The two largest processors of coal power plant waste used in building materials - Boral Material Technologies and Headwaters Resources - are suing the US Environmental Protection Agency over its indecision about regulating their products. For all concerned, it would have been better to have this discussion before coal combustion waste entered the building material market.
Once a cheerleader for the "beneficial reuse" of coal power plant waste, EPA is considering quite the opposite position: regulating it as hazardous waste.
Boral and Headwaters are asking the US District Court in Washington, DC, to set a three month deadline for the Agency's final determination.
Inside EPA reports that the two companies filed a brief on August 14, 2012, stating that the delay "has created uncertainty in the beneficial use marketplace," including among "architects and engineers." This inaction, they say, has "direct, traceable negative impacts on the marketplace and, therefore, on Headwaters' and Boral's businesses."
Indeed, until the last few years, architects generally were unaware about the waste materials in products they were specifying. Growing concerns about heavy metal content in products containing coal combustion waste led EPA to stop promoting this practice. By August 2010, the agency suspended its participation in the Coal Combustion Products Partnership. It has been re-evaluating this waste stream ever since.
While the proposed rule remains in limbo, industry is speaking out: Thomas Adams, Executive Director of the American Coal Ash Association, claims the public is being fooled. Mr. Adams recently said, "Our worst fears are being confirmed. The ongoing regulatory uncertainty and a drumbeat of misleading publicity about the toxicity of coal ash are combining to cause decreases in the beneficial use of the material." The coal ash industry misses the federal government's encouragement, he lamented, "All of that is gone now."
What is left is what should have happened in the first place: critical scrutiny of a material before it enters the market. In the case of recycled materials used in building materials, there are two forces that lead to situations such as this: 1) a lack of government oversight over potentially toxic materials in commerce; and 2) incentives, such as LEED recycled material credits, that have not taken into account potential harmful substances in those materials.
In general, of course, recycling is a fine thing, although pollution prevention is always preferable. Coal ash dumps are unquestionably hazardous to people's health and the environment. But before encouraging the global dispersal of coal ash through reuse, the EPA should fully investigate the potential exposures downstream. A thorough analysis would track impacts as the material flows through manufacturing plants, buildings, and finally, disposal sites.
The impact of regulatory uncertainty on the market for coal ash provides the incentive to expedite - not circumvent - this research and analysis. Should the court require the EPA to make a final determination before such analysis can be completed, the EPA must err on the side of caution and classify coal ash as hazardous until the studies are completed.
After a decade of helping to market coal combustion wastes, the EPA and many architects have seen enough data to at least give them pause - a pause that would have best occurred before, rather than after, coal combustion waste entered peoples' homes and hospitals and schools.
 Bobby McMahon, "Activists Seek Legal Deadline for Broad EPA Review of Ash Regulations," Inside EPA, August 15, 2012.
 To see EPA's webpage on this partnership, before and after it "suspended active participation," visit this site, which shows two versions, archived on April 1 and August 20, 2010.
 According to the association, from 2000 to 2008, when EPA was "actively promoting the beneficial use of coal ash," the recycling rate of coal ash soared from 29.7 percent to 44.5 percent. In 2010, for the first time, the rate declined to 42.5 percent.
 In 2010, for example, I was researching wallboard production for our Pharos project, and discovered that some plants were emitting large quantities of mercury due to their use of what industry calls "synthetic gypsum," or FGD waste. Similarly, a U.S. Dept. of Energy-funded study of wallboard production concluded that synthetic gypsum contained at least three times as much mercury as natural gypsum.
 Also in 2010, EPA researchers reported that fly ash contains elevated levels of arsenic, barium, chromium, and selenium, and leachate from the ash contained levels of antimony, arsenic, barium, boron, cadmium, chromium, molybdenum, selenium, and thallium exceeding drinking water standards.