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CLEAN WATER ACT JURISDICTION

Ready Mixed Concrete Industry Position: The National Ready Mixed Concrete Association (NRMCA) is committed to the protection and restoration of America’s wetland resources, however NRMCA is extremely concerned withthe US Environmental Protection Agency's (EPA) proposed jurisdictional rulemaking which would expand the federal authority of the Clean Water Act (CWA) and place an undue burden on ready mixed concrete operations, aggregate operations and new construction starts and potentially affect groundwater, wash-out ponds, settlement basins and water reclaiming facilities located on ready mixed concrete plants.

How It Affects Our Industry: The current jurisdiction of the EPA and the Army Corps of Engineers (Corps) provided under CWA covers "navigable" waters which are defined as "the Waters of the United States." EPA and the Corps propose to change the regulatory definition of "waters of the US" and are asserting categorical jurisdiction over "adjacen waters" and adding new definitions of "neighboring," "tributary" and "significant nexus." These vague and loosely defined new terms hold unnecessary and overreaching regulatory implications that could adversely affect ready mixed concrete plants, trucks and operations. Not only would many activities not previously regulated require federal permits, those permits would be subject to challenge in federal court, delaying or halting these activities to the detriment of our industry and economy.

Background: 

On April 21, 2014 the EPA published its proposed CWA Jurisdictional rulemaking. The rule expands the types of waters covered by the CWA. NRMCA is concerned about how expansion of federal jurisdiction over marginal waters would place an undue burden on ready mixed concrete operations, aggregate operations and new construction starts. The proposed rule can be found here. The rule's 206-day comment period ended November 14, 2014. NRMCA will submited comments on the rule on behalf of the industry and work with other industry partners and Congress to ensure the best possible outcome for the ready mix concrete industry. 

NRMCA Comments

Multi-Organization Comments from the US Chamber

NRMCA is committed to the protection and restoration of America’s wetland resources. However, NRMCA has consistently opposed dramatic increases in federal authority, especially over marginal waters such as rarely flowing streams, groundwater and isolated ponds. NRMCA has not supported the Clean Water Restoration Act and EPA’s recent 2011 guidance document, which share many commonalities with the proposed rule. Expanding federal authority under the CWA would greatly increase the number of ready mix concrete operations required to get permits for industrial and stormwater discharges and the number of construction sites required to obtain appropriate permits from the Army Corps, which will also result in the delay of construction projects. The Army Corps' current backlog of permits ranges between 15,000 - 20,000 without including new waters.

In September 2013, EPA published a draft report synthesizing the peer reviewed scientific literature on the connectivity of streams and wetlands to large bodies of water. NRMCA submitted comments on the draft report to the Science Advisory Board. While the peer-review of this rule has not been issued, EPA has stated that it will use the report as the scientific basis for the rulemaking. Questions have already been raised about why the rule has been released before the report has been finalized.  

On June 11, 2014 the Subcommittee on Water and Environment held their oversight hearing of EPA’s new Waters of the US Rule – which will determine which waters are covered under the Clean Water Act and subject to federal permitting. At the hearing, Congressman Daniel Webster, (FL-10) asked EPA’s  Deputy Administrator, Bob Perciasepe,  key questions for the ready mixed concrete industry, and his home state of Florida, on behalf NRMCA. Webster asked Perciasepe how EPA planned to distinguish between “groundwater” – which is explicitly excluded from the rule – and a “shallow subsurface connection” – which is used to justify jurisdiction between other bodies of water in the rule. EPA did not have an answer for that question. Webster followed up by asking whether or not introduction of pollutants to “shallow subsurface connections” would need a permit. Again, the Deputy Administrator was unable to answer the question. 

Because concrete plants use settling basins, regulation of groundwater is a concern for the industry. Groundwater has historically been excluded from the scope of the Clean Water Act, and is state, not federally regulated. The concern with the new rule is the introduction of the use of “shallow subsurface connections” to justify jurisdiction, which could make groundwater subject to federal permitting. Watch the hearing here. Mr. Webster’s questions are between 2:02:00 – 2:04:58.

On September 9, 2014 the House passed H.R. 5078 Waters of the United States Regulatory Overreach Protection Act of 2014. The bill stops the proposed regulations from being finalized and requires EPA and the Corps to work with the states on a cooperative way to determine where federal jurisdiction should be. The Senate as yet to act on this bill.

Click Here to Tell Congress to Push Back on this Rule


FLY ASH

Ready Mixed Concrete Industry Position: The ready mixed concrete industry opposes any hazardous waste classification for coal combustion residuals (CCR), such as fly ash. NRMCA however, officially supports legislation offered by Representative David McKinley (R-1-WV), H.R. 2218, the Coal Residuals Reuse and Management Act of 2013, which would establish minimum state disposal requirements, instead of regulating fly ash as a hazardous waste. H.R. 2218 passed the U.S. House on July 25 by a vote of 265 to 155. Consideration in the Senate is pending.

EPA Report: Coal Ash Safe for Recycling (February 7, 2014): Coal ash from power plants is safe for use in cement and wallboard, the U.S. Environmental Protection Agency declared in a long-delayed decision that may boost recycling of a major source of industrial waste. Read the Report.

Background: In December 2008, 1 billion gallons of fly ash sludge spilled into the Emory River and other waterways from a retention pond located at the Tennessee Valley Authority power plant in Kingston, TN. The spill gained the attention of the EPA and spurred EPA to examine new regulations for the disposal of CCRs, including labeling fly ash as a hazardous waste material. On June 21, 2010 EPA published its proposed rule aimed at better handling and containing CCRs when destined for disposal. The proposed rule suggested two different options to achieve this goal:

  1. The first proposal, known as a Subtitle C classification, would regulate CCRs as hazardous waste effectively giving the federal government control and enforcement over their disposal in special hazardous waste landfills.
  2. The second, known as a Subtitle D classification, would set more stringent minimum standards for the way CCR’s are currently disposed. The enforcement however, would be left up to the states, and civil suits filed by individuals and/or groups.

How It Affects Our Industry: In 2011 alone, the concrete industry used 11.7 million tons of fly ash in the manufacturing of ready mixed concrete; making it the most widely used supplemental cementing material (SCM). Fly ash works in combination with portland cement to impart beneficial qualities to concrete and is then encapsulated itself. Supplementary materials such as fly ash contribute both to concrete’s exceptional performance and sustainability. When combined with cement in concrete SCMs improve durability, strength, constructability and economy. In the case of highways, streets, parking areas, and ocean-side structures, durability is the number one concern. Fly ash, as well as slag, and silica fume, other SCM’S, are used to enhance the durability of concrete by decreasing permeability and cracking. They help block migration of chloride ions (from deicing chemicals or seawater) to reinforcing steel, the most common cause of corrosion. In the case of buildings, SCMs help to create high strength concrete used to build some of the tallest buildings in the world. For homes, fly ash concrete provides an economical and durable alternative for foundations, patios and driveways. The environmental benefits of using these industrial byproducts in concrete results in longer lasting structures and reductions in the amount of waste materials sent to landfills, raw materials extracted, energy required for production, and air emissions, including carbon dioxide.

EPA’s primary goals should be to reduce the amount of fly ash wasted and to ensure that whatever fly ash is wasted is managed properly. A hazardous waste designation, such as Subtitle C, would undermine the primary goal. Some states forbid the beneficial reuse of hazardous wastes, which could create a “Catch 22” situation that prevents shedding the hazardous waste designation through reuse.

The adverse impact of a Subtitle C classification on the U.S. economy could be enormous. Concrete is used for nearly all forms of construction, including homes, buildings, highways, airports, domestic water systems, local roads, dams, and power generation structures. Inappropriate regulation of fly ash would render the product difficult to manage, transport and store, even for environmentally beneficial purposes, thus rendering the use of fly ash too expensive and risky to justify. It would also be devastating on the concrete industry. The industry supplements nearly 20% of the cementing materials in concrete with fly ash. Eliminating the availability of fly ash in any way would result in cost increases that could render concrete non-competitive.

The use of fly ash in concrete is safe. Once chemically bound in concrete, fly ash does not pose any environmental or health threat. Any ruling that would designate fly ash as hazardous in any form would result in a public perception that fly ash concrete is hazardous. This would result in project owners refusing to accept concrete with fly ash in the mixture. It would in effect kill the demand for fly ash in concrete. Fly ash that was once used in a beneficial way would end up in landfills.

Although both proposed classifications maintain an exemption for CCRs destined for beneficial use, such as an ingredient in ready mixed concrete, NRMCA is still determining both options’ impacts on the industry. Assessments of the rule’s effect on the industry have suggested higher priced fly ash regardless of the classification, and possibly worse; restricting or ending the use of fly ash in concrete in certain municipalities and types of projects altogether, less durable concrete, lost jobs, and a greater likelihood of insurance and litigation lawsuits.

EPA admits that fly ash does not qualify as a hazardous waste based on its toxicity. Landfill engineering standards are essentially the same under both of EPA’s “non-hazardous” and “hazardous” disposal regulations proposals. The Agency’s reason for proposing a “hazardous waste” approach is simply an attempt to gain more enforcement authority.

Fly ash shouldn’t be regulated as a hazardous waste. Fly ash should be disposed of properly and economically, and reused beneficially.

General Information:
To view EPA’s proposed rule please click here.
For more information on EPA’s proposal, including Public Listening Sessions please click here.

Industry Action:
To view letters opposing EPA action on fly ash please click here.
To learn more about industry opposition, other activated organizations, or to become involved please view these links:

American Coal Ash Association
Citizens for Recycling First
Regulate Coal Ash Right
Coal Ash Facts
Utility Solid Waste Activities Group

TVA Studies:
To view the Tennessee Department of Health’s “Public Health Assessment” please click here.
To view the “Baseline Medical Screening Results” by Oak Ridge Associated Universities please click here.

House Small Business Committee Hearing:
To view NRMCA's Small Business Subcommittee Written Testimony on Fly Ash, July 22, 2010 please click here.

To view video of NRMCA's Small Business Subcommittee Testimony on Fly Ash, July 22, 2010 please click here

To view EPA’s Small Business Subcommittee Testimony on Fly Ash, July 22, 2010 please click here.

To view EPA’s testimony question answers please click here.