### Page 1 Tennessee Department of Environment and Conservation

Comments on Docket ID EPA

- HQ

- RCRA

- 2009

- 0640 June 21, 2010 Federal Register and the Associated April 30, 2010 Regulatory Impact Analysis

Hazardous and Solid Waste Management System; Identification and L isting of Special Wastes;

Regulation of Coal Combustion Residuals from Electric Utilities

Introduction

The December 22, 2008 Tennessee Valley Authority Kingston disaster

– in which 5.4 million cubic yards of coal ash was released into the Emory River, it s embayments and surrounding lands

– was the largest single environmental release in the history of Tennessee. The catastrophic release disrupted lives, damaged property and utility infrastructure, and impaired natural resources and aquatic habitat. Loca l, state and federal agencies worked together to respond to this event. Those agencies include the Roane County Emergency Management Agency, Tennessee Emergency Management Agency, Tennessee Department of Health, Tennessee Department of Environment and

Con servation, Tennessee Wildlife Resources Agency, U.S. Environmental Protection Agency, U.S. Fish and Wildlife Service and TVA. TDEC continues to work in cooperation with the EPA on cleanup oversight and environmental monitoring activities to ensure the com munity is protected and the area is restored.

As the jurisdiction of the TVA Kingston failure, the state of Tennessee is in a unique position to provide insight into EPA’s proposed rules for the ongoing management of coal combustion residuals, or CCR. Th e state has taken numerous steps, outlined below, to protect the public and site workers as a result of the Kingston failure, and to ensure a spill like this never occurs in Tennessee again. It is critical that CCR is managed safely and consistently

acros s all states. That is why Tennessee is already on record as supporting national standards for the regulation of

coal combustion residuals.

Immediately following the December 2008 spill, agencies worked together to protect the public and assess the impact s of the spill. Since that time, many activities have taken place to restore the land and water surrounding the TVA Kingston site, including:

 Immediately following the spill, Governor Phil Bredesen called for daily sampling of the public water supply. Hundreds of samples of raw water and treated water have been collected and analyzed to check for problems stemming from the coal ash release. All samples taken indicate public drinking water was and

remains safe.

 On January 12, 2009, Commissioner Jim Fyke of the Department of Environment and Conservation issued an order requiring TVA to clean up the spill, monitor and repair damage to the environment and develop a

short

- and long

- term ash management plan for the Kingston Fossil Plant and its six other coal fired plants in Tennessee. The order also required TVA to assess the structural integrity of all of its coal combustion residue surface impoundments and landfills and to make structural improvements to all regulated units found to have integrity conc erns.

 In May 2009, EPA issued an Administrative Order on Consent outlining cleanup requirements under the Comprehensive Environmental Response, Compensation and Liability Act. Both orders remain fully

enforceable.

 An extensive environmental monitoring network was implemented following the spill, and has evolved with progress at the site. Monitoring activities include surface water, well water, soil, air, ash and fish tissue to ensure the protection of the public and site workers, and to determine the extent of the release in both the

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short and long term. TDEC provides independent monitoring in addition to reviewing TVA monitoring results and the department enlisted the assistance of the U.S. Army Engineer Research and Development Center to provide ind ependent analysis of whether dredging activities would release metals from the ash and pose

additional risk to the environment.

 TVA installed and operates air monitoring systems that help ensure coal ash does not leave the site as dust

and affect loca l public health. TDEC operates independent monitors and audits TVA results. To date, the monitors have not indicated an exceedance of National Ambient Air Quality Standards for particle pollution.

 Oak Ridge Associated Universities and Vanderbilt Univers ity Hospital examined more than 200 local residents and found no adverse effects in human health due to coal ash exposure.

 The Tennessee Department of Health visited the local community to share and collect information in the days following the spill and remain involved. They also performed a comprehensive public health assessment in partnership with the federal Agency for Toxic Substances and Disease Registry. Based on the agencies’ review of the data, the coal ash release should not have caused harm to the community’s health. The Department of Health continues to work with TDEC to analyze and review state environmental samples from the site.

 EPA and TDEC agreed that coal ash recovered during the TVA Kingston remedial action could be disposed

in an EPA approved RCRA Subtitle D landfill. The agencies agree this method of disposal is safe, effective and environmentally protective.

 More than 3.8 million tons of coal ash has been removed from the Emory River and its tributaries. Nearly

400 train loads of coal ash have been shipped off site for disposal at the EPA

- approved RCRA Subtitle D Arrowhead Landfill in Perry County, Alabama. Ash shipments are expected to be completed by December 11, 2010.

 With the conclusion of ash shipments anticipated next m onth, TVA will have completed all time critical actions required by the EPA Administrative Order on Consent under CERCLA.

 TVA has begun non

- time critical actions required by the EPA AOC. This includes selection of the final remedy for the site.

 Swan Pon d Road, local rail tracks, sewer, water and natural gas lines have been repaired/re

- installed.

 On June 14, 2010, Commissioner Fyke issued a compliance order against the Tennessee Valley Authority assessing $11.5 million in penalties in response to the Kin gston release addressing violations of the Tennessee Water Quality Control Act and the Tennessee Solid Waste Disposal Act

.

 The department has collected approximately $3.5 million from TVA for its cost in response to this release as well as the first $2.5 million payment of the civil penalty outlined in the June 2010 order.

Tennessee’s Regulatory Approach Following the TVA Kingston Landfill Failure

The Tennessee Department of Environment and Conservation recognizes the need to develop a more comprehensive regulatory approach to coal combustion residuals that helps to ensure an event like the one at the TVA Kingston facility never happens again. To that end, the state has taken action to assess all coal ash impoundments in Tennessee and strengthen regulato ry oversight of CCR disposal areas.

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In 2009, the Tennessee General Assembly strengthened the Tennessee Solid Waste Management Act to require synthetic liners for all new or expanded landfills receiving coal ash and to require all closed coal ash landfil ls to have a cap. Additionally, beginning in May 2009, TDEC has required all new CCR landfills, and all expansions of existing landfills, to meet Tennessee’s Class I design criteria including, geologic buffer, synthetic liner, leachate collection and

grou ndwater monitoring

– if used for coal ash disposal. Class I landfills in Tennessee are the equivalent of RCRA Subtitle D landfills. To date, one landfill has expanded under this change.

In all new National Pollutant Discharge Elimination System permits, a nd upon renewal of existing NPDES permits, Tennessee is requiring regular inspection of CCR surface impoundments including structural integrity analysis and requiring modification and repair as needed. The inspections are the same as those required by the Federal Emergency Management Agency for impoundments.

TDEC’s January 2009 Commissioner’s Order required TVA to perform structural integrity analysis of all coal ash storage and disposal areas in Tennessee. TVA has completed structural integrity assessm ents of all surface impoundments and landfills used for disposal of CCR in Tennessee, identified repairs and improvements needed for each and has begun making repairs. TVA is repairing/improving structures in order of risk. TDEC hired its own geotechnica l consultant to help the department in providing oversight to TVA’s structural integrity analysis.

Scientific Factors for Consideration in New CCR Rule

The TVA Kingston release has been the largest and most intense cleanup response the Tennessee Departme nt of Environment and Conservation has ever pursued. We have worked with EPA and other agencies and organizations
to use the best science available to make corrective action decisions. Likewise, we believe sound science should be

the basis for national r egulations for the management and disposal of CCR.

The department submits the following scientific factors for consideration regarding the future regulation of CCR:

 CCR does not contain chemical constituents at the level of risk to public health and t he environment that are present in currently defined hazardous waste. Extensive testing of coal ash using EPA approved laboratory protocols for volatile organics, polynuclear aromatic hydrocarbons and metals demonstrate the levels of

these constituents ar e significantly lower than the levels that trigger solid waste to be characterized as

hazardous waste.

 CCR does not present radiological hazards.

 Solids from coal ash consist primarily of silica and metal oxides. These oxides have very limited solubili ty. Metal oxides in CCR present limited potential for biological uptake due to their reduced oxidation state.

 EPA has evaluated CCR for designation as a hazardous waste three times. In each case, EPA’s final decision was to continue to regulate CCR as a solid waste because it is an inert, insoluble and manageable

material.

 The chemical properties of CCR did not cause the failure of the TVA Kingston coal ash landfill. Engineering analysis indicates the failure was caused by poor design, poor drainage an d poor operation.

 The physical properties of CCR vary greatly depending upon moisture content, particularly for fly ash. Too little moisture and fly ash acts like sand. Too much moisture and fly ash acts like liquid. The TVA Kingston

failure demonstrate s that CCR must be disposed in well designed geologically stable structures.

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 The TVA Kingston failure disrupted lives, destroyed property and caused significant environmental damage which requires remediation. However, EPA’s total economic impact estimat ion of $3 billion seems overly high considering the $1.3 billion cleanup price tag and Natural Resource Damages in a currently estimated range not exceeding $20 million.

 To date, the Tennessee Department of Environment and Conservation is not aware of any adverse impact to public health caused by the chemical constituents in CCR. Oak Ridge Associated Universities and Vanderbilt University Hospital examined more than 200 Roane County residents following the TVA Kingston spill and found no adverse effects t o human health due to coal ash exposure. Additionally, the Tennessee Department of Health and the federal Agency for Toxic Substances and Disease Registry did not identify any chemical toxicity health effects from coal ash.

 Historical effluent data from NPDES permitted CCR wastewater treat ment impoundments clearly indicates that the metals present in the discharges are not at concentrations sufficient to pollute receiving streams. These wastewater treatment impoundments are designed to remove settleable solids from CCR

wastewaters so as to protect streams from these solids and the metal constituents associated with them.

 A review of groundwater monitoring data from coal ash surface impoundments does demonstrate that in some instances where there is no synthetic or geologic liner, metals are transported v ia seepage from the bottom of the surface impoundments into local groundwater. However, Tennessee has not identified any specific sites where groundwater contamination from surface impoundments has impacted local, private or public water supplies. On sites where groundwater contamination has been found, the department will continue to require monitoring to be sure that any offsite impacts are prevented or mitigated.

 CCR may potentially present a threat to public health when the particle size is small, and must be managed to avoid this potential exposure pathway. If inhaled, CCR could affect the respiratory system much like small sand particles act in people with silicosis. This is because the CCR particles are small with irregular surfaces that attach to lung tissue, much like tiny grains of sand.

Negative Impacts to CCR Management if Regulated Under RCRA Subtitle C

There is no scientific ba sis to suggest that regulating coal combustion residuals as a hazardous waste under RCRA Subtitle C would be more protective of public health and the environment than effective regulation as a solid waste under Subtitle D. Regulating CCR as a hazardous wa ste, however, would further complicate its management in a way that is wasteful of resources, energy and disposal capacity for those wastes that do meet the characteristics of

hazardous waste.

Management of CCR as a hazardous waste would not only be very expensive, but also problematic due to (1) the limited amount of hazardous waste RCRA Subtitle C landfill space available; (2) the length of time required to permit new RCRA Subtitle C landfills; and (3) the cost to construct additional hazardous waste dis posal space. The competition and cost for disposing of CCR in existing RCRA Subtitle C landfill space would increase dramatically, again, with little to no reduction of risk.

CCR is frequently, and safely, used as a substitute for raw materials, proving to be a valuable resource and significantly reducing disposal costs and the use of Class I landfill disposal space. CCR is used in drywall, concrete and structural fills. Additionally, coal combustion produces cenosperes, small air filled glass bubbles t hat are recovered and used in many products to adjust density. Each year, approximately 136 million tons of CCR are produced in the United States and more than 60 million tons of CCR are reused or recycled. Regulating CCR as

hazardous waste will reduce t he amount of CCR beneficially reused.

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Additionally, regulating CCR as hazardous waste will decrease the value of properties with CCR onsite without the benefit of additional protection in exchange. CCR disposed onsite, or when CCR is contained in concr ete or wall board used in construction onsite, would cause the property to be grouped with CERCLA properties. Lenders and property managers are already including this factor in the sale/transfer of property.

Recommendations for Effective, Consistent CCR Regulation under RCRA Subtitle D

The department believes that CCR should be regulate d consistently in the United States as a solid waste. It should be regulated and managed to increase the rate of its reuse/recycling, reducing the use of our natural resources and lowering the rate of CCR disposal. The success in Europe of reusing/recycli ng CCR material, approximately 94 percent, is a worthy goal.

CCR should be disposed into solid waste landfills meeting the RCRA Subtitle D design criteria. This includes groundwater monitoring, post

- closure monitoring and maintenance and financial assur ance unless the CCR can be used as structural fill. Where CCR can be used as structural fill, the fill area should have a synthetic liner, a leachate collection system and groundwater monitoring unless the area of the structural fill can be demonstrated t o have geologic conditions that are protective of both groundwater and surface water within a 1,000

- foot radius. Properties where CCR has been placed as structural fill should have notification placed i n the deed.

Existing landfills designed and operated as stipulated by RCRA Subtitle D regulations should be allowed to continue accepting CCR. Landfills receiving CCR that do not meet RCRA Subtitle D requirements should only be allowed to continue accepting CCR for two years following the effective date of the Final EPA CCR Rule provided certain conditions are met. Those conditions should include a legally binding commitment from the landfill owner/operator to properly close the landfill with a RCRA Subtitle D landfill cap; closure and pos t

- closure monitoring requirements, including groundwater monitoring; and financial assurance sufficient to fund closure and post

- closure requirements, as well as environmental investigation and remediation in the event that becomes necessary.

New landfill s and expansion of existing landfills to be used for the disposal of CCR should be required to meet RCRA Subtitle D municipal solid waste and design criteria including geologic stability assessment, engineering design criteria, operational standards, groun dwater monitoring, quarterly inspections, closure (including cap), post

- closure monitoring and maintenance, financial assurance and notification of CCR disposal on the property deed. A seismic stability analysis should be performed as part of the initial site suitability analysis. The landfill or landfill expansion should be designed to have a structural stability safety factor of 1.5 and a seismic safety factor of 1.5.

Surface impoundments receiving CCR for treatment or disposal should be regulated from initial design through completion of post

- closure monitoring requirements. For existing CCR surface impoundments there should be two categories; (1) CCR waste surface impoundments to be used for no more than five additional years from the effective

date of the Final EPA CCR Rule, and (2) CCR surface impoundments that will be used five years after the effective

date of the EPA CCR Final Rule.

(1) Regulations for existing CCR surface impoundments to be closed within five years of the effective date of

the Fina l EPA CCR Rule should include structural analysis with repair/improvements required to meet a dam safety factor of 1.2. Additional requirements should include inspections quarterly, installation of groundwater monitoring wells, semiannual groundwater moni toring, closure plan, post

- closure monitoring and maintenance and financial assurance in an amount sufficient to cap the surface impoundment and to perform environmental investigation and cleanup should the surface impoundment fail or have releases to

grou ndwater and surface water. The CCR surface impoundment owner should be required to submit a statement committing to closure of the surface impoundment within five years and acknowledge the responsibility to comply with (2) below should the surface impound ment not be closed on schedule.

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(2) Regulations for existing CCR surface impoundments to be operated for more than five years after the effective date of the Final EPA CCR Rule should include a structural analysis with repair/improvements required to meet a d am safety factor of 1.5. These surface impoundments should be retrofitted with a synthetic liner to prevent failure migration of CCR contaminants into ground water. The CCR surface impoundment owner should be required to obtain a solid waste processing/d isposal permit following the RCRA Subtitle D public participation process. Additional recommended requirements are quarterly inspections, installation of groundwater monitoring wells, semi

- annual groundwater sampling, annual estimation of remaining life, closure plan with cap, post

- closure monitoring and maintenance plan and financial assurance sufficient to perform environmental investigation and clean up should the surface impoundment fail or release contaminants to groundwater or surface water.

New CC R surface impoundments should be permitted following the EPA Subtitle D criteria for solid waste landfills. The regulations should include:

 Public Notice of intent to construct.

 Demonstration of suitable geologic conditions for construction.

 An enginee ring design which includes a geologic buffer, synthetic liner, leachate collection system, groundwater monitoring system with a minimum of four wells, buffer zones, construction with a dam safety factor of 1.5, estimated disposal capacity of the surface im poundment, seismic analysis and seismic safety factor of 1.5, closure plan, post

- closure monitoring and maintenance plan and financial assurance in an amount sufficient to complete environmental investigation and cleanup should the surface impoundment fail or have releases to groundwater and/or surface water.

 The initial plans should indicate whether the surface impoundment will be used for CCR treatment or for waste treatment and CCR disposal.

Comments Specific to the Proposed Rule

- Hazardous and Solid Waste Management System; Identification and Listing of Special Wastes; Disposal of Coal Combustion Residuals from Electric Utilities

Page 35133, Column 1: “Adequacy of state programs”

EPA has requested comment on the adequacy of state programs. Municipal solid waste, which is generated in much greater volume than CCR, is regulated under Subtitle D. The department believes that Subtitle D provides the most appropriate mechanism for regulat ion of CCR. Tennessee has successfully implemented both the Subtitle C and Subtitle D programs. Tennessee has approximately fifty FTEs in its Subtitle Solid Waste Program and 65 FTEs in its Hazardous Waste Program. Tennessee has been authorized by EPA to implement the Hazardous Waste Program

in

- lieu of the RCRA Subtitle C Program and the state’s Solid Waste program has been approved by EPA.

The December 2008 ash pond failure in Kingston, Tennessee was not due to a lack of regulations or the chemical

prop erties of fly ash. The TVA Kingston failure was due to structural failure. TVA’s investigation revealed that TVA was aware of the potential structural failure of the landfill via information from its employees and consultants. The TVA Office of Inspecto r General, July 23, 2009 report notes on page 4, “TVA was aware of „red flags‟ that were raised over a long period of time signaling the need for safety modifications to the TVA ash ponds. These „red flags‟ were raised by both TVA employees and consultant s hired by TVA. Specifically, a 1985 internal memorandum written by a TVA engineer and two 2004 reports by external engineering consultants raised concerns about the stability of the Kingston ash storage facilities.”

This information was not communicated to the regulatory agency. TVA’s failure to report its own internal warnings about a pending failure of the landfill to the department did not allow the department to take the actions needed to

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prevent this incident. The failure of TVA to address these pro blems resulted in a spill with costs that may exceed $1.3

billion.

The TVA OIG report also noted that the c ulture at TVA

, “ resulted in significant weaknesses in ash management practices across TVA, including: (1) a failure to implement recommended corrective actions that could have possibly prevented the Kingston Spill; (2) the lack of policies and procedur es; (3) poor maintenance; (4) the lack of specialized training; (5) multiple organizational structural changes; (6) inadequate communication; and (7) a failure to follow engineering best practices.” (Tennessee Valley Authority (TVA), Office of Inspector G eneral, July 23, 2009 Report, “Review of the Kingston Fossil Plant Ash Spill Root Cause Study and Observations a bout Ash Management”, 2008

- 12283

- 02)

Page 35134: Table 1. Table 1 projects a $250 billion impact to the national economy if CCR is regulated as a hazardous waste. The department believes this projected impact to the national economy may be an underestimate. EPA’s calculations do not include increased transportation costs because many utilities may not have suitable geology for on

- site disposa l of hazardous waste. There will be additional hazardous waste transportation costs. EPA does not include the cost of closing power plants and switching over to other forms of energy or of relocating the generation of power to newer plants that could perm it a landfill. The costs of power grid modifications are not included. Other significant costs not considered are testing and treating materials to ensure that they meet the LDR requirements.

Page 35129, Column 3: C. Definitions, etc.

Beneficial Use o f Coal Combustion Products: The proposed definition specifically excludes the safe and practical use of CCR in large scale structural fill projects. The absolute prohibition of the use of CCR as construction fill should be removed. The department reques ts that if CCR is regulated as a hazardous waste that the final regulations be revised to include qualifying criteria that, when met, allows this beneficial use of CCR.

Page 35130, Column 1:

The definition for “CCR Landfill” should be modified. The inc lusion of large scale fill operations should be removed from the definition of “CCR Landfill”. Please see the comments above for Page 35129.

Page 35130, Column 1: Coal Combustion Products vs. Coal Combustion Residuals:

These two definitions are for th e same material. We recommend that only one term be used to describe the materials. CCR can be beneficially reused or properly disposed. Not all CCR wastes have the same chemical composition, engineering properties or potential end uses. For example, wh ile similar metal species associated with coal combustion are present in all CCR generated by combustion of coal from a particular source field, the concentrations of those metals may be dramatically different from one type of residue to another (e.g., bot tom ash, fly ash, and most specifically FGD (gypsum) residues). These differences need to be taken into consideration when establishing the appropriate, acceptable residual management practices.

Page 35131, Column 2: Special Wastes

Tennessee has its own definition for special wastes. Tennessee Rule 1200

- 01

- 07 defines them as follows, “‟Special Wastes‟ are solid wastes that are either difficult or dangerous to manage and may include sludges, bulky wastes, pesticide wastes, medical wastes, industrial wast es, hazardous wastes which are not subject to regulations under Department rules 1200

- 01

- 11

- .03 through 1200

- 01

- 11

- .07, liquid wastes, friable asbestos wastes, and combustion

wastes.” Coal combustion residues, if disposed, are considered to be a Subtitle D “special waste” in Tennessee. We do not use that term in our Subtitle C program. If CCRs are regulated under Subtitle C, similar to the used oil program, we recommend that the materials be specifically referred to as Coal Combustion Residuals. This wi ll help to avoid stigma issues.

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Page 35132, Column 2:

“ This decision is driven in part by the failure of a surface impoundment retaining wall in Kingston, TN in December

2008.”

Although this disaster could and should have been prevented, the categoriza tion of CCR as a hazardous waste and all the expensive and burdensome requirements for managing these materials under Subtitle C is an excessive remedy that misses the root cause of the problem. The TVA Kingston landfill failure resulted from poor structur al design, operation and maintenance that resulted in a catastrophic structural failure. The chemical characteristics of the fly ash did not contribute to the landfill failure.

Page 35133, Column 1: “There are three key areas of analyses where EPA is s eeking comment: The extent of existing damage cases, the extent of the risks posed by the mismanagement of CCRs, and the adequacy of State programs to ensure proper management of CCRs.”

The extent of damage cases, on a national level, appears relatively minimal when compared with both the quantity and the period of time CCRs have been generated. The extent of risks posed appears minimal based on the current regulatory methodology used by EPA to determine the release potential. Tennessee, like other sta tes, has appropriate solid waste regulations in place for CCR management and disposal. The TVA Kingston landfill failure did not occur due to poor regulations but due to failure to acknowledge structural deficiencies and poor operation, particularly a prop erly operating drainage system.

More than 200 residents living near the TVA Kingston landfill were examined for any adverse health effects caused by coal ash from the landfill failure. On August 17, 2010 Oak Ridge Associated Universities and the Vanderb ilt University Medical Center in Nashville released their report and found there were no adverse health effects due to the landfill failure and subsequent coal ash exposure ( http://www.orau.org/documents/kingstonproject/Kingston

- Fly

Ash

- Results

- Report.pdf ). The Tennessee Department of Health conducted a Public Health Assessment for the coal ash spill at the TVA Kingston Coal Fired Power Plant and published a r eport on September 7, 2010 under a cooperative agreement with the U.S. Department of Health and Human Services

- Agency for Toxic Substances and Disease Registry ( http://health.state.tn.us/Environmental/PDFs/pha

- e

- TVA_Kingston_Fossil_Plant_Final.pdf ). The fact sheet, in italics below, states that based on the sampling results by all agencies, the Tennessee Department of

Health is confident that:

 No harm to health should have occurred from touching the coal ash. People had an opportunity to be exposed to the coal ash for about one month before TVA either relocated families or fenced off the coal ash. While coal ash might cause skin irritation, the irritati on will stop as soon as the coal ash is washed off.

 Although arsenic was found at concentrations above health comparison values for chronic exposure to children, no harm is expected from a child accidentally eating the coal ash. Chronic health effects from exposure to arsenic require exposures more long term than the type of exposure experienced in this setting. The period of exposure to the coal ash was very short. Small children had little opportunity for direct

contact with the coal ash because of the co ld, wet weather and the fencing of the ash to prevent contact, as well as the diligence of parents in keeping their children away from the coal ash. The exposure frequency and exposure duration were not long enough to cause harm to the health of children o r adults.

 Except in the immediate vicinity of the coal ash release, the coal ash or the metals in the coal ash have not affected surface water in the Watts Bar Reservoir. TVA and TDEC have an advisory for use of the Emory

River in the area near the coal as h release. The Army Corps of Engineers and the Coast Guard are patrolling this area to prevent any harm to people. The Emory River from mile marker 1.5 to mile marker 3 is closed to river traffic until February 15, 2010.

 Municipal drinking water from the K ingston and Rockwood water treatment plants has not shown any contamination from the coal ash release since sampling began on December 23, 2008. TDEC is continuing to monitor the drinking water.

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 Private well and spring water within 4 miles of the coal ash release have not shown any contamination from the coal ash. TDEC will continue to take periodic samples of private well water in the area.

 Concentrations of PM10 and PM2.5 have consistently been below EPA regulatory limits since air sampling began on Decem ber 31, 2008. Metals in air have consistently been within background levels of metals in the U.S. or below any health comparison values.

 EEP could not determine whether breathing dust near the quarry and along the routes of the quarry trucks

has or will ha rm people‟s health.

 Concentrations of radionuclides are below the regulatory limits for concentrations of radionuclides in air and water that are protective of public health.

The only way people could have been exposed to the coal ash from late December 2008 through the middle of January 2009 was through direct contact with the coal ash or by accidentally eating some of the coal ash.

The airborne coal ash could affect people exposed to higher concentrations of particulate matter, especially those with pr e

- existing respiratory or heart conditions. Such effects could include upper airway irritation and aggravation of

pre

- existing conditions such as asthma, emphysema and other respiratory conditions.

TVA, EPA and TDEC are working to make sure that does not happen. Examples of measures that TVA is taking

include:

 applying Flexterra/hydroseed to coal ash where activity is not occurring;

 spraying of water on coal ash where activity is occurring;

 washing cars leaving the site; and

 establishing a central drop off point for delivery of materials that is off site.

Page 35133, Column 1: “The Agency would implement similar technical controls under RCRA subtitle C or D. Therefore a central issue is the adequacy of State Programs.”

Since either option would be prot ective of health and the environment, there is clearly no technical or scientific justification to incur the higher expenses and much greater regulatory burden associated with the regulation of CCR under Subtitle C. Tennessee’s current solid waste regulati ons already include most of the technical controls proposed except for those regarding surface impoundments. For the record, we regard the effectiveness of our solid and hazardous waste regulatory programs as equally effective as the equivalent portions o f the federal environmental

programs.

Page 35136, Regulation of Solid Waste Under RCRA Subtitle D, Column 2:

EPA states , “The actual planning and direct implementation of solid waste programs under RCRA subtitle D, however, remains a state and local func tion, and the act authorizes States to devise programs to deal with State

specific conditions and needs. That is, EPA has no role in the planning and direct implementation of solid waste programs under RCRA subtitle D. ”

If it is determined a more activ e federal role is required, we strongly recommend that Congress amend RCRA Subtitle D to allow federal oversight of the management of CCR as a solid waste.

Page 35138, Table 2: Chemical Constituents in CCRs It is a rare occurrence when any of the fiv e CCR constituents (fly ash, bottom ash, boiler slag, FGD and fluidized bed combustion residuals) fail the TCLP analysis. Under current RCA Subtitle C regulations, a waste stream must fail the

TCLP to be a characteristic hazardous waste or it must be list ed as a hazardous waste. The September 2010 Tennessee Department of Health’s report documents the minimal impact on public health from CCR from the

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Kingston spill. TDEC not believe science and technical facts warrant EPA to regulate CCR as a hazardous wa ste

under Subtitle C.

Should EPA decide to regulate CCR as a hazardous waste under Subtitle C, each CCR waste stream (fly ash, bottom ash, boiler slag, FGD and fluidized bed combustion residuals) should be subject to regulation independently

rather than grouped into one broad category of hazardous waste. Should CCR be regulated as a hazardous waste and then mixed with other materials, the resultant mixture would be a hazardous waste. We recommend that if EPA continues to pursue regulating CCR constituents as hazardous wastes under RCRA Subtitle C, it should have five different CCR classes, one class for each type of CCR (fly ash, bottom ash, boiler slag, FGD and fluidized bed combustion residuals).

Page 35139, Column 3:

Recent EPA Research of Constitue nt Leaching from CCRs “While EPA/ORD‟s research relied on the “Vanderbilt” method, similar methods, i.e, tests evaluating leaching at different plausible disposal pH values, have been used to evaluate the leaching behavior and support hazardous

waste listi ngs of other materials as well.”

It seems EPA is departing from traditional protocol to evaluate CCR using elutrient methods other than the Toxicity Characteristic Leaching Procedure. RCRA Subtitle C bases its determination of many hazardous wastes on pa ssing or failing the TCLP testing protocol. Unless EPA plans to modify/change its current regulations for hazardous waste determination using elutrient methods, then it should not stipulate solid waste as hazardous waste using a non

approved EPA test metho d. If a member of the regulated community or a state proposed the idea to use methods other than TCLP (for solid wastes other than CCR), EPA would reject the proposal. EPA is using one test method to get results that exceed standards set for another test m ethod. This is not a valid approach. In fact, when posed the question on their RCRA website on the effects of varying the pH on the TCLP test, EPA notes:

“The test was designed to model a theoretical scenario in which a waste is mismanaged by placing it in an unlined landfill containing municipal solid waste. The acetic acid solution in Method 1311 is designed to simulate the result of rainwater infiltrating the landfill, reacting with the municipal solid waste, and then leaching through the waste being

t ested. The numerical limits for the RCRA toxicity characteristic (40 CFR 261.24) were derived using the same scenario and were set at levels that would prevent the groundwater under the landfill from posing a threat to human

health and the environment.

A s a result, the specific details of Method 1311 and the numerical limits for the toxicity characteristic itself are linked together. Increasing the acid strength of the leaching fluid to leach a larger amount of any of the constituents changes the scenario that the test was designed to simulate. Therefore, one would have to consider changing the numerical limits for the constituents listed in the toxicity characteristic too. Similarly, if one adds constituents to the list of those to be tested, one would ha ve to develop numerical limits for them using the same sort of model that EPA used for the toxicity characteristic.” [Emphasis added]

Using a new/modified test and applying the results to the numerical limits developed specifically for the TCLP test (and resulting regulatory requirements), is not allowed by the current rules.

Page 35143, Column 3, Discussion on Environmental Council of States (ECOS) resolutions The discussion notes the March 23, 2010 resolution by the Environmental Council of the States (ECOS). The department supports the March 23, 2010 ECOS resolution on this topic and request that EPA accept the suggestion that any federal regulation of CCR be developed under Subtitle D as presented in that resolution.

Page 35146, Column 3, Groundwa ter Damage C ases: R ecent publications by environmental groups present alleged cases of groundwater damage caused by CCR impoundments and landfills . These reports include six sites in Tennessee

. F ive of Tennessee’s sites are TVA Fossil

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Plants that are located on major river s

. The d epartment requires groundwater monitoring at these sites. Instances of groundwater contamination related to the management of CCRs have been identified at the sites. However

, n o impact to groundwater on adjacent property ha s been identified at any of these sites. The direction of groundwater

flow at each site has been determined and does no t present danger to private property adjacent to the sites. Given

the concentration s of g roundwater contaminants and the rate s of groundwater flow , the d epartment has not identified any danger to public health and the environment associated with either offsite groundwater or the adjacent river at any of these sites.

Page 35148, Column 1, Overview and Summary: “In the May 2000 determina tion, EPA concluded that disposal of CCRs did not warrant regulation under RCRA subtitle C as a hazardous waste, but did warrant federal regulation as a solid waste under subtitle D of RCRA. However, EPA never issued federal regulations under subtitle D of RCRA for CCRs.”

Before regulating materials under Subtitle C, the department believes that EPA should implement regulation of CCR under Subtitle D, using the regulatory improvements proposed previously. The May 22, 2000, EPA report has a key

element on w hy comments are today being solicited. On pages 32214, 32215, and 32232 of the May 22, 2000 Federal Register, EPA announced that it would promulgate additional regulations for CCR landfills and surface impoundments under Subtitle D and explain how the rul e changes would assist the states in better regulating these units. On page 32215, Column 2, of the May 22, 2000 Federal Register EPA stated,

“While these wastes remain exempt from subtitle C, we have further decided to establish national regulations un der subtitle D of RCRA (RCRA sections 1008(a) and 4004(a)) for coal combustion wastes that are disposed of in landfills or surface impoundments or used to fill surface or underground mines.”

In the decade since that time EPA has not promulgated CCR regul ations under Subtitle D. EPA has considered the regulation of CCR three times and failed to promulgate CCR rules Tennessee and other states have filled the regulatory void left by EPA.

Page 35158, Column 3: “Finally, the states have expressed concern th at the RCRA subtitle C requirements will be considerably more expensive for them to implement than a RCRA subtitle D regulation, without providing commensurate benefits.”

We concur with this position. Due to the higher costs that will be passed on to t he public for no increase in the protection of human health or the environment, regulation under Subtitle C instead of Subtitle D is not warranted.

Page 35158, Column 1:
The notice states, “Thus, EPA is seeking data and information, including detailed analyses, of why the subtitle C regulation outlined in today‟s proposal will have the impact that some commenters have identified.”

One important issue is the substantial legal liabilities associated with regulation of CCR via Subtitle C. Given today’s great concerns about “lender, prospective purchaser, adjacent land owner liability,” we are already seeing the reduction of opportunities to reuse/recycle coal ash as well as lenders and buyers stepping away from transactions

on sites with coal ash.

The d epartment reviewed the disposal/corrective action measures in the TVA Kingston Engineering Evaluation and Cost Analysis document prepared by TVA in response to the Kingston coal ash release. In that document the cost to load railcars and dispose of approxi mately 3.4 million cubic yards (yd3) of coal ash was approximately $160 million, an average of approximately $47/yd3. The department ran a cost analysis for shipping TVA Kingston coal ash off

- site to a RCRA Subtitle C disposal site. There are only two comm ercial RCRA Subtitle C landfills within a 500 mile radius of TVA Kingston. Only one could accept coal ash from Kingston and then only a portion of the coal ash. The

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estimated costs for the same amount of coal ash shipped to a RCRA Subtitle C facility was m ore than double the $47/yd 3 and there was not enough capacity for all 3.4 million yds3.

Page 35159, Column 1, EPA notes: “One disadvantage of a RCRA subtitle C approach, compared to a RCRA subtitle D approach, is that the subtitle C approach, in most stat es, will not go into effect as quickly as subtitle D.”

We support EPA’s selection of the RCRA Subtitle D option and agree that new regulations are needed nationally so there is uniformity in management of CCR across the nation as well as consensus on cle an

- up criteria.

Page 35159: “One of the major potential costs under either the subtitle C or subtitle D option is associated with the required closure of all existing surface impoundments that do not meet the rule‟s technical requirements, which EPA is proposing under both the subtitle C and subtitle D co

- proposals.”

Since the disposal of CCR in surface impoundments represents about two

- thirds of all CCR disposal facilities (300 landfills versus 584 surface impoundments), addressing surface impoundment s is critically important. Tennessee has discovered some migration of metals from surface impoundments into groundwater. Surface impoundments are also more likely to have a release to groundwater because most impoundments are unlined and the CCR is carried into the impoundment via water. Gravimetric separation is the primary method used to separate CCR from water.

The opportunity to provide some amount of time to use existing surface impoundments is worthy of consideration. However, it is important that e xisting surface impoundments be either closed or upgraded to new standards if they will be operated for a period of years.

For closing surface impoundments, the CCR generator must make infrastructure changes to handle and transport

CCR before the surface impoundment can be closed. The structural integrity of surface impoundments must be evaluated by an independent professional and the owner/operator must be required to repair and improve the structural integrity of the surface impoundment.

EPA should pr omulgate rules that provide two opportunities for existing surface impoundments; (1) short term use and closure or (2) long term use with design modifications. Surface Impoundments to be used for five years or less after rule promulgation and then closed s hould be required to have a structural integrity analysis with repairs and improvements made providing a dam safety factor of 1.2. Semi

- annual inspections, groundwater monitoring, financial assurance, closure plans, and post closure monitoring and maintena nce should be required.

For surface impoundments to be used for longer than five years, all requirements in the paragraph above apply as well as a requirement to obtain a permit through the public notice/public hearing/public comment process. For this

cat egory, the surface impoundment should be retrofitted with a synthetic liner.

All new surface impoundments must be permitted similarly to a municipal solid waste landfill.

Page 35162, Columns 1, 2, and 3: “(2) many states are developing effective benefi cial use programs which, in many cases, allow the use of CCRs as long as they are demonstrated to be non

- hazardous materials, and . . .”

“EPA‟s May 2000 Regulatory Determination not to regulate various beneficial uses under the hazardous waste requirement

s, and today‟s proposal to leave that determination in place, does not conflict with EPA‟s view that certain beneficial uses, e.g., use in road construction or agriculture, should be conducted with care, according to appropriate management practices, and w ith appropriate characterization of the material and the site where the materials would be placed.”

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“EPA instead is proposing an approach that would allow beneficial uses to continue, under state controls, EPA guidance, and current industrial standards an d practices.”

Tennessee disagrees with EPA’s analysis that regulation of a material as a hazardous waste would lead to an increase in beneficial reuse. EPA appears to be trying to achieve the desired result by creating a new listing category of hazardous /special waste instead of relying on the current waste characterization regulations. The initial indication in Tennessee is that quite the opposite will occur. Lenders, prospective buyers, realtors, etc. are becoming more and more wary of the impact of des ignating CCR as a hazardous waste. This is particularly true where CCR was used as fill material, amendments to concrete and in concrete blocks. The information Tennessee has received to date indicates that most members of the lending, realtor and property management industry do not want to be involved with properties with hazardous waste.

The department supports the retention of the beneficial use exemption provided by the Bevill amendment. If CCRs are regulated under Subtitle C, the department believes the stigma of being a hazardous waste with the associated legal liabilities will have a significant adverse impact on the legitimate re

- use of the CCRs.

Page 35163, Columns 2 and 3: 3. Disposal of CCRs in Sand and Gravel Pits and Large Scale Fill Opera tions Is Not Considered a Beneficial Use.

The use of CCR as a beneficial form of fill material should be allowed as long as the material is non

- hazardous and the placement is constructed (e.g., compacted, etc.) and site conditions are appropriate (water table, etc.). This is a site specific evaluation where alternatives to reach given goals should be evaluated. The European model for using CCRs should be examined. EPA should consider moving away from a focus on disposal and towards resource

conservati on and recovery efforts.

Page 35164, Column 3 EPA briefly notes that, “In Europe, nearly all CCRs are beneficially used, and when used are considered to be products rather than waste.”

Europe generates about 105 million tons of CCRs per year versus the U.S. total of approximately 136 million tons per year. Europe beneficially reuses about 96.3% of its CCRs versus the U.S. where only 44.5% of CCRs are beneficially reused/recycled Europe is managing about 3.9 million tons of CCRs per year for disposal ve rsus the U.S. handling of over 75 million tons of CCRs for disposal per year. The U.S. problem is not one of how to best handle disposal, but rather how to duplicate Europe’s success in avoiding disposal. Many nations in Europe are heavily dependent on c oal fired plants. Some European countries are more reliant on coal fired electric power plants than the United States. The United States should evaluate what Europe is doing to facilitate reuse and recycling of CCR

as well as waste minimization.

Page 35 164, Column 3
EPA notes, “Sweden, for example, actively supports the use of CCRs in road construction, and has conducted long

term tests of its use in this manner.”

EPA should use Sweden’s data and practices to help formulate a national effort to increas e CCR recycling.

Page 35173, Column 1: “Specifically, in addition to EPA placing sites on the NPL due to the disposal or indiscriminant placement of CCRs, at least 12 states have issued administrative orders for corrective actions at CCR disposal sites.”

This is clear evidence that states will take appropriate action if there is a legitimate problem or threat to human health and the environment. It must also be noted that CCRs were not the sole or main contributing factor to a majority of

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these sites t hat are being placed on the NPL. This also adds regulation under Subtitle C is not warranted because EPA has other regulatory paths to pursue where there are threats to public safety and the environment. Releases from CCR disposal units can be controlled and mitigated under current CERCLA regulations and state statutes coupled with the new Subtitle D regulations to ensure proper management going forward.

Page 35174, Column 3: “EPA is proposing to modify the double liner and leachate collection and remo val system requirement by substituting a requirement to install a composite liner and leachate collection and removal system.”

Tennessee agrees with this approach. This requirement and/or an equivalent requirement is identical to Tennessee/s

standard for landfills and should be required in national standards regulating CCRs.

Page 35175, Column 2: “However, under the proposal, existing units would have to meet the groundwater monitoring, corrective action, and other requirements of the subtitle C regula tions to assure that any groundwater releases from the unit were identified and promptly remediated.”

The Department agrees that these standards should be required under national standards regulating CCRs.

Page 35175, Column 3: Special Requirements for Stability of CCR Surface Impoundments We are supportive of these requirements. The department believes the proposed rule should be strengthened to require the owner/operator to notify the state within 24 hours if problems arise and the owner should also be required to follow up with an approved corrective action plan, and initiate corrective actions based on the plan and the level of risk involved (immediately if necessary). If there is a substantial problem that may affect the safety of the local

commun ity, the state and local emergency management agencies should be immediately notified.

Page 35176, Column 3: Wet

- Handling of CCRs, Closure, and Interim Status for Surface Impoundment If surface impoundments must be closed, then a reasonable time per iod to allow for planning closure should be required. Since wet coal ash poses the greatest threat for structural failure and groundwater contamination then these units should be closed as quickly as possible if there is no interest in upgrading them to ne w standards. Tennessee believes it is appropriate to regulate these surface impoundments under RCRA Subtitle D.

Page 35180, Column 1, Proposed Treatment Standards for Non

- Wastewaters (Dry CCRs) : If virtually all dry CCR currently meets the UTS prior to disposal, then it should not be regulated as hazardous waste under RCRA Subtitle C. These wastes can be disposed of in a Subtitle D landfill without further treatment.

Page 35181, Column 2: General Facility Requirements including Location Restrictions

T he department agrees there should be boundary conditions for constructing new CCR surface impoundments and landfills. In the Tennessee solid waste regulations there are buffer requirements for location of new landfills.

Buffer Zone Standards [From Tenness ee Rule 1200

- 1

- 7

- .04(3)(a)] Disposal Facilities must be located, designed, constructed, operated, and maintained such that the fill areas are, at a

minimum:

1. 100 feet from all property lines;

2. 500 feet from all residences, unless the owner of the residential property agrees in writing to a shorter distance;

3. 500 feet from all wells determined to be downgradient and used as a source of drinking water by
humans or livestock;

4. 200 feet from the normal boundaries of springs, streams, lakes, (except that this stand ard shall not apply to any wet weather conveyance nor to bodies of water constructed and designed to be a part of the facility); and

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5. A total site buffer with no constructed appurtenances within 50 feet of the property line.

Page 35216, Table 11: 1) The reg ulatory costs/benefits analyses developed require further scrutiny. Given the information that we reviewed, it appears that EPA did not include, or substantially underestimated, the following potential costs

in their estimate: Cost of transporting CCRs fr om power plants with no on

- site hazardous waste landfill to a commercial hazardous waste landfill. This was included in the RIA. However the RIA based the cost on an average commute distance of only six miles to reach a Subtitle C landfill. The transpor tation costs are a fraction of the probable costs of a Subtitle C option. The RIA, on page 34, notes that there are already 149 plants sending their CCRs to off

- site Subtitle D landfills. These 149 plants probably already transport their waste

more than six miles. If they have to go to a Subtitle C landfill, that distance could dramatically increase, assuming they can find Subtitle C landfills to take the expected 78 million tons of CCRs per year. The RIA, on page 74, assumed that these Subtitle D landf ills would all convert to Subtitle C landfills. We believe that may be overly optimistic and that most will not convert to Subtitle C. Rather, new facilities would have to be built and permitted. If recycling decreases due to the addition of unwarranted regulations, the amount of formerly recycled materials being landfilled will increase substantially. 2) Costs for LDR testing. 3) Costs for LDR treatment. 4) Increased risks of accidents and deaths associated with transporting and handling CCRs on public highways, railways and by water. 5) The impact, and resulting health and environmental costs of increased emissions from transporting CCRs and increased mining due to less re

- use of CCRs. The proposed Subtitle C option will decrease beneficial

and more materials w ill be landfilled that could have been recycled. 6) Increased legal fees and environmental consulting and compliance costs due to the complexity of Subtitle C regulations. Subtitle C is one of the more complex regulatory programs in existence. 7) The pass thr ough economic impact of the increased cost of power generation on the economy should be

calculated and included in the cost estimate. 8) The dost to switch from wet scrubber technology to dry scrubbers for air emission control. 9) The cost to construct Subti tle C compliant wastewater treatment facilities. 10) The increase in the cost of off

- site hazardous waste disposal due to the lack of currently permitted Subtitle C

facilities. 11) The increase in cost of raw materials due to the reduction in the use of CCRs as a substitute. 12) The corresponding increase in cost of products due to use of virgin materials instead of CCRs being re

used. 13) The cost to utilities, businesses, states, and individuals to undertake corrective actions to remedy past legitimate disposal and r e

- use practices.

Page 35216, Table 11: The following beneficial amounts appear to be inaccurate, or not considered, under the Subtitle C option. 1) Groundwater remediation costs avoided. If Subtitle D is properly implemented, this should also be the same as the Subtitle C option. 2) CCR Impoundment Failure Clean

- up costs avoided. The integrity of an impoundment is an engineering, construction, and management issue. These costs, versus the Subtitle D option, appear to be inflated and should be equal to the S ubtitle D option. If the Subtitle D structures are much more likely to have construction type failures, something is wrong in the fundamental standards. In addition, this estimate is skewed by the inclusion of the Kingston disaster and the underlying ass umption of repeated incidents of this magnitude.

Page 35223, Column 1: EPA has requested input on whether or not it would be better to forgo issuing additional regulations. We believe that the Subtitle D option is needed to insure uniform CCR management

.

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Page 35226, Column 3, on Federalism: EPA notes that this proposal may have substantial direct compliance cost on state and local governments and that the federal government may not provide the funds. On August 16, 2010, John Berry, the Director of the U.S. Office of Personnel Management stated, “It is also worth noting that in this time when so many American families are struggling to make ends meet, the President is committed to making sure the Federal government is spending the taxpayers‟ money wisely and carefully, and cutting costs wherever possible.” Mr. Berry’s statement is one that all government agencies should heed. The Subtitle D option would be as protective of human health and the environment at substantially lower implementation costs to both the regulated community and to state regulatory agencies.

Page 35239, 257.2 Definitions: CCR surface impoundment “... a facility or part of a facility which is a ... diked area formed primarily of earthen

materials...”

– TVA built their dikes largely from bottom ash which should be added to the definition. Wording is echoed in 257.40(b).

Page 35243, 257.71 Design Criteria for Existing CCR Surface Impoundments Existing facilities would have to be either closed, or retrofit with a liner/LCS system within f ive years of the effective date of the regulations. Facilities which have a capacity of 20 acre feet or more and have an impoundment depth of five or more feet, or which have a total impounded depth of 20 or more feet must place a report in their operating record (and on their website) containing a detailed narrative of the location, size and use for the impoundment(s), engineering drawings, topographic maps, physical properties of the materials of construction, the methods and dates of construction, existi ng and proposed instrumentation, area

- capacity curves, hazard classification, spillway and diversion design features and calculations, slope stability calculations, closure plan, and a registered PE certification of the design. If the impoundment has a hig h or significant hazard potential, an Emergency Action Plan has to be developed, including contact information, a map of affected downstream area(s), provisions for annual face

- to

- face meeting/exercise involving facility personnel and emergency responders. This would require states without a solid waste permitting program for impoundments to develop one.

We recommend that additional design elements similar to the dam construction standards should be incorporated into the Subtitle D regulations either in t he actual text or incorporated by reference (incorporates the actual standard by citation). One of the primary safety concerns is the potential for the failure of the actual structure. The regulations should specify in the text, or by citing the applicab le standard, the minimum standards for the facility. For the Kingston facility’s failure, the instability was due to the physical nature of the ash, its behavior not as a solid but as a liquid due to a high percentage of water. Another significant the i ssue was the unit’s footprint being adjacent to and in the river bottom. When this type of structure fails, large amounts of escaping materials may present a significant threat to human health and the environment.

Page 35244, 257.72 Design Criteria for N ew CCR Surface Impoundments This would be a new territory for our solid waste program because we have never regulated surface impoundments while still being operated as surface impoundments. The rule requires a composite liner with a LCS between the plasti c and clay components. Without a secondary barrier (FML or geotextile) between the bottom of the drainage layer and the clay component, migration of drainage media (i.e., sand or gravel) can result in possible operational problems over time. For the rest o f the criteria for new impoundments, see the preceding section.

Page 35245, 257.80 Air Criteria This represents the first time that we have seen air monitoring requirements in Subtitle D. The proposed standard is a thirty

- five micrograms per cubic meter fugitive dust limit or an SIP. Does EPA intend to require PM 2.5 and PM 10 “met” stations downwind, or just an approved, written plan to keep the ash damp? It is noted that dust control measures must be certified by an independent PE, with documentation be ing made a part of operating record and published on the company website.

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Page 35252, 257.100 Closure Criteria The proposed rule makes provisions for increasing (for cause) or decreasing (per a successful demonstration) the 30 year Post Closure care perio d. It requires PE certification at end of PC care period, to be placed in the operating record and on the facility’s website. This would require states without a solid waste permitting program for impoundments to develop one.

Page 35262, Column 1, LDR: Subjecting CCR to land disposal restriction regulations will increase the costs of handling CCR. This additional regulation is not warranted because these materials, if analyzed according to the current regulations, would not be a hazardous waste.

Co mments on the April 30, 2010 Regulatory Impact Analysis (RIA)

RIA, Page 8: “Furthermore, EPA does not believe that market “stigma” of CCR regulation under RCRA Subtitle C

– as alleged in

numerous stakeholder letters to the EPA in 2009 will result in a re duction in future annual CCR beneficial use, because the proposed rule designates the Subtitle C option as a “special waste” rather than a “hazardous waste.”

Regardless of what the material is called, when businesses and the public realize that it is regu lated under Subtitle C, subject to the requirements of thousands of pages of regulations and associated guidance and policies, we believe that stigma will be an issue.

RIA, Page 10: Page 10 of the RIA notes the Subtitle C option will have a regulatory cos t of $1.474 trillion. The Subtitle D option has a projected regulatory cost of $587 billion while the Subtitle D Prime option has a projected regulatory cost of $236 billion. On the basis of cost, and equivalent protection, Subtitle D or D Prime should b e the preferred option.

RIA, Page 25: EPA notes that all three options use the same set of 10 custom

- tailored engineering controls. This supports that the options are equivalent in protection.

RIA, Pages 42 & 43: EPA notes that 149 plants out of 467 pla nts send their CCRs for off

- site disposal. That is approximately 32%. This appears to conflict with the numbers on page 74 (12%).

RIA, Page 74: In the first sentence on page 74, EPA states: “EPA assumed that Subtitle C options add extra cost to (a) tru ck hauling to offsite disposal, and (b) all offsite landfills must become Subtitle C permitted.” (Emphasis added)

EPA appears to be assuming that all sites will either convert their on

- site land unit(s) to Subtitle C or will haul their

CCRs to the same o ffsite landfill they utilize today which "must become RCRA Subtitle C permitted." EPA also appears to assume that 88 percent of CCRs in the Subtitle C option will go to on

- site disposal and that only 12 percent will have to go off

- site via the average "si x mile" route (used by EPA to calculate costs) to the newly permitted Subtitle C units. In Tennessee we believe most current Subtitle D units, due to federal and state regulatory requirements as well as local conditions, will not be able to convert to Sub title C. The six mile mileage estimate is too low. We would suggest an average assumption of 150 miles to reach a permitted Subtitle C unit.

The cost per ton is $.19/ton/mile in the assumptions. In the calculations right below it, $.09/ton/mile is u sed. This is

not consistent.

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RIA, Page 133: The RIA assumes by probabilistic modeling that catastrophic impoundment failures will occur and bases a monetary benefit (cost avoidance) of such failures due to regulation as CCR Impoundment Failure Cleanup Co sts Avoided. Based on the assumptions that 10 percent and 20 percent of the 96 high risk impoundments will fail, one catastrophic failure will occur on average every one or two years. Based on recent history the model is too aggressive and the resulting c ost benefits are incorrect and should not be used to justify the regulation.

RIA, Pages 178 & 184, Exhibits 5C

- 16 & 5C

- 19: The model used to predict an increase in beneficial reuse of CCP is not realistic or factually based. Basing an

increase in the be neficial reuse of CCP (which approaches 92 percent by the year 2061) that includes in the model the present day volumes used in structural fills and embankments (19 percent of the total) that is specifically excluded as a beneficial reuse in the current pr oposed regulation is inappropriate and leads to a false conclusion and inflated monetary benefits.

RIA, Pages 180 & 187, Exhibits 5C

- 17 & 5C

- 21: EPA’s model projects the regulatory induced beneficial use of CCP to increase over time. We believe that the opposite will occur as there will be a considerable amount of stigma attached to the reuse of CCP if it is designated as a hazardous waste. We would expect a steady decline over time. However, EPA’s model predicting a decrease

in future CCR beneficial re use because of stigma assumes a constant annual reduction which eventually results in an increase in beneficial use over time. A more realistic approach would be for the stigma effect to show a steady decrease in the beneficial reuse of CCR. The assumpti ons used have biased the results toward a decrease in the monetary significance of the stigma effect.

RIA, Page 228: EPA states, “The RIA for today’s action did not evaluate the customer service area populations for the 495 plants.”

We recommend that this issue be evaluated.

RIA, Appendix P, page 433: It is noted that EPA is required to perform either qualitative or quantitative estimation of the potential effects of the proposed rule on economic productivity, economic growth, employment, job creation , or international competitiveness if a 0.25 percent of Gross Domestic Product (GDP) threshold is reached. If the 1988 cost estimate numbers are used, the threshold has been passed. If more accurate numbers are used in the current estimate, the threshold is also passed. This analysis is required by federal law, and should be performed. Even if lower numbers are used, the impact is close enough to the standard to recommend the analysis be completed. Federal oversight appears to be the driving force behind EPA’s wish to select t he Subtitle C option. Rather than imposing trillions of dollars of cost to achieve that, it would be much simpler and cost effective to amend the statute if that is EPA’s desired result. The states and EPA have worked very well together in the Subtitle C program over the last three decades. There is a proven record to teamwork in many environmental programs, such as in the air and water programs. Opposition to amending the statute to allow EPA oversight authority for Subtitle D would be
miniscule, or no n

- existent, compared to the opposition to the current Subtitle C option.

The Tennessee Department of Environment and Conservation appreciates the opportunity to provide comments for the proposed EPA CCR rules.