high-end conditions, and that the risk,
which we now believe to be on the order of 10~6, does not warrant national regulation
of coal combustion wastes that are used in agricultural applications. "
"In the RTC, we were not able to identify damage cases associated with these types of beneficial
uses, nor do we now believe that these uses of coal combustion wastes present a significant risk
to human health or the environment. While some commenters disagreed with our findings, no
data or other support for the commenters 'position was provided, nor was any information
provided to show risk or damage associated with agricultural use. Therefore, we conclude that
none of the beneficial uses of coal combustion wastes listed above pose risks of concern. "
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Appendix B
Distribution
Office of the Administrator
Assistant Administrator for Solid Waste and Emergency Response
Deputy Assistant Administrator for Solid Waste and Emergency Response
Agency Followup Official (the CFO)
Agency Followup Coordinator
General Counsel
Associate Administrator for Congressional and Intergovernmental Relations
Associate Administrator for External Affairs and Environmental Education
Director, Office of Resource Conservation and Recovery, Office of Solid Waste and
Emergency Response
Acting Deputy Director, Office of Resource Conservation and Recovery, Office of Solid Waste
and Emergency Response
Director, Resource Conservation and Sustainability Division, Office of Resource Conservation
and Recovery, Office of Solid Waste and Emergency Response
Audit Followup Coordinator, Office of Solid Waste and Emergency Response
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