# Comment Summary and Response Document

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

Proposed Rule (Docket # EPA

- HQ

- RCRA

- 2009

- 0640 Docket # EPA

- HQ

- RCRA

- 2011

- 0392 Docket # EPA

- HQ

- RCRA

- 2012

- 0028)

Volume 17 : EPA’s Assessment Program

December 2014Background

The U.S. Environmental Protection Agency (Agency or EPA) proposed regulations for the management of coal combustion residuals (CCRs) which was published in the Federal Register on June 21, 2010. This proposal, under the Resource Conservation and Recovery Act (RCRA), addressed the risks from disposal of CCRs generated from the combustion of coal at electric utilities and from independent power producers. Two regulatory options were proposed. Under the first option, EPA proposed to reverse its August 1993 Bevill Regulatory and May 2000 Bevill Regulatory Determinations regarding CCR and to list CCRs as special wastes subject to hazardous waste regulations under subtitle C of RCRA when destined for disposal in landfill or surface impoundments. Under the seco nd option, EPA proposed to leave the Bevill determination in place and regulate the disposal of CCR as non

- hazardous solid waste under subtitle D of RCRA by issuing minimum national criteria. Both options would require composite liners, groundwater monito ring, structural stability requirements, corrective action, and closure/post closure care. EPA also solicited comments on all aspects of both proposed options. The Agency received over 450,000 comments on the proposed rule. The majority of the comments focused on which regulatory path the Agency should pursue for regulating CCRs, i.e., RCRA’s subtitle C or subtitle D. EPA also conducted eight public hearings and took additional comments on the proposed rule. EPA has established three dockets for this regulatory action under Docket ID No. EPA

- HQ

- RCRA

- 2009

- 0640, Docket ID No. EPA

- HQ

- RCRA

- 2011

- 0392, and Docket ID No. EPA

- HQ

- RCRA

- 2012

- 0028. All documents in these dockets are available at http://www.regulations.go v . Although listed in the index, some information is not publicly available, e.g., Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically in http://www.regulations.gov or in hard copy at the OSWER Docket, EPA/DC, WJC West Building, Room 3334, 1301 Constitution Ave., NW, Washington, DC. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is (202) 566

– 1744, and the telephone number for the OSWER Docket is 202

– 566

– 0276. After reviewing all the comments and additional data received, EPA is promulgating a final rule to regulate the disposal of CCR as solid waste under Subtitle D of RCRA. This rule addresses the risks from structural failures of CCR surface impoundments, groundwater contamination from the improper management of CCR in landfills and surface impoundments and fugitive dust emissions. The Agency has deve loped seventeen volumes of summarizing comments on major topics covered in the proposed rule (see table below) and the Agency’s responses to those comments, as well as a separate volume summarizing comments provided during public hearings. Since EPA is fi nalizing a rule under subtitle D of RCRA, only those comments submitted on the proposed subtitle C rule that are also applicable to the final rule are addressed in the comment and response documents.Volume Topic

1 General Comments

2 RCRA Subtitle D Regulatory Approach (Legal issues/Self

- implementing

Design/Reliance on Certifications by an Independent Professional Engineer/Recordkeeping, State Submissions, Posting to the Internet/Finance Assurance/Alternative Approaches) 3 Scope and Purpose/Effective Dates/Applicability/Off

- site Disposal/Definitions 4 Location Restrictions 5 Design Criteria: Liners and Leachate Collection Systems 6 Design Criteria: Structural Integrity
7 Operating Criteria: Endangered species/Surface water/Ins pections/Run

- on

Run

- off 8 Operating Criteria: Air Criteria 9 Groundwater and Corrective Action 10 Closure and Post

- Closure Care 11 Additional Comments including Overfills/ Harmonization with ELG

. 12 Beneficial Use 13 Risk Assessment 14 State Authorities, Programs and Regulations 15 Compendium of Damage Cases 16 Regulatory Impact Analysis (RIA) 17 EPA’s Assessment Program

This volume of the Response to Comments Document summarizes comments received on the operating criteria related to EPA’s Assessment Program. In March 2009, the Agency’s CCR Impoundment Assessment Program (herein referred to as the Assessment Program) was initiated. This effort was in response to the December 22, 2008 dike failure of a coal ash impoundment a t the Tennessee Valley Authority (TVA) Kingston Fossil Plant in Harriman, Tennessee where over one billion gallons of coal ash slurry were released, affecting more than 300 acres, including residences and infrastructure. The TVA Kingstonimpoundment failu re ignited a nation

- wide concern over the safety of coal ash impoundments;

and EPA was tasked with determining whether the potential existed for similar impoundment failures at other coal

- fired power plants. In response, EPA developed the Assessment Progra m to evaluate the structural stability and safety of all coal ash impoundments throughout the country. 1 As of September 2014, 559 impoundments had been assessed at over 230 coal

- fired power plants. The Assessment Program began as a separate effort from t he development of this final rule. 2 However, the information and experience developed in carrying out the site assessments during the Assessment Program is directly relevant to many of the issues addressed in this rulemaking, and provide further technical support for many of the technical criteria in the proposed rule. Consequently, many of the final technical criteria were developed in direct response to findings from the site assessments. For example, several of the technical criteria contained in the pro posed rule were modified to account for the widely accepted engineering methodologies and practices used in conducting the site assessments, as well as current facility practices documented during the assessments. In a few instances, the criteria were supp lemented to better align the technical requirements with the Assessment Program. Included among the final criteria that directly rely on the Assessment Program are the provisions relating to structural integrity assessments to address factors of safety, pe riodic reassessments, hazard potential classifications, and the hydrologic and hydraulic capacity of CCR surface impoundments. These requirements are further discussed in Unit IV of this preamble. 

# CommentWorks ® 

# Issue Report

Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06300

- 70 , EPA

- HQ

- RCRA

- 2009

- 0640

- 06833

- 16 , EPA

- HQ

- RCRA

- 2009

- 0640

- 06398

- 7 , EPA

- HQ

- RCRA

- 2009

- 0640

- 06398

- 86 , EPA

HQ

- RCRA

- 2009

- 0640

- 06833

- 16 , EPA

- HQ

- RCRA

- 2009

- 0640

- 06863

- 35 , EPA

- HQ

- RCRA

2009

- 0640

- 06987

- 15 , EPA

- HQ

- RCRA

- 2009

- 0640

- 08253

- 2 , EPA

- HQ

- RCRA

- 2009

- 0640

- 08253

- 29 , EPA

- HQ

- RCRA

- 2009

- 0640

- 08255

- 1 , EPA

- HQ

- RCRA

- 2009

- 0640

- 09885

- 23 , EPA

HQ

- RCRA

- 2009

- 0640

- 09885

- 34 , EPA

- HQ

- RCRA

- 2011

- 0392

- 0215

- 3 , EPA

- HQ

- RCRA

- 2011

- 0392

- 0223

- 2 , EPA

- HQ

- RCRA

- 2011

- 0392

- 0227

- 1, EPA

- HQ

- RCRA

- 2011

- 0392

- 0238

- 8 , EPA

HQ

- RCRA

- 2011

- 0392

- 0240

- 4 , EPA

- HQ

- RCRA

- 2012

- 0028

- 0057

- 3 , EPA

- HQ

- RCRA

- 2012

- 0028

- 0067

- 3 , EPA

- HQ

- RCRA

- 2012

- 0028

- 0069

- 4 , EPA

- HQ

- RCRA

- 2012

- 0028

- 0075

- 3 , EPA

HQ

- RCRA

- 2012

- 0028

- 0079

- 3 , EPA

- HQ

- RCRA

- 2012

- 0028

- 0080

- 3 , EPA

- HQ

- RCRA

- 2012

- 0028

- 0084

- 4 , EPA

- HQ

- RCRA

- 2012

- 0028

- 0103

- 7

1 The focus of the Assessment Program was to assess the structural integrity of CCR impoundments meeting specified criteria. The Agency did not include, as part of its evaluation, the assessment of other conditions/characteristics of the impoundment that may pr esent potential risks to human health or the environment, i.e., groundwater contamination due to an insufficient liner design.
2 EPA issued two Notices of Data Availability (75 FR 35128 (October 21, 2 0 10) and 78 FR 46940 (August 2 , 2013 ) ) specifically so liciting comment on the information generated by the Assessment Program and the materials posted on our website.

### Organization: S outhern Company on behalf of itself and its four subsidiaries: Alabama Power

Company, Georgia Power Company, Gulf Power Company, and Mississippi Power Company , Dominion Resources Services, Inc. , Duke Energy, Avista Corp , Entergy Services, Inc , Xcel Energy , LG&E and KU Energy LLC , Progress Energy, Inc. , Ameren Corporation , Entergy Services, Inc. (Entergy) , Tri

- State Generation and Transmission Association, Inc. , American Electric Power, Ameren Missouri, National Rural Electric Cooperative Association (NRECA ), Xcel Energy , MidAmerican Energy Holdings Company (MidAmerican) , PPL Services Corporation , Commenter: Electric Utility Compan ies Comment Excerpt Text : EPA’s inspections have yet to identify any situation suggesting a discernible risk of failure comparable to the incident at TVA’s Kingston facility

. EPA has yet to identify any facility as being in “unsatisfactory” condition, i.e., with a structural issue requiring immediate attention. EPA’s inspections ha ve shown t hat facility owners share EPA’s concerns for safety and environmental protection and will work cooperatively with EPA and others to address any issues of concern EPA Response : The Agency agrees that the Coal Ash Site Assessment P rogram did not identify an y CCR impoundments which had a condition rating of unsatisfactory. The A gency also acknowledges that the utility industry was cooperative throughout the Coal Ash site assessment program.


### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06300

- 71 

### Organization: Southern Company on behalf of itself and its four subsidiaries: Alabama Power Company, Georgia Power Company, Gulf Power Company, and Mississippi Power Company Commenter: Electric Utility Company Comment Excerpt Text : Southern Company policy requires annua l inspections by dam safety experts and weekly inspections by plant s taff. Southern Company has inspected its ash ponds and gypsum ponds periodically for many decades

. Ash ponds may vary in size and configuration, but each one functions essentially as a dammed reservoir. The primary federal regulator of privately owned reservoirs is FERC, and FERC has a long

- standing dam safety program. In Southern Company’s view, FERC provides a more appropriate model for electric utility ash ponds than the MSHA and othe r agencies. EPA Response : The Agency acknowledges that the Southern company has implemented a comprehensive inspection program of its CCR units. The Agency acknowledges that FERC has established sound inspection guidance for reservoirs. The Agency does no t agree that MSHA guidance on inspections is not relevant to the inspection of CCR impoundments. Rather the Agency has adopted elements from both the FERC and MSHA guidances in the development of the rule’s inspection requirements.

### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06300

- 80



### Organization: Southern Company on behalf of itself and its four subsidiaries: Alabama Power Company, Georgia Power Company, Gulf Power Company, and Mississippi Power Company Commenter : Electric Utility Company Comment Excerpt Text : Alabama Power has constructed new impoundments at three of its six coal

- fired power plants to contain gypsum produced in association with recently constructed scrubbers

. Prior to building those impoundments, Alabama Power reviewed site spec ific conditions and built them in accordance with sound engineering judgment appropriate to the local geology, using existing Subtitle D criteria as a guide. EPA Response : The Agency acknowledges that Alabama Power has constructed three impoundments to contain gypsum generated by scrubbers which appear to meet RCRA Subtitle D criteria at the time the comment was submitted.


### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06315

- 39 

### Org anization: Earthjustice et. al. Commenter : Advocacy Group Comment Excerpt Text : [The coal ash site assessment reports noted] In addition to the NPDES violations noted above, some high and significant hazard dams have unpermitted seeps that discharge into surface water in violation of the Clean Water Act. Such violations would also constitute illegal open dumping under section 25 7.3

- 3. EPA Response : The Agency acknowledges that some Coal Ash Site Assessment reports do note that coal ash impoundments were discharging from see p s. The C oal A sh S ite Assessment reports did not , however , determine if violations of the Clean Water Act w ere occurring. Such determinations are made as a result of Clean Water Act inspections at a specific facility.


### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 10483

- 49 , EPA

- HQ

- RCRA

- 2009

- 0640

- 10483

- 74 , EPA

- HQ

- RCRA

- 2011

- 0392

- 0211

- 1 

### Organization: Utility Solid Waste Activities Group (USWAG) et al. Commenter : Trade Association Comment Excerpt Text : In fact, over the last year and a half since the TVA ash release, EPA has been conducting comprehensive structural integrity assessments of utility CCR impoundments across the country. The results of EPA‘s investigation have not, to date, identified any CCR impoundment that presents the imminent threat of a catastrophic release similar to that which occurred at TVA‘s Kingston facility

. It is extremely important to put this d esignation in the proper context, as many environmental and other groups have mischaracterized the designation of a facility as posing a “high hazard potential” to suggest that the structure is somehow in imminent danger of collapse. That is a false and mi sleading characterization. As EPA’s assessment report webpage correctly explains, this evaluation is based strictly on the probable consequence of a dam failure and does not provide any indication of the possibility or likelihood that any particular dam wi ll fail.Furthermore, of the 47 impoundments that were determined to pose a high potential hazard, only

9 units at 6 facilities were rated “poor.” From available information, each of these units were rated “poor” due primarily to their lack of design and c onstruction data and fairly minor maintenance and/or monitoring gaps (e.g., vegetation and animal control at the impoundment) in their general operations. EPA Response : The Agency agrees tha t the Coal Ash Site Assessment P rogram did not identify any CCR impoundments which had a condition rating of unsatisfactory. The Agency agrees with USWAG that a CCR unit classified as having a Hazard Potential Rating of High is based strictly on the probable consequence of a dam failure and does not provide indication of the possibility or likelihood that any particular dam will fail

. The Agency acknowledges that some CCR impoundments were given condition ratings of fair or poor in the Coal Ash site assessment program. It should be poin ted out that the main reason units were rated poor was the lack of data to confirm their structural stability.


### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 10495

- 6 

### Organization: Earthjustice, et. al. Commenter : Advocacy Group Comment Excerpt Text : EPA evaluated CCR surface impoundments, and found that at least 49 of these had a “high hazard potential,” which means that a structural failure would likely cause loss of human life.

... While a hazard potential rating does not measure the actual condition o f the impoundment, the structural integrity of 22 of 37 impoundments recently inspected by EPA earned a “fair” or “poor” rating. EPA Response : The A gency acknowledges that some CCR impoundments were given condition rat ings of fair or poor in the Coal Ash site assessment program. It should be pointed out that the main reason units were rated poor was the lack of data to confirm their structural stability. The Coal Ash Site assessment program did not identify any CCR impoundments which had a condition ratin g of unsatisfactory.


### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0163

- 10 , EPA

- HQ

- RCRA

- 2011

- 0392

- 0163

- 5 

### Organization: Ohio Environmental Protection Agency Commenter : State Government Comment Excerpt Text : Ohio EP submitted comments on a draft Coal Ash site Assessment report for the Conesville Generation Station, Muskingum River Power Plant, JM Stuart Station, W.C. Beckjord Station, Miami Fort Generating Station, and Kyger Creek Power Station facilities. It should be noted that of the ten "poor" ratings noted in U.S. EPA's inspections, seven of the reports specifically noted that the rating was based on the need for additional analysis.EPA Response : All comments on each draft report were placed on the Agenc y’s website. E ach

facility ’s final report responded to each comment submitted by the state or from the utility. See EPA, Coal Combustion Residuals Impoundment Assessments Reports, available at http://www.epa.gov/osw/nonhaz/industrial/special/fossil/surveys2/index.htm

. The Agency acknowledges that the basis for the poor ratings was the lack of information.


### C omment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0182

- 1 , EPA

- HQ

- RCRA

- 2011

- 0392

- 0182

- 2 

### Organization: Indianapolis Power & Light Company's (IPL) Commenter : Electric Utility Company Comment Excerpt Text : The EPA contractors' dam safety inspection rep orts provide the inspectors' opinion of the hazard rating as well as their opinion of the condition of inspected surface impoundments based upon their visual observations of the surface impoundments and the condition rating based on whether design data was ava ilable for review. For example; the conditions of some CCRs surface impoundments are said to be fair based upon site observations, but are rated as in poor condition based solely upon the lack of docu mentation about the design of the CCRs surface impoundme nts. Submittal includes specific comments on draft Coal Ash Site Assessment reports. EPA Response : The Agency acknowledges that the basis for the poor ratings was the lack of information. All comments on each draft report were placed on the Agency’s we bsite. E ach facility ’s final report responded to each comment submitted by the state or from the utility. See EPA, Coal Combustion Residuals Impoundment Assessments Reports, available at http://www.epa.gov/osw/nonhaz/industrial/special/fossil/surveys2/index.htm


### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0191

- 8 

### Organization: Michigan Department of Environmental Quality (MDEQ) Commenter : State Government Comment Excerpt Text : The MDEQ agrees with the conclusions and recommendations in the [Coal ash site assessment] reports and would note that both the MDEQ and the respective utilities had previously undertaken reviews of the stability of the impoundments and iden tified areas of concern. Due to ongoing work by Consumers and Detroit Edison, several of the recommendations made in the site assessment reports have already been implemented. For those recommendations that have not yet been addressed, the Consumers Energy and Detroit Edison have provided timeframes for plan submittals or proposed work that they and the MDEQ believe will address the remaining recommendations

. EPA Response : The Agency appreciates that MDEQ agrees with the conclusions and recommendations of t he reports. The Agency also acknowledges that MDEQ is cooperatively working with Consumers and Detroit Edison to address any outstanding recommendations.

### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0219

- 13 , EPA

- HQ

- RCRA

- 2011

- 0392

-

0219

- 2 

### Organization: Commonwealth of Kentucky, Department for Environmental Protection, Division of Waste Management Commenter : State Government Comment Excerpt Text : the State generally agreed with coal ash Site assessment reports conducted in Kentucky. The Commonwealth beli eves that EPA designated some structures in Kentucky as fair or poor condition assessment rating because they lacked some information to make a definitive determination. Initially, if a facility owner had only Hydrologic and Hydraulic data but no geotechni cal information, they were given a pending condition (“Conditionally Poor”) and time to provide the report. After the allotted time, if the facility owner provided the geotechnical report, the agency moved the condition to “Fair”. Otherwise, the condition remained “Poor”. While the Commonwealth agrees that the studies should be done for high or significant hazard structures, the Commonwealth does not agree with the fair or poor rating. The lower ratings could imply to the public that the dam stability is failing or near failure. The agency should develop better terminology to describe the different situations. EPA Response : Units were given “ Poor ” rating s based on the lack of information need ed to independently verify the structural stability of a unit. Companies were given time to submit required data to conduct verification, and were only given a “ Fair ” r ating if the submitted data still did not include enough data to verify site conditions. The Agency does not agree that there was a need to better clarify what a “ Poor ” rating meant regarding the safety of a unit. The Agency posted a description of all the terms used in the Coal Ash site assessment program on the EPA webpage and reiterated th e definition of terms in each report.


### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0233

- 3 

### Organization: MidAmerican Energy Holdings Company Commenter : Electric Utility Company Comment Excerpt Text : MidAmerican notes, however, that with respect to the Impoundment Assessment Reports there remain fundamental disagreements relating to certain conclusions and classifications made by EPA’s contractors for the MidAmerican facilities. MidAmerican notes that multiple contractors, and in some cases, subcontractors, were ut ilized to conduct these assessments; as such, there is an inherent degree of variability and subjectivity based on the individuals and firms utilized to perform these assessments

. EPA Response : The Agency disagrees that the Coal Ash site assessment reports include unacceptable variability due to the Agency’s use of multiple engineering contractors. All Agency contractors were given specific guidance form the Agency regarding the conduct of each site assessment report. Since final reports reflect the best professional judgement of ProfessionalEngineers, it is expected that some minor degree of variability in final conclusions would occur.

However , the Agency concludes that such minor variabili ty did not materially alter the general findings of each report. Finally , each utility was given an opportunity to submit comments on the draft report and those comments along with the final report were posted on the internet in total so the public could e valuate how the final report incorporated or disagreed with comments.


### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0238

- 8 

### Organization: Southern Company Commenter : Electric Utility Company Comment Excerpt Text : Alabama Power : EPA’s contractors have inspected the ash and gypsum ponds at all six of APC’s coal

- fired power plants. EPA also has issued final or draft inspection reports for all six plants. In all instances, EPA’s inspectors found the facilities to be in satisfactory condition, which is the best possible rating. Georgia Power : EPA’s contractors have inspected twenty

- five separate CCB management units at ten Georgia Power coal

- fired plants. The Georgia Power results were very favorable, with twenty

- two out of twenty

- five CCB surface impoundments receiving a satisfactory rating

– the highest rating possible. Two Georgia Power surface impoundments received a fair rating score, which is still a favorable rating, indicating that the ponds are safe. One Georgia Power surface impoundment, located at Plant Hammond , received a poor rating. However, this rating was conditional, and the consultants recognized that if no changes were made, any ash released to the environment during a seismic event would be minimal. Gulf Power : The final inspection report found that the Plant Smith CCB surface impoundment and its embankments are satisfactory for continued safe and reliable operation, with no apparent existing or potential management unit safety deficiencies. Mississippi Power : The final report determined the facility to be satisfactory, which is the best available rating EPA Response : The Agency acknowledges the favorable results of coal ash site as sessments conducted at Southern C ompany facilities.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0239

- 16 

### Organization: Earthjustice, et. al. Commenter : Advocacy Group Comment Excerpt Text : Historically the MSHA has not inspected the CCR impoundments and lacks authority, jurisdiction and expertise to conduct such inspections

. Second, the accident and failure experience of several hundred Coal Waste Impoundments have in the past and continue to prove hazardous to persons living downstream and in the surrounding communities. By analogy, the CCR impoundments similarly pose hazards to persons downstream and in the surroundin g communities

. The EPA inspection reports strongly suggest that coal ash as currently being managed creates risk of large scale releases of toxic constituents.The fact that EPAs most recent update of ponds posing significant hazards increased from 60 to

188 coupled with the fact that 102 of the significant hazard ponds were previously unrated again suggest that hazardous risks have been undetected for years in the absence of adequate federal or state oversight Further, the EPA inspections have identified improper management of CCRs which increases the risks of large

- scale release of toxic constituents and EPA inspections finds this failure is on a broad scale

. EPA Response : The Agency has not suggested that MSHA should have the regulatory lead to inspect C CR impoundments. Rather the Agency reviewed the MSHA inspection guidances to determine what components of inspections of earthen embankments should apply to CCR impoundments. The Agency did review the failure rates of coal slurry impoundments. The Coal A sh site assessment program did not however find that the failure rate of coal slurry ponds was similar to the failure rate of CCR impoundments. The Agency does not agree that the overall risk of failure was increased solely due to the fact that as the coal ash site assessment program proceeded, more CCR units were given hazard potential ratings. Such ratings only address what would happen if a failure were to occur. The coal ash site assessment reports did issue condition ratings for each unit, and no uni ts were rated unsatisfactory. The Agency does not agree that the Coal Ash Site Assessment reports find that there is significant mismanagement of CCR impoundments. These reports did find that in certain circumstances CCR units did release wastes into the environment.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0239

- 4 , EPA

- HQ

- RCRA

- 2011

- 0392

- 0239

- 6 , EPA

- HQ

- RCRA

- 2011

- 0392

- 0239

- 7 , EPA

- HQ

- RCRA

- 2011

- 0392

- 0239

- 8 , EPA

- HQ

- RCRA

2011

- 0392

- 0239

- 9 

### Organization: Earthjustice, et. al. Commenter : Advocacy Group Comment Excerpt Text : As described below, the results of the EPA contractors’ inspections indicate a significant level of mismanagement of high and significant hazard ponds and a heightened risk to human health and the environment that was not known at the time of EPA’s publication of its proposed rule in June 2010. Therefore EPA should consider all data and findings contained in these inspection reports in its determination as to whether CCR should be listed as a hazardous waste pursuant to 40 C.F.R. § 261.11(a) (3). EPA’s most recent updates in February and October 2011, for example, increased the number of significant hazard ponds three

- fold, from a total of 60 ponds in 2009 to 188 ponds. One hundredand two of the significant hazard ponds were previously unrate d, as were eight of the ponds that

are now rated high hazard EPA’s inspections have not only identified ‘plausible” types of improper management, the inspection reports demonstrate that coal ash is actually subjected to widespread improper management that substantially increases the risk of large

- scale release of toxic constituents listed in appendix VIII

. EPA has determined that 103 coal ash ponds (28 percent) are in poor condition. There have been historical releases at seven ponds that are in poor condit ion

. EPA must consider the inspection and condition of Tennessee Valley Authority (TVA) surface impoundments The inspection reports of 374 ponds illustrate the causal relationship between the absence of adequate state regulation of CCRs and the heightened risk posed to human health and the environment through mismanagement of CCRs in poorly maintained surface impoundments

. While some of EPA’s inspection reports include an inundation map, the majority of reports do not. EPA Response : The Agency did review th e data contained in the Coal Ash site assessment reports in its determination of how to regulate CCRs. The Agency does not agree that the overall risk of failure was increased solely due to the fact that as the coal ash site assessment program proceeded, more CCR units were given hazard potential ratings. Such ratings only address what would happen if a failure were to occur. The coal ash site assessment reports did issue condition ratings for each unit, and no units we re rated unsatisfactory. The Agency does not agree that the Coal Ash Site Assessment reports find that there is significant mismanagement of CCR impoundments. These reports did however find that in certain circumstances CCR units did release wastes into the environment. The basis for the “ poor ” ratings was the lack of information not unacceptable performance. No units were given a condition rating of unsatisfactory. The Agency acknowledges that there have been historical releases at seven CCR impoundment s which have a “ poor ” condition rating. EPA did consider the inspection and condition of Tennessee Valley Authority (TVA) surface impoundments in the development of this rule. The coal ash site assessment program did not evaluate how states regulated CCR i mpoundments. These reports should not be used to make conclusions on whether a state regulatory program is adequate. Coal Ash site assessment reports did not require utility companies to provide inundation maps. Each report however did establish a hazard potential rating for each CCR unit and in making such a rating, the Agency’s contractor engineers did assess the potential effects of a potential failure of a unit on downstream environment and population.

### Comment Number: EPA - HQ - RCRA - 2011 - 0392 - 0241 - 2



### Organization: Basin Electric Power Cooperative (Basin Electric) Commenter : Electric Utility Company Comment Excerpt Text : The Specific Site Assessment for Coal Combustion Waste Impoundments at Basin Electric's Leland Olds Station was completed by the EPA i n July 2011. The report included recommendations and actions that should be completed to ensure stability of the pond. In an August 19, 2011 letter to the EPA (copy attached), Basin Electric set forth a plan to address each of the corrective measures. All of the corrective measures will be implemented by September 1, 2012

. EPA Response : T he Agency acknowledges that Basin electric implemented all of the site assessment recommendations

. 

### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0242

- 1 

### Organization: PPL Services Corporation Commenter : Electric Utility Company Comment Excerpt Text : PPL Montana’s Colstrip plant was inspected by one of EPA’s consultants in June 2009. See EPA assessment report webpage for the inspection results. The Final Report issued in September 2009 by the consultant rated the impoundments at Colstrip as Fair. Fair is defined as “Acceptable performance is expected under all required loading conditions (static, hydraulic , seismic) in accordance with the applicable safety regulatory criteria. Minor deficiencies may exist that require remedial action and/or secondary st udies or investigations.” PPL Montana developed an action plan to address the minor deficiencies and to complete the secondary investigations. PPL Montana completed all those actions within the next 6 months and in May 2010 provided a final update to EPA a nd Montana DEQ, who oversees the compliance actions at this site, documenting the actions that were completed

. EPA Response : The Agency acknowledges that PPL did address the recommendations noted in the site assessment report.


### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0254

- 3 

### Organization: Dominion Resources Services, Inc. Commenter : Electric Utility Company Comment Excerpt Text : Between April and August 2010, all eight of Dominion's surface impoundments were assessed by one of EPA's engineering con sultants, O'Brien & Gere. No impoundment was identified as unsatisfactory. Two impoundments were provided with immediate corrective action recommendations. One impoundment was recommended for erosion control and embankment shoring, which Dominion had alrea dy self

- identified and had implemented a corrective measure plan. The other impoundment was recommended for enhanced engineering analysis, which also has been completed. One long

- term recommendation identified in the O'Brien & Gere assessments remains open . That recommendation conflicts witha Chesapeake Bay Preservation Act provision, and Dominion is currently working with local

authorities to resolve the issue

. EPA Response : The Agency acknowledges that Dominion did address the recommendations noted in the site assessment report and is finalizing the one outstanding issue.


### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0256

- 1 

### Organization: Louisiana Department of Environmental Qualit y (LDEQ) Commenter : State Government Comment Excerpt Text : LDEQ has reviewed responses and action plans from Louisiana Generating LLC on the April 2011 EPA assessments of Big Cajun II, and from Cleco Corporation on the July 2011 assessments of Dolet Hills Power Station and the Brame Energy Center. LDEQ believes th at satisfactory progress is being made by both companies to implement EPA's recommendations regarding CCR impoundments at each site. Moreover, LDEQ does not agree with EPA's characterization of the condition of some impoundments as "Poor" based solely on a lack of documentation. A lack of documentation may indicate "Insufficient information", but it does not mean a particular impoundment is actually in poor condition. Conclusions such as this are misleading and should be revised. EPA Response : The Agency acknowledges that progress has been made to implement recommendation in the Coal Ash site assessment reports for Big Cajun , Dolet Hills, and Brame. The Agency does not agree that the “ poor ” rating s need to be altered. A condition rating of
“ Poor ” was given to facilities where a lack of information did not allow for independent verification that units met Factors of Safety. A “ poor ” rating did not however mean that any unit was structurally unsound.


### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0262

- 4 

### Organization 1 

### : Florida Electric Power Coordinating Group, Inc. 

### Commenter 1 : James Vick Commenter Type: Utility company/ Trade Association Comment Excerpt Text : Gulf Power : On July 6, 2010, EPA’s contractor inspected the CCR surface impoundment at Gulf Power’s Lansing Smith Plant (“Plant Smith”) located in Southport, Bay County, Florida. The final inspection report found that the Plant Smith CCR surface impoundment and its embankments are satisfactory for continued safe and reliable operation, with no apparent existing or potential management unit safety deficiencies. Most recommendations for the facility had been addressed before the final report was prepared. Tampa Electric : In March 2011, EPA’s contractor conducted a site inspection and evaluation of the operational ash impoundments at the Tampa Electric Big Bend Power Station in Apollo Beach, Florida. Although Tampa Electric has not received the final report yet, the draft report found that the Tampa Electric CCR surface impoundments and embankments appear structural ly sound. Nevertheless, in its comments to the draft report, Tampa Electric offered to considerenhancements to its inspection and documentation procedures and to conduct geotechnical and

hydraulic analyses to demonstrate the safety of its ash impoundments , if necessary

. EPA Response : The Agency acknowledges that the site assessment report found that Gulf Power facilities were found to be in satisfactory condition and that and Tampa Electric impoundments are structurally sound.


### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0274

- 3 

### Organization: SCANA Corporation Commenter : Electric Utility Company Comment Excerpt Text : Structural integrity assessments were performed by EPA for ash pond embankments at three (3) of the SCE&G’s facilities including Canadys Station, Wateree Station, and Urquhart Station. The EPA assessments for the ash pond embankments at SCE&G Wateree Station and SCE&G Urquhart Station found the ash ponds “SATISFACTORY for continued safe and reliable operation, with no apparent existing or p otential management unit safety deficiencies”. SCE&G agrees with these findings. The assessment for Canadys Station rated one ash pond as poor due only to the factor of safety for seismic loading conditions not meeting required standard. SCE&G disagrees w ith the poor rating

. EPA Response : The Agency agrees that CCR units at Wateree Station, and Urquhart Station have been rated as satisfactory. The Agency does not agree that the “ Poor ” rating at the Canady’s Station should be changed. Condition ratings reflect issues that existed at the time of the assessment. Canady Station CCR unit did not meet seismic Factors of Safety. The report also noted that a deep

- seated failure tha t would c ompromise the overall integrit y of the dike during the design earthquake is not likely and that the dike w ill be capable of retaining the coal ash during and immediately following the design earthquake event.


### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0290

- 4 

### Organization: Alliant Energy Corporate Services, Inc. on behalf of Interstate Power and Light Company and Wisconsin Power and Light Company Commenter : Electric Utility Company Comment Excerpt Text : Alliant Energy was among the utilities selected by EPA fo r follow

- up on - site inspectio ns of CCR surface impoundments. None

- the

- less, the more important fact is that following the EPA on

- site inspections for the structural integrity of all surface impoundments, no Alliant Energy surface impoundment was rated as " unsatisfactory", meaning no CCR surface impoundment posed an immediate safety threat. EPA Response : The Agency agrees that no Alliant CCR impoundments were rated as unsatisfactory.

### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0291

- 1



### Organization : Xcel Energy Commenter : Electric Utility Company Comment Excerpt Text : The NODA references the coal combustion residuals impoundment assessment reports that the USEPA has prepared for two of Xcel Energy's coal fired power plants: Sherburne County Generating Plant and the Black Dog Generating Plant. The EPA has concluded that the impoundments associated with these facilities are safe. EPA Response : The Agency agrees that no Xcel CCR impoundments were rated as unsatisfactory.


### Comment Number: EPA

- HQ

- RCRA

- 2012

- 0028

- 0057

- 3 

### Organization: Southern Company Commenter : Electric Utility Company Comment Excerpt Text : While the assessment process has provided useful information on a number of existing surface impoundments, the process has shown that the TVA Kingston event was an isolated event, and no impoundment assessed since that time has proven to “pose immediate safety threats.” Further, the findings of the assessments show the CCR ponds are generally structurally sound, and are being safely operated

. EPA Response : The Agency agrees that no CCR impoundment was rated as unsatisfactory.


### Comment Number: EPA

- HQ

- RCRA

- 2012

- 0028

- 0059

- 3 

### Organization: Commonwealth of Kentucky Commenter : State Government Comment Excerpt Text : The Commonwealth believes that EPA should not use the assessments. The Commonwealth notes that several different contractors made the assessments. There are no consistent standards for the third

- party evaluations. EPA Response : The Agency does not agree that the assessments should not be used. All EPA contractors were given specific direction on how to perform site assessments. Any variability in the reports reflects the individual judgments of the Professional Engineers who conducted each site assessment. The State of Kentucky was offered the opp ortunity to participate and comment on each draft report.

### Comment Number: EPA

- HQ

- RCRA

- 2012

- 0028

- 0060

- 6



### Organization: Utility Solid Waste Activities Group (USWAG) Commenter : Trade Association Comment Excerpt Text : In fact, the dam integrity experts’ reviews of the condition of the CCR surface impoundments determined that not a single CCR surface impoundment was in an “unsatisfactory” condition, the lowest condition rating and, according to EPA, the only rating which “pose[s] immediate safety threats.” In sum, not a single surface impoundment poses immediate safety threats, and nearly all units have fully addressed the dam integrity engineers’ recommended changes EPA Response : The Agency agrees that no CCR impoundment was rated as unsatisfactory. The Agency agrees that nearly all units have fully addressed the dam integrity engineers’ recommended changes

. 

### Comment Number: EPA

- HQ

- RCRA

- 2012

- 0028

- 0065

- 3 

### Organization: Basin Electr ic Power Cooperative (Basin Electric) Commenter : Electric Utility Company Comment Excerpt Text : With regard to Basin Electric’s facilities. T he recommended slope stability , seismic, and hydraulic studies have been completed. Further, the recommended repairs have been completed, as well as minor changes in operation and inspection. Basin Electric’s impoundments have been studied, repaired or upgraded as recommended and are fo und to be acceptable. EPA Response : The Agency appreciates that Basin Electric has implemented the site assessment recommendations.


### Comment Number: EPA

- HQ

- RCRA

- 2012

- 0028

- 0066

- 4 

### Organization: Arizona Public Service Company (APS) Commenter : Electric Utility Company Comment Excerpt Text : Moreover, nearly all assessed CCR surface impoundments, including the surface impoundments at APS’s Four Corners and Cholla Power Plants, have already completed their action plans to implement the dam integrity contractors’ recommended improvements to their operations and maintenance, so any concerns with these impoundments on which these ratings were based have been addressed

. EPA Response : The Agency appreciates that APS has implemented the site assessment recommendations.

### Comment Number: EPA

- HQ

- RCRA

- 2012

- 0028

- 0090

- 3



### Organization: FirstEnergy Commenter : Electric Utility Company Comment Excerpt Text : EPA inspected four (4) FE CCR impoundments and all received a rating of “Satisfactory” or “Fair.” EPA Response : The Agency acknowledges that four (4) FE CCR impoundments received a rating of “Satisfactory” or “Fair.”

. 

### Comment Number: EPA

- HQ

- RCRA

- 2012

- 0028

- 0095

- 6 

### Organization: Duke Energy Commenter : Electric Utility Company Comment Excerpt Text : The engineering reviews of the condition of all of the CCR surface impoundments determined that not a single Duke Energy CCR surface impoundment was in an “unsatisfactory” condition which posed any immediate safety threat. A few of the Duke Energy surface impoundments were rated “poor” because Duke Energy could not produce certain stability analysis documentation during the inspection. EPA Response : The Agency acknowledges that that not a single Duke Energy CCR surface impoundment was in an “unsatisfactory” condition which posed any immediate safety threat

. The Agency also agrees that a few of the Duke Energy surface impoundments were rated “poor” because Duke Energy could not produce certain stability analysis documentation during the inspe ction.



### Comment Number: EPA

- HQ

- RCRA

- 2012

- 0028

- 0105

- 4 

### Organization: CME Engineering LP Commenter : Electric Utility Company Comment Excerpt Text : The EPA engineering consultants identified approximately 20% of the impoundments as “poor.” However, it is important to note that the vast majority of the “poor ” ratings were primarily attributed to a lack of information regarding structural stability or h ydrologic/hydraulic conditions and not the actual condition of the facility. EPA Response : The Agency agrees that the vast majority of the “poor ” ratings were primarily attributed to a lack of information regarding structural stability or hydrologic/hydraulic conditions and not the actual condition of the facility

.

### Comment Number: EPA

- HQ

- RCRA

- 2012

- 0028

- 0106

- 3



### Organization: Cleco Corporation Commenter : Electric Utility Company Comment Excerpt Text : Cleco believes that the ratings system used by EPA in the impoundment assessments was flawed. Many impoundments were classified as “poor” in condition in the assessment reports due to particular data not being available at the facility for inspection. To classi fy the condition of an impoundment as “poor” simply due to “missing hydrologic, hydraulic or stability documentation” is not logical. EPA Response : The Agency does not agree that the issuance of a Poor rating due to lack of information is not logical. Th e c oal ash site assessment report reflect s condition s that existed at a facility at the time of the assessment. If information related to a unit’s structural stability could not be independently verified by EPA engineering c ontractors, the unit was rated “p oor ” . The reports also note that a “p oor ” rating may not reflect that a CCR unit is structurally unsound.


### Comment Number: EPA

- HQ

- RCRA

- 2012

- 0028

- 0109

- 3 

### Organization: Hoosier Energy Rural Electric Cooperative, Inc. (Hoosier) Commenter : Electric Utility Company Comment Excerpt Text : Although Hoosier’s ponds were rated as poor during the inspections, that evaluation included an in

- ground pond with zero ability to rupture and other ponds that had been evaluated in the recent past. Most of the poor rating determination was made on a lack of records for requirements it was never subject to and other documentation from the 1970’s and 1980’s. EPA Response : The Agency acknowledges that units were rated “p oor ” due to lack of information.