1



# 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

(Dockets # EPA

- HQ

- RCRA

- 2009

- 0640, EPA

- HQ

RCRA

- 2011

- 0392, and EPA

- HQ

- RCRA

- 2012

- 0028 )

Volume 15 : Compendium of Damage Cases

December 20142

Background

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 B evill 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 secon d 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 monitor ing, 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 r egulatory 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.gov . 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 Roo m is

(202) 566

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

– 566

– 0276.3

After reviewing all of 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 developed seventeen volum es 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 finalizing 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 (L egal 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/Inspections/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 Use4

Volume Topic

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 summarizes comments received on the compendium of damage cases.

Section 8.1

- General concerns/issues related to CCR damage cases



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 02867

- 10 

### Organization 1 

### : Commenter 1 : Brett Barkley Commenter Type: Private Citizen

Classification: Substantive



### Comment Excerpt Text: There is not substantive evidence that damage has been done to ground or surface water from the leaching of coal ash.

Response: The commenter’s statement flies in the face of a record of around 1 5 0 damage cases to groundwater and surface water that have been clearly linked to CCR leaching and/or CCR wastewater discharge, controlled or accidental. The electrical utilities conceded to a significant number of these damage cases, as have stat e regulators.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 04022

- 1 

### Organization 1 

### : Commenter 1 : Larry D. Conley Commenter Type: Private Citizen

Classification: Substantive



### Comment Excerpt Text: The EPA and other government agencies have inspected most if not all solid waste landfills of coal burning power producers since the TVA Kingston Dam failure in 2008.

Response: Following the December 2008 TVA Kingston dam failure, the EPA has inspected a ll CCR surface impoundments with dams higher than five feet, which pose a potential risk to

human health and the environment were the dam to breach.5



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 05675

- 5 

### Organization 1 

### : Waccamaw RIVERKEEPER


### Commenter 1 : Christine Ellis Commenter Type: Advocacy Group

Classification: Substantive



### Comment Excerpt Text: Currently, there is a record of at least 63 known cases where the EPA has identified coal ash contamination that has damaged ground water and the surrounding ecosystem. The Grainger Station and the Winyah Station have a combined 8 coal ash ponds, with the oldest one dating back to 1966. EPA has investigated both and, although they have not reported any significant spills, the ground water near these sites has arsenic lev els that exceed federal standards.

With every passing year these coal plants and ash ponds grow older. It seems only a matter of time before we see the fate that so many other communities have had, with spills, leaching of toxins, and off site contaminat ion of our ground and surface waters.

Response: EPA is indeed familiar with both the Grainger and Winyah stations CCR management sites. The siting, design, and operating standards of this rule are introduced with the aim to effectively prevent groundwate r and surface water impacts through leaks of CCR leachate and/or spills of the kind mentioned in this comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06196

- 28 

### Organization 1 

### : Comite Dialogo Ambiental


### Commenter 1 : Ruth Santiago Commenter Type: Advocacy Grou p Classification: Substantive



### Comment Excerpt Text: The definitions of potential damage cases and proven damages cases in the Proposed Rule both turn on the distance of contaminated groundwater from the waste management unit. In the case of a proven damag e case, migration of hazardous constituents must be shown. The definitions assume that waste management units are at some distance from residential areas or public supply water wells and that waste management units are the exclusive source of CCR contamina tion.

Response: Thank you for your comment. The commenter’s reiteration of the essence of the criteria defining proven damages cases is correct.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06260

- 105 

### Organization 1 

### : Kentucky Department for Environmental Protection


### Commenter 1 : R. Bruce Scott Commenter Type: State Government
Classification: Substantive6



### Comment Excerpt Text: even though there were no Kentucky facilities identified in the EPA proven damage cases, because of the nature of siting of power plan ts in Kentucky and the predominant groundwater flow to the surface waters, facilities that may have elevated parameters do not have domestic drinking water wells located downgradient of the impoundments or landfills. Off

- site migration

that results in exce edance of MCLs is not expected.

It bears to note that even though exceedances of MCLs in groundwater or surface water used for domestic use are not anticipated, since the potential may exist for constituents to migrate into the areas immediately adjacent to unlined impoundments or landfills the Commonwealth supports additional management requirements and monitoring under Subtitle D, but does not consider the damage case studies to support regulation under Subtitle C. The proposed lining and monitoring

requ irements under Subtitle D are equivalent to those under Subtitle C and would result in the same protection of groundwater and human health.

Response: This rule will regulate CCRs under RCRA subtitle D: for further details, see Unit IV of the preamble of th e final rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06260

- 13 

### Organization 1 

### : Kentucky Department for Environmental Protection


### Commenter 1 : R. Bruce Scott Commenter Type: State Government
Classification: Substantive Comment Category:



### Comment Excerpt Text: EPA uses the risk assessment and the damage cases as a basis for listing CCR as hazardous. The results of the risk assessment and the damage cases indicate a potential source of contaminants

under some circumstances but the Commonwealth does not believe t hat EPA has established the nexus between elevated levels in groundwater and actual exposure to groundwater users based on knowledge of conditions in Kentucky. If concentrations of some contaminants are elevated because of the current method of CCR managem ent, they are likely mitigated prior to reaching wells or surface water or diluted by the receiving stream. The absence of actual risk and damage based on conditions in Kentucky does not support EPA's proposal for hazardous listing. However, the potential for some parameters leaching from CCR do suggest the need for additional management and monitoring under Subtitle D as described in these comments to reduce potential impact on the environment.

Response: The revised risk assessment accompanying the final rule lends support to a RCRA subtitle D rule; the siting, design, and operational requirements established in the final rule aim at reducing potential impacts to human health and the environment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06260

- 29 

### Organizati on 1 

### : Kentucky Department for Environmental Protection


### Commenter 1 : R. Bruce Scott7

Commenter Type: State Government

Classification: Substantive Comment Category:



### Comment Excerpt Text: There has been one known instance that the department can recall, of substantive groundwater contamination. It involved the placement of a monitoring well in the ash in the groundwater. Wells should not be placed in the ash. Without the buffering capacity of the land, the groundwater sample was above background as one would expect for a mixture of ash and water.

If good landfill management is practiced, including proper and timely closure, restricting the type of wastes and keeping the ash out of the saturated zone, then contamination should not occur. This agency is not aw are of any damage incidents in the Commonwealth involving coal combustion residuals in the groundwater.

Response: EPA’s records show five potential CCR damage cases in Kentucky (East Bend, Mill Creek, Shawnee, Spurlock, and TVA Paradise). This, as well as the record of damage cases in adjacent states reflect those instances where proper CCR management practices were not in place. By setting siting, design and operating requirements, this rule aims at averting similar impacts in CCR management facilities.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06298

- 1 

### Organization 1 

### : Tennessee Department of Environment and Conservation (TDEC)


### Commenter 1 : Paul L. Sloan Commenter Type: State Government

Classification: Substantive



### Comment Excerpt Text: The Tennessee Departmen t of Environment and Conservation (TDEC) is grateful for the extensive and ongoing assistance your Region 4 office is providing the state in the investigation

and clean

- up of the December 22, 2008 coat ash spill at the Tennessee Valley Authority facility

i n Kingston, Tennessee. The time

- critical work at the site has been completed and TVA is moving forward with completion of non

- time critical remedial activities as directed by the U.S. Environmental Protection Agency Administrative Order on Consent and TDEC 's

Commissioner's Order.

The catastrophic failure at the TVA Kingston facility highlights the need for federal rules to ensure coal combustion residuals are managed safely and consistently across the states. Tennessee appreciates the effort the U.S. Envir onmental Protection Agency has devoted to the proposed federal Coal Combustion Residuals (CCR) rules.

Response: The Agency appreciates TDEC’s recognition of the assistance provided to the State of Tennessee by EPA’s Region 4 in the wake of the December 20 08 TVA Kingston coal ash spill, as well as of EPA’s endeavor in preparing a federal rule to ensure that CCR is managed safely

across the states.8



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06298

- 41 

### Organization 1 

### : Tennessee Department of Environment and Conservation (TDEC)


### Commenter 1 : Paul L. Sloan Commenter Type: State Government
Classification: Substantive



### Comment Excerpt Text: The extent of damage cases, on a national level, appears relatively minimal when compared with both the quantity and the perio d 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 states, 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 properly operating drainage system.

Response: A key ‘lesson learned’ from the December 2008 TVA Kingston CCR spill that is incorporated into the final CCR rule comprises requirements for periodic inspections by a qualified professional to ensure the structural integrity of similar structures. All CCR surface impoundments are required to conduct weekly inspections. CCR surface impoundments exceeding a specified size threshold, i.e., height of five feet or more and a capacity of 20 acre

feet or more or a height of 20 feet or more, are also required to p erform annual inspections as well as an assessment of structural stability and factors of safety every five

- years. These measures will ascertain that conditions compromising the structural integrity of an impoundment’s dam would be promptly identified, tri ggering a timely, preventative and/or remedial action by the facility’s owner/operator.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06314

- 13 

### Organization 1 

### : Earthjustice et. al. (analyses prepared for Earthjustice et. al. by Russell Boulding, Boulding Soil

- Water Consulting, and submitted by Earthjustice)


### Commenter 1 : Lisa Evans Commenter Type: Advocacy Group

Classification: Substantive



### Comment Excerpt Text: Excluding sites associated with power plants that no longer burn coal and sites involving CCR

fro m industrial plants, the EPA and EIP damage cases involve 121 active power plants, which represent almost one

- quarter (24.4%) of the 495 active power plants identified in EPA’s Regulatory Impact Analysis (see Table A

- 1). [See original comment for ATTACHMEN T 4,

which contains Table A

- 1]

Response: The Agency concurs with the commenter that damage cases associated with the management of CCRs are prevalent enough to justify the institution of protective standards of the

kind established in the final CCR rule.9



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06314

- 15 

### Organization 1 

### : Earthjustice et. al. (analyses prepared for Earthjustice et. al. by Russell Boulding, Boulding Soil

- Water Consulting, and submitted by Earthjustice)


### Commenter 1 : Lisa Evans Commenter Type: Advo cacy Group
Classification: Substantive



### Comment Excerpt Text: Exceedances of SMCLs at CCR Disposal Sites Should Not Be Minimized as a Matter of

Concern.

Significant harm can be caused by exceedances of non

- health based SMCLs for aluminum, total

dissolved solids (TDS), pH, and iron. These include:

- Although there is not a scientific consensus that there are long

- term adverse impacts on human health from high concentrations of aluminum in drinking water (it has been measured as high at 1,100 mg/L at one EIP damage site), symptoms including nausea, vomiting, diarrhea, mouth ulcers, skin ulcers, skin rashes, and arthritic pain have been noted (WHO, 2003).

- Economic harm to residents who shoulder the expense of having water heaters burn out prematurely from wa ter contaminated by high TDS. For example, in the late 1980s two coal ash ponds at the Phillips Power Plant in Pennsylvania contaminated several public water wells operated by the Cresswell Heights Joint Authority with high levels of total dissolved solids (TDS) that were ruining residents’ hot water heaters. Legal action initiated by the Pennsylvania Department of Environmental Protection (PADEP) in 1990 led to closure of the ash ponds and payment of a $50,000 fine.

- Exceedances of the SMCL for pH as a re sult of contamination by CCR can result in highly acidic (as low as 3.6) or alkaline conditions (as high as 11.6, see Table 2) [see original comment for ATTACHMENT 4, which contains Table 2]. At the Trans Ash CCR landfill it was complaints by a resident of being burned while showering that led to the discovery that her well was contaminated by mercury.

- USEPA has noted that ingesting iron from drinking water is not directly associated with adverse health effects; although, trace impurities and microorganis ms that are absorbed by iron solids may pose health concerns ( http://www.epa.gov/nrmrl/wswrd/cr/corr_res_iron.html ).

Response: EPA submits that the understanding of the health effects of certain SMCLs associated with CCR management is evolving, and there is a growing realization that some of these constituents may put at risk certain vulnerable population groups. For instance, a recent study ( Lithium in Drinking Water and Thyroid Function, Environmental Health Perspectives

, Karin Broberg, Gabriela Concha, Karin Engström, Magnus Lindvall, Margareta Grandér, and Marie Vahter, June 2011, 119/6, 827

- 830: http://www.ncbi.nlm.nih.gov/pmc/articles/PMC3114818/?report=classic ) cites major side effects of long

- term lithium ther apy. These effects include thyroid abnormalities (mainly as hypothyroidism and goi ter), weight gain, edema, gastrointestinal pain, diarrhea, tremor, polyuria ( excessive or abnormally large production or passage of urine ) , and renal tubular damage. Long

term lithium therapy is essentially analogous to a long

- term cumulative dose of lithium

contaminated drinking water. Michigan, possibly the only State in the union that has adopted a10

health

- based standard for lithium, identified seven damage cases associated with, among others, the exceedance of this standard in groundwater associated with CCR management sites.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06314

- 19 

### Organization 1 

### : Earthjustice et. al. (analyses prepared for Earthjustice et. al. by Russell Boulding, Boulding Soil

- Water C onsulting, and submitted by Earthjustice)


### Commenter 1 : Lisa Evans Commenter Type: Advocacy Group

Classification: Substantive



### Comment Excerpt Text:

Contamination is a Problem at Sites With and Without Liners.

Collection of systematic data on the presence o r absence of liners at damage case sites proved to be problematic. EPA’s Damage Case Assessment Report (USEPA, 2007) typically does not provide definitive information as to whether liners were present. EIP’s damage cases provide this

information where it i s available but definitive statements as to whether liners were present/absent could not be made for half of the EIP surface impoundment sites and more than a third of EIP landfill sites (38.1%). The discussion below focuses on the EIP damage cases where

d ata related to liners were available (Table A

- 3) [see original comment for ATTACHMENT 4,

which contains Table A

- 3]. A striking aspect of the EIP damage cases is the number of EIP damage sites where liners are reported to be present. Six surface impoundment s (12.5% of all EIP SI damage sites) and eleven landfills (26.2% of all EIP LF damage sites) are reported to be

lined.

A closer look at the damage sites with liners show that the majority involved use of compacted soil, clay, and/or ash. It is evident that soil, clay, or ash, even when ostensibly compacted to specifications, such as 1x10

- 7 cm/second do not provide adequate protection of groundwater at CCR disposal sites. In none of EIP’s damage cases were well designed, installed and maintained composit e lines present. Examples of EIP damage sites where liners have failed to prevent groundwater contamination include:

An inactive landfill at the Sheldon Plant in Nebraska has a clay liner where selenium exceeded the MCL (0.0728 mg/L) at a downgradient mon itoring well.

Surface impoundment at the Leland Olds power plant, North Dakota is lined with clay and MCLs for arsenic (0.789 mg/L) and lead (0.0716 mg/L) have been measured in downgradient monitoring wells.

At the Gavin Plant in Ohio, an active ash/FGD landfill has a clay base with a 30 mil geomembrane liner, and the flyash and bottom ash ponds are both lined. MCLs have been exceeded for alpha particles (1,497 pCi/L), arsenic (0.057 mg/L), barium (13.8 mg/L), cadmium (0.007 mg/L), and lead (0.051 mg/L), and molybdenum, ten times the LTHA (0.409 mg/L), has been found in a monitoring well 700 feet from the disposal area. EPA rejected this as a damage case because, “The representatives could not confirm the presences of any suspected impacts and

the State h as not undertaken any regulatory action at the site” (USEPA, 2007, p.61).11

Active landfill at the Boardman Plant in Oregon is “lined” with a base of hydrated, compacted ash. Vanadium is 3 to 4 times higher than state health standards and rising in the shal low groundwater underneath this liner.

Ponds at the Mitchell Plant in Pennsylvania are lined with concrete sides and a compacted soil/bottom ash base. In downgradient monitoring wells arsenic has been measured at twice the MCL (0.02 mg/L) and boron at twi ce times the EPA LTHA for children (>6 mg/L)

Bangor Quarry Landfill for the Portland Plant in Pennsylvania is lined with a 60 mil LLDPE geomembrane over a 6" fly ash sub

- base. The most recent available groundwater monitoring data showed an upward trend f or arsenic, projected to exceed the MCL in a year.

Response: EPA’s revised CCR damage case record indicates that over 90 percent of the cases associated with groundwater impact are associated with the lack of liner, a ‘natural liner’ (i.e., an underlying c lay layer but no man

- made liner), a partial liner, or a liner comprising a conditioned CCR. While there are instances of clay

- lined surface impoundments that have leaked, EPA lacks specific information about the actual hydraulic conductivity of these liner s. The risk Assessment accompanying this rule indicates that the risk of leakage through clay liners in CCR surface impoundments is higher than the corresponding risk associated with clay liners in CCR landfills.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 063 14

- 24 

### Organization 1 

### : Earthjustice et al. (analyses prepared for Earthjustice et. al. by Russell Boulding, Boulding Soil

- Water Consulting, and submitted by Earthjustice)


### Commenter 1 : Lisa Evans Commenter Type: Advocacy Group

Classification: Substantive



### Comm ent Excerpt Text: Questions Raised About New Damage Cases Are Not Valid.

Very few substantive comments have been made to date criticizing the data and conclusions in EIP’s reports. Responses to criticisms by the Tennessee Valley Authority and South Dakota Department of Environment and Natural Resources are included as Attachments C and D.

Response: Whereas the commenter’s observation applies to comments received in the wake of the proposed rule, industry and state regulators commented profusely on the two 2010 EIP reports during the public comment period of the October 2011 NODA. EPA has applied test

- of

proof criteria to confirm the validity of EIP’s 70 alleged damage cases submitted in their February and August 2010 reports, as well as the 20 alleged damag e cases submitted in their

November 2011

- submitted report ( Risky Business ; EPA

- HQ

- RCRA

- 2011

- 0392

- 0259). Based on this review, EPA concluded that ten of the alleged cases qualify as proven damage cases, 61 (45 from the 2010 reports and 16 from the 2011 rep ort) qualified as potential damage cases, and the remainder were either rejected or, due to the lack of adequate information, defined as

indeterminate.12



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06314

- 28 

### Organization 1 

### : Earthjustice et. al. (analyses prepared for Earthjustice et. al. by Russell Boulding, Boulding Soil

- Water Consulting, and submitted by Earthjustice)


### Commenter 1 : Lisa Evans Commenter Type: Advocacy Group

Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:

Other Sections: 8.9 

### Comment Excerpt Text: Methodology for Statistical Analysis of EPA and EIP CCR Damage Cases. [Part of ATTACHMENT 1 (or 6314.1)]

The statistical analysis presented in these comments is based information compiled in several spreadsheets with data about the 67 EPA and 70 EIP CCR damage cases. Table A

- 1 [see original comment for ATTACHMENT 4, which contains Table A

- 1] provides a list by organized by state, and report source for the 137 damage cases. EPA’s 2007 Damage Case Assessment Report included four sites that involved oil combustion residue rather than CCR (Brayton Point, MA, and Port Everglades, Riviera and Bartow plants in Florida), but since that report EPA has identified four additional damage cases, identified as EPArec in Table A

- 1: [see original comment for ATTACHMENT 4, which contains Table A

- 1] Gambrils Landfill, MD, Martins Creek Surface Impoundment, PA, Kingston Surface Impoundment, TN and Battlefield Gold Club (classified here as a structural fill).

Table A

- 2 [see original comment for ATTACHMENT 4, which contains Table A

- 2] shows data on total ash generation and the number of power plants in each state (taken from EPA’s Regulatory Impact Analysis), the number of plants with surface impoundments and number of surface impoundm ents in each state (taken from EPA’s 2009 Surface Impoundment Survey), and number of damage cases in each state (from Table A

- 1) [see original comment for ATTACHMENT 4, which contains Table A

- 1]. Table A

- 2 [see original comment for ATTACHMENT 4, which cont ains Table A

- 2] also shows the state’s rank in each category.

The following information on the 137 damage cases was compiled into a spreadsheet: site name, owner, damage case source, surface impoundments (number, active/inactive, lined/unlined/?),

landfil ls/structural fills (active/inactive, lined/unlined/?), type of CCR, type of impact (groundwater/surface water/biota), regulatory action, type of exceedances (MCL/HBS/SMCL/WQS/spill), private/public wells affected, and a summary of parameters with

exceedan ces, elevated or identified as COCs.

Table A

- 3 [see original comment for ATTACHMENT 4, which contains Table A

- 3] provides a summary of the statistics for the EPA, EIP and EPA+EIP damage cases, which are discussed in the main body of the report.

Determin ing the number of active power plants that are involved in the EPA and EIP damage cases was not a simple matter. Several of EPA’s damage cases involved several sites with ash13

from the same plant (Port Washington and Cedar Sauk LF), the Dairyland Power’s Al ma Plant

had on

- site and off

- site landfills, and the Yard 520 Landfill at Pines received ash from both Bailly and Michigan City Plants in Indiana, each of which had their own listing. A similar situation exists for some EIP damage cases. The TranAsh Landfi ll in Tennessee receive ash from the Johnsonville Plant, which is also listed separately as a damage case. The EIP Montville, Connecticut and Venice, Illinois Plants now burn oil rather than coal and were not counted as active plants. Information was not a vailable for all sites to be certain whether they involved an active power plant, so the number of 57 active plants involved in EPA damage cases and 64 in EIP damage cases is approximate, but close. Note that the EPA Belews Lake and EIP Belews

Creek SI&LF involve the same power plant, so it was omitted from the EIP power plant count so

as to not double count.

Table A

- 4 (in Appendix F_5) [see original comment for ATTACHMENT 5, which contains

Table A

- 4] provides data on exceedances of MCLs for Appendix VIII Metals at the 137 EPA and EIP damage sites. Note that this table includes MCL exceedances at EIP’s Clifty Creek Landfill, Indiana and EPA’s East Bend Landfill, Kentucky, based on groundwater monitoring data that was not reviewed when the reports including these sites were published.

Response: The information the commenter has submitted generally corroborates EPA’s observations on the general properties of many of the damage cases, even though EPA’s record of the confirmed CCR damage cases is not identical t o the one submitted by the commenter. For further information on the Agency’s vetting methodology of all the pre

- existing damage cases as well as of those submitted by environmental advocacy groups in February and August 2010 and in November 2011, see Unit XI in the preamble of this rule and technical support documents on damage cases in the final rule’s docket.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06315

- 58 

### Organization 1 

### : Earthjustice et. al.


### Commenter 1 : Lisa Evans Commenter Type: Advocacy Group

Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: 1. EPA’s Investigation of Damage Cases Is Grossly Incomplete.

The 17

- fold increase in damage cases from 1999 becomes even more remarkable wh en one considers that EPA has never undertaken its own, independent, systematic evaluation of sites damaged by CCR. It has relied from the beginning largely on private third parties, initially the utilities themselves, to bring forward evidence of damage c ases. In its 1988 Report to Congress (RTC), EPA relied heavily on two studies commissioned by the organizations representing the utility industry in Washington, DC

— the Utilities Solid Waste Activities Group (USWAG) and Edison Electric Institute (EEI)

— to id entify “documented cases” of damage. The 1988 RTC

states:14

"To supplement these two major studies, in 1987 EPA conducted a literature review of all readily

- available sources, which revealed only two additional case studies on proven damages occurring in 198 0 and 1981. The Agency has not identified any proven damage cases in the last seven years; however, no attempt was made to compile a complete census of current damage cases by conducting extensive field studies." [Footnote 299: EPA, Report to Congress: Was tes from the Combustion of Coal by Electric Utility Power Plants (EPA 530

- SW

- 88

- 002), at 5

- 53

&5

- 54 (Feb., 1988).]

The first industry study, done by the Envirosphere Company, identified nine cases that appeared to show damage to the environment, and the second study, by Dames and Moore, “identified seven cases that presented a potential danger to human health and the environment.” [Footnote

300: Id. ] Not surprisingly, both studies downplayed the impacts. Envirosphere “noted that the

information available on the potential impacts of utility waste disposal were inconclusive” [Footnote 301: Id ] and Dames and Moore “concluded that none of these cases represented a “documented” case of such danger.” [Footnote 302: Id. ] Thus they rejected sites such as Chisman Creek, a Superfund site in Virginia where EPA had identified coal combustion wastes as a major source of contamination of drinking water wells; Michigan City, Indiana, where coal ash ponds had contaminated underly ing groundwater with arsenic up to 100 times the MCL; and Clinch River, Virginia, where the collapse of an ash pond levee wiped out more than 200,000 fish for more than 90 miles downstream. [Footnote 303: Id. at 5

- 54 to 5

- 63

. ]

All told, EPA identified onl y two sites in the 1988 RTC that met its “test of proof” for damage cases. EPA’s first Regulatory Determination on CCW in 1993 identified four more damage sites that met this “test of proof.” In its 1999 Report to Congress, EPA considered more information voluntarily submitted by the utilities, in addition to sites in its Superfund Program’s CERCLA Information System. [Footnote 304: These included about 14 “comanagement” sites (submitted by the Electric Power Research Institute or EPRI).] From this review, EPA identified a total of six proven damage sites and two potential damage sites in the 1999 RTC. [Footnote 305: 1999 Report to Congress v. 2, at 3

- 47 to 3

- 49, 4

- 17 & 4

- 18.]

Despite identifying only minimal damage through industry submissions, and rather than using its authority to conduct its own investigations, EPA looked to environmental groups and citizens to obtain additional information. Often, however, the information presented by citizens was not complete enough to meet EPA’s “test of proof.” In th ese cases EPA rejected further examination without timely investigation or follow

- up. The evidentiary threshold used by EPA was too high, and it was higher than “tests of proof” for a previous regulatory determination on another Bevill waste. [Footnote 306 : See Comments on the U.S. Environmental Protection Agency’s Coal Combustion Waste Damage Case Assessment (July 2007), EPA, Notice of Data Availability

RCRA Docket No. EPA

- HQ

- RCRA

- 2006

- 0796, Earthjustice, Clean Air Task Force et al., 2

– 4 (Feb. 11, 2008).] As a result of this unreasonably high threshold, out of 59 proposed damage cases that citizen/environmental organizations submitted in comments on the 1999 RTC, the Agency accepted nine as “proven” damage cases and 25 as “potential” damage cases in its 200 0 Regulatory Determination. As for the 25 other cases submitted by citizens, without any attempt to independently verify the accuracy of the information, examine sites, or look further into case histories or files of state regulatory agencies, EPA rejected 18 as “indeterminate due to insufficient information.” [Footnote 307: 2007 EPA Damage Case Assessment , at 2

– 3.]15

In addition to rejecting these 25 sites with minimal examination, EPA readily admits in its 2007 Coal Combustion Waste Damage Case Assessment that it did not evaluate at all some 44 of the

135 total sites

— nearly a third of the sites that were brought to its attention from 1999 to 2002

-- because they “involved allegations with little or no supporting information.” [Footnote 308: Id. at 7.]

Respon se: As described in Unit XI of the preamble to this rule, EPA assessed the validity of the 70 alleged damage cases submitted to the Agency by EIP and other advocacy groups in February and August 2010, as well as the 20 alleged damage cases submitted to the Agency by EIP in November 2011. The Agency also revisited the 27 proven damage cases, and further assessed the validity of all the damage cases based on comments to the proposed rule and to the October 2011

NODA. The information the commenter has submitte d generally corroborates EPA’s observations on the general properties of many of the damage cases, even though EPA’s tally of the confirmed CCR damage cases is not identical to the one submitted by the commenter.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06 349

- 4 

### Organization 1 

### : Commenter 1 : Mollie Freebairn Commenter Type: Private Citizen

Classification: Substantive



### Comment Excerpt Text:
Three recent studies document CCW contamination in a number of states other than Missouri, including the neighboring states of Arkansas, Illinois, Iowa, Nebraska, and Kentucky. 1. EPA identified 71 coal combustion waste damage cases, 23 of which have caus ed off

- site contamination. U.S. Envtl. Prot. Agency, Coal Combustion Waste Damage Case Assessments, July 2007. See also 75 Fed. Reg. 816, 869 n. 7880 (Jan. 6, 2010); 2. Environmental Integrity Project and Earthjustice identified 31 additional coal

- ash was te sites where groundwater, wetlands, creeks, or rivers have been polluted by arsenic and other heavy metals. Out of Control: Mounting Damage from Coal Ash Waste Sites, http://www.environmentalintegrity.org/news_reports/documents/OutofControl

MountingDamag esFromCoalAshWasteSites.pdf. 3. Environmental Integrity Project, Earthjustice, and the Sierra Club located another 39 sites in 21 states where toxic coal ash is contaminating drinking and surface water with arsenic and heavy metals. In Harm's Way: Lack of Federal Coal Ash Regulations Endangers Americans and

Their Environment http://www.environmentalintegrity.org/news_reports/08_26_10.php

. This brings the US total to 137 sites i n 34 states where coal ash threatens public health and drinking water supplies. According to the latest study, at every one of these new sites equipped with groundwater monitoring wells, concentrations of heavy metals such as arsenic and lead

exceed federa l health standards for drinking water. At the worst site at Hatfield's Ferry, Pennsylvania, arsenic contamination was 341 times higher than the federal standard.

Response: EPA applied test

- of

- proof criteria to confirm the validity of the 70 alleged damage cases submitted by EIP and coauthors in their February and August 2010 reports, as well as that of the additional 20 alleged damage cases submitted to the Agency by EIP in November 2011.16

Based on this review, EPA concluded that ten of these cases qualify a s proven damage cases, 61 qualify as potential damage cases, and the remainder were either rejected or, due to the lack of adequate information, defined as indeterminate. Accounting for additional, confirmed damage cases already on the Agency’s record, the total number of confirmed damage cases is now

around 150 . Whereas not all the exceedances involved MCL contaminants, the contamination of groundwater and surface water even by constituents without MCL standards but rather with

health

- base standards is als o unacceptable because it involves the leaching of potentially harmful CCR constituents into groundwater, thus jeopardizing the future use of this groundwater. These findings, combined with the results of the risk assessment that accompany this rule provid e the Agency with the justification for many of the siting, design, and operational requirements of the final rule (e.g., liners, groundwater monitoring, and stricter design and siting requirements for wet disposal of CCR as compared to those for dry dispo sal).



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06352

- 1 

### Organization 1 

### : Dayton Power & Light Company (DP&L)


### Commenter 1 : JoAnne Rau Commenter Type: Electric Utility Company

Classification: Substantive



### Comment Excerpt Text: Subtitle C Option

In its background to the proposed rule, USEPA states that the decision to propose federal oversight for CCRs is " ... driven in part by the failure of a surface impoundment retaining wall in Kingston, TN in December 2009" (sic) [FN 2: 75 Fed. Reg. at 35132. The Kingston rel ease occurred in 2008.] and refers elsewhere in the preamble to this incident as one of the main factors precipitating the agency's actions. While DP&L recognizes the seriousness of this event,

the fact of the matter is that the release was the result of a structural failure in the impoundment

from which the release occurred and was not a function of the characteristics of the CCRs that were being managed. In addition, the type of management practice that was being performed at the TVA Kingston facility (we t stacking) is not one in which DP&L engages and to DP&L's understanding is not a common technique in the industry as a whole. Furthermore, the numerous

follow

- up studies conducted on the TVA Kingston release verify that the resulting environmental impact did not rise to the level justifying the imposition of a hazardous waste program regulating CCRs pursuant to subtitle C of RCRA. In short, even a release of unprecedented size like the TVA failure, did not result in the kind of environmental harm that woul d be typical for a release of hazardous waste. The TVA release suggests that steps may need to be taken to improve the physical impoundment structures, management practices, maintenance and monitoring. But that

would true even if the massive release consis ted merely of clean fill dirt. The TVA release does not suggest that CCRs that have long been classified as non

- hazardous waste should now be

reclassified as hazardous wastes.

Additionally, USEPA cites the release of CCRs from the Martins Creek plant in M artins Creek, Pennsylvania as a driver for the proposed rulemaking. Again, this release was not a function of the material managed at the impoundment but of a failed outfall gate. Proper management and17

oversight of CCR facilities would prevent these types of occurrences through regulation without the inappropriate hazardous waste designation for the material being handled.

Response: In this rule the Agency is taking the very steps recommended by the commenter to ascertain the structural integrity of surfac e impoundment, as well as their management practices, maintenance and monitoring. These objectives are implemented through requirements of periodic inspections of the engineered containment structures. All CCR surface impoundments are required to conduct w eekly inspections. CCR surface impoundments exceeding a specific size threshold, i.e., height of five feet or more and capacity of 20 acre

- feet or more, or a height of 20 feet or more, are also required to perform annual inspections as well as an assessmen t of structural stability and factors of safety every five years.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06360

- 79 

### Organization 1 

### : ARIPPA


### Commenter 1 : Jeff A. McNelly Commenter Type: Trade Association



### Comment Excerpt Text: The Alleged “Proven Damage” Case Findings Cited By EPA Are:

· Inconsistent With EPA’s & Other Scientific or States Findings;

· Not Analogous To ARIPPA Plants’ CCRCCP Management Practices;

· Absent Sufficient Scientific Basis to Designate all CCRsCCPs As Hazardous;

· Absent “Adverse He alth Effects”;

EPA’s basis for proposing federal ash management rules appears to be based upon what it terms “proven damage cases”. It specifically cites ash impoundment failures at Kingston, Tennessee and Martins Creek, Pennsylvania and an ash placement project at the Battlefield golf course in Chesapeake, Virginia as examples of “proven damage cases”.

Response: As described in the preamble to this rule, the Agency has carefully vetted out both the damage cases’ roster included in the June 2010 proposed rule and the additional, alleged damage cases submitted by advocacy groups in 2010 and 2011 against EPA’s test of proof criteria. The current inventory of around 150 damage cases represents all those that have been confirmed by EPA’s vetting process. By the way, the ash placement project at the Battlefield golf course in Chesapeake, Virginia was designated in the p roposed rule as a potential damage case rather than a proven damage case, and this designation is still valid.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06360

- 81 

### Organization 1 

### : ARIPPA


### Commenter 1 : Jeff A. McNelly18

Commenter Type: Trade Association



### Comment Excerpt Text: Also EPA should note that none of these examples are even remotely analogous to the CCRCCP management practices adhered to by ARIPPA member facilities. There have been approximately 4.5 billion tons of CCRs properly managed over the past few decades. The extremely small number of sites with environmental/structural problems is not indicative of any environmental

risk associated with the beneficial use of CFB CCPs for mine reclamation.

Response: Thank you for your comment. See response to comm ent excerpt EPA

- HQ

- RCRA

2009

- 0640

- 06360

- 81.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06360

- 85 

### Organization 1 

### : ARIPPA


### Commenter 1 : Jeff A. McNelly Commenter Type: Trade Association



### Comment Excerpt Text: Accordingly it is unreasonable to make any comparison bet ween the unfortunate TVA ash impoundment failure and dry CFB CCP ash managed in an environmentally beneficial manner under a proven and complex regulatory system. True proven damage cases involving fatalities and disabling injuries can be attributed to dan gerous voids, high walls, and pools of water at

AMLs.

Response: Thank you for your comment. See response to comment excerpt EPA

- HQ

- RCRA

2009

- 0640

- 06360

- 81.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06362

- 4 

### Organization 1 

### : Commenter 1 : Bret Reid, P.E. Commenter Type: Private Citizen



### Comment Excerpt Text: The most recent attempt at regulation comes from the Tennessee Valley Authority's (TVA) release of 5.5 million cubic yards of coal ash in Kingston, Tennessee, a large portion of which spilled into the Emory River. While this has caused a major environmental impact due to coal ash, if any other similar fine

- grained material in this quantity was released in a similar fashion, it would result in the same environmental impact. If 5.5 million cubic yards of clay or aggregate were released, the results would be the same, a major siltation of the Emory River, causing large scale fish kill and polluting drinking water. Would the EPA consider banning the use of clay or aggregates in the United States to prevent t his from occurring again in other areas? This new attempt at regulation appears to be a knee jerk reaction to an incident. The EPA and the state of Tennessee have the authority to inspect, fine and in turn, force TVA to better retain their stock pile of co al ash due to the proximity of the Emory River.19

Response: The analogy between banning of the use of clay following its hypothetical release from a surface impoundment to that of EPA’s response to the release of 1.1 x 10 9 gallons of CCR slurry is wrong, because this rule does not ban the wet storage of CCR. Rather, the rule requires that proper measures be put in place to ensure the structural integrity of impoundments’ containment structures and the use of composite liner in new CCR management units to p revent leachate from migrating to groundwater.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06398

- 67 

### Organization 1 

### : Duke Energy


### Commenter 1 : Mike Stroben Commenter Type: Electric Utility Company

Classification: Substantive



### Comment Excerpt Text: Another signific ant flaw is that the allegations have been made without prior consultation with the very states whose programs the groups allege are deficient. Not surprisingly, states are contesting these allegations and charging that the special interest groups have imp roperly

characterized the effectiveness of their state controls.

Response: According to the ‘special interest groups’ who in 2010 submitted to the EPA scores of newly alleged damage cases, the information on which these alleged damage cases are predicated was provided to them by the very state authorities mentioned by the commenter, in response to FOIA requests. Based on this information, it is evident that in quite a few instances the level of enforcement by certain state regulatory agencies leaves much to be desired, as demonstrated, for instance, by the recent lawsuit submitted by North Carolina against 12 of Duke Energy’s power plants for violation of permits. This lawsuit trailed statements of ‘intent to sue’ issued by these ‘special interest groups’ in response to protracted permit violations by the leading electrical utility of North Carolina. Many instances of failure to properly regulate and/or enforce regulations by the states were also demonstrated in the course of the eight public hearings

conduct ed by the EPA following the publication of the proposed rule, where residents of properties adjacent to electric utility facilities complained about health concerns, which they contended, resulted from impacts to their drinking water and air quality. These impacts had been allegedly caused by leaking CCR impoundments and CCR fugitive dust, respectively, due to mismanagement of CCRs by the neighboring electrical utilities.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06410

- 1 

### Organization 1 

### : Commenter 1 : Anonymous Commenter Type: Anonymous
Classification: Substantive



### Comment Excerpt Text: Section I. Background, subheading A. 1. pg. 26

“EPA’s analysis, as well as the additional information from industry and environmental and20

citizen groups, which is in the docket for this proposal, needs to undergo public review, with the end result being a better understanding of the nature and number of damage cases.”

Comment: Public review of this magnitude is not appropriate for the variety of damage cases provided by industry , environmental groups, citizen groups, and EPA. All these cases should be reviewed by an independent third party with knowledge of the industry and environmental problems associated with it. These groups need to have guidelines for auditing based on the

s pecific area they are to audit. A more appropriate review of these cases should include auditing guidelines specific to electric utility coal ash storage facilities. These guidelines should be reviewed by the public before auditing begins. A publication of the audit findings, just like any other audits conducted, should be posted for final public review. Requesting public review at this time on damage cases is premature due to the varied nature of documentation. Public review

should be based on well documen ted, unbiased information, as would be produced during an audit. I request that public review of damage cases be delayed until such an audit is performed by appropriate auditors and additional facility audits are performed to reveal any additional potentia l damage cases. For example, EPA’s Emergency Response Team (ERT) or Science and Ecosystem Division (SESD) would be appropriate third party reviewers because they audit laboratories, facilities (including federal), and contractors (for potentially responsib le parties, state agencies, and federal agencies including EPA). Other groups such as EPA Office of Research and Development (ORD), RCRA, Office of Surface Mining (OSM), or an expert panel similar to the panel created to compile data and information for th e National Research Council of the National Academies publication Managing Coal Combustion Residues in Mines commissioned by EPA directed through Congress, would be appropriate. The interagency group compiled to comment on the draft ruling titled “Standard s for the Management of Coal Combustion Residuals (CCR) Generated by Commercial Electric Power Producers” would also

be a creditable third

- party review of all information in this proposed ruling and docket material.

Response: By stating “EPA’s analysis, as well as the additional information from industry and environmental and citizen groups, which is in the docket for this proposal, needs to undergo public review, with the end result being a better understanding of the nature and number of damage cases” the Agency meant the opportunity given to stakeholders to review all existing damage case information that is accessible in the proposed rule’s docket. Posting of information in the docket satisfies the requirements for stakeholders’ participation in damage c ase review, as has been amply demonstrated by the hundreds of damage case comments provided by stakeholder groups and individuals in response to the proposed rule and the October 2011 NODA. As described in the preamble to this rule, the Agency, through a d edicated task order to a contractor as well as an independent review, has carefully vetted against EPA’s test of proof criteria both the roster of damage cases included in the June 2010 proposed rule and the additional, alleged damage cases submitted by ad vocacy groups in 2010 and 2011. The current

list of around 150 damage cases represents those cases that have been confirmed by this vetting

process.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06410

- 13 

### Organization 1 

### : Commenter 1 : Anonymous21

Commenter Type: Anonymous
Classification: Substantive



### Comment Excerpt Text: Any damage cases and risk assessments considered during the decision making process need to be third party reviewed by appropriate auditors to ensure the decision is based on sound science (the second principle). Broad generalizations should be considered with caution due to the current limited amount of site specific information. Sound science should reduce broad generalizations and provide thorough unbiased reviews.

Response: As described in t his rule’s preamble, the Agency, through a dedicated task order to a contractor, has carefully vetted out against EPA’s test of proof criteria both the damage cases’ roster attached to the June 2010 proposed rule and the additional, alleged damage cases

su bmitted by environmental advocacy groups in 2010 and 2011. These criteria, defined in the May 2000 Regulatory Determination, 65 FR 32224 and Section 1.4.4 of the 1999 Report to Congress state:

<P roven damage cases are those with (i) documented exceedances of primary MCLs or other

health

- based standards measured in ground water at sufficient distance from the waste management unit to indicate that hazardous constituents have migrated to the extent that they could cause human health concerns, and/or (ii) whe re a scientific study demonstrates there is documented evidence of another type of damage to human health or the environment (e.g., ecological damage), and/or (iii) where there has been an administrative ruling or court decision with an explicit finding of specific damage to human health or the environment. In cases of co

management of CCWs (CCRs) with other industrial waste types, CCWs must be clearly implicated in the reported damage.> According to the May 2000 Regulatory Determination, 65 FR 3224,

<Pote ntial damage cases are those with (i) documented exceedances of primary MCLs or other

health

- based standards only directly beneath or in very close proximity to the waste source, and/or (ii) documented exceedances of secondary MCLs or other health

- based st andards on

- site

or off

- site.>

The findings of the damage case review process were modified, as necessary, once additional information was obtained following the late 2010 review process. The current list of around 150 damage cases comprises all the cases t hat have been confirmed by the cited review process.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06502

- 1 

### Organization 1 

### : Commenter 1 : C. Gaver Commenter Type: Private Citizen

Classification: Non

- substantive



### Comment Excerpt Text: If you need incentive to regulate coal ash, look to the Harriman, TN, disaster of 2008, "the22

largest environmental disaster of its kind," The Kingston Fossil Plant spill unleashed 5.4 million cubic yards of toxic coal ash containing, among other things, le ad and thalium. "Clean coal" is a marketing myth, and at best, all we can do to slow down the myriad of side effects from coal production is to regulate and mitigate the inevitable contamination of our air, soil and groundwater.

Response: As the commenter notices, the initial impetus to the federal regulation of CCR was the December 2008 TVA Kingston CCR impoundment’s dike failure and its aftermath.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06534

- 18 

### Organization 1 

### : Lafarge North America Inc.


### Commenter 1 : Brian Gasiorowski on behalf of Craig S. Campbell Commenter Type: Beneficial User

Classification: Substantive



### Comment Excerpt Text: C. Response to Comments Submitted to EPA by PEER dated August 18, 2010 We are aware of comments in the docket to this rulemaking f iled by the Public Employees for Environmental Responsibility (“PEER”) on August 18, 2010.[Footnote 31: Letter from Jeff Ruch, Executive Director of Public Employees for Environmental Responsibility, to USEPA, dated August 18, 2010, Docket Number EPA

- HQ

- RC RA

- 2009

- 0640

- 3275] Lafarge is providing corrections and clarifications on the commentary made by PEER.

1. Lafarge Ravena, NY Cement Plant

PEER makes unsubstantiated statements in its comments to EPA that high levels of mercury

have been found in soils an d wildlife surrounding Lafarge's Ravena, New York cement plant. PEER further states that New York State Department of Environmental Conservation (“NYSDEC”) has announced that the plant would be prohibited from using fly ash. The facts underlying both state ments are materially different than PEER represents:

a) Soil analyses conducted by EPA Region II evidenced no issue with respect to contamination.

b) NYSDEC recently issued on September 6, 2010 a renewed Title V air operating permit to the

Ravena facilit y. The permit contained absolutely no limitation on the use of fly ash (although the facility did agree to a nonspecific annual mercury emissions cap).

c) NYSDEC has acknowledged that emissions from the Ravena facility are well below (that is to say hundr eds of times below) the state’s short and long term exposure thresholds for air toxic emissions. Of note, in a recent school board meeting presentation the New York State Department of Health senior toxicologist reported, relative to mercury emissions, “th at the school should be more concerned about mercury thermometers being broken in a lab class than air emissions from the Lafarge cement plant.” Ravena

- Coeymans

- Selkirk School Board Meeting, January 26, 2009.23

d) In contrast to PEER’s implications, the cem ent kiln dust (“CKD”) is disposed of at a NYSDEC solid waste permitted landfill on the site of the facility. The landfill which is overseen by the state is lined, contains a CKD water conditioning system, and a leachate collection and groundwater monitorin g system. The landfill is demonstrably an environmentally appropriate

location for the CKD.

To dispel other random and inaccurate claims made by PEER, most if not all CKD landfills within the United States are already permitted by their cement plant’s res pective state agency. As is the case for the Ravena plant, CKD is typically placed in a lined landfill with a leachate collection and groundwater monitoring system. Finally, very prescriptive landfill closure requirements must typically be met in permanent ly closing a CKD landfill.

Response: Thank you for your comments. CKD, however, is outside the scope of this rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06541

- 5 

### Organization 1 

### : Large Public Power Council (LPPC)


### Commenter 1 : Brian H. Moeck, LPPC Environmental Task Force Commenter Type: Trade Association

Classification: Substantive



### Comment Excerpt Text: Regarding EPA’s analysis of damage cases, EPA has identified a grand total of only 27 “proven damage” cases from CCR management practices in landf ills, surface impoundments, and sand and gravel pits. Id. at 35230 (Appendix). Of those, only 8 cases involved groundwater contamination that was associated with a CCR surface impoundment, and an additional 9 cases

involved surface water contamination that was associated with a CCR surface impoundment.

Yet there are a total of approximately 584 active CCR surface impoundments, located at approximately 495 coal

- fired power plants. Id. at 35151. In other words, the sole support for prohibiting the wet handli ng of CCRs, and for requiring premature closure of all existing CCR surface impoundments, is the fact that 3% of those CCR surface impoundments were found to

have caused contamination.

Response: The statistics cited by the commenter are now outdated. Follo wing a review of the proposed rule’s record of damage cases and of 90 ‘newly alleged’ damage cases submitted by environmental advocacy groups in 2010 and 2011, the current tally of damage cases stands at

around 150 . As stated in the preamble to this rule, EPA’s documented record of confirmed damage cases is dominated by wet

- disposal and treatment modes: surface impoundments, cooling ponds, and artificial wetlands constitute over 40 percent of the total number of implicated waste units. Slightly over half of the recorded impact cases are associated with groundwater; over ten percent are associated with surface water, which quite frequently are also associated with documented ecological impacts and/or with contamination of soils and/or river sediments; over on e third of the cases are associated with both groundwater and surface water impacts; and about four percent

- with catastrophic surface impoundment failures. Finally, over 90 percent of the damage cases impacting groundwater involve unlined or inadequately lined24

waste units, primarily CCR impoundments: in many instances, there are several surface impoundments at an individual damage case site that leak contaminants to groundwater. Although the actual number of implicated impoundments cannot be always establ ished due to deficient groundwater monitoring networks, the actual percentage of CCR surface impoundments found to have caused contamination is clearly within the realm of double

- digit of the total impoundments’ population. As elaborated in Unit VI of the preamble to this rule, the predominant role played by wet disposal of CCRs in groundwater impact, as well as the findings of the risk assessment accompanying this rule whereby unlined surface impoundments pose a significantly higher risk to human health an d the environment, provide sufficient grounds for the final rule’s requirements for the siting, design and structural integrity of CCR surface impoundments.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06555

- 14 

### Organization 1 

### : Saint

- Gobain Corporation / CertainTeed Corporation


### Commenter 1 : Lauren P. Alterman Commenter Type: Beneficial User

Classification: Substantive



### Comment Excerpt Text: C. Potential Damage Cases and Risk Assessments in the Proposed CCR Rule Do Not Provide Any Concerns with Encapsulated CCRs in Damage Cases

To support its conclusion in the Proposed CCR Rule that CCRs present a health and environmental risk, EPA relies extensively on past damage cases and the results of several risk assessments undertaken by the Agency. Neither the damage cases, nor the risk assessments evidence any concerns related to CCRs that are encapsulated in a final product.

1. The Damage Cases Are Unrelated to Encapsulated CCRs

EPA refers to 27 proven damage cases and 40 potential damage cases to groundwater and surface water to support the proposed changes in the regulations. All the damage cases involve disposal sites where CCRs have been placed in varying types of waste management facilities. None of the referenced potential damage cases involve encapsulated CC Rs. In short, it is noteworthy that the plethora of potential damage cases giving rise to EPA’s concern that CCR environmental risks merit regulation is bereft of any evidence suggesting encapsulated CCRs present an environmental risk of any kind. In light of the substantial and detailed review by EPA spanning many years of intensive analysis, the total absence of any data connecting encapsulated CCRs to any damage case is revealing and striking and serves to further support and bolster CertainTeed’s positi on that encapsulated CCRs should be specifically excluded from regulation.

Response: The Agency agrees with the comment. A recently conducted risk scoping of encapsulated CCR products suggests that they pose low enough risk to justify their continued

excl usion from the CCR regulation of this rule. For details, the commenter is referred to Unit IV of the preamble to the final rule.25



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06817

- 40 

### Organization 1 

### : Portland Cement Association


### Commenter 1 : Robert Hirsch
Commenter Type: Trade Association

Classification: Substantive



### Comment Excerpt Text: It is noteworthy that neither of the two volumes of EPA’s damage case report, “Evaluation of Coal Combustion products Damage Cases, were accessible directly from the docket and ins tead had to be specially requested from EPA. [FN 48: Although both volumes of the report, Evaluation of Coal Combustion Product Damage Cases,” are each listed twice in the docket as

EPA

- HQ

- RCRA

- 2009

- 0640

- 0026 (Vol. 1) and EPA

- HQ

- RCRA

- 2009

- 0640

- 0027 (Vol. 2 ), and again as EPA

- HQ

- RCRA

- 2009

- 0640

- 0517 (Vol. 1) and EPA

- HQ

- RCRA

- 2009

- 0640

- 0494 (Vol. 2), neither volume was ever placed into the docket and made available to the public for downloading from Regulations.gov. Instead, only a page insert with the followin g notification from EPA was available: “This document is not available in Regulations.gov since it is a copyrighted publication and may not be reproduced without consent of the copyright holder.” Consequently, PCA had to request a copy of both documents fr om EPA. A copy of the results of a search of the docket listing the four ID numbers (two for each volumes) is included with these comments as Appendix D. Also included as Appendix E is a copy of PCA’s letter to EPA requesting a copy of both volumes. PCA co ntends that EPA’s failure to make the two volumes of the damage case report fully accessible to the public from Regulations.gov, with need to make a separate request for them, was clearly arbitrary, especially given the fact that: (1) EPA’s need to

conduct such a study was expressly mandated by the Bevill Amendment, and (2) the study was paid for with taxpayer dollars and the copyright should have belonged to EPA and not to the consultant that prepared the report for and on EPA’s behalf.]

Response: EPA’s R CRA docket document EPA

- HQ

- RCRA

- 2009

- 0640

- 0026 is titled in the

docket ‘ Compilation of State Comments received by ASTSWMO regarding EPA Proposed Regulation of CCB’; and EPA’s RCRA docket document EPA

- HQ

- RCRA

- 2009

- 0640

- 0027 is

titled ‘ Letter to Matt Hale, Director, USEPA, Office of Resource Conservation and Recovery, Benjamin H. Grumbles, Director, Arizona Department of Environmental Quality.’ These two documents clearly do not deal with damage cases. The EPA’s RCRA docket documents addressing damage cases: EPA

- HQ

- RCRA

- 2009

- 0640

- 0517 (Vol. 1) and EPA

- HQ

- RCRA

- 2009

- 0640

- 0494 (Vol. 2) were authored by EPRI (Electric Power Research Institute), which is an independent entity funded by the electric power industry. Documents that are published by a

non

- government e ntity subject the Agency to the copyright governing such documents. EPA regrets that the docket’s header of these two documents failed to mention their EPRI authorship: such reference would have at least facilitated a search of EPRI’s website, where these two

documents are accessible to all: http://www.epri.com/abstracts/Pages/ProductAbstract.aspx?ProductId=000000000001020553

and http://www.epri.com/abstracts/Pages/ProductAbstract.aspx?ProductId=00000000000102055426



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06817

- 59 

### Organization 1 

### : Portland Cement Association


### Commenter 1 : Robert Hirsch Commenter Type: Trade Association

Classification: Substantive



### Comment Excerpt Text:

ATTACHMENT 2: See the second attachment in the original comment which includes: Appendix D: Results of docket search for comments relating to "Ev aluation of Coal Combustion Product Damage Cases"

ATTACHMENT 2: See the second attachment in the original comment which includes: Appendix E: Letter from PCA requesting three documents from the EPA reading room that were withheld by the docket.

Response: See response to the preceding comment excerpt: EPA

- HQ

- RCRA

- 2009

- 0640

- 06817

- 40.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06832

- 5 

### Organization 1 

### : SCANA Corporation


### Commenter 1 : Shirley M. Ruffin Commenter Type: Electric Utility Company

Classification: Substantive



### Comment Excerpt Text: If the EPA focused appropriately on the nature and cause of the TVA facility failure, which clearly was the triggering event for this rulemaking, it would direct its efforts to the enhancement of engineering consideratio ns related to the structural integrity requirements of CCR impoundments and to monitoring structural integrity. Why make waste characteristic the center of regulatory focus for determining how to deal with CCR impoundments? The Tennessee Department of Heal th, under a cooperative agreement with the Agency for Toxic Substances and Disease Registry, recently released its final report which reveals the health risks from the coal ash spill at TVA's Kingston facility to be minimal. If it is the EPA’s intent to ad dress the key environmental problem, clearly the agency should concentrate on structural integrity monitoring requirements for coal ash impoundments.

Response: In this rule the Agency has indeed taken major steps to ensure the structural integrity

of CCR impoundments. This is to be implemented through periodic inspections of their engineered containment structures. All CCR surface impoundments are required to conduct weekly inspections. Impoundments that exceed a certain height and capacity thresholds are also required to conduct annual and five

- year inspections. However, as our CCR damage case record strongly suggest, CCRs are implicated in scores of unlined or improperly lined, leaking surface27

impoundments (and to a lesser degree, CCR landfills), which i mpact groundwater. Surface impoundments are also implicated in a significant number of surface water impacts and associated ecologic damages. In order to protect human health and the environment, this reality has compelled the Agency to set up requirements enhancing the structural integrity of surface impoundments as well as requirements for the siting, design and operational aspects of CCR impoundments found lacking under many of the current state regulatory programs.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 06 40

- 06841

- 5 

### Organization 1 

### : Michigan Technological University, Michigan Tech Transportation Institute


### Commenter 1 : Larry Sutter Commenter Type: Academia

Classification: Substantive



### Comment Excerpt Text: I think no one will dispute the need for changes in impoundment and disposal practices as witnessed by the failure of the federally

- operated TVA impoundment in Kentucky. However, tackle that problem from the correct perspective. It is not the materials (i.e. CCRs) fault the dam

failed. It is the fault of th e agency that constructed the dam and conducted the operation of that facility. Do not, as they say, throw the baby out with the bath water. Fix the impoundment problem, leave the material alone.

Response: In this rule the Agency has indeed taken major st eps to ensure the structural integrity of CCR impoundments. This is to be implemented by requiring periodic inspections of the engineered containment structures: all CCR surface impoundments are required to conduct weekly inspections; a ll impoundments that exceed a certain height and capacity thresholds are also required to conduct annual and five

- year inspections. However, as EPA’s CCR damage case record strongly suggests, CCRs are implicated also in scores of unlined or improperly lined, leaking surface i mpoundments (and to a lesser degree, CCR landfills), which have been implicated in impacts to groundwater. Surface impoundments are also implicated in a significant number of adverse surface water impacts and associated ecologic damages. In order to protec t human health and the environment, this reality has compelled the Agency to set up requirements enhancing the structural integrity of surface impoundments as well as requirements for the siting, design and operational aspects of CCR impoundments found lac king under many of the current state regulatory programs.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06851

- 19 

### Organization 1 

### : American Electric Power (AEP)


### Commenter 1 : John M. McManus Commenter Type: Electric Utility Company

Classification: Substantive



### Comment Excerpt Text: The Bevill Amendment was clear in that only cases where such danger "has been proved" were to be included (RCRA Section 8002(n)(4)).. It is necessary that USEPA, to the extent that the Agency considers damage cases in this proceeding, only u se cases that meet the statutory criteria28

of documented, proven damage when deciding whether a reversal of its final 2000 Regulatory Determination is appropriate AEP believes that such a reversal would not be appropriate.

Response: In this rule, the EPA i s deferring the Bevill exclusion that was upheld in EPA’s May 2000 Regulatory Determination (40 CFR Part 261). EPA’s deferment is due to uncertainties concerning possible changes in the composition of CCRs in the foreseeable future, as new air quality emis sion regulations are put in place. Damage cases, even if only potential damage cases, are also relevant under the third Bevill factor: “potential danger, if any, to human health and the environment from the disposal and reuse of such materials.” 42 U.S.C. § 6982(n)(4). Whether the Constituent of Concern ultimately causes further damage by migrating into drinking water wells does not diminish the significance of the environmental damage caused to the groundwater under the site, even where it is only a futur e source of drinking water. Sources of drinking water are finite, and future users’ interests must also be protected. See, 44 FR at 53445

- 53448. ("The Act and its legislative history clearly reflect Congressional intent that protection of groundwater

is t o be a prime concern of the criterion....EPA believes that solid waste activities should not be allowed to contaminate underground drinking water sources to exceed established drinking water standards. Future users of the aquifer will not be protected unl ess such an approach is taken.")



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06883

- 26 

### Organization 1 

### : Headwaters Resources, Inc.


### Commenter 1 : William H. Gehrmann Commenter Type: Beneficial User

Classification: Substantive



### Comment Excerpt Text:

The Battlefield Golf Course is a perfect example of why EPA should not categorically exclude large scale fill projects from its definition of exempt "beneficial use." EPA Region 3's study concluded that a large scale fill project is not posing a threat to human health and the environment. As such, it is inappropriate for EPA to rely on the Battlefield Golf Course to support its position that fly ash should be regulated as a special hazardous waste or that large scale fill projects should be categorically excluded from the exemption for beneficial use.

Response: The Chesapeake, Virginia Battlefield Golf Course site was designated as a potential damage case. Whereas it might not pose an imminent risk to the neighboring residents, there are other instances where large

- scale f ill projects have resulted in proven damage

- cases. After weighing in on the issue, the EPA concluded that the size of a fill project is not necessarily the critical factor worthy of consideration in each and every case, but rather a combination of factors such as the leachability of the CCR fill, the permeability of the natural substrate, and the amount

of run

- on to be collected at the site. Consequently, the Agency does not bar nor regulate CCR structural fill projects but rather advises practitioners to t horoughly study the material and site properties prior to the execution of the project.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06885

- 4 

### Organization 1 

### : Hoosier Environmental Council (HEC)


### Commenter 1 : Jesse Kharbanda29

Commenter Type: Advocacy Group

Classification: Substantive Comment Category:



### Comment Excerpt Text: 4. The EPA needs to conduct further investigation on the extent of damage cases.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06885

- 9 

### Organization 1 

### : Hoosier Environmental Council (HEC)


### Commen ter 1 : Jesse Kharbanda Commenter Type: Advocacy Group

Classification: Substantive



### Comment Excerpt Text: The EPA needs to conduct further investigation on the extent of damage cases.

As noted above, Indiana has numerous instances of potential damage from CCR disposal, and yet these cases have not been sufficiently investigated by EPA.

Response: In reference to the complete comment: “ EPA has verified that Indiana has one proven damage site in the Town of Pines (drinking water wells contaminated with arsenic, manganese, molybdenum, and boron), and six suspected sites. Other sites with existing or potential contamination not listed by EP A are at Duke Energy’s Gibson and Cayuga power plants, both contaminated by boron, and the Indiana

- Kentucky Electric Company site in Madison, Indiana, contaminated by manganese, iron, sulfates, and boron,” EPA currently has records of two proven

and seven potential CCR damage cases in Indiana. The record of around 150 confirmed CCR damage cases provides a sufficient support to the technical requirements of this rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06987

- 15 

### Organization 1 

### : Entergy Services, Inc.


### Com menter 1 : Joseph Hantz Commenter Type: Electric Utility Company

Classification: Substantive



### Comment Excerpt Text: The TVA Ash Release Was an Engineering Failure that Does Not Warrant Sweeping Environmental Regulation

While the 2008 Tennessee Valley Authority (TVA) CCR surface impoundment release was significant, it was a localized engineering failure that should not require sweeping rulemaking impacting all existing CCR surface impoundments. Moreover, since the TVA ash release, EPA has been conducting comprehensive structural integrity assessments of utility CCR impoundments across the country. While still ongoing, of the more than 120 CCR impoundments evaluated thus far, none of the impoundments has received an “unsati sfactory” rating, meaning that not one impoundment inspected thus far presents an imminent threat of a catastrophic release similar to that which occurred at TVA’s Kingston facility. [Footnote 3: Environmental30

Protection Agency. EPA Coal Combustion Residua ls Impoundment Assessment Reports. http://www.epa.gov/epawaste/nonhaz/industrial/special/fossil/surveys2/index.htm (last visited November 3, 2010).]

Response: The Agency concurs with the commenter that none of the impoundments surveyed

under the CCR Dam Assessment survey has received an “unsatisfactory” rating, meaning that not one impoundment inspected presents an imminent threat of a catastrophic release similar to that of the TVA Kingston facility in December 2008. Yet as of July 2014, 152 of the 559 u nits assessed have been rated as ‘poor.’ At least in some of these cases, a ‘poor’ rating indicates that a safety deficiency is recognized in a CCR management unit for a required loading condition (static, hydrologic, seismic) in accordance with the applic able dam safety regulatory criteria, and that remedial action is necessary. This, combined with the 50 units identified at 32 different facilities as High Hazard Potential units based on EPA's adoption of FEMA's Federal Guidelines for Dam Safety: Hazard Potential Classification System for Dams provide a sufficient rationale for the requirements of this rule for structural integrity of surface impoundments, including weekly, annual, and five

- year inspections by properly qualified professionals. The required inspections regime aims at reducing th e prospects of High Hazard Potential impoundments from causing human life loss accompanied by significant damage to property under extreme loading

conditions.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06988

- 16 

### Organization 1 

### : Missouri Joint Municipal Electric Utility Commission


### Commenter 1 : Floyd Gilzow Commenter Type: State Government
Classification: Substantive



### Comment Excerpt Text: EPA has no anecdotal or systemic data demonstrating that current state and federal regulations administered by the EPA and MDNR are not protective of the environment.

Response: EPA does have data

– in the form of around 150 CCR damage cases

– that CCR management regulations administered by quite a number of states are either insufficiently protective of human health and the envir onment and/or that they are inadequately enforced. Moreover, considering that many of the older waste management units that are potentially vulnerable to leakage due to the absence of liners do not have groundwater monitoring, and that this situation is gr andfathered by a significant number of states, the dearth of evidence for environmental impact does not necessarily equate with an actual lack of impact.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06988

- 4 

### Organization 1 

### : Missouri Joint Municipal Electric Utility Commission


### Commenter 1 : Floyd Gilzow Commenter Type: State Government
Classification: Substantive



### Comment Excerpt Text:31

EPA has failed to provide a substantive argument to substantiate a compelling need to change the current regulation of CCR’s through implementation of new federal regulations. It is clear that the collapse of the Coal Ash Retention Pond in 2008 at the Kingston, Tennessee facility was both a community and an environmental disaster. It is not clear that this single event should re quire a completely new regulatory regimen.

Response: If one were to identify a single factor other than the December 2008 TVA Kingston dike failure to justify a federal regulatory intervention, it would be the significant

– and still growing

– record of C CR damage cases. The June 2010 proposed rule confirmed 27 proven damage cases and 40 potential damage cases. Currently, the total record of confirmed damage cases (both proven and potential) stands at around 150

.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 070 01

- 5 

### Organization 1 

### : Vectren Corporation


### Commenter 1 : Angila M. Reinerford Commenter Type: Electric Utility Company

Classification: Substantive



### Comment Excerpt Text: Despite the catastrophic nature of the TVA impoundment breach and the resulting spotlight that was cast on the agency, a dam failure simply does not change the nonhazardous characteristics of CCR material. This is further evidenced by the fact that following the release of the CCR material from the TVA impoundment which ultimately led to the cu rrent rulemaking, EPA approved the disposal of that very same CCR sludge material from the TVA remediation in a

non

- hazardous RCRA Subtitle D landfill.

Response: The Agency acted consistently with the action cited by the commenter in that this

final rule is a RCRA subtitle D rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 07047

- 6 

### Organization 1 

### : Great River Energy


### Commenter 1 : Erik Silvola Commenter Type: Electric Utility Company

Classification: Substantive



### Comment Excerpt Text:

The unfortunate incident at th e TVA Kingston plant was a structural failure and was not caused by the chemical properties of CCRs or their regulatory status.

Response: The TVA Kingston dike failure incident informed the Agency on the regulatory lapses related to dike integrity oversight by existing state regulatory organizations, the correction of which requires a periodic inspection regime by properly qualified profess ionals. However, the growing record of confirmed damage cases indicates that certain chemical properties of CCR, when combined with deficiently designed and/or operated waste management units also result in adverse impacts to groundwater and surface water.32



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 07489

- 9 

### Organization 1 

### : Council of Industrial Boiler Owners (CIBO)


### Commenter 1 : Robert D. Bessette Commenter Type: Trade Association

Classification: Substantive



### Comment Excerpt Text: Damage cases do not provide factu al or legal justification for EPA's approach. While advocates of hazardous waste regulatory treatment for CCR point to highly publicized accidental spills of CCRs to court public support for additional regulatory action, EPA has a statutory obligation to consider such incidents in their proper context. EPA cites the Kingston facility ash spill as one of five cases of claimed damage in the past two years.[Footnote 14: 75 FR 35147] Following the December 2008 Kingston ash spill, the U.S. Department of Health and Human Services entered into an agreement with the Tennessee Department of Health to study the health impacts that may have resulted from the Kingston spill. In the final Public Health Assessment, released on September 7, 2010, HHS found little to no h ealth risk posed by the coal ash spill. According to the report, the chemical and physical characteristics of the coal ash were not expected to cause any harm to human health from touching, eating, drinking, or breathing the ash. .[Footnote 15: U.S. Depart ment of Health and Human Services and Tennessee Department of Health, Public Health Assessment

- Tennessee Valley Authority (TVA) Kingston Fossil Plant

Coal Ash Release (September 7, 2010), see general conclusions (79

- 89).] The only potential danger cited i n the report was due to the extent and suddenness of the catastrophic release. This case, and others like it, does not provide the factual or legal basis to establish a Subtitle C hazardous waste program for CCBs, especially where these same types of cases had been fully analyzed in the past, and relied on by EPA to support its earlier 2000 conclusion that Subtitle D should be used and impoundments should be addressed in particular.

Nor do the other recent cases EPA cites provide support for this Proposal. EPA notes that, "[s]ince the May 2000 Regulatory Determination, EPA has documented an additional 13 proven damage cases and 4 potential damage cases." [Footnote 16: 75 FR 35150] Yet EPA’s handling of this information is of no help in this rulemaking. Take n together, EPA's discussion of damage cases points strongly to one thing: the need for EPA to fully analyze the claims of damage, state responses, the types of impacts, and other basic aspects of these cases, including parsing them

based on whether a haza rdous listing for the waste would address the root cause of the damage. Parsing the cases is especially necessary given that Subtitle C and D are vastly different regulatory outcomes that would be supported by very different facts and scientific conclusion s. Instead, EPA proposes to establish essentially the same performance standards for either Subtitle C or Subtitle D programs, based on a generalized recitation of data and incomplete analysis of that data. [Footnote 17: 75 FR 35193] Nowhere does EPA show its predilection for a hazardous listing more than in its failure to marshal a searching inquiry of the facts and root causes of each

of these cases.

As drafted, the record leaves EPA without support to finalize any of its options. EPA refers to

"addition al claimed damage cases," which "EPA has not had time to review,"[Footnote 18: 75 FR 31548] and a "large number of potential damage cases." [Footnote 19: 75 FR 35150] These33

claims, unreviewed by EPA, do not support EPA’s proposed regulation. EPA refers to cases involving the "type of damage that EPA originally identified to result from improper management of CCR..." [Footnote 20: Id.] Damage resulting from CCR mismanagement does not support a conclusion that the material is hazardous, which reverses a previou s supported conclusion based on essentially the same data that it is not hazardous.

EPA is even inconclusive regarding state programs, admitting that EPA "continues to lack substantial details regarding the full extent of state regulatory authority over t hese materials, and the manner in which states have in practice, implemented this oversight..."[Footnote 21: 75 FR 35157] EPA is able only to assert that the information it does have "calls into question whether [state] programs...have sufficiently improved to address the gaps that EPA had identified."[Footnote 22: 75 FR 35150] Quite clearly, EPA speaks with no authority on what, precisely, are the current regulatory gaps that EPA intends to fill by its rulemaking. Ten years after its nonhazardous Regulatory Determination and resolution to fill regulatory gaps, EPA cannot state what gaps remain and whether and how states have filled them. This inexactitude on issues foundational to the rulemaking cannot support the sweeping reversal of the regulatory

determina tion and federalized program that EPA proposes.

Reports of damage from an unintentional CCR release must be fully analyzed and viewed in the context of incident management rather than the intentional placement of a material at a location

for a beneficial use or disposal, and the appropriate regulatory program and incident management factors should be evaluated including: • What was the applicable regulatory program for CCB management at the time of incident? • Did the type of disposal operation demonstra te a consistent problem (for example, disposal in sand and gravel operations, sluicing of CCBs at the site, co

- mixing pyrite from ball mills)? • If wetlands were involved, was this being done at the time when the US Public Health Service and Army Corps of Engineers were working to eliminate wetlands as vector sources? • Was the site where a problem occurred, part of a waste water treatment system? • In the case of dams and impoundments, did the structures meet national standards for dam safety required f

or impounding liquids or semisolids?

Response: This rule will regulate CCRs under RCRA subtitle D: for details, see Unit IV of the preamble to the final rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 07799

- 5 

### Organization 1 

### : Municipal Electric Authority of Georgia (MEAG Power)


### Commenter 1 : Brad Spooner Commenter Type: Electric Utility Company

Classification: Substantive



### Comment Excerpt Text: Since the TVA incident, EPA’s inspections of the structural integrity of surface impoundments used for the disposal of CCBs have yet to identify any situation suggesting a significant risk of failure comparable to the incident at TVA’s Kingston facility.34

Response: The Agency concurs with the commenter that none of the impoundments surveyed

under the CCR Dam Assessment sur vey has received an “unsatisfactory” rating, meaning that all the inspected impoundments do not present an imminent threat of a catastrophic release similar to that of TVA’s Kingston facility in December 2008. Yet as of July 2014, 152 of the 559 units assessed have been rated as ‘poor’. At least in some of these cases, a ‘poor’ rating indicates that

for a CCR management unit a safety deficiency is recognized for a required loading condition (static, hydrologic, seismic) in accordan ce with the applicable dam safety regulatory criteria, and that remedial action is necessary. This, combined with the 50 units identified at 32 different facilities as High Hazard Potential units based on EPA's adoption of FEMA's Federal Guidelines for Dam Safety: Hazard Potential Classification System for Dams provide a sufficient justification for the rule’s requirements for structural integrity of surface impound ments, including weekly, annual, and five

- year inspections by properly qualified professionals. The required inspections regime seeks to reduce the prospects of High Hazard Potential impoundments from causing human life loss accompanied by significant dama ge to property under failure caused by extreme loading conditions.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 07799

- 6 

### Organization 1 

### : Municipal Electric Authority of Georgia (MEAG Power)


### Commenter 1 : Brad Spooner Commenter Type: Electric Utility Company

Classification: Substantive



### Comment Excerpt Text: It is not necessary to regulate CCBs under Subtitle C to accomplish EPA’s principal concerns underlying the proposed rule; that is, “to ensure that catastrophic releases such as occurred at the

Tennessee V alley Authority’s (TVA’s) Kingston, Tennessee facility do not occur and that other types of damage cases associated with CCR surface impoundments and landfills are prevented.”

Response: This rule will regulate CCRs under RCRA subtitle D: for further detai ls, see unit IV of the preamble to the final rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08211

- 13 

### Organization 1 

### : North Dakota Department of Health


### Commenter 1 : L. David Glatt Commenter Type: State Government
Classification: Substantive



### Comment Excerpt Text: It is extremely important to note that no new groundwater damage sites have occurred since our

Subtitle D

- equivalent standards have been in effect. This shows that from a technical standpoint the Subtitle D option will be adequately protective.35

Response: This rule will regulate CCRs under RCRA subtitle D: for further details, see unit IV of the preamble to the final rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08211

- 14 

### Organization 1 

### : North Dakota Department of Health


### Commenter 1 : L. David Glatt
Co mmenter Type: State Government
Classification: Substantive



### Comment Excerpt Text: In addition, it has not been shown that any of the damage cases, here in North Dakota or elsewhere, were caused by transportation, storage, or treatment activities related to handling of

CCRs.

Response: Following stakeholder complaints delivered in the course of eight public hearings which have taken place following the publication of the proposed rule, additional information submitted to the Agency by environmental advocacy groups and press reports, there is now a significant documented record of air quality impacts associated with CCR fugitive dust. As pointed out in the preamble to this rule, the inadequately controlled fugitive dust is associated with all phases of CCR ma nagement, including transportation.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08213

- 7 

### Organization 1 

### : Central Alabama Electric Cooperative


### Commenter 1 : Terry Miller Commenter Type: Electric Utility Company

Classification: Substantive



### Comment Excerpt Text: From the information I have obtained, the TVA Kingston ash spill was a dam safety issue. It was a pond failure, which had absolutely nothing to do with the ash itself, but had to do with TVA’s, ash pond operation and maintenance. As we say in Alabama “don’ t throw the baby out with the bath water”. If you truly wish to fix the problem, then fix the problem. Simply allow the appropriate governmental agency to regulate dam safety. Don’t increase the cost of electricity to all consumers, many of whom are strugg ling just like Winfred and Mable.

Response: The TVA Kingston dike failure incident informed the Agency on the regulatory lapses related to the oversight of dike integrity under many of the existing state regulatory organizations. Correcting this lapse re quires a periodic inspection regime by properly qualified professionals. However, the growing record of confirmed damage cases indicates that certain chemical properties of CCR, when combined with deficiently designed and/or operated waste management units , also result in impacts to groundwater and surface water. The convergence of these two issues justifies this rule’s requirements for improved siting, design, and operational requirements of CCR management units.36



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08216

- 5 

### Organization 1 

### : Dixie Electric Cooperative


### Commenter 1 : Gary Harrison Commenter Type: Electric Utility Company

Classification: Substantive



### Comment Excerpt Text: From the information I have obtained, the ash spill at TVA’s Kings ton Plant was a result of a safety issue with the pond dam. All we ask is that you allow the appropriate government agency to regulate dam safety.

Response: See response to comment excerpt EPA

- HQ

- RCRA

- 2009

- 0640

- 08213

- 7.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08227

- 133 

### Organization 1 

### : Gypsum Association


### Commenter 1 : Michael Gardner Commenter Type: Trade Association

Classification: Substantive



### Comment Excerpt Text: EPA refers to 27 cases of proven damages to groundwater and surface water and 40 cases of potential damage to support the proposed changes to the RCRA regulations. All of the damage cases involve disposal sites where CCRs have been placed in different types of waste management facilities. Yet, none of the referenced potential damage cases invol ve washed FGD gypsum. The only damage case that even mentions washed FGD material is Case Study #63: Conesville Fixed FGD Sludge Landfill, Ohio. [Footnote 11: Coal Combustion Waste Damage Case Assessments, U.S. Environmental Protection Agency, 54 (July 200 7), Docket No. EPA

HQ

- RCRA

- 2006

- 0796

- 0015.] None of the damage cases, including the Conesville case, involved washed FGD gypsum. At the Conesville site, FGD sludge was used in an attempt to stabilize fly ash. Originally, USEPA did not include this site as a potential damage case because there was inconclusive evidence documenting a potential threat to the environment from the impoundment. After further review, USEPA added the site due to the environmental concerns arising from the facility's continued dispo sal of fly ash, not FGD sludge or gypsum, in the landfill. Groundwater monitoring wells up and down gradient were used to evaluate potential environmental impacts. However, since selenium was found in both up gradient and down gradient wells, selenium leve ls were attributed to background concentrations. USEPA does not present any information about the impact of individual CCR sources within the landfill and provides no indication or suggestion that washed FGD gypsum is of any potential concern.

In summary, there are no data connecting washed FGD gypsum to any damage cases cited by the

USEPA.

Response: Currently, there are over a dozen damage cases that are either associated with FGD management units or with liners composed of modified FGD/ash mixture (e.g., Poz

- O

- Tec). The implicated facilities involve CCR units holding FGD sludge, FGD sludge dewatering area(s), or dry stack FGD staging area; these units typically are either absent a liner or have a Poz

- O

- Tec37

liner. This evidence indicates that FGD has the p otential of becoming a source of groundwater contamination when stored and/or disposed in improperly designed CCR management units.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08227

- 55 

### Organization 1 

### : Gypsum Association


### Commenter 1 : Michael Gardner Commenter Type : Trade Association

Classification: Substantive



### Comment Excerpt Text: 1. The Damage Cases Are Unrelated to FGD Gypsum

EPA references 27 cases of proven damages to groundwater and surface water and 40 cases of potential damage to support the proposed chan ges to the RCRA regulations. 75 Fed. Reg. at 35143. All of the damage cases involve disposal sites where CCRs have been placed in different types of waste management facilities. Yet, none of the referenced damage cases involve FGD gypsum. The only damage c ase that even mentions FGD material is Case Study #63: Conesville Fixed FGD Sludge Landfill, Ohio. See Coal Combustion Waste Damage Case Assessments, U.S. Environmental Protection Agency, 54 (July 2007), Docket No. EPA

- HQRCRA

- 2006

- 0796

- 0015. At the Conesv ille site, FGD sludge was used in an attempt to stabilize fly ash. Originally, EPA did not include this site as a potential damage case because there was inconclusive evidence documenting a potential threat to the environment from the impoundment. Id. at 5 4

- 55. After further review, EPA added the site due to the environmental concerns arising from the facility's continued disposal of fly ash, not FGD sludge or gypsum, in the landfill. Id. Groundwater monitoring wells up and down gradient were used to evalua te potential environmental impacts. Id: However, since selenium was found in both up gradient and down gradient wells, selenium levels were attributed to background concentrations. Id. EPA does not present any information about the impact of individual CCR sources within the landfill and provides no indication or suggestion that FGD gypsum is of any potential concern.

It is noteworthy that the plethora of potential damage cases giving rise to EPA's concern that CCR environmental risks merit regulation is b ereft of any evidence suggesting FGD gypsum presents an environmental problem. In light of the substantial and detailed review by EPA spanning many years of intensive analysis, the total absence of any data connecting FGD gypsum to any damage cases is reve aling and striking and serves to further support and bolster the Gypsum Association's position that FGD gypsum should not be regulated under RCRA.

Response: See response to comment excerpt EPA

- HQ

- RCRA

- 2009

- 0640

- 08227

- 133.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08244

- 20 

### Organization 1 

### : Edison Mission Energy, LLC


### Commenter 1 : Basil G. Constantelos Commenter Type: Electric Utility Company38

Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: The foregoing analysis indicates that EPA ought not to overstate the risks of various CCR disposal methods, and that potential damage cases (identified by EPA or third parties) need to undergo a rigorous technical review, the results of which must b e made available for public comment, before any consideration is given to what those cases might mean in terms of potential impacts to human health or the environment. CCRs do not pose any inherent risks that justify their listing as hazardous substances u nder RCRA Subtitle C. Instead, EPA ought to focus on developing standards for compliance for disposal facilities that protect human health and the environment without imposing extraneous and unnecessary costs and burdens on industry. The Agency’s treatment of the coal ash from the TVA facility and the Tennessee Department of Health’s findings undermine EPA’s assessment of the risks associated with the quarry disposal of CCRs. In much the same way as EPA paints with too broad a brush when it concludes that

C CR disposal facilities pose unacceptable risks to human health and the environment, so too does it mistakenly treat all quarries as though they are the same. Where evidence suggests that

specific conditions do not pose risks to human health or the environm ent, quarry disposal of CCRs ought to be allowed. To regulate CCRs without a sound scientific basis for doing so would be arbitrary and capricious. Consequently, the Agency’s decision to pursue a Subtitle C listing is arbitrary and capricious in light of t he overwhelming weight of scientific evidence that

contradicts its assertions.

* * * * * In sum, the damage cases relied on by EPA do not provide any evidence that CCRs themselves pose a hazard to human health or the environment. At most these cases illust rate that the disposal of large quantities of flowable materials can cause short

- term physical impacts (e.g., damage houses, etc), but not long

- term exposure concerns as would be associated with hazardous waste releases. The appropriate way to address thes e risk is through Subtitle D, and the Agency’s existing enforcement authority under RCRA § 7003. EME would also note that EPA’s claim that it needs to use Subtitle C because it does not know where the risky disposal sites are is specious. EPA’s April 2010 risk assessment identified the 80 high

- risk sites. EPA knows where those sites are and already has all of the authority it needs to take action there, without imposing the burdensome and unnecessary regulatory regime outlined in the Proposed Rule’s Subtitl e C approach.

Response: This rule will regulate CCRs under RCRA subtitle D: for further details, see unit IV of the preamble to the final rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08246

- 15 

### Organization 1 

### : Stinson Morrison Hecker LLP on behalf of Kansas City Board of Public

Utilities


### Commenter 1 : Parthenia B. Evans and Dennis Lane Commenter Type: Electric Utility Company

Classification: Substantive Comment Category:39

Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text:
Further, as KDHE and o thers have pointed out, it is unclear that imposing subtitle C regulation would achieve any benefit beyond the level existing under current law. Indeed, the recent damage cases cited prove that point by showing it was violation of existing law, not the nee d for new regulation that led to the adverse health and environmental impacts.

Response: This rule will regulate CCRs under RCRA subtitle D: for further details, see unit IV of the preamble to the final rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08246

- 4 

### Organization 1 

### : Stinson Morrison Hecker LLP on behalf of Kansas City Board of Public

Utilities


### Commenter 1 : Parthenia B. Evans and Dennis Lane Commenter Type: Electric Utility Company

Classification: Substantive



### Comment Excerpt Text: In addition, at least as to the Pennsylvania spill, it is unclear what further regulatory prescriptions would have mitigated the risk, given that the “dam failure [violated] the facility’s state

- issued solid waste disposal permit and Section 402 of the Clean Water Act.” Id . [Footnote 1: EPA does not address whether the TVA spill resulted from a violation of existing state and/or federal law

mandates. See id. and 75 FR at 35239 (indicating that EPA and TVA entered an administrative

consent order under CERCLA that required TVA to clean up the spill).] This statement does not show existing state or federal laws governing the permitting of the facility or storage of CCRs were inadequate to minimize the risk of a spill, but, rather, that the spill was caus ed when existing laws were violated. In other words, compliance with the existing laws would be adequate to mitigate the risks that the 2000 Determination identified, but obviously cannot protect where they are ignored and violated. It is unclear how addin g new laws or modifying existing ones, as the Notice proposes to do, e.g., 75 FR at 35150/3 (suggesting new rules on structural stability and conversion or retrofitting will have substantial benefit in avoided clean up costs), would change that result, as presumably such laws would also have been violated by the actions that led to the spill.

Response: In this rule the Agency has indeed taken major steps to ensure the structural integrity of CCR impoundments. All surface impoundments are required to perfor m weekly inspections.

Annual and five

- year inspections are required for all impoundments that exceed a certain height and capacity thresholds. In addition, the facility would have to notify the State Director and post the findings of these inspections on a publically accessible website. EPA expects that such a robust regulatory regime would significantly reduce the prospects for non

- compliance with the prevailing regulatory requirements.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08288

- 2 

### Organization 1 

### : Oklaho ma Department of Environmental Quality40



### Commenter 1 : Scott Thompson Commenter Type: State Government
Classification: Substantive



### Comment Excerpt Text: Subtitle C Regulation for Generators, Transporters, and Disposal Sites is Unnecessary

All 27 damage cases cited by EPA in the preamble to the proposed rule, as well as the damage cases cited in the February 24, 2010 and August 26, 2010 reports from Environmental Integrity Project, et al., [Footnote 7: Out of Control: Mounting Damages from C oal Ash Waste Sites (February 24, 2010) and In Harm's Way: Lack of Federal Coal Ash Regulations Endangers Americans and Their Environment (August 26, 2010)] involve disposal of CCR or uses arguably constituting disposal. There is not a single documented ca se of human health or environmental harm identified due to either storage of CCR prior to a beneficial reuse or off

- site disposal, or to transportation of CCR, nor would one expect such harm except in the most egregious mismanagement scenarios for which Ok lahoma has jurisdiction under existing state authorities. Therefore, there does not appear to be any justification for Subtitle C regulation of CCR generators and transporters.

With respect to disposal, rather than adopting the more stringent double

- line r/leachate collection system construction standards for typical Subtitle C disposal areas, the proposed Subtitle C option contains single

- liner/leachate collection system construction requirements that are identical to those being proposed under the Subtit le D option. As noted above, DEQ's solid waste rules already contain essentially equivalent requirements for CCR disposal areas as are contemplated under the proposed D/D’ [D/D prime] rule, and in some cases are more stringent.

In summary, EPA's Subtitle C option appears to be extreme and without real justification since it will not provide any additional environmental protection over what can be achieved with the Subtitle D/D’ [D/D prime]option.

Response: This rule will regulate CCRs under RCRA subtitle D: for further details, see unit IV of the preamble to the final rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08841

- 15 

### Organization 1 

### : Deseret Generation and Transmission Co

- operative


### Commenter 1 : Howard Vickers Commenter Type: Electric Utility Company

Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: The use of TVA’s Kingston ash spill as a reason to regulate CCRs as hazardous and toxic seems to be overreaching. Recent analysis of TVA’s Ki ngston ash spill site, which EPA clearly admits became one of the main catalysts for proposing this CCR rule, concluded that no adverse health or environmental effects were observed after the cleanup was concluded. If the largest ash spill41

U.S. history cau sed no adverse effects on the environment or human health, EPA should discontinue moving forward with the Subtitle C option of regulating all CCRs as hazardous waste. Also, the inspection requirements outlined in the Subtitle D option would have clearly

be en sufficient to avoid the Kingston ash spill.

EPA uses the Battlefield Golf Course as an example in the proposed regulation. As EPA pointed out, ground water monitoring data from the Battlefield Golf course CCR fill site concluded that

there were no adv erse effects from the use of fly ash to contour the golf course. This type of activity would be prohibited by the new regulation and would preclude the beneficial use of CCRs for this and other worthwhile uses. The data from Kingston and the Battlefield go lf course show that regulation under subtitle D is sufficient to protect the public and environment.

Response: This rule will regulate CCRs under RCRA subtitle D: for further details, see unit IV of the preamble to the final rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08844

- 7 

### Organization 1 

### : National Mining Association (NMA)


### Commenter 1 : Tawny A. Bridgeford Commenter Type: Trade Association

Classification: Substantive



### Comment Excerpt Text: 2. EPA's Discussion of Beneficial Uses and Damage Cases Supports a Conclusion that Surface Coal Mining and Reclamation Operations are Outside the Scope of the "CCR Landfill"

Definition

Despite EPA's failure to adequately define what constitutes a "large scale fill operation," the agency's discussion of beneficial uses of CCRs is relevant and of particular importance. See 75 Fed. Reg. at 35,160

- 31 & 35,163. In that discussion, EPA refers to seven proven damage cases involving large

- scale placement of CCRs to confirm its position that "large scale fill operations"

do not fa ll under the beneficial use category and should be subjected to RCRA Regulation. [d. EPA specifically references two damage cases. First, EPA cites to the disposal of coal ash in a sand and gravel quarry in Gambrills, Maryland as a proven damage case becau se of reported groundwater contamination. Second, EPA cites to the use of coal ash as fill for contouring a golf course in Chesapeake, Virginia as a potential damage case, even though an April 2010 study

established that residential wells were not contamin ated. 75 Fed. Reg. at 35,147 & 35,231.

Notably, EPA does not once cite a damage case involving a surface coal mining operation. Importantly, EPA has never publicly identified a proven damage case relating to the use of CCRs at coal mines. In its Regulator y Determination in 2000, EPA could not identify "any proven damage cases resulting from the use of coal combustion wastes for minefilling." 65 Fed. Reg. at 32,231. The NRC also recognized in 2006 that "EPA [had] not identified any cases in which

exceedance s of water quality standards could be attributed directly to CCR mine placement." NRC Report at 3.

In the proposed rule at hand, EPA reveals for the first time that since its Regulatory42

Determination, it has identified six alleged potential damage cases i nvolving minefills. EPA, however, dismisses these alleged damage cases as involving a "management method" that is outside the scope of the proposed rule. 75 Fed. Reg. at 35,147. In fact, EPA provides no details in the text of the preamble or the docket tha t identifies any specifics (i.e., location, type of alleged contamination, or potential responsible party involved) on these alleged damage case

sites.

The complete lack of evidence in the record on damage cases concerning surface coal mining operations s uggests that these facilities are outside the scope of what EPA considers to be a "large scale fill operation" and thus a regulated "CCR landfill." The regulated community, however, deserves more regulatory certainty and EPA must provide clarification on t his issue in the final rule. To the extent EPA has evidence of any potential or proven damages from surface coal mining and reclamation operations and believes such evidence supports regulating such facilities as a "large scale fill operations," it must ma ke such data public and available for comment before subjecting these facilities to regulation under RCRA.

Even OSM pointed out in the interagency review process the lack of clarity in terms of what types of damage cases EPA in fact analyzed in developing the proposed rule. According to OSM Director Pizarchik, EPA's "risk assessment references a significant number of 'mine' sites as data collection sites, but fails to clarify if they are coal mines under the jurisdiction of SMCRA." OSM Letter at 2. NMA agr ees with Pizarchik's concern that EPA's failure to provide this information "could add confusion to the promulgation of a regulatory program under SMCRA and hamper the beneficial use of CCRs at coal mining sites as envisioned in EPA's proposal." Id.

at 2

- 3

.

Response: As stated in the May 2000 Regulatory Determination (40 CFR Part 261) and reiterated in the June 2010 proposed CCR management rule, the disposal of CCR in coal mining pits is outside the scope of this rule. This domain of CCR management is subje ct to SMCRA authority. In contrast, structural filling of CCR in open quarry pits associated with the extraction of resources other than coal (e.g., aggregates and building stone) is within the scope of this rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 0 8857

- 17 

### Organization 1 

### : Department of Electric, City of Hamilton, Ohio


### Commenter 1 : Charles Young Commenter Type: Electric Utility Company

Classification: Substantive



### Comment Excerpt Text: While EPA has made a clear example of the 2008 TVA accident, EPA, it self, acknowledges the rarity of such accidents. 75 Fed Reg. 35128, 35133, 35142

- 35143. As such, Hamilton encourages EPA to reconsider whether any additional federal regulation is necessary and appropriate.

Response: The Agency concurs that large

- scale spills akin to the December 2008 TVA Kingston dike failure are rather infrequent. EPA has identified four major releases of CCR sludge associated with surface impoundment failure which resulted in significant coal slurr y43

releases, with resulting fish kills and other ecologic damage and at times also damage to infrastructure. These catastrophic releases involved the release of 1.1 x 10 9 , 2.7 x 10 8 , 1.3 x 10 8

, and 1 x 10 8 gallons of CCR slurry by the spills of the 2008 Kin gston TVA, Tennessee; the 2014 Dan River, North Carolina; the 1967 Clinch River, Virginia; and the 2005 Martins Creek, Pennsylvania, respectively.) In addition, the possible ecologic impacts of two consecutive, 30 million gallons each of CCR slurry release s (in 2007 and 2008) by the Eagle Valley power plant

in Indiana have not been assessed. As of July 2014, 152 of the 559 surface impoundments assessed have been rated as ‘poor.’ At least in some of these cases, a ‘poor’ rating indicates that in a CCR manag ement unit a safety deficiency is recognized for a required loading condition (static, hydrologic, seismic) in accordance with the applicable dam safety regulatory criteria, and that remedial action is necessary. This, combined with the 50 units identified at 32 different facilities as High Hazard Potential units based on EPA's adoption of FEMA's Federal Guidelines for Dam Safety: Hazard Potential Classification Sys tem for Dams provide a sufficient justification for this rule’s requirements for structural integrity of surface impoundments, including weekly, annual, and

five

- year inspections by properly qualified professionals. The required inspections regime aims

at reducing the prospects for High Hazard Potential impoundments, when subjected to extreme loading conditions, from causing human life loss accompanied by significant damage to
property.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09235

- 19 

### Organization 1 

### : National Ready Mixed Concrete Association (NRMCA)


### Commenter 1 : Robert A. Garbini Commenter Type: Trade Association

Classification: Substantive



### Comment Excerpt Text: In addition, as the impetus of this proposed rule was unfortunate incident of Tennessee Val ley Authority’s impoundment at Kingston, TN, it should be recognized that the incident was an impoundment failure, not as result of any ‘hazardous nature’ of fly ash.

Response: This rule will regulate CCRs under RCRA subtitle D: for further details, see u nit IV of the preamble to the final rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09239

- 13 

### Organization 1 

### : Prairie State Generating Company, LLC (PSGC)


### Commenter 1 : Keith Bastian Commenter Type: Electric Utility Company

Classification: Substantive



### Comment Excerpt Text: The determination to regulate the material under Subtitle C does not appear to be tied to the chemical makeup of the material (as demonstrated by the information in the public domain, CCRs generally do not exhibit hazardous characteristics un der current RCRA regulations), but to how it is managed. EPA has assessed various damages cases and determined that certain disposal44

practices pose a potential threat to human health and the environment

- not that the material itself is hazardous. In respo nse to these damages cases, EPA proposes to subject CCRs destined for disposal to the entire "cradle to grave" regulatory structure without fully understanding whether all of the Subtitle C requirements can or should be implemented at electric utilities an d without complying with Section 3004(x) of RCRA. While EPA has determined that implementation of some of the existing Subtitle C requirements would present practical difficulties and as such EPA has proposed to revise some, EPA has failed to assess whethe r all of the Subtitle C requirements would present practical difficulties or whether they are even necessary to accomplish its objective. EPA needs to review the risks demonstrated by the proven damage cases and design the program to address only those ris ks.

Response: This rule will regulate CCRs under RCRA subtitle D: for further details, see unit IV of the preamble to the final rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09239

- 24 

### Organization 1 

### : Prairie State Generating Company, LLC (PSGC)


### Commenter 1 : Keith Bastian Commenter Type: Electric Utility Company

Classification: Substantive



### Comment Excerpt Text: Containers and Tanks (264 Subparts I and J and 265 Subparts I and J) Because the proven damage cases demonstrate that CCRs contained in containers an d tanks do not pose a risk to human health or the environment, the requirements in 264 Subparts I and J and 265 Subparts I and J should not apply. EPA has referenced the damages cases as support for its position that CCRs should be regulated under Subtitle C. However, none of the damages cases identify risks associated with the storage of CCRs in containers or tanks.

Response: This rule will regulate CCRs under RCRA subtitle D: for further details, see unit IV of the preamble to the final rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09325

- 1 

### Organization 1 

### : Altaview Concrete


### Commenter 1 : Scott P. Bigler Commenter Type: Beneficial User

Classification: Substantive



### Comment Excerpt Text: It is certainly relevant that EPA should respond to the coal ash pond fail ure in Tennessee. The response should be appropriate to the failure that took place. This was an operational failure of those who had built and maintained the impoundment. The failure did not cause the nature of coal ash to change overnight. It was either hazardous before the impoundment failure or not and can’t become something else after the failure. This is not an unknown product that EPA has suddenly encountered and is now trying to formulate an oversight which may have been ignored

before.45

Response t o the negligent operator of any type of sludge impoundment should be viewed in that singular light only.

Response: This rule will regulate CCRs under RCRA subtitle D: for further details, see unit IV of the preamble to the final rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09350

- 18 

### Organization 1 

### : Texas Industries, Inc. (TXI) Operations, LP


### Commenter 1 : David Perkins Commenter Type: Beneficial User

Classification: Substantive



### Comment Excerpt Text: 4. Imposition of Subtitle D management practices will app ropriately address land management of

CCRs

Management of land disposal units for fly ash could be achieved through a RCRA subtitle D program. Most states have already developed programs that are successful in regulating land disposal of fly ash. In fact, this condition is supported by EPA's determination in May of 2000 that state regulatory programs were adequate to ensure proper management and disposal of fly ash. Further, EPA and the U.S. Department of Energy in 2005 determined that such state regulator y programs had become even more stringent. EPA can further strengthen these programs by providing a uniform requirement under subtitle D of RCRA for land management of fly ash, rather than imposing unnecessary subtitle C requirements. There is a good found ation for appropriate management of landfill units with current state programs that can be strengthened, and this is the course that EPA should follow to maximize sustainability and continue to be protective of human health and the environment.

The NPRM' s preamble makes clear that the catalyst for this rulemaking was the failure of the impoundment at Kingston, Tennessee, 75 Fed. Reg. at 35132, as well as the other damage cases involving CCRs that the agency has analyzed. A review of investigative findings for the Kingston, TN failure and also the other damage cases EPA has analyzed makes abundantly clear that, in every instance, the cause for the leaching or spill can be attributed to an inadequacy in the containment system.

Based on the information that is provided in EPA's damage case assessment, what becomes clear is that the facilities involved in those cases lacked an appropriate liner and/or had been improperly designed and were also designed a number of years ago (opening between 1948 and 1983). Fu rther, EPA's damage case analysis also has recognized that the majority of the facilities had been built prior to landfill regulations and that State requirements for disposal of non

hazardous industrial waste were developed subsequently with different req uirements and timing. Thus, the only conclusion that can be reached from EPA's own damage case analysis is that, if there is a need for federal regulations governing CCR disposals to be adopted, EPA's focus, and the outcome of this rulemaking, should be on the technical and engineering controls that are needed to ensure the safe disposal of CCRs generated by the utilities.46

In this regard, one significant concession that EPA has made throughout the preamble is that the differences in the technical and engi neering control requirements that the agency has proposed under its subtitle C and D options are relatively small: "The Agency would implement similar technical controls under RCRA subtitle C or D." 75 Fed. Reg. at 35133; "Further, the technical unit desig n and groundwater monitoring requirements that will effectively protect human health and the environment under either option are quite similar." 75 Fed. Reg. at 35159.

Whatever differences that might exist between EPA's subtitle C and D proposals, they a re not so significant that they demonstrate the need for EPA to choose subtitle C over D. Indeed, it has to be assumed that EPA proposed its subtitle D requirements with an intention and understanding that, if adopted by the final rule, they would be suffi cient to protect the public.

While proponents of Option 1's adoption may argue that unless Option 1 is adopted the public will not be protected, neither they nor EPA has any basis for proving that. In fact, according to the NPRM, in January 2007, environ mental and citizen groups petitioned EPA to regulate CCRs under subtitle D, 75 Fed. Reg. at 35143, demonstrating that the adoption of Option 1 is not necessary to protect the public.

Under the argument that the supporters of Option 1 are now presenting, h owever, it is implied that all State environmental regulations and enforcement will always be insufficient. EPA knows that this is obviously not only factually incorrect, but also contrary to the regulatory structure designed by Congress. In fact, Option 1 supporters' claim that federal enforcement authority is needed for CCRs conflicts with a long history of the States enforcing hazardous waste requirements, not EPA, without problems. Unless EPA can prove that the States will not implement and enforce EPA' s subtitle D requirements if adopted by this rulemaking, it would be unreasonable and arbitrary for EPA to conclude that subtitle D could not, and would not, protect the public if adopted and, therefore, that EPA must adopt its proposed Option 1.

Response : This rule will regulate CCRs under RCRA subtitle D: for further details, see unit IV of the preamble to the final rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09728

- 13 

### Organization 1 

### : Intermountain Power Service Corporation (IPSC)


### Commenter 1 : Jon A. Finlinson Commenter Type: Electric Utility Company

Classification: Substantive



### Comment Excerpt Text: c. Damages cases used as a basis for listing are not representative of the risk for which the regulations are being promulgated.

Response: This rule will regulate CCRs under RCRA subtitle D: for further details, see unit IV of the preamble to the final rule.47



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09765

- 35 

### Organization 1 

### : Electric Power Research Institute (EPRI)


### Commenter 1 : Ken Ladwig Commenter Type: Trade Association

Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:

Other Sections: 6.8.8 6.1.3 6.8.6 6.2.5 

### Comment Excerpt Text: Relationship to Damage Cases

In several places in the Proposed Rule, US EPA asserted that risk assessment results “agree with” or are “consistent with” the damage cases (e.g., Fed. Reg. 75[118], 35153, 35169, 35171

- 35173; and pp. 4

- 23 to 4

- 26 of the 2010 Health/Eco RA). On a qualitative basis, there are similarities, such as the associatio n of higher risk estimates and prevalence of damage cases associated with unlined sites that have been operating for several decades. However, the information in the damage cases does not provide validation of the quantitative risk estimates developed in t he Health/Eco RA.

The RA and the damage cases provide fundamentally different information. The RA used Monte Carlo probabilistic modeling to assess the potential risks associated with a large number of input

variables meant to reflect conditions around wa ste management units throughout different regions of the U.S. The output is a distribution of hypothetical risk values. Conversely, the damage cases present groundwater or surface water concentration measurements; no human health or ecologic risk assessmen ts were performed by US EPA at the damage case sites and no risk values were calculated (US EPA, 2007b). In fact, as acknowledged by US EPA (Fed. Reg. 75[118], 35150, footnote 43), 15 of the 16 groundwater proven damage cases have either completed remediat ion, or are in the process of performing remediation (status of the 16th case is unknown). As a consequence, the actual risks currently posed by these damage case sites are likely very low.

In order to determine if the damage cases agree with the results of the Health/Eco RA in a more quantitative sense, US EPA would have to compare the intermediate results of the RA

— the modeled receptor well concentrations

— with the observed groundwater quality patterns at the damage case sites, taking into consideration t he site specific disposal site and hydrogeologic conditions, as well as time. To our knowledge, this comparison has not been performed.

The two most commonly observed constituents at the damage case sites were sulfate and boron.

These two constituents are mobile in groundwater, and migrate faster in groundwater than arsenic and other trace constituents in most hydrogeologic environments. They are generally used as indicator species for identifying groundwater impacts from CCR sites in disposal site

monitor ing programs. An EPRI evaluation of 16 large

- scale groundwater remediation projects at CCR sites found that the remediations were primarily driven by boron (15 of 16) and sulfate (10 of 16) (EPRI, 2006b). Once remediation is completed, the risks from all c onstituents are largely mitigated, and therefore, it is unlikely that arsenic or other compounds that migrate more slowly in groundwater would reach a receptor and pose a health concern. This scenario reflects the48

damage cases, but is markedly different fr om conditions modeled in the Human/Eco RA, which assumes long term (decades) exposure of a chemical to a receptor regardless of the relative mobility of the chemical.

Response: The Agency agrees with the distinction made by the commenter between the probab ilistic modeling “to assess the potential risks associated with a large number of input variables meant to reflect conditions around waste management units throughout different regions of the U.S.” and damage cases, which “present groundwater or surface wa ter concentration measurements” under site

- specific conditions. However, the commenter’s observation that “Once remediation (of boron and sulfate, drivers of the majority of the 16 proven groundwater damage case remediation projects as of June 2010) is com pleted, the risks from all constituents are largely mitigated, and therefore, it is unlikely that arsenic or other compounds that migrate more slowly in groundwater would reach a receptor and pose a health concern,” is not borne out by EPA’s CCR damage cas e record. For instance, at many damage case sites groundwater monitoring was first put in place years or even decades after poorly designed CCR management units were commissioned. Furthermore, s everal states have adopted a concept of a ‘buffer zone’, where onsite pollution is disregarded. For instance, under Florida’s Zone of Discharge ( ZOD) designation, numerical primary and secondary standards do not apply even beyond the ZOD, unless ordered specifically by the state ; and constituents with secondary

maxim um contaminant levels (SMCLs) such as boron and sulfate are not applicable to existing industrial facilities discharging to groundwater in the state. At least Illinois, North Carolina, Pennsylvania, and Tennessee have adopted similar concepts. Such regulat ory policies delay remediation long

- enough to facilitate the migration of MCL constituents such as arsenic to the site’s boundary and beyond. As described in the preamble to this rule, this is illustrated by the fact that EPA’s confirmed CCR damage case re cord includes ten sites involving exceedances of primary MCLs that have impacted drinking water wells. In all these cases, the implicated electrical utility provided alternative potable water to well water users.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09765

- 43 

### Organization 1 

### : Electric Power Research Institute (EPRI)


### Commenter 1 : Ken Ladwig Commenter Type: Trade Association

Classification: Substantive



### Comment Excerpt Text: US EPA suggests in the preamble that the damage cases offer s upport for the human and ecologic risk assessment. As previously discussed, this is only true in a general and qualitative sense (see Section 3.1.6). The risk assessment does show a higher level of risk associated with unlined sites, a finding corroborated by the high percentage of unlined sites among the damage cases. However, the risk assessment provides a quantitative estimate of risk to human health; no risk evaluations were performed at the damage case sites for comparison to the risk assessment

result s, and, in fact potential risks from the damage case sites have largely been mitigated by remediation activities. Ongoing or completed remediation activities are not considered in the human health and ecological risk assessment; all sites are assumed to co ntinue to release constituents for 10,000 years or until the constituents are completely depleted from the disposal49

site. The calculated risks are predicated on the continued long

- term exposure to individuals living near the sites, which is not supported b y experience at the damage case sites.

Response: See response to comment excerpt EPA

- HQ

- RCRA

- 2009

- 0640

- 09765

- 35.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09870

- 6 

### Organization 1 

### : Otter Tail Power Company


### Commenter 1 : W. Uggerud Commenter Type: Electric Utilit y Company
Classification: Substantive



### Comment Excerpt Text: Surely wet impoundment areas should be contained within adequately designed enclosures but the failure of a single wet ash impoundment should not give rise to the categorical re

categorization of all coal combustion products as hazardous.

Response: This rule will regulate CCRs under RCRA subtitle D: for further details, see unit IV of the preamble to the final rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09886

- 5 

### Organization 1 

### : PMI Ash Technologies, LLC (PMI)


### Commenter 1 : Lisa I. Cooper Commenter Type: Beneficial User

Classification: Substantive



### Comment Excerpt Text: 2. EPA's Subtitle C proposal, concluding that fly ash is a hazardous material, is inconsistent with previous EPA findings and without scientific support. It is clear that fly ash, while it contains some hazardous constituents; none of them are at the concentration that would classify fly ash

itself as hazardous. PMI endorses USWAG and ACAA comments which further discuss this point. EPA has expanded its reasoning to take into account "damage" cases as a justification. PMI notes that no damage cases exist in the encapsulated usage arena. We endorse the ACAA comments in this regard.

Response: This rule will regulate CCRs under R CRA subtitle D: for further details, see unit IV of the preamble to the final rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09886

- 6 

### Organization 1 

### : PMI Ash Technologies, LLC (PMI)


### Commenter 1 : Lisa I. Cooper Commenter Type: Beneficial User

Classification: Substantive Comment Category:50

Current Task: Examine Context Assigned/Due:

Other Units: 4.1.1 

### Comment Excerpt Text: 3. EPA's Subtitle C proposal is an overreaction to the TVA Kingston dike collapse. Confirmed by both EPA and TDEQ, there have been no hum an health issues related to this major ash spill. The underlying issue is that a non

- hazardous material was not stored or managed consistent with good utility practice or engineering standards and as a result. The material was released into the

environment . EPA's action should be swift and certain to establish national standards related to the disposal of fly ash. No further regulation is warranted.

Response: This rule will regulate CCRs under RCRA subtitle D: for further details, see unit IV of the preamb le to the final rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 10483

- 19 

### Organization 1 

### : Utility Solid Waste Activities Group (USWAG) et al.


### Commenter 1 : James R. Roewer Commenter Type: Trade Association

Classification: Substantive



### Comment Excerpt Text:

B. The Proposed Subtitle D Controls Will Prevent Future Damage Cases, And Existing Damage Cases Are Being Effectively Remediated

EPA‘s primary concerns with the identified damage cases involve surface and groundwater contamination from CCR disposal units and th e structural failure of CCR surface impoundments. 75 Fed. Reg. at 35147. These are precisely the risks, however, that the proposed Subtitle D controls are designed to address. EPA has stated repeatedly that the substantive standards for CCR disposal units are virtually identical under both the Subtitle C and Subtitle D options (id. at 35213), with both proposed regulatory programs requiring liners and leachate collection systems for new disposal units and lateral expansions of existing units, as well as the retrofitting of existing CCR impoundments. See, e.g., id. at 35243

- 45 (proposed 40 C.F.R. §§ 257.70

- 72). Further, under the Subtitle D option, existing CCR disposal units would be subject to groundwater monitoring standards that will allow for the early d etection of any groundwater contamination from both lined and existing unlined units. Id. at 35246 (proposed 40 C.F.R. § 257.90). Finally, the Subtitle D option would impose structural integrity requirements on all CCR surface impoundments, thus addressing EPA‘s concerns with the potential structural failure of such units that served as the basis for identifying the TVA Kingston facility and Martin‘s Creek Power Plant as proven damage cases. Id. at 35243

- 45 (proposed 40 C.F.R. §§ 257.71(b)

- (f), 257.83).

Wh ile the Subtitle D regulations will be effective in preventing future damage cases, the existing damage cases already are being properly remediated under state and federal remediation programs. As EPA acknowledged with respect to the proven damage cases id entified in the 2000 Regulatory Determination, all of these cases are being adequately addressed by the states (and in two cases, by EPA under the Superfund program), which EPA explained shows “the effectiveness of states responses when damages were identi fied.” 65 Fed. Reg. at 32216. In51

addition, the newly identified damage cases are being effectively remediated. The EPRI Damage Case Report includes a detailed analysis of the remediation efforts at these additional sites and found that “[a]vailable informa tion indicates that remediation is complete or underway at all sites where remediation was required.” Id. at 8

- 1; see also id. at 7

- 1

– 7

- 2. Indeed, of the 16 proven cases of damages to groundwater, EPA has confirmed that “corrective actions have been

comp leted in seven cases and are ongoing in the remaining nine cases.” 75 Fed. Reg. at 35150

n.43.

In short, existing damage cases are already being adequately addressed, and the proposed Subtitle D regulations would prevent future damage cases. Therefore, th ere is no reason for EPA to pursue the Subtitle C option when the Subtitle D option would effectively address the issues associated with the damage cases. Given the underlying goal of the Bevill Amendment that EPA avoid the Subtitle C regulation of CCRs “i f at all possible” (EDF v. EPA, 852 F.2d at 1314), there is no basis for EPA to rely on the damage cases as the basis for pursuing the Subtitle C option.

Response: This rule will regulate CCRs under RCRA subtitle D: for further details, see unit IV

of the preamble to the final rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 10489

- 40 

### Organization 1 

### : Harsco Minerals International, a division of Harsco Corporation


### Commenter 1 : Gene Iannazzo Commenter Type: Beneficial User

Classification: Substantive



### Comment Exce rpt Text: C. The Proven and Potential Damages Cases EPA Cited To Support The Proposed Rulemaking Do Not Involve Waste Boiler Slag.

The incident in Kingston, TN, as well as the other damages cases EPA and other groups cite in support of the proposed rulema king are not reported to involve boiler slag. Those cited damage cases all involved physical management issues, rather than true "hazardous waste" risks and, therefore, do not justify Subtitle C regulation. If, however, EPA elects to issue any Subtitle C

r egulations based on these physical

- management problems, it should exempt boiler slag waste because of the lack of data linking waste boiler slag disposal practices to these physical problems.

Response: This rule will regulate CCRs under RCRA subtitle D: see Unit IV of the preamble.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 10489

- 5 

### Organization 1 

### : Harsco Minerals International, a division of Harsco Corporation


### Commenter 1 : Gene Iannazzo Commenter Type: Benefic ial User

Classification: Substantive52



### Comment Excerpt Text: EPA fails to cite any proven or potential damage cases that include boiler slag.

Response: Whereas it is likely that boiler slag, by token of its coarse grain size, is less susceptible to reactio n with slurry water than other CCR fractions (fly ash, bottom ash, and FGD), considering that in many instances the different fractions of CCR are co

- managed in the same CCR management units masks the issue of whether boiler slag is indeed a contributing

s ource of leachate with adverse impact on groundwater. In those instances where boiler slag is managed separately because it is designated for beneficial reuse (e.g., as a de

- icing agent), EPA has no specific evidence to disagree with the commenter.



### Co mment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 10528

- 1 

### Organization 1 

### : Upper Chattahoochee Riverkeeper (UCR)


### Commenter 1 : Juliet Cohen Commenter Type: Advocacy Group

Classification: Non

- substantive



### Comment Excerpt Text: Since EPA first promulgated a rule regarding CCRs, the agency has assessed sixty

- seven additional cases where: groundwater or surface water has been damaged. This represents more than double the number of damage cases reported since the EPA first recognized CCRs required safer standards for disposal. Compare 65 Fed. Reg. '12214 (May 22, 2000) and 75 Fed. Ret; . 35,1?8. Furthermore, reports prepared for the Office of' Solid Waste in 2007 indicate that CCR leaches hazardous constituents in much greater quantities than was previously recognized.

Respons e: EPA agrees that the number of damage cases has increased significantly following the May 2000 regulatory determination. The current number of confirmed damage cases is around

150

.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 10573

- 2 

### Organization 1 

### : Arizona Rock Products Association (ARPA)


### Commenter 1 : Steve Trussell Commenter Type: Trade Association

Classification: Substantive



### Comment Excerpt Text: As you are aware, the Environmental Protection Agency is currently considering new regulations

for coal combust ion products, including fly ash, as a result of the failure of a wet ash impoundment at the Tennessee Valley Authority's Kingston, Tennessee facility in December 2008. The spill was the result of the failure of the containment structure and had nothing to do

with the material contained therein.

Response: In this rule the Agency is taking concrete steps to ensure the structural integrity of CCR surface impoundments, as well as to improve management practices, maintenance and monitoring. This is implemented by requiring that all CCR surface impoundments conduct53

weekly inspections; annual and five

- year inspections are required for all the impoundments that exceed certain height and capacity thresholds.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 10623_DC

- 037

- 2 

### Organization 1 

### : Maryland Energy Report


### Commenter 1 : John N. Howley Commenter Type: Media

Classification: Substantive



### Comment Excerpt Text: The Damage Cases enumerated by EPA and others, including the recent report In Harm’s Way from the Environmental Integ rity Project, Earthjustice and Sierra Club, are properly understood as the proverbial “tip of the iceberg.” [Footnote 7: Environmental Integrity Project, Earthjustice and Sierra Club; In Harm’s Way: Lack Of Federal Coal Ash Regulations Endangers Americans And Their Environment Thirty

- nine New Damage Cases of Contamination from Improperly Disposed Coal Combustion Waste; August 26, 2010; http://www.environmentalintegrity.org/news_reports/documentsIlNHARMSWAY _FINAL.pdf.] In many states, monitoring and reporti ng is inadequate. Furthermore, the documented damage represents only the early stages of groundwater contamination plumes that will grow and spread in the coming decades and centuries.

Response: the Agency agrees that many additional damage cases are like ly to be unveiled as soon as mandatory groundwater monitoring around all CCR management units is implemented.

This likelihood is based on the evidence that in two states that, in the wake of the 2008 TVA Kingston CCR spill, required utilities to first time install groundwater monitoring down gradient from surface impoundments (Illinois) or install additional down gradient wells (North Carolina), seven and fourteen new damage cases, respectively, have been detected within less than two years of the inception of groundwater monitoring.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 10809_DA

- 039

- 4 

### Organization 1 

### : Commenter 1 : Rogers Dennis Commenter Type: Private Citizen

Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: According to the U.S. EPA damage case assessment, proven damage cases in Texas include: Brandy Branch Coal Ash Dump in Harrison County, Southwestern Electric Power Company coal ash dump in Titus County, and unpermitted discharges in T exas Utilities Electric Martin Lake Reservoir in Rusk County. All three have leaked dangerous levels of selenium. See page 3.

Response: The Agency concurs with the comment that in Texas there are three proven damage cases, all involving unperturbed discha rge of selenium

- enriched, CCR wastewater into cooling54

lakes. This has resulted in the bioaccumulation of selenium by communities of fish residing in these cooling lakes to such toxicity levels that compelled State regulators to issue fish advisories.



### Co mment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 10809_DA

- 039

- 6 

### Organization 1 

### : Commenter 1 : Rogers Dennis Commenter Type: Private Citizen

Classification: Substantive



### Comment Excerpt Text: [See original attachment for Figure: Damage Cases: According to the U.S. EPA damage case assessment, proven damage cases in Texas.]

Response: See response to comment excerpt EPA

- HQ

- RCRA

- 2009

- 0640

- 10809_DA

- 039

- 4.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 11548_L

- 120

- 2 

### Organization 1 

### : Commenter 1 : Virginia Bush Commenter Type: Private Citizen

Classification: Substantive



### Comment Excerpt Text: Furthermore, because the coal ash sites in this area are situated in mixed use areas, a proven damage case, is, in practicality, not possible under current criteria which requires health effect to be directly related to coal combustion residuals in isolation from any other surrounding industrial waste streams. The Cane Run site is in the middle of a chemical complex known as Rubbertown. So, the high number of unexplained illnesses and cancers in thi s area will be classified as anecdotal evidence. This constitutes a social health injustice where the burden of proof is place

on the ill residents.

Response: The commenter raised a valid point whereby it is extremely difficult to demonstrate the nexus between instances of CCR impacts and sickness clusters. As described in the preamble to this rule, this issue has been demonstrated in at least a couple of insta nces where a possible

nexus between short

- term (Pennsylvania) and long

- term (Delaware) emissions associated with CCR fugitive dust and downwind sickness clusters could not be corroborated by health

- impact

studies.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0163

- 6 

### Organization 1 

### : Ohio Environmental Protection Agency


### Commenter 1 : Pamela Allen Commenter Type: State Government
Classification: Substantive



### Comment Excerpt Text:55

As discussed in Ohio EPA's November 19, 2010, comment letter on U.S. EPA's proposed

reg ulations related to the management and disposal of coal combustion residues, Ohio's evaluation of CCR damage cases is incomplete.

Response: We appreciate Ohio EPA’s comment.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0163

- 7 

### Organization 1 

### : Ohio Environmental Protection Agency


### Commenter 1 : Pamela Allen Commenter Type: State Government
Classification: Substantive 

### Comment Excerpt Text: Ohio has a total of 57 CCR disposal sites and 44 are unlined. Seventeen of the 57 CCR sites have ground water monitoring with fou r showing some indication of impact to ground water. There are 40 CCR disposal facilities in Ohio without ground water monitoring. Knowledge of CCR damage cases due to ground water impacts at these 40 CCR disposal facilities is limited due to lack of groun d water monitoring.

Response: We appreciate Ohio EPA’s comment and fully support its conclusion.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0280

- 4 

### Organization 1 

### : Strategic Environmental Analysis, LC


### Commenter 1 : Richard Fortuna Commenter Type: Other Company

C lassification: Substantive



### Comment Excerpt Text: I simple do not understand what the Agency is waiting for. In most cases of environmental regulation, the actual or potential victims are represented by sterile numbers in a risk assessment

or exposure projection. In this case, however, we have name, faces, and places of the people’s lives that have been destroyed, and the identification of 230+ other facilities that have the same if not greater potential for community

- wide devastation. [Footnote 15: Poo vey, Bill, “TVA Coal Ash Bill: Trial Starts on Damaged Lawsuits,” The Associated Press, September 15, 2011.]

In the case of the Kingston, Tennessee event, the lives of 5,300 people have been thrown into total chaos. To date, at least 350 properties have b een purchased and/or homeowners compensated due to their destruction or diminished property value. Pending lawsuits portend the additional of several hundred more homes to these totals. [Footnote 16: “Living on Earth: Coal Ash Controversy,” February 5, 201 0, www.loe.org/shows/segmentprint.html?programID=10

- P13

- 00006&segmentID=4. Newkirk, Margaret, “Coal

- Ash Disaster Spurs Rules Showdown,” Bloomberg News Service, November 3, 2011.]

Kingston is only the tip of the sludge pile. The Agency has identified 181 “ significant hazard” dams, which have the potential to cause economic and environmental damage similar to Kingston, and 49 other “high hazard” dams, which have the potential to result in the death of56

nearby residents. You won’t need to conduct a risk assess ment if one of these facilities fail. Yet here we sit, nearly three years after the rupture of the CCR lagoon at Kingston dithering over such minutia as Congresswoman Bachmann’s TCLP results for boiler slag. If the Agency does

not have sufficient data and/ or backbone to regulate CCRs as they should be

– as a “hazardous waste,” then there is no such thing as a “hazardous waste.” Quit diddling and start protecting the people that you are empowered to serve.

Response: This rule will regulate CCRs under RCRA s ubtitle D: for further details, see unit IV of the preamble to the final rule.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0286

- 4 

### Organization 1 

### : FirstEnergy Corp.


### Commenter 1 : Mike Horvath Commenter Type: Electric Utility Company

Classification: Substantive



### Co mment Excerpt Text: FirstEnergy comment: FirstEnergy also notes the position of the State of Tennessee that, "The chemical properties of CCR did not cause the failure of the TVA Kingston coal ash landfill. Engineering analysis

indicates the failure was cau sed by poor design, poor drainage, and poor operation."

Response: The Agency concurs with the comment.



### Comment Number: TRANS

- KNX

- 0128

- 2 

### Organization 1 

### : Central Alabama Electric Cooperative


### Commenter 1 : Terry Mitchell Commenter Type: Electric Utility Company

Classification: Substantive



### Comment Excerpt Text: You know, from the information that I have obtained, the TVA Kingston ash spill was a dam safety issue, a pond failure. I ask you to fix the problem, allow the proper governmental agency

to

-- to govern the safety of the pond. It was the

-- it was the container, ladies and gentlemen, not the product that caused the problem.

Response: The Agency agrees with the comment that “the TVA Kingston ash spill was a dam safety issue.”



### Comment Number: TRANS

- LVL

- 0032

- 3 

### Organization 1 

### : Kentucky Department of Environmental Protection


### Commenter 1 : Bruce Scott Commenter Type: State Government
Classification: Substantive57



### Comment Excerpt Text: The event that initiated this additional EPA scrutiny of how coal combustion residuals should be managed was the TVA Kingston ash fill failure which resulted in extensive physical damage. Ironically, if CCR is regulated under Subtitle C, due to the require ment to obtain a hazardous waste permit for a new horizontal CCR fill expansion, the substantial cost to transport and manage CCR offsite, and unreasonable time frames to make these changes, the result will be

EPA

- created larger fill structures via vertica l expansion by utilities that would actually increase

the risk

-- MR. DUFFICY: Sir, your time is up.

MR. SCOTT:

-- of additional physical failures.

Response: This rule will regulate CCRs under RCRA subtitle D: for further details, see unit IV of the prea mble to the final rule.



### Comment Number: TRANS

- LVL

- 0117

- 2 

### Organization 1 

### : Commenter 1 : Ron Roberson Commenter Type: Beneficial User

Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: Furthermore, as the director of safety, I must add that I found in recent statements published by the United States Department of Health and Human Services regarding the public health assessment related to the TVA Kingston ash spill very comforting. And th eir 274

- page final report, written by the Tennessee Valley

-- or excuse me, the Tennessee Department of Health, they conclude, in Conclusion Number 3, that, (reads) No harm to the community's

-- the community's health is expected from touching of coal ash including children who might touch the ash while playing. In Conclusion Number 4, they state, (reads) No harm to people's health expected from accidental eating of small amounts of ash. Who would want to? And in Conclusion Number 6, it says, (reads) Usin g municipal drinking water from the Kingston Rockwood water treatment plants will not harm people's health because of the raw finished water remaining. These samples were taken between December the 23rd of 2008 and January the 5th of 2009 with

over one fu ll year of data. When I see this type of data based on almost two years of sampling and analysis regarding the Kingston health assessment, I find it odd and without logic that we would consider taking a chance of destroying the best recycling industry in t he United States by labeling coal ash as a hazardous substance.

Response: This rule will regulate CCRs under RCRA subtitle D: for further details, see unit IV of the preamble to the final rule.



### Comment Number: TRANS

- LVL

- 0128

- 2 

### Organization 1 

### :58



### Commenter 1 : Brandon Emmick Commenter Type: Private Citizen

Classification: Substantive



### Comment Excerpt Text:
Working in the safety side of the business, I take particular interest in the statements recently published by the U.S. Department of Health and Human Service s regarding the Public Health

Assessment related to the TVA

- Kingston ash spill. In their final report, the Tennessee Department of Health makes the following statements, and I will quote their language in the conclusions. They "conclude that no harm to t he community's health is expected from touching the coal ash, including children who might touch the ash while playing. Using well water or spring water within four miles of the coal ash release will not harm people's health from exposure to coal ash or m etals in the coal ash, because no evidence has been found for groundwater contamination by coal ash. These same conclusions of no harm to people's health continue in a scientific study performed by the EPA, U.S. Department of Health and Tennessee Departmen t of Health. When I see these type statements based on almost two years of sampling and analysis regarding the Kingston Health Assessment, I find it strange and without logic that we would consider taking a chance on destroying the best recycling industry in the U.S. by labeling coal ash as hazardous. I understand the need for national standards and landfill design, but it escapes my logic as to why we should label coal ash hazardous when the protective features of the landfills

will be similar under both C and D regulations, a point that most of those against coal ash have

failed to mention.

Response: This rule will regulate CCRs under RCRA subtitle D: for further details, see unit IV of the preamble to the final rule.

Section 8.2

- Support view that dama ge cases are substantial



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 00358

- 16 

### Organization 1 

### : Citizens for Clean Power (CCP)


### Commenter 1 : John Austin Commenter Type: Advocacy Group



### Comment Excerpt Text: I am most familiar with the following sites in Delaware:

NRG Indian River Power Plant Burton Island

– up to 1470 ug/L As in groundwater

NRG Indian River Power Plant Phase I Landfill

– up to 14 ug/L Well 103C

Invista, Seaford, DE

– CHP

- landfill and surface impoundments

- Stream station SG

- 4 shows 14.9 ug/L so uth of landfill; Well MW

- 14D adjacent the unlined South Ash Pond, 2170 ug/L As59

DSWA Jones Crossroads Landfill

– built on fly ash base; Well SC

- 22 22 ug/L As; CCR waste likely now below water table by subsidence or ground water rise.

DSWA Pigeon Point La ndfill

– ash & municipal sludge cover; Well 33A 337 ug/L As

Woodlawn Golf Course, Seaford, DE

– built with ash; no data.

By far the biggest environmental problem in Delaware is the contamination from the inactive Burton Island Site. Delaware’s Department of Natural Resources and Environmental Control (DNREC) has yet to decide what remediation will be performed for the CCW material on Burton Island. Although it is often referred to as a landfill, it was originally operated as a series of ponds

that were sl urry filled and then dewatered. With each tidal cycle, dissolved arsenic leaches from the island into the estuary. STORET data show the entire Inland Bay area is frequently contaminated by releases to levels where shellfish are not safe to harvest when the latest CSF is taken into account. (See Attachment 1) NGR IRPP fly ash, tested 1/14/2008, reported 520 ug/L

Arsenic TCLP.

State actions to require groundwater management zones around detected ground water

contaminated sites have been ineffective in achie ving closure of either surface impoundments or of sham beneficial operations, because the wastes being managed were neither characteristically hazardous or listed hazardous wastes. Absent revised Federal Regulations there is reluctance by any State to crea te a State only hazardous waste. The failure of EPA to adjust 261.24 and 264.94 to reflect changes in arsenic MCL has further hindered and delayed the needed corrective actions

at these sites.

Response: According to our records, the Burton Island disposal site was divided into three Operable Units
(OUs) : OU1 (shoreline, intertidal zone, vicinity); OU2 (landfill, land areas, berms); and OU3 (subtidal
sediments, waters seaward of berms). Upon review of the Facility Evaluation Report, Delaware NREC
found that for OUs 1 and 3, the Facility Evaluation was sufficient to constitute a Remedial Investigation.
An initial human health risk assessment prepared in 2008 by Shaw Environmental estimated carcinogenic
risk for adults to marginally exceed DNREC‘s regulatory guidance, and a screening level ecological risk
assessment suggested that ecological risk to ripar ian and aquatic communities from OU1 and OU3 would
no longer be a concern if landfill erosion is controlled.

A Proposed Plan was issued calling for construction of the erosion controls as the remedy for OU1 and No Further Action (based on low human healt h risks) for OU3. Following a public hearing, and in spite of substantial controversy, a Secretary’s Order was issued in 2008 approving the Proposed Plan as written. The Final Plan was signed on August 1, 2008, and the

remediation of OU1 was conducted duri ng the winter and spring of 2008

- 2009.

The commenter expresses concerns about the leaching of dissolved arsenic from the island into the estuary with each tidal cycle, which results in the entire Inland Bay area being frequently contaminated by releases to levels where shellfish are not safe to harvest. This observation is

based on 1998

- 2008 data. It is recommended that the levels of arsenic leaching and arsenic60

contents in shellfish be revisited, following the conclusion of the remedial erosion controls in

2009.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 03275

- 2 

### Organization 1 

### : Public Employees for Environmental Responsibility


### Commenter 1 : Jeff Ruch Commenter Type: Advocacy Group



### Comment Excerpt Text: The hazards associated with coal combustion wastes (‘CCWs ") [FN 2: PEER uses the term "coal combustion wastes" interchangeably with the term, "coal combustion residuals," as that term is used in the proposed rule.] are well

- known, as damage cases such as TVA’s disastrous ash spill and contaminated drinking water in Pines, Indiana, have shown.

Response: Thank you for your comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 03275

- 66 

### Organization 1 

### : Public Employees for Environmental Responsibility


### Commenter 1 : Jeff Ruch Commenter Type: Advocacy Group



### Comment Excerpt Text: Absent any monitoring or tracking, reuse has also proliferated and contributed to demonstrated and potential damage cases.

Response: In the wake of several damage cases associated with sand and gravel pit reclamation and landscape grading projects utilizing CCRs, in this final rule EPA is introducing scrutinizing criteria for any CCR reuse project. P rior to initiating an activity that involves placing unencapsulated CCRs on land in amounts greater than 12,400 tons, the user must demonstrate that environmental releases to groundwater, surface water, soil and air are comparable to or lower than those from analogous products made without C CRs, or that environmental releases to groundwater, surface water, soil and air will be at or below relevant regulatory and health

- based benchmarks for human and ecological receptors during use. Failure to gauge the project based on

these criteria would le ad to designating the project as disposal rather than beneficial reuse, thus subjecting it to the technical requirements of this rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 03707

- 2 

### Organization 1 

### : Green Century Capital Management


### Commenter 1 : Kristina Curtis Commenter Type: Other Company

Classification: Substantive



### Comment Excerpt Text: Many of the undersigned are invested in companies that would be subject to these new regulations. As investors, we strongly support federally

- enforceable uniform standa rds for coal61

ash disposal as opposed to the patchwork of weak and inconsistent state rules that would remain in place under the Subtitle D option. Recent events demonstrate that improper coal ash management and disposal can pose significant financial risk to companies that own and operate coal plants. We urge the EPA to improve the current standard of coal ash management to create a consistent national requirement that will help reduce potential value loss and allow investors to
better assess this sector’s risk profile.

Response: The EPA decided to regulate the disposal of CCR under subtitle D of RCRA by issuing minimum national criteria. Similar to the subtitle C option, this option would require composite liners, groundwater monitoring, structural stabil ity requirements, corrective action, and closure/post closure care. However, given available statutory authorities, EPA proposed this option to be a self

- implementing rule with no direct federal oversight, with an effective six months after publication in the Federal Register . The Agency is deferring its final Bevill Regulatory Determination with respect to CCRs that are disposed in CCR landfills and CCR surface impoundments until additional information is available on a number of key technical and policy questions. For furthe r details, the commenter is referred to Unit IV of the preamble to the

rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 05693

- 1 

### Organization 1 

### : North Carolina House of Representatives


### Commenter 1 : J. Love Commenter Type: State Elected Official

Classification: Substantive



### Comment Excerpt Text: Dear Administrator Lisa Jackson: Last year, the US Environmental Protection Agency revealed a list of 44 "high

- hazard" coal combustion waste sites (also known as coal ash). North Carolina has been identified by US EPA as having the highest number of high hazard coal ash ponds in the nation (twelve in total). Follow

- up investigations by the EPA this summer indicated that two of the ponds within North Carolina are rated as in "poor" condition; two of only six in the nation. Recent reviews of water testing data conducted raise additional questions about the safety of how coal ash is managed nationally and in the state.

The independent analysis draws attention to thirteen North Carolina coal as at are leaking toxic pollutant s into groundwater. All thirteen ponds tested were found to be leaking toxic heavy metals and other pollutants into nearby groundwater, including but not limited to: arsenic, boron, cadmium, chloride, chromium, iron, lead, manganese, pH and sulfate. In all , the analysis notes 681 instances where levels of pollutants were in excess, ranging from 1.1 to 380 times higher than North Carolina's groundwater standard.

Response: The Agency’s damage case support documents placed into the final rule’s docket

indeed c orroborate that a significant number of North Carolina power generating facilities with CCR surface impoundments that leak heavy metals and other pollutants to nearby groundwater

and surface water.62



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06196

- 40 

### Organiza tion 1 

### : Comite Dialogo Ambiental


### Commenter 1 : Ruth Santiago Commenter Type: Advocacy Group



### Comment Excerpt Text: Contrary to the situation in 2000, when EPA had not identified any damage cases associated with beneficial use practices, the contamination in P ines, Indiana, and the Battlefield Golf Course in Chesapeake, Virginia, (32223) are a clear indication of the dangers of CCR land filling or application.

Response: The Agency agrees that the application of large volumes of unencapsulated CCRs, without regard to the conditions at the site (e.g., sufficient separation from groundwater) may result in adverse impacts to groundwater. This is illustrated by seven such dam age cases on record (including the two cases cited by the commenter). These damage cases involve the placement of massive amounts of CCR to reclaim abandoned quarries and gravel pits and to grade the landscape. On the other hand, subjecting all beneficial uses of unencapsulated CCRs to the requirements of the final rule (i.e., reversal of their Bevill exclusion) would disregard the

environmental benefits associated with such reuse. These benefits include greenhouse gas reduction, energy conservation, reduct ion in land disposal, and reduction in the need to mine and process virgin materials and the associated environmental impacts.

To distinguish between a genuine “beneficial use” and dumping, t he Agency developed four criteria against which prospective proj ects involving the application of unencapsulated CCRs should be scrutinized: (i) The material used must provide a functional benefit; (ii) The material substitutes for the use of a virgin material, conserving natural resources that would otherwise

need to be obtained through practices, such as extraction; (iii) Where relevant product specifications or regulatory standards are available, the materials meet those specifications, and where such specifications or standards have not been established, they are no t being used in excess quantities; and (iv) Prior to initiating an activity that involves placing unencapsulated CCRs on the land in amounts greater than 12,400 tons, the user must demonstrate that environmental releases to ground water, surface water, soi l and air are comparable to or lower than those from analogous products made without CCRs, or that environmental releases to ground water, surface water, soil and air will be at or below relevant regulatory and health

- based benchmarks for human and ecologi cal receptors during use.

EPA acknowledges that there may be risks associated with uses that are below the 12,400 tons threshold, depending on the characteristics of the CCR, the amount of material and the manner in which it is placed, and (perhaps most im portantly) the site conditions. Consequently, all unencapsulated uses, including use in road construction and agriculture, should be conducted with care, according to appropriate management practices, and with appropriate characterization

of the material and the site where the material will be placed. For further details, the commenter is referred to the extensive discussion of beneficial use in Unit IV of the preamble to the final

rule.63



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06305

- 2 

### Organization 1 

### : Clean Water Network


### Commenter 1 : Natalie Roy Commenter Type: Advocacy Group

Classification: Substantive



### Comment Excerpt Text: A seminal report released in August 2010 by the Environmental Integrity Project (EIP), Earthjustice and the Sierra Club identified 39 additional coal

- ash dump sites in 21 states that are contaminating drinking water and surface water with arsenic and other heavy metals. These new sites are in addition to the 31 coal ash dump sites in 14 states that were identified by the same groups in F ebruary 2010. In addition to the sites identified in the two reports, the EPA has already identified 67 sites, bringing the total number of sites reporting toxic contamination from coal ash pollution to 137 in 34 states. These 137 sites represent approxima tely 29 percent of the 467 plants nationwide that dispose of coal ash onsite or offsite.

Response : As discussed in Unit XI of the preamble to this rule, the Agency has vetted the 70 newly alleged damage cases submitted by advocacy groups in their February and August 2010 reports, as well as the 20 newly alleged damage cases submitted in their November 2011 report. The review determined that most of these cases qualify for designation as proven or potential damage cases, and consequently EPA’s CCR damage ca se record now stand at around 150 . For additional details, the commenter is referred to the damage case support documents included in

the docket of the final rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06314

- 11 

### Organization 1 

### : Earthjustice et. al. (analyse s prepared for Earthjustice et. al. by Russell Boulding, Boulding Soil

- Water Consulting, and submitted by Earthjustice)


### Commenter 1 : Lisa Evans Commenter Type: Advocacy Group

Classification: Substantive



### Comment Excerpt Text: Contamination from CCR Disposal Sites is Widespread.

EPA’s sixty

- seven damage cases are located in 24 states, and EIP’s seventy damage cases are located in 29 states. To date, one or more damage cases have been identified in 35 states with a

total count of 137. Table 1 [see original comment for ATTACHMENT 4, which contains Table 1] shows the distribution of damage cases among states, which are ranked in order of the amount of CCR generated in 2005. Contamination from CCR disposal sites has been found in a ll states where data have been available to evaluate. There is a tendency for states that generate the most CCR to have higher numbers of damage cases, but the availability of data to document damage is also a significant factor. Pennsylvania, the top CCR generator, ranked third in number of damage cases at 10 sites, and Indiana, ranked sixth in CCR generation, with 9 damage cases ranks fourth. The necessity of monitoring to evaluate the impact of CCR disposal is illustrated by the fact that Wisconsin, a st ate that has been proactive in requiring monitoring, ranks first in number of64

damage cases with 13, but ranks 30 th in CCR generation. An indication the weaker monitoring requirements generally required in the top ten CCR generating states is that in 2005 t hey generated 62.2% of the CCR, but accounted for only 38.7% of damage cases (53 cases). Similarly, the top twenty CCR generating states generate more than four

- fifths of the CCR (82.7%) but include less than two

- thirds of the damage cases (90 cases, 65.7% ).

Response: As illustrated in Unit XI of the preamble to the final rule as well as in the damage case technical support documents included in the docket of the final rule, the Agency essentially concurs with the key points of the comment.



### Comment Numbe r: EPA

- HQ

- RCRA

- 2009

- 0640

- 06314

- 14 

### Organization 1 

### : Earthjustice et. al. (analyses prepared for Earthjustice et. al. by Russell Boulding, Boulding Soil

- Water Consulting, and submitted by Earthjustice)


### Commenter 1 : Lisa Evans Commenter Type: Advocacy Group

Clas sification: Substantive



### Comment Excerpt Text: CCR Disposal Has Created Significant Adverse Impacts on Groundwater, Surface Water and Ecosystems.

Table A

- 3 [see original comment for ATTACHMENT 4, which contains Table A

- 3] presents a breakdown of types of harm documented in the EPA and EIP damage cases. The discussion here focuses on the 137 total damage cases.

- A large majority of CCR damage cases, 121 (88.3%) involve groundwater contamination.

These cases are discussed in more detail below.

- Almost a third of CCR damage cases, 44 (32.1%) involve surface water contamination. The relatively lower number of cases documenting damage to surface water can be attributed to the fact that NPDES permits for discharges from CCR disposal sites typically do not re quire monitoring of metals.

- Damage to biota has been documented in 21 cases (15.3%). The relatively low number of ecological damage cases can be attributed to the rarity with which such monitoring is required at CCR disposal facilities.

Levels of Groun dwater Contamination are Serious

.

Comparison of the EPA and EIP damage cases shows that EPA’s earlier damage case assessments have underestimated the extent to which maximum contaminant levels (MCLs) at CCR disposal sites have been exceeded for highly to xic contaminants, such as arsenic, cadmium and lead, and overstated the extent to which secondary maximum contaminant levels (SMCLs) for drinking water have been exceeded. Furthermore, actual concentrations of contaminants at many sites are far higher than has been previously acknowledged. Table 2 [see original comment65

for ATTACHMENT 4, which contains Table 2] provides a statistical summary of the number of EPA and EIP damages cases where contaminants have exceeded applicable standards, and data

on the maxi mum concentrations for 30 parameters for which MCLs (13 parameters), other

health

- based standards (12 parameters), and SMCLs (7) parameters) have been established. Groundwater sites were classified according to whether MCLs, other health

- based standards (H BSs), and SMCLs were exceeded with the result:

- More than three quarters of the EPA and EIP damage cases combined (76.9%) involved exceedances of one or more MCLs. Table 2 [see original comment for ATTACHMENT 4, which contains Table 2] shows that more th an half of the sites involved exceedances of two or more MCL parameters.

- An additional 7 sites (5.8%) exceeded other federal or state health

- based standards (HBSs) but

not MCLs.

- At 21 sites in the EPA damage cases (17.4% of total damage cases) only S MCLs were

exceeded

– there no exceedances of health

- based standards documented. None of the EIP damage cases fall in this category. As discussed below, a significant number of EIP damage cases involved concentrations of manganese and sulfate that exceeded HBSs for these parameters. The EPA damage cases only report these parameters in connection with SMCL exceedances, but it is likely that a number of these damage cases would be reclassified into the HBS category if data had been available for review.

Many of the sites in the MCL category also exceeded HBSs and SMCLs.

Table 2 [see original comment for ATTACHMENT 4, which contains Table 2] also shows the maximum measurements for contaminants and how far those values were above applicable standards, the total number of sites where a contaminant standard has been exceeded, and the number of sites where the standard has been exceeded by more than a factor of ten, and more than a factor of one hundred. In a few instances SMCLs have been exceeded by a factor of mo re than 1,000 and this is also noted in Table 2 [see original comment for ATTACHMENT 4, which contains Table 2]. Additional key conclusions that can be drawn from the data in Table 2 [see original comment for ATTACHMENT 4, which contains Table 2] include:

- MCLs or other health

- based standards for every one of the Part 261 Appendix VIII parameters that EPA must consider in its regulatory decision pursuant to 261.11(a)(3) have been exceeded at three or more disposal sites. These are (boldfaced in Table 2) [ see original comment for ATTACHMENT 4, which contains Table 2]: antimony, arsenic, barium, beryllium, cadmium, chromium, lead, mercury, nickel, selenium, silver, and thallium.

- Arsenic, cadmium, lead and selenium, among the most toxic of the Appendix VII I parameters, are among the elements that exceed MCLs most commonly at CCR disposal sites. The MCL for arsenic has been exceeded at 63 sites, more than half (52.5%) of the sites, with the maximum value measured being 342 times the MCL. Arsenic has exceeded the MCL by more than 10 times at 19 sites, and more than 100 times at 5 sites. The MCL for cadmium has been exceeded at 27 sites (more than one

- fifth), with the maximum concentration 170 times the MCL. Cadmium66

has exceeded the MCL by more than ten times a t 4 sites, and more than 100 times at one site. The MCL for lead has been exceeded at 30 sites (24.8%) with the maximum measured value 179 times the MCL. Lead has exceeded the MCL by more than 10 times at 6 sites and more than 100

times at one sites. The M CL for selenium has been exceeded at 29 sites (24.0%).

- Other highly toxic Appendix VIII parameters (antimony, beryllium, mercury and thallium) are not typically measured at CCR disposal sites, yet where they have been measured, have been found to signif

icantly exceed the MCL. Antimony has been found to exceed the MCL at three sites, with the maximum value 52.5 times the MCL, and has been more than 10 times the MCL at two sites. Beryllium has been found to exceed the MCL at four sites, with the maximum va lue

30.3 times the MCL. Thallium has been found to exceed the MCL at 5 sites with a maximum

value 8 times the MCL.

- EPA’s damage case assessment did not address alpha particles as a contaminant at CCR disposal sites. Nevertheless, the MCL for alpha part icles (15 pCi/L) has been exceeded at three sites, with the maximum value (1,497 pCi/L) almost 100 times the standard. Very few groundwater monitoring programs require measurement of alpha radiation, and the MCL was

exceeded at all sites where data were av ailable.

Other HBSs are commonly exceeded at CCR disposal sites as well as MCLs:

- Boron is a parameter where health

- based standards are commonly exceeded at CCR disposal sites. The EPA Health Advisory for children (3 mg/L) has been exceeded at one

- quart er of the groundwater damage cases (31 sites, 25.6%). More sites would fall in the category if state health

based groundwater standards for boron were used (examples include 0.315 mg/L in North Caroline, 0.9 mg/l in Wisconsin, 1.0 mg/L in Minnesota, and 1. 4 mg/L in Florida and Nevada). The maximum concentration found for boron of 520 mg/L is more than 173 times the EPA HA, and boron concentrations have exceeded this standard by more than 10 times at 5 sites.

- The Long Term Health Advisory (LTHA) for molyb denum (0.04 mg/L) has been exceeded at 9 sites with the maximum value of 22 mg/L being 550 times the LTHA. The LTHA has been exceeded by a factor of 10 to 99 at six sites, and the only reason there are not more sites identified with molybdenum contaminatio n is that it is uncommon for groundwater monitoring programs to require analysis for this parameter.

- EPA’s damage case assessment fails to note that manganese and sulfate have health

- based standards, and by only identifying these parameters as constitu ting exceedances of SCMLs, underestimated the potential harm from these contaminants at CCR disposal sites. The EIP damage cases did identify when HBSs for manganese and sulfate were exceeded. The (LTHA) for manganese (0.3 mg/L) has been exceeded at 23 sit es (19.0%), and the Drinking Water Advisory (DWA) for sulfate (500 mg/L) has been exceeded at 26 sites (21.5%). The maximum concentration of manganese (>100 mg/L) exceeded the LTHA by 333 times, and exceeded this standard by more than 10 times at eleven si tes and more than 100 times at three sites. The maximum concentration of sulfate (56,000 mg/L) exceeded the DWA by 112 times and exceeded this standard by more than 10 times at three sites, and more than 100 times at two sites. It should
be noted that EPA’ s damage case assessment rarely indicated actual concentrations of67

manganese or sulfate, only that the SCML had been exceeded.

- Sodium is another parameter that is where major exceedances of HBSs can occur. The DWA for sodium, 20 mg/L, has been exceeded at seven sites, with the maximum value of 40,000 mg/L being 2,000 times the DWA. The DWA was exceeded by 10 to 99 times at the other five sites.

- Other contaminants for which EPA health

- based standards have been developed are sometimes

exceeded at CCR disposal sites. The LTHA for nickel (0.1 mg/L), formerly an MCL, and an Appendix VIII parameter, has been exceeded at seven sites with the maximum value of >3 mg/l, more than 30 times the LTHA. The LTHA for strontium, a parameter that is infrequently

measu red at CCR disposal sites, has been exceeded at four sites. The LTHA for zinc has been exceeded at four sites. The LTHA for silver, another Appendix VIII parameter that is infrequently measured at CCR disposal sites, has been exceeded at two sites, and the Action Level (AL) for copper has been exceeded at one site.

- Cobalt and vanadium are two parameters for which no federal standards exist, but health

- based standards have been established in several states. Both are infrequently measured at CCR disposal sites. The health

- based standards for vanadium that are applied in Florida and Minnesota have been exceeded at four sites (for the purposes of this analysis the site does not necessarily have to be in either state). The health

- based residential protective concentration level (PCL) for cobalt in Texas has been exceeded at one site in Texas.

Response: EPA appreciates the detailed analysis of the inventory of CCR damage cases included in the July 2007 Coal Combustion Waste Damage Case Assessments report, addi tional cases presented in the June 2010 proposed CCR management rule, and the 70 alleged cases submitted to EPA in the two 2010 reports of environmental advocacy groups ( Out of Control and In Harm’s Way ). EPA’s findings with respect to the prevalence of ad versely impacted media (i.e., groundwater > surface water > ecologic) agree with the comment’s findings, although EPA’s CCR damage case database is not identical to that of the commenter’s (of the 70 alleged cases submitted in the two 2010 reports, vetting against test of proof criteria found 14 cases that qualified as proven damage cases and 46 cases that qualified as potential damage cases; in addition, the status of some of the damage cases in the July 2007 Coal Combustion Waste Damage Case Assessments r eport has changed as a result of the vetting process).

EPA steered clear of a quantitative analysis of the number and identity of prevailing MCLs, HBSs and SMCLs recorded in our CCR damage case database because the parameters subjected to monitoring vary from site to site. Still, 40 of the confirmed damage cas es in EPA’s database are designated as proven, because they satisfy at least one of the following test of proof criteria: (i) documented exceedances of primary MCLs or other health

- based standards measured in ground water at sufficient distance from the wa ste management unit to indicate that hazardous constituents have migrated to the extent that they could cause human health concerns; (ii) where a scientific study demonstrates there is documented evidence of another type of damage to

human health or the en vironment (e.g., ecological damage); (iii) where there has been an administrative ruling or court decision with an explicit finding of specific damage to human

health or the environment.68



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06314

- 16 

### Organization 1 

### : Earthjustice et al. (analyses prepared for Earthjustice et. al. by Russell Boulding, Boulding Soil

- Water Consulting, and submitted by Earthjustice)


### Commenter 1 : Lisa Evans Commenter Type: Advocacy Group

Classification: Substantive



### Comment Excerpt Text:

Tab le 2 [see original comment for ATTACHMENT 4, which contains Table 2] shows that concentrations of SMCL parameters have been found at exceptionally high concentrations at CCR disposal sites. The SMCL for iron has been exceeded at 51 sites (37.8%), with the maximum concentration of 830 mg/L being more than 2700 times the standard. Concentrations of iron more than 10 times the standard have been found at 18 sites, concentrations from 100 to 999 times the standard at ten sites, and more than 1,000 times the SMC L at two sites. The maximum concentration of aluminum (1,100 mg/L) found at a CCR disposal site is 5,500 times

the SMCL. The SMCL for aluminum has been exceeded at 17 sites and concentrations from 100

to 999 times the standard have been found at three site s. Concentrations more than 1,000 times

the aluminum standard have been found at two sites. The maximum concentration of TDS of 140,000 mg/L is also exceptionally high, being 280 times the SMCL. Exceedances of the SMCL

for TDS have been measured at 49 site s (36.3%), and have been more than 10 times the SCML at five sites, and more than 100 times the SMCL at two sites. Exceedances of the SMCL for pH have been measured at 18 sites ranging from extremely acidic conditions (3.6 units) to extremely

alkaline cond itions (11.6 units).

Response: Thank you for the information the information contained in the comment. As mentioned in the response to comment excerpt EPA

- HQ

- RCRA

- 2009

- 0640

- 06314

- 14 elsewhere in this document, EPA steered clear of a statistical analysis o f the number and identity of prevailing MCLs, HBSs and SMCLs recorded in EPA’s database of CCR damage cases because the parameters subjected to groundwater monitoring vary from site to site.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06314

- 17 

### Organization 1 

### : Earthjustice et al. (analyses prepared for Earthjustice et. al. by Russell Boulding, Boulding Soil

- Water Consulting, and submitted by Earthjustice)


### Commenter 1 : Lisa Evans Commenter Type: Advocacy Group

Classification: Substantive



### Comment Excerpt Text: Contamination is a Problem at Both Landfills (Dry Disposal), and Surface Impoundments (Wet Disposal).

Both the EPA and EIP damage cases demonstrate that serious contamination is occurring at sites involving dry and wet disposal of CCR (see Table A

- 3 for additional data). [see original comment for ATTACHMENT 4, which contains Table A

- 3]69

- Sixty

- three damage cases (46.0%) specifically involve CCR surface impoundments (46.0%) and fifty

- four damage cases (38.4%) specifically involved CCR landfills.

- Anothe r seventeen damage cases (12.4%) involve facilities where both surface impoundments

and landfills are sources of contamination.

- Structural fills are a form of dry disposal that are under

- represented in both the EPA and EIP damages cases (1.5% and 2.9%, respectively). The reason there aren’t more damage cases involving structural fills is that they are exempted from disposal safeguards under state programs as a “beneficial” use, meaning that monitoring is not required, and so the harm they cause is

undocu mented unless complaints lead to an assessment of the damage.

Groundwater Contamination Has Moved Significant Distances Beyond CCR Disposal Sites

and the Full Extent of Contamination Is Not Known at Most Sites.

Contaminated groundwater has moved signifi cant distances beyond CCR disposal sites in 24 damage cases (see Table A

- 3). [see original comment for ATTACHMENT 4, which contains

Table A

- 3] EPA’s damage cases include only 2 sites where migration of contaminants had moved a significant distance from the waste boundary, traveling 250 feet from the landfill at the Port Washington power plant in Wisconsin and 400 feet from the waste boundary of the Miamiview Landfill, in Ohio. EIP’s damage cases include 22 cases where contaminant plumes have migrated from 2 00 feet to a mile:

- Contamination has migrated from 200 to 500 feet from the waste boundary at nine EIP damage sites (14.1% of facilities with contamination of groundwater): Flint Creek LF Arkansas (360’), Venice SI, Illinois (200’ south and 400’ east), Cape Fear SI, North Carolina (250’), Lee SI, North Carolina (250’), Sheldon LF, Nebraska (400’), Reid Gardner SI&LF (200’), Muskingum River SI, Ohio (350’), Hunlock SI, Pennsylvania (240’), TransAsh LF, Tennessee (400’

— private well).

- Contamination has extended 500 to 1,000 feet beyond the waste boundary at seven EIP damage sites (10.9%): Spurlock LF, Kentucky (750’), Karn/Weadock SI, Michigan (500’), Belews Creek SI&LF (650’), James Gavin SI&LF, Ohio (700’), Uniontown LF, Ohio (900’), Northeastern LF,

O klahoma (900’), Bruce Mansfield SI, Pennsylvania (825’

— private well), Fayette SI&LF, Texas (750’).

- Contamination has traveled 1,000 feet to one mile beyond the waste boundary at six EIP damage sites (9.4%): Seminole LF, Florida (1 mile), Dolet Hills SI& LF (1/2 mile), Colstrip, Montana (1,000’+), Boardman LF, Oregon (1,500’), Hatfield’s Ferry LF, Pennsylvania (1,500’), Oak Creek/Caledonia LF, Wisconsin (1,500’

— private wells).

- Altogether contamination has moved a significant distance from the edge of th e CCR disposal boundary in more than a third (35.9%) of the EIP damage cases involving groundwater.

The above statistics do not provide the complete picture of the extent to which contaminated groundwater is migrating from CCR disposal sites but rather in dicate only that it has moved to70

monitoring wells installed at these distances from the waste boundary. At only one of the 22 sites listed above (closed surface impoundment at the Venice Plant Illinois) has the full extent of the contaminant plume been map ped. At many other sites, there are no wells established at appreciable distances from the waste boundary, making it impossible to document the rates or distances of contaminant flow. Despite the evidence of contamination moving appreciable distances, stat es and operators were monitoring groundwater or sampling drinking water beyond the property boundary at only 8 of the 70 sites studied by EIP.

Response: Thank you for the information contained in the comment. Whereas EPA’s CCR damage case database is not identical to that of the commenter’s, EPA’s own findings on the frequency of adverse groundwater impacts associated with wet vs. dry disposal essentially agree with the commenter’s (i.e., surface impoundments > landfills). For a summary of the

characterist ics of EPA’s confirmed damage case database, the commenter is referred to Unit XI of the preamble to the final rule ( Summary of Damage Cases) and to the technical support documents on damage cases included in the docket to the final rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06314

- 23 

### Organization 1 

### : Earthjustice et al. (analyses prepared for Earthjustice et. al. by Russell Boulding, Boulding Soil

- Water Consulting, and submitted by Earthjustice)


### Commenter 1 : Lisa Evans Commenter Type: Advocacy Group

Classifi cation: Substantive



### Comment Excerpt Text: Two damage cases from In Harm’s Way illustrate the long term contamination that can occur at CCR disposal sites:

- The Montville Generating Station, Connecticut burned coal from 1919 to 1971, when it was converted to oil. During that time ash was placed at various locations around the power plant site. For the years 2007 to 2009, almost forty years after CCR stopped being generated at the site

the average concentration of arsenic at one monitoring well was more than 20 times the MCL, and in fact showed an upward trend in the last ten years. Monitoring Well NRG

- MW6 had arsenic as high as 21 times the MCL in 1999

– 2000 ( from 0.138 to 0.211 mg/L). From 2007

– 2009, however arsenic at this monitoring well ranged from 0.134 to 0.262 mg/L and average concentrations were 0.216 mg/L, higher than the maximum concentration ten years earlier.

- The Venice Power Station in Illinois stopped placing CCR in ponds by the Mississippi River in 1977 when the plant switched to oil. More than thirty years after disposal stopped a contaminant plume of boron exceeding the Illinois groundwater standards extends 475 feet south of the old ash pon ds, and arsenic concentrations as high at 38 times the MCL extend 400 feet to the east of the ash ponds.

Response: EPA agrees with the commenter that groundwater contamination impacts can last long after the implicated CCR management units cease receiving waste to the extent that these units are not properly closed. This said, concerning the two particular cases cited by the commenter,71

natural site

- specific conditions seem to help reduce potential threats to human health and the environment, an objective th at is further advanced through site remediation work at the Venice

site.

At the Montville, CT, generation station, EPA made a provisional determination in 2000 that migration of contaminated groundwater was under control and that contaminated groundwater flowing into the Thames River was not having a significant impact on surface water quality. The Thames River in the vicinity of the power station is saline, classified as unsuitable for shellfish harvesting or as a fish/shellfish habitat. Furthermore, flow calculations indicate that, due to the high base flow in the Thames River, it is highly unlikely that groundwater contaminated in excess of surface water protection criteria would adversely impact the River. In 2001, both the Connecticut Department of Env ironmental Protection (CTDEP) and EPA made a final determination that current human exposure is under control. As of August 2010, the facility was working towards a RCRA Final Remedy, and RCRA Closure/Post

- Closure work continues on site. The power plant’s owner has completed an Ecological Risk Assessment, which has been approved by both the EPA and the CTDEP.

Concerning the Venice power plant, Illinois: as part of the plan for final closure of its leaking impoundments, in March 2010 Ameren proposed final c apping and a Groundwater Management Zone (GMZ) to contain contaminant plumes within the property, which extend 450 feet south from the impoundments, covering all boron exceedances. Whereas the GMZ was approved by the Illinois Environmental Protection Agenc y (IEPA) in May 2011, it does not cover the two offsite wells where arsenic exceeded the primary EPA MCL.

The groundwater GMZ was approved for this site to limit recharge through the contaminants leaching to groundwater by capping the impoundments with a low permeability synthetic membrane. The well inventory required by IEPA and completed by Ameren confirms that there is no use of groundwater for potable or industrial purposes down

- gradient of the impoundments. In addition, IEPA concluded that because the area just south of the plume will be beneath a proposed I

- 70 bridge, virtually eliminating any potential use of the groundwater, contaminated groundwater would not be pumped to control migration. The contaminated groundwater will slowly discharge into the river by subsurface seepage. Ameren determined that the concentration of boron that would enter the river through seepage would be 0.0019 mg/L, which is protective of human health and aquatic life. At the end of October 2012, Ameren notified IEPA that it has concluded the closure of the Plant’s inactive ash pond system.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06315

- 57 

### Organization 1 

### : Earthjustice et. al.


### Commenter 1 : Lisa Evans Commenter Type: Advocacy Group

Classification: Substantive



### Comment Excerpt Text: D. Analysis of the Documented Cases in which Danger to Human Health or the

Environment from Surface Runoff or Leachate has been Proved from CCR Mismanagement Indicates Unequivocally that Federal Oversight Pursuant to Subtitle C of72

RCRA is Warranted.

In s ection 8002(n)(4) of RCRA, Congress required EPA to take into account the “documented cases in which danger to human health or the environment from surface runoff or leachate has been proved.” [Footnote 292: 42 U.S.C. § 6982(n)(4).] To perform this analysi s, EPA has developed over two decades an elaborate system of cataloging potential and proven “damage” cases. While these comments will show that the number of proven and potential damage cases, as defined by EPA, have increased substantially since the 2000 Determination, we also assert that EPA’s interpretation of this requirement is unlawful, and if pursued, will lead to results contrary to RCRA.

In section 8002(n)(4), Congress required EPA to assess cases where “danger,” not “damage,” has been proved. Th e distinction between danger and damage is critical

— danger speaks to the threat posed to health or the environment, while damage represents harm that has already occurred. The clear interest of Congress in RCRA is the prevention of “damage” through the ide ntification of danger. This is apparent in the language of sections 7002 and 7003 of RCRA. [Footnote 293: 42 U.S.C. §§ 6972 and 6973.] In both sections, Congress authorized citizens and EPA, respectively, to bring suit in the event that solid waste handlin g, storage, treatment, transport or disposal “ may present an imminent and substantial endangerment of human health or the environment.” [Footnote 294: 42 U.S.C. §§ 6972(a)(1)(B) and 6973(a).] (Emphasis added.) Congress was interested foremost in prevention of harm (i.e. in danger, not damage). Thus to file suit under either section, neither damage nor even a release of waste was required. Courts have in fact found that imminence does not require a showing that actual harm will occur immediately so long as r isk of threatened harm is present. [Footnote 295: Raytheon Co. v McGraw

- Edison Co.,
Inc, 979 F. Supp 858 (E.D. Wis. 1997).] Similarly, the First Circuit Court of Appeals concluded that citizens may file suit under section 7002 when there is “a reasonable p rospect of future harm ... so long as the threat is near

- term and involves potentially serious harm.” [Footnote 296: Maine People's Alliance v. Mallinckrodt, Inc. 471 F. 3d 277 (1st Cir. 2006).]

That said, there is a wealth of evidence that both proven “d anger” and damage has occurred at a great many CCR storage, disposal and reuse sites. The following section discusses such evidence and its implications. In sum, the dramatic increase in the number of damage cases, the severity of the harm occurring at the sites, and their distribution throughout the U.S., particularly in the states that generate the greatest volumes of CCRs, demonstrate the need for subtitle C regulation.

Management of CCR by states in the absence of minimum safeguards has contaminated wa ter supplies, harmed or endangered human health, and harmed biota and the environment throughout the US. As of September 2010, some 137 damage sites in 35 states have been either documented by the Environmental Integrity Project, Earthjustice and Sierra Cl ub. [Footnote 297: See Envtl. Integrity Project & Earthjustice, Out of Control: Mounting Damages from Coal Ash Waste Sites (Feb. 24, 2010) available at http://www.earthjustice.org/sites/default/files/library/reports/ej

eipreportout

- of

- controlfinal. pdf; En vtl. Integrity Project, Earthjustice, & Sierra Club, In Harm’s Way: Lack of Federal Coal Ash Regulations Endangers Americans and their Environment (Aug. 26, 2010) http://www.earthjustice.org/sites/default/files/files/report

- in

- harms

- way.pdf [Hereinafter EI P, Earthjustice, and Sierra Club are collectively referred to as “EIP,” and the reports are referred to collectively as “EIP reports.”] or identified as proven or potential damage73

sites by EPA. [Footnote 298: 2007 EPA Damage Case Assessment. ] This is more than 17 times the number of damage cases identified in EPA’s 1999 Report to Congress on Wastes from the

Combustion of Fossil Fuels and a three

- fold increase from the number of damage cases acknowledged in EPA’s 2000 Regulatory Determination on these wastes

.

The majority of the coal combustion waste damage cases identified by EPA and public interest groups reveal that current disposal practices are contaminating ground and surface waters with toxic pollution. CCR damage cases are not an artifact of past pra ctices. The contamination is pervasive, occurring to date in at least 35 states at levels that have exceeded health

- based standards in the large majority of instances. The pollution from many CCR disposal sites is migrating off

- site and poses a grave threa t to drinking water sources and our rivers, lakes, and streams. This contamination has real consequences for Americans, and many citizens living near CCR disposal sites testified about the adverse health effects they experience at the public hearings held by EPA in conjunction with this proposed rule. For the most part, states have failed to take action to halt and clean up contamination.

Yet EPA’s investigation of damage cases is woefully inadequate. In light of EPA’s statutory mandate, EPA must investiga te and account for the overwhelming data documenting CCR damage cases across the United States. These data irrefutably demonstrate that subtitle C regulations are necessary to protect public health and the environment.

Response: The EPA decided to regulate the disposal of CCR under subtitle D of RCRA by issuing minimum national criteria. Similar to the subtitle C option, this option would require composite liners, groundwater monitoring, structural stability requirements, corrective action, and closure/pos t closure care. However, given available statutory authorities, EPA proposed this option to be a self

- implementing rule with no direct federal oversight, with an effective six months after publication in the Federal Register . The Agency is deferring its f inal Bevill Regulatory Determination with respect to CCRs that are disposed in CCR landfills and CCR surface impoundments until additional information is available on a number of key technical and policy questions, including the risks of CCR disposal based on its arsenic content, such as the appropriate safe daily dose for arsenic and the speciation of arsenic in the environment, and the potential impacts of recent Agency regulations on the chemical composition of CCR. In addition, the Agency needs additio nal information on state programs before it is in a position to make a final Bevill Regulatory Determination.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06356

- 5 

### Organization 1 

### : U.S. Chamber of Commerce


### Commenter 1 : William L. Kovacs Commenter Type: Trade Association



### Comment Excerpt Text: C. The U.S. Chamber supports EPA’s decision to study the release from a wet coal ash impoundment owned and operated by the Tennessee Valley Authority in Kingston, TN, and to widely disseminate the lessons learned a s a result.74

Response: Thank you for the comment. As suggested, the lessons learned from the December 2008 failure of the CCR impoundment in TVA Kingston, Tennessee, have been incorporated into the final rule. Specifically, CCR surface impoundments exceedi ng a specific size threshold, i.e., height of five feet and capacity of 20 acre

- feet or a height of 20 feet or more, are required to perform annual inspections as well as an assessment of structural stability and factors of safety every five years.



### Comme nt Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06425

- 6 

### Organization 1 

### : City of Chesapeake, Virginia


### Commenter 1 : Amar Dwarkanath Commenter Type: Local Government

Classification: Substantive



### Comment Excerpt Text: Finally, the dangers associated with CCR are already known. Whether it is the Kingston, Tennessee release or the disposal of CCR in unlined landfills, well publicized events in the past few years have alerted the general public to the potential dangers of CCR. Imposing stricter regulations of Subtitle C will elimi nate many public apprehensions by bringing the regulatory process into the open. This should reduce the public's strong reaction against beneficial uses. The need for a comprehensive regulatory scheme for creating and implementing beneficial use programs i s highlighted by the Battlefield Golf Course site in Chesapeake, Virginia. The EPA has now identified this site as one with a potential for damaging neighboring properties. Although an EPA site inspection has not yet conclusively linked any drinking water well contamination with the disposal of CCR, the agency has recognized the increased potential threat and recommended continued monitoring. Moreover, the EPA now explains in the proposed rule that such a project should have never qualified as a beneficial use. In order to prevent future projects of this nature, the City of Chesapeake recommends a ban on unencapsulated uses of

CCR as beneficial uses.

Response: See response to comment excerpt EPA

- HQ

- RCRA

- 2009

- 0640

- 06196

- 40.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06425

- 9 

### Organization 1 

### : City of Chesapeake, Virginia


### Commenter 1 : Amar Dwarkanath Commenter Type: Local Government



### Comment Excerpt Text: Again, the Battlefield Golf Course Site is a case study on why current beneficial use programs require clarification and close monitoring. Some states and many localities do not have the resources to manage and monitor CCR disposal and beneficial use programs. The EPA must mandate tighter control over all aspects of CCR from its production to its fi nal disposal.

Response: The EPA decided to regulate the disposal of CCR under subtitle D of RCRA by issuing minimum national criteria. Similar to the subtitle C option, this option would require75

composite liners, groundwater monitoring, structural stabili ty requirements, corrective action, and closure/post closure care. However, given available statutory authorities, EPA proposed this option to be a self

- implementing rule with no direct federal oversight, with an effective six months after publication in the Federal Register . The Agency is deferring its final Bevill Regulatory Determination with respect to CCRs that are disposed in CCR landfills and CCR surface impoundments until additional information is available on a number of key technical and policy q uestions, including the risks of CCR disposal based on its arsenic content, such as the appropriate safe daily dose for arsenic and the speciation of arsenic in the environment, and the potential impacts of recent Agency regulations on the chemical composi tion of CCR. In addition, the Agency needs additional information on state programs before it is in a position to make a final Bevill Regulatory Determination.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06434

- 1 

### Organization 1 

### : Commenter 1 : Mass Comment Campaig n sponsoring organization unknown (272) Commenter Type: Private Citizen

Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: The Kingston coal ash spill, as well as the proven and potential dama ges from buried and beneficially used ash used as fill in Pines, Indiana, and at the Battlefield Golf Course, clearly demonstrate the need for strong Federal regulatory oversight of coal combustion waste.

Response: See response to comment excerpt EPA

- HQ

- RCRA

- 2009

- 0640

- 06425

- 6.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06434

- 5 

### Organization 1 

### : Commenter 1 : Mass Comment Campaign sponsoring organization unknown (272) Commenter Type: Private Citizen

Classification: Substanti ve Comment Category:
Current Task: Examine Context Assigned/Due:

Other Sections: 1.1 

### Comment Excerpt Text: We need to take the lessons from the proven and potential coal combustion waste damage cases and regulate beneficial uses along with disposal unti l we are sure that effective measures are in place to adequately protect human health and the environment.

Response: On the topic of regulating CCR beneficial use, see response to comment excerpt EPA

HQ

- RCRA

- 2009

- 0640

- 06425

- 6. As to regulating CCR disposal, this final rule is introducing

effective measures

– including location, design, and operational requirements for C CR management units, to protect human health and the environment.76



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06554

- 2 

### Organization 1 

### : Commenter 1 : Kristina Keeling Commenter Type: Private Citizen

Classification: Substantive



### Comment Excerpt Text: One only nee ds to review the implications of the 2008 disaster in Kingston, TN to understand that current methods of disposal are dated and dangerous for public and environmental health.

Response: This final rule is introducing effective measures

– including location, design, and operational requirements for CCR management units, as well as lessons learned from the December 2008 TVA Kingston incident, to protect human health and the environment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06556

- 4 

### Organization 1 

### : Commenter 1 : Renee Reber Commenter Type: Private Citizen

Classification: Substantive



### Comment Excerpt Text: Fifteen of the forty

- four high hazard sites for coal ash, as determined by the USEPA, exist in the Ohio River Valley that I and many others call home. The toxic dry ash blows off the landfills, and is invisibly consumed in the air we breathe. This is an un acceptable and preventable human health hazard. In addition, the wet ash in the ponds also poses a serious threat to human health. Wet ash could be leached into the groundwater, or broken retaining walls could contaminate the Ohio River. If this occurs, th e source of five million people’s drinking water could become toxic. I offer the Kingston, Tennessee environmental disaster of the coal fly ash slurry spill in December 2008, as an example of the dangers of waste ponds.

Response: This final rule is intro ducing effective measures

– including location, design, and operational requirements for CCR management units, as well as lessons learned from the December 2008 TVA Kingston incident, to protect human health and the environment. In addition, one of the ope rational aspects addressed in the rule is control of CCR fugitive dust.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06858

- 1 

### Organization 1 

### : Association of Canadian Industries Recycling Coal Ash (CIRCA)


### Commenter 1 : Anne Weir Commenter Type: Trade Association

Cl assification: Substantive



### Comment Excerpt Text: The Association of Canadian Industries Recycling Coal Ash (CIRCA) appreciates the US EPA’s77

response to the December, 2008 Ash spill in Kingston, Tennessee prompted a re

- evaluation of management and regulator y practices related to Coal Combustion Products (CCPs). Certainly Kingston highlighted failings in the engineering and maintenance of wet storage surface impoundments, and we note that EPA’s “Co

- Proposal” identifies closure of wet storage facilities

as a requirement common to both proposed Subtitle C and Subtitle D options, under US Resource Conservation and Recovery Act (RCRA).

Response: Thank you for the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09510

- 2 

### Organization 1 

### : Commenter 1 : Dr. Patricia Matteson Commenter Type: Private Citizen

Classification: Substantive



### Comment Excerpt Text: More than 71 sites around the country have suffered environmental damage from improper coal ash disposal, and a large number of additional unmonitored sites probabl y exist.

Response: The Agency agrees in principle with the commenter about the adverse effects of the mismanagement of CCRs: actually, EPA’s record of confirmed CCR damage cases now stands at

around 150

.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09533

- 1 

### Organization 1 

### : Commenter 1 : Mary A. Fox, Ph.D, MPH Commenter Type: Private Citizen

Classification: Substantive



### Comment Excerpt Text: Thank you for the opportunity to comment on the coal ash residual’s rule, Docket ID# EPA

- HQ

RCRA

- 2009

- 0640. I am Dr. Mary Fox, Assistant Professor in the Department of Health Policy and Management at the Johns Hopkins University Bloomberg School of Public Health. I am a risk assessor with doctoral training in toxicology, epidemiology and environmental health policy. I have been working in the field of environmental public health for 20 years. These comments are my own and do not represent the position of Jo hns Hopkins University.

I would like to highlight two topics: • Coal ash contains multiple toxic contaminants that can appear as mixtures in the environment

• Risk assessments have underestimated health risks

These points are clearly illustrated by t he Gambrills, Maryland damages case where coal combustion residuals (CCR) were used to reclaim former quarry pits. The disposal of CCR began in 1995 and within 12 years CCR constituents were detected in the drinking water wells of78

nearby residents. In 2007 a total of 34 residential wells were found to have concentrations of aluminum, arsenic, beryllium, cadmium, lead, manganese, and thallium above primary and secondary drinking water standards. Further, the proposed rule summarizes the Gambrills case

but do es not mention that several of the wells were contaminated with multiple CCR

constituents.

The facts of the Gambrills case point to two limitations of EPA’s 2010 risk assessment. First, the CCR constituents reached drinking water wells in only 12 years n ot the hundreds or thousands of year timeframes modeled in the risk assessment. Second, health effects of exposure to multiple CCR constituent mixtures were not evaluated, consequently the public health impacts of the disposal methods studied were not full y characterized. The importance of assessing exposure to CCR mixtures arises from our understanding of the toxic effects of CCR constituents, briefly summarized in Table 1. [see original comment for Table 1: Health Effects of Coal Combustion Residual (CCR) Constitutents] Several CCR constituents contribute to common target organs or systems, for example, barium, cadmium and mercury are kidney toxins, and lead, manganese and aluminum are neurotoxins. Exposure to combinations or mixtures of these CCR constitu ents
increases risks to health.

Cancer risks from arsenic exposure have also been underestimated. To date cancer risk assessments of arsenic exposure have been based on studies of skin cancer. Epidemiological evidence on arsenic ingestion now shows great er risk of several internal organ cancers (e.g., bladder and lung) so risk estimates using the skin cancer data will underestimate total cancer risks from arsenic ingestion [Footnote 1: Chiou, H

- Y; Chiou, S

- T; Hsu, Y

- H; et al. (2001)

Incidence of transitio nal cell carcinoma and arsenic in drinking

water: a follow

- up study of 8,102 residents in an arseniasis

- endemic area in northeastern Taiwan. Am J Epidemiol

153:411

– 418.]; [Footnote 2: Ferreccio, C; González, C; Milosavjlevic; et al. (2000) Lung cancer

an d arsenic concentrations in drinking water in Chile. Epidem 1:673

– 679.]

Coal combustion waste is complex mixture. Risk assessments to date have underestimated

cancer and non

- cancer health risks. Absent a complete understanding of health risks, public

heal th will be better protected through regulation under Subtitle C.

[See original comment for TABLE 1: HEALTH EFFECTS OF COAL COMBUSTION RESIDUAL (CCR) CONSTITUENTS]

Response: For a substantive response about the possible impacts of additive toxins, the

comm enter is referred to the revised Risk Assessment in the docket of the final rule; that information is summarized in Unit X of the preamble to the final rule.

Concerning your preference for a RCRA subtitle C rule: EPA decided to regulate the disposal of

CCR under subtitle D of RCRA by issuing minimum national criteria. Similar to the subtitle C option, this option would require composite liners, groundwater monitoring, structural stability requirements, corrective action, and closure/post closure care. Howe ver, given available statutory authorities, EPA proposed this option to be a self

- implementing rule with no direct federal oversight, with an effective six months after publication in the Federal Register . The Agency is deferring its final Bevill Regulator y Determination with respect to CCRs that are79

disposed in CCR landfills and CCR surface impoundments until additional information is available on a number of key technical and policy questions, including the risks of CCR disposal

based on its arsenic conte nt, such as the appropriate safe daily dose for arsenic and the speciation of arsenic in the environment, and the potential impacts of recent Agency regulations on the chemical composition of CCR. In addition, the Agency needs additional information on st ate programs before it is in a position to make a final Bevill Regulatory Determination.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 10495

- 47 

### Organization 1 

### : Earthjustice et al.


### Commenter 1 : Lisa Evans Commenter Type: Advocacy Group

Classification: Substantive



### Comment Excerpt Text: a. The plausible types of improper management to which the waste could be subjected.

The absence of state and federal regulations mandating basic safeguards for coal ash disposal and reuse has resulted in mismanagement of this waste on a scale that far exceeds all other industrial solid waste streams, save mining waste. The 141 million tons of coal ash generated annually is over 23 times larger than the entire universe of hazardous waste generated each year in the U.S. [Footnote 287: 75 Fed. Reg. 35172.]. Yet the majority of states do not require safeguards fundamental to the safe storage or disposal of CCR. The extent of the failure of states to require basic safeguards is described in detail in section III.B. of these comments.

In the absence of regulations, the utility industry has built a fleet of aging, leaking, and unstable dumps. Not only are these units subject to catastrophic collapse, as occurred at the TVA Kingston plant, these units are also likely to allow deadly contamin ants to seep, leak and blow into our groundwater, surface water and air. The lack of regulations has also lead to dangerous dumping of millions of tons of CCR directly into groundwater in quarries and mines each year. To qualify for listing, section 261.11 (c)(viii) only requires the showing of “ plausible types of improper management to which the waste could be subjected.” (Emphasis added.) For coal ash, this criterion is exceeded by leaps and bounds

— EPA has not only documented a nationwide inventory of CCR dumps where the waste is currently being mismanaged, it has documented a continuing trend of mismanagement, evident in damage cases and newly permitted units without basic safeguards. [Footnote 288: See, for example, Holcomb Landfill, Holcomb, KS (unlined landfill permitted in 2007) and units described in DOE/EPA Report, described in detail in Section X of these comments.].

The failure of states to regulate “beneficial” reuse of CCR, particularly as structural fill, has also lead to widespread “improper ma nagement.” The potential harm and actual damage caused by CCR reuse is described in detail in preceding sections of these comments. Given the quantity of CCR generated annually, the lack of regulations, and the pressure to dispose of large amounts of

CCR a t the lowest possible cost, the scenarios of plausible mismanagement become unimaginable. If a U.S. utility can use 1.5 million tons of CCR to build a golf course

-- the same CCR that caused arsenic contamination at the plant site

- over a shallow aquifer, currently used as80

drinking water for residents surrounding the site, any use , no matter how dangerous, must be considered “plausible.” [Footnote 289: Cite to preamble discussion of Battlefield golf course and see also http://hamptonroads.com/2009/08/lawsui t

- claims

- dominion

- saw

- golf

- course

- coal

- ash

dump and http://hamptonroads.com/2009/05/dominion

- kept

- 7year

- secret

- fly

- ashs

environmental

- risks.].

EPA acknowledged several mismanagement scenarios and modeled such scenarios (with the exception of reuse) in its 2010 Risk Assessment , resulting in the finding of human and ecological risk exceeding, often significantly, the Agency’s risk benchmarks. For the purpose of evaluating this listing factor, improper management of CCR can be defined as management that cause s a “substantial present or potential hazard to human health or the environment.” The following types of mismanagement, common to past and current CCR disposal and reuse, have been found by EPA and the NRC to present “substantial present or potential hazar d.” The list below is by no means exhaustive. For additional examples of actual improper management that have caused a substantial present or potential hazard, EPA must consult the 137 cases of damage discussed in section III.D. and in Appendix F.

Response : The Agency agrees that the case of the Battlefield Golf Club in Chesapeake, Virginia, epitomizes the adverse impact on groundwater that are associated with large scale and indiscriminant use of CCR for “beneficial use” projects. This case, as well as at l east six other cases involving ‘beneficial use’, have induced the Agency to develop screening criteria against which a large

- scale CCR structural fill project should be scrutinized. The final rule requires that prior to initiating an activity that involves placing unencapsulated CCRs on the land in amounts greater than 12,400 tons, the user must demonstrate that environmental releases to ground water, surface water, soil and air are comparable to or lower than those from analogous products made

without CCRs , or that environmental releases to ground water, surface water, soil and air will be at or below relevant regulatory and health

- based benchmarks for human and ecological receptors during use. A failure to achieve this benchmark would subject the project t o the requirements for a CCR landfill embedded in this rule. For additional discussion of the application of CCR in large scale structural fill projects, the commenter is referred to Unit IV in the preamble to the

final rule.

i. Unlined and clay

- lined CCR surface impoundments

As described in EPA’s 2010 Risk Assessment , disposal of coal ash in unlined and clay

- lined surface impoundments, particularly when coal ash is co

- disposed with coal refuse, results in risk
to human health well above EPA’s benchmarks for numerous appendix VIII constituents, including arsenic, cadmium, lead, and selenium. In addition, boron, cobalt, molybdenum, and nitrate/nitrate also showed elevated risk. The table below provides the elevated risks for these contaminants for CCR dispo sed in unlined and clay

- lined surface impoundments. [Footnote 290: See, for additional detail, Environmental Integrity Project and Earthjustice, Coming Clean: What the EPA Knows about the Dangers of Coal Ash, May 2009. Available at http://www.earthjustice. org/sites/default/files/library/reports/final

- coming

- clean

- ejeip

- report

20090507.pdf.].

[see the original comment for table

-- Elevated risks for contaminants for CCR disposed in unlined and clay

- lined surface impoundments]81

EPA’s 2010 Risk Assessment al so identified ecological risks greatly exceeding EPA’s benchmark HQ of 1. The table below shows the HQ at 200, 200, and 20 for the Appendix VIII constituents; lead, arsenic and cadmium, respectively.

[see the original comment for table

-- Table D. Surfac e Impoundments: Highest Ecological Risk (Groundwater to Sediment)]

From EPA’s 2009 Information Collection Requests (ICR), the Agency estimates that there are approximately 629 surface impoundments at 158 plants in 35 states. [Footnote 291: See

Information Request Responses from Electric Utilities, Database of Survey Responses, available at http://www.epa.gov/osw/nonhaz/industrial/special/fossil/surveys/survey2

- 8

- 17

- 10.pdf.]. EPA, however, does not know exactly how many of these ponds are unlined because th e ICR did not request information regarding liners. EPA relies on a 1995 voluntary industry survey that indicates 74 percent of all surface impoundments built in 1995 or before are unlined. [Footnote 292: 65 Fed. Reg. 32216. Because this survey was volunta ry, one can assume that the utilities responding to the survey are those that employ more safeguards. Thus reliance on the voluntary survey may cause EPA to overestimate the use of liners.]. According to EPA’s database of 629 impoundments, 587 coal ash pon ds were built in or before 1995. Therefore, by EPA’s estimation, approximately 434 of the nation’s 587 operating surface impoundments are unlined. One can assume that many of the 42 impoundments built after 1995 do not have liners, because not all

states r equire liners. Based on the DOE/EPA 2006 report, EPA does know that 18 of the 42 surface impoundments were permitted between 1994 and 2004. [Footnote 293: U.S. Dep’t of Energy & U.S. Envtl. Prot. Agency, Coal Combustion Waste Management at Landfills and

Su rface Impoundments, 1994

– 2004 (Aug. 2006) at 33. This report did not track new surface impoundments that were not permitted. These units are likely not to have the same level of safeguards as permitted units.]. Of these units, all have some kind of liner, although it appears that only 1 or at most 9 have composite liners. [Footnote 294: Id.]. The report also found that at least half of the 18 new ponds have only clay or a single liner

— and both are inadequate to prevent migration of contaminants and sufficie ntly reduce risk. [Footnote 295: Id. at 34.].

Only a small percentage of the lined surface impoundments will have composite liners, because only four states require composite liners. [Footnote 296: See Table 9, Section III., supra.]. The age of the impoun dments is also a factor determining whether the dump will be lined, since older impoundments are less likely to have safeguards. As has been noted earlier, EPA’s data reveal that the largest and highest coal ash ponds are also the oldest. [Footnote 297: Se e Envtl. Integrity Project and Earthjustice, Coming Clean: What EPA Knows About the Dangers of Coal Ash (May 200), Attachments 1, 2 and 3.]. Because EPA has estimated the percentage of lined facilities built before 1995, that date is used as a cut

- off for estimating the presence of liners at the largest and highest dams. Based on EPA’s finding that 74 percent of the ponds built before

1995 will be unlined:

· Of the 81 coal ash impoundments that are over 100 acres, 79 were built before 1995.

· Of the 35 po nds larger than 200 acres, all were built before 1995.82

· Ninety

- six percent of the 50 high hazard dams were built before 1995.

· Eighty

- six percent of the 72 significant hazard dams were built before 1995.

Thus, when one adopts the best case scenario t hat only 74 percent of older units are unlined, it is obvious that the great majority of the tallest and highest capacity coal ash impoundments

– arguably the most dangerous units

-- are unlined.

Further, according to the 2010 Risk Assessment , EPA found on ly “the composite

- lined units ... effectively reduced risks from all pathways and constituents below the risk criteria.” [Footnote 298: 75 Fed. Reg. 35144.]. Therefore, since the great majority of surface impoundments, especially the larger ponds and higher dams, are unlined, the “plausible mismanagement” of CCR in ponds is a certainty and, as EPA has calculated, the risk is great that appendix VIII constituents will migrate from the inadequately lined ponds.

In addition to the fact that the majority of CCR surface impoundments are unlined or inadequately lined, it must be noted that the majority of these ponds also do not have groundwater monitoring or leachate collection systems. In 2000, EPA estimated that 62% of operating surface impoundments did not have groundwater monitoring. [Footnote 299: 65 Fed. Reg. 32216.]. Information in EPA’s 2006 report indicates that even for the nation’s newest permitted surface impoundments, a substantial percentage of ponds (46 percent) have no requirement in their permit to conduct groundwater monitoring. [Footnote 300: U.S. Dep’t of Energy & U.S. Envtl. Prot. Agency, Coal Combustion Waste Management at Landfills and Surface Impoundments, 1994

– 2004 (Aug. 2006) at 30.]. In addition, the report also found that only 19 percent of the permits for the newly permitted surface impoundments contained groundwater protection standards. [Footnote 301: Id. Groundwater protection standards are contaminant concentrations in groundwater that cannot be exceeded. They can include primary

and secondary drinking water standards, background concentration levels, and preventive action limits.]. Thus the risk posed to health and the environment by the hundreds of unlined and inadequately

- lined CCR surface impoundments is conflated by the absence of monitoring systems that might identify the release of contaminants before they reach and harm human and aquatic receptors.

Lastly, surface impoundments, of course, also pose significant harm from spills, both large and small. Section VI.A, infra, discus ses the frequency of spills, the aging universe of ponds, and the fact that many were not designed, constructed or built by professional engineers.

Response: Whereas the commenter’s quantitative analysis of the proportion of unlined CCR impoundments and la ndfills of the total universe of CCR management units has been superseded by more recently compiled information, EPA agrees with the commenter’s basic tenet about the relative prevalence of inadequately lined CCR management units. As described in detail in the final rule and the accompanying Risk Assessment document, the risks associated with clay

- lined impoundments are somewhat lower than estimated in the 2010 Risk Assessment, hence EPA’s requirement that new waste management units be designed with a compo site liner or an equivalent alternative liner, while a clay liner would be acceptable for existing impoundments for which there is no evidence for groundwater impact. Owners or operators of existing CCR surface impoundments are required to document whether the unit is constructed with any one of the three83

liner types: (1) a liner consisting of a minimum of two feet of compacted soil with a hydraulic conductivity of more than 1x10

- 7 cm/sec; (2) a composite liner that meets the requirements of § 257.70(b); or (3) an alternative liner that meets the requirements of § 257.70(c).

Existing CCR surface impoundments with liners that do not fall into any of one of the three prescribed liner types are considered “existing unlined CCR surface impoundments.” Such

surf ace impoundments must cease receiving CCR and initiate closure if an owner or operator determines, at any point in time in the course of its groundwater monitoring program that the concentrations of one or more constituents listed in Appendix IV to part 25 7 are detected at a statistically significant level above the groundwater protection standard established for that unit. EPA agrees with the many commenters who argued that existing unlined CCR surface impoundments should not be required to close premature ly if they are operating as designed and are complying with all the requirements of the rule, including all groundwater protection

standards.

ii. Sand and gravel pits and quarries

Although disposal of CCR in sand and gravel pits is a common method of disposal, the risk of harm from this practice is high and the damage well documented. Eight of EPA’s 27 proven damage cases involved dumping of CCR in sand and gravel pits. [Footnote 302: U.S. Envtl. Prot. Agency, Coal Combustion Waste Damage Case Asse ssments (July 9, 2007); at 8

- 10.]. The NRC specifically identified the danger of placing CCR in sand and gravel quarries in its 2006 report because of the high permeability of the strata underlying the CCRs and the depth of the water table. [Footnote 303: See Nat’l Research Council, Nat’l Academies, Managing Coal Combustion

Residues in Mines 81

– 104 (2006), available at http://books.nap.edu/catalog.php?record_id=11592#toc. at 71.]. The NRC explains:

"CCR placement in sand and gravel mines has resulted in en vironmental impacts at CCR landfills in several localities including Wisconsin, Virginia, and Massachusetts. EPA concluded that at each of these sites the permeable nature of the underlying substrate allowed CCR constituents to leach into ground

- and surfa ce waters. Shallow water tables aggravate the problem by enhancing the interaction of water with the CCRs and increasing the likelihood of leachate reaching the water table. For example, EPA concluded that the shallow water table at

the Faulkner Landfill i n Maryland was at least partly responsible for the contamination of groundwater that eventually resurfaced and impacted nearby wetland and stream communities." [Footnote 304: Id.].

Despite the known risk of dumping coal ash in quarries, this practice is a llowed in most states that generate CCR and in at least one state, Iowa, it is a favored method of disposal. [Footnote 305: Plains Justice, Iowa Coal Combustion Waste Disposal Report, (November 2007), available at http://plainsjustice.org/coal

- combustion

- w aste

- report/. Attached as Attachment 11 to these comments.]. Because many states consider the filling of quarries with ash a “beneficial” use, most states to not regulate the practice. [Footnote 306: See, e.g., The Massachusetts Solid Waste Act, Chapter 11 1, s. 150A, specifically exempts coal ash from solid waste regulations. The use of coal ash as fill or for any commercial or industrial purpose (or when stored for such use) does not need approval from the local board of health and is not regulated by the Department of Environmental Protection.]. Most often sand and gravel pits are filled under the guise of84

“structural fill” projects. [Footnote 307: See, e.g., the Copicut Road Project in Freetown, Massachusetts described in EPA’s Coal Combustion Waste Damag e Case Assessments at 38.]. These reuse sites are very rarely lined or monitored. Because these units fly under the radar, it is not known how much coal ash has been dumped in pits and quarries or where these dumps are

located.

Response: The Agency agree s that large

- scale and indiscriminant use of CCR for “beneficial use” projects is not acceptable. At least seven damage cases involving ‘beneficial use’ have induced the Agency to introduce in this rule screening criteria against which all large

- scale, CCR structural fill projects should be scrutinized. The final rule requires that prior to initiating an activity that involves placing unencapsulated CCRs on the land in amounts greater than 12,400 tons, the user must demonstrate that environmental releases t o ground water, surface water, soil and air are comparable to or lower than those from analogous products made without CCRs, or that environmental releases to ground water, surface water, soil and air will be at or below relevant regulatory and health

- base d benchmarks for human and ecological receptors during use. A failure to achieve this benchmark would subject the project to the requirements of this rule for

a CCR landfill.

iii. Unlined CCR landfills

EPA estimates that there are over 337 currently oper ating CCR landfills. [Footnote 308: 2010 RIA at 34.]. However, EPA has few data on the exact number, location or design of these landfills. EPA’s failure to issue an Information Collection Request to obtain such information

has resulted in the need to extr apolate from a limited dataset, collected from a voluntary survey conducted in 1994 by the Electric Power Research Institute. [Footnote 309: RIA at 37.]. This survey indicated that 43% of all CCR landfills built before 1995 (approximately 300) were

unlined (approximately 129 units). [Footnote 310: 65 Fed. Reg. 32216.]. Between 1994 and 2004, 38 permitted landfills were built or expanded, and 37 of these landfills were lined. [Footnote 311: U.S. Dep’t of Energy & U.S. Envtl. Prot. Agency, Coal Combustion Was te Management at Landfills and Surface Impoundments, 1994

– 2004 (Aug. 2006) at 33. This report did not track new landfills that did not require permits. These dumps are likely not to have the same level of safeguards as permitted units.]. Thus approximately 39% of operating landfills are currently unlined.

However, EPA has acknowledged that all liners are not created equal. Based on the findings of

EPA’s 2010 Risk Assessment , the Agency concludes that only a composite liner for CCR

landfills offers suffici ent protection. Although EPA has not gathered information on the universe of hundreds of older landfills, the DOE/EPA 2006 Report does provide some information concerning the 37 landfills permitted between 1994

- 2004

— and this information is not reassuring. Of the 37 permitted landfills documented in the report, approximately 40% either had no liner (1 landfill), a single liner (4 landfills) or a clay liner (11 landfills). [Footnote 312: Id.].
None of these liners would reduce risks below EPA’s benchmark valu es.

Furthermore, CCR landfills often lack groundwater monitoring systems. Again, EPA has few data on the exact number that employ this safeguard. The fact that 30 of 37 states, as described in section III.B.2, supra, do not require groundwater monitoring at landfills ensures that many85

operating units are not monitored. Thus, as with CCR ponds, releases from such landfills are not likely to be discovered in a timely manner, and consequently the risk that those releases will

harm human health or the environm ent is significant.

Response: EPA now requires all new CCR landfills, all new CCR surface impoundments, and all lateral expansions to be constructed with a composite liner, as stipulated in § 257.70 of the final rule. New CCR landfills or lateral expansions of these units are also req uired to be constructed with a leachate collection and removal system designed to maintain less than a 30

- centimeter depth of leachate over the composite liner. In addition, EPA is allowing alternatives to the lower component of the composite liner system provided the flow rate through the lower component is no greater than the flow rate through two feet of compacted soil with a hydraulic conductivity of

1 x 10

- 7 cm/sec. The lower component must also be a recognized liner material; e.g., soil, clay,

or Geo synthetic Clay Liner (GCL). The Agency is also including provisions that require the composite or alternative liner to be chemically compatible with the CCR and of adequate strength and thickness to prevent failure.

The final rule allows existing CCR lan dfills as defined in § 257.54, to continue to operate without retrofitting with a composite liner and leachate collection and removal system. Given the volume of the material currently managed in CCR landfills, the potential for disruption in CCR disposal capacity if existing CCR landfills were required to retrofit would be significant. Significant disruptions in the state

- wide solid waste management (and possibly power generation as well) are associated with significant risks to public health and the envi ronment in their own right. EPA has concluded that these risks are greater than the risks associated with allowing unlined CCR landfills to continue to operate. Further, existing CCR landfills will have to comply with the extensive groundwater monitoring and corrective action requirements, to assure that any groundwater releases from the CCR unit are identified and promptly remediated, which will significantly mitigate the risks from these existing units.

iv. CCR landfills operated without daily cover to control fugitive dust.

As described above, EPA published in 2009 a screening assessment of the risks posed by coal combustion waste landfills entitled “Inhalation of Fugitive Dust: A Screening Assessment of the Risks Posed by Coal Combustion Waste Lan dfills.” The screening assessment acknowledges significant potential harm from fugitive dust. Specifically, fugitive dust from coal ash landfills can readily exceed the national ambient air quality standards (NAAQS) for levels of particulate

matter in the air. Yet, as described in more detail in section III.B.2, supra, 30 of 37 top CCR

generating states do not require daily cover to control fugitive dust at coal ash landfills. In addition, 36 of 37 states do not require measures at coal ash ponds to control dust. [Footnote 313: See Table 14 in section III.B.2, supra.]. The lack of fugitive dust controls places residents near the dump sites at great risk. [Footnote 314: See, for example, Testimony of Gayle Queen before the House of Representative Subcommittee on Energy and Environment, December 10, 2010. Ms. Queen testified “Because of the coal ash, I have trouble breathing. I am not a smoker. My doctor has told me I have the lungs of an 80 year old woman because of breathing in the coal ash.”].86

Harmful level s of fugitive dust are not only a problem at coal ash disposal sites. At coal ash reuse sites, such as structural fill projects where large amounts of ash are placed, fugitive dust from dumping operations can also create dangerously unhealthy conditions. [ Footnote 315: See, for example, Testimony of Robyn Pierce before the House of Representative Subcommittee on Energy and Environment, December 10, 2010. Ms. Pierce testified: "For 5 years hundreds of truckloads of coal ash were dumped daily in our community . We've since learned those same truck drivers and were required to have haz

- mat licenses, and wore masks and protective clothing yet our children unknowingly played outside amongst this dangerous dust. Neighbors recall coming home and finding layers of gr ay chalky residue on vehicles and pool surfaces. None of my neighbors had any inkling of the dangers we were being exposed to."]. Because beneficial use of ash is unregulated in most states, very few regulations require the suppression

of airborne ash at f

ill projects. Yet use of coal ash as structural fill is the fastest growing and the second largest reuse application in the U.S. In 2008, the American Coal Ash Association (ACAA) reported 11.5 million tons of ash were used in fill and embankment projects. [Footnote 316: American Coal Ash Association. 2008 Coal Combustion Product (CCP) Production & Use Survey Report. http://acaa.affiniscape.com/associations/8003/files/2008_ACAA_CCP_Survey_Report_FINAL_ 100509.pdf.]. The ACAA also reported that minefilling was the third largest application at over 10 million tons a year. [Footnote 317: Id.]. Fugitive dust is also a common problem at minefill sites, both at the site itself and during transport of the ash to the mine.

Response: This rule is introducing a performa nce

- based standard for control of CCR fugitive dust at all the phases of CCR management. This standard requires owners or operators of a CCR landfill, CCR surface impoundment, or any lateral expansion of a CCR unit to take all reasonable precautions to min imize CCR from becoming airborne at the facility, including CCR fugitive dust originating from CCR units, CCR piles, roads, and other CCR management and material handling activities. In order to facilitate implementation and provide for a higher degree of clarity, the Agency is also requiring documentation of the measures taken to comply with the technical standard in a “CCR fugitive dust control plan”. The plan must be certified by a qualified professional engineer and placed in the operating record and o n the owner or operators publicly accessible internet site.

In response to comments stating that the standards lacked technical detail to facilitate implementation, the plan requires owners or operators to elaborate on the types of activities applicable and appropriate for the conditions at the facility that will be employed to minimize CCR from becoming airborne at the facility. Examples of control measures that may be appropriate include: locating CCR inside an enclosure or partial enclosure; operatin g a water spray or fogging system; reducing fall distances at material drop points; using wind barriers, compaction, or vegetative covers; establishing and enforcing reduced vehicle speed limits; paving and sweeping roads; covering trucks transporting CCR; reducing or halting operations during high wind events; or applying a daily cover.

The Agency also requires that the CCR fugitive dust control plan include a description of the procedures the owner or operator will follow to periodically assess the effe ctiveness of the control plan. The owner or operator must amend the written plan whenever there is a change in conditions that would substantially affect the written plan in effect, such as the construction and operation of a new CCR unit. T he Agency is promulgating the requirement for owners and87

operators of all CCR landfills and any lateral expansion to emplace CCR as conditioned CCR. In response to commenters request and further evaluation the Agency is allowing that in lieu of water, CCR conditioning may be accomplished with an appropriate chemical dust suppression agent. Examples of conditioning agents are spray

- on adhesives, surfactants, aqueous foamers, humectants (calcium, magnesium, and sodium chloride and their mixtures), and polymer

solutions an d emulsions.

Finally, in order to ensure that the provisions of the fugitive dust criteria are adhered to throughout the operating life of the CCR unit, the Agency is requiring that the owner or operator of the CCR unit prepare an annual CCR fugitive dus t control plan, describing the actions taken to control CCR fugitive dust, a record of all citizen complaints and the facility’s responses to these complaints, including any corrective measures taken.

v. CCR surface impoundments over 25 years old and n ot designed, constructed or built by professional engineers

The vast majority of CCR impoundments (approximately 490 of 629 dams in the survey results) [Footnote 318: “Approximately” because precise data was not available for all of the impoundments in EP A’s survey.] were commissioned prior to 1985. These nearly 500 aging coal ash impoundments pose more than “plausible” scenarios of improper management that pose substantial hazards to health and the environment. As discussed above, these ponds are less

lik ely to have liners (almost none will have a composite liner) and groundwater monitoring. In addition, older dams are far less likely than newer dams to be designed by a professional engineer (P.E.). Only about 66 percent of dams built before 1985 were desi gned by a P.E.; as were only 55 percent of the 242 dams built prior to 1975, and only 30 percent of the 90 dams built before 1965. Older dams are also likely to be larger and higher. And predictably, these older, larger, higher, unlined and unmonitored imp oundments are substantially more likely to have problems. Of 40 dams with a history of leakage, 33 (83 percent) were commissioned prior to 1985, and two

- thirds (22) were commissioned prior to 1975.

Response: The final rule is addressing the issue of structural integrity of surface impoundments by requiring an extensive inspections regime. This rule requires that all CCR surface impoundments be inspected at intervals not exceeding seven days for any appearance of actual or potential structural weakness and other conditions which are disrupting or have the potential to disrupt the operation or safety of the CCR surface impoundment. CCR impoundments exceeding a specific size threshold are required to perform annu al inspections as well as an assessment of structural stability and factors of safety every five years. Annual inspections are conducted to ensure that the design, construction, operation, and maintenance of the CCR unit is consistent with recognized and g enerally accepted good engineering standards. Five

- year inspections comprise structural integrity assessments, and include the calculation of factors of safety under various loading conditions.

vi. CCR landfills and surface impoundments located in unsaf e locations

EPA’s Regulatory Impact Analysis surveyed the location of 495 coal

- fired power plants to determine the number of plants located in seismic and karst zones. Due to lack of information,88

the RIA did not similarly quantify the number of CCR dispos al units in proximity to the water table, wetlands and floodplains, locations that also pose a substantial risk of contaminant migration. EPA found that of 495 plants, 151 plants were located within one mile of a seismic zone and 138 plants within 1 mile o f a karst zone (177 plants are located within three miles of a karst zone). [Footnote 319: 2010 RIA at 72.]. Construction of coal ash surface impoundments and landfills in active earthquake and unstable karst zones places human health and the

environment a t great risk. [Footnote 320: At least two of EPA’s damage cases occurred as a result of karst sinkholes, including the 2002 release of 2.25 gallons of ash and water when a sinkhole developed in an impoundment that eventually reached four acres in size at G eorgia Power’s Plant Bowen, Cartersville, GA. 75 Fed. Reg. 35237. See also, the TVA Colbert Fossil Fuel Plant in Alabama where the disposal area had been subject to collapse into a karst sinkhole. See EPA, Coal Combustion Waste Damage Case Assessments, Jul y 2007 at 42.]. Yet of 25 state regulations reviewed in 2000 by EPA, only two states have location restrictions in seismic impact areas for surface impoundments, and only eight states have location restrictions in seismic impact areas for landfill. Similar ly, only five states had location restrictions in unstable (karst) areas for surface impoundments, and only 12 states have location restrictions in unstable areas for landfills. [Footnote 321: 2010 RIA at 47]. The absence of regulations preventing the

siti ng of CCR landfills and impoundments in dangerous locations exposes the likelihood of plausible improper management that presents a substantial present or potential hazard to human

health or the environment.

For the other dangerous locations not quantifi ed by EPA, regulatory restrictions are indeed inadequate to prevent mismanagement and protect human health and the environment from substantial present or potential hazards. For the very dangerous practice of placing CCR in or near the water table, only fi ve states of the 25 state regulations reviewed have location restrictions below the natural water table for surface impoundments and only eight states have restrictions on placing coal ash below the natural water table in landfills. For floodplains, of the 25 state regulations reviewed, only eight states have location restrictions in floodplains for surface impoundments and 20 have location restrictions in floodplains for landfills. Lastly, for placement of CCR in wetlands, only five states have location re strictions in wetlands for surface impoundments and 17 states that have location restrictions in wetlands for landfills.

Response: In this rule, EPA is finalizing location restrictions that will ensure that CCR units are appropriately sited, that the structure of the CCR unit will not be adversely impacted by conditions at the site, and that overall the location of the CCR unit will n ot present a reasonable probability of harm to human health or the environment. EPA is finalizing different sets of location restrictions depending on whether the unit is a CCR landfill or CCR surface impoundment and whether it is an existing or new unit ( lateral expansions fall within the definitions of new units). The location restrictions under § 257.60 through § 257.64 include: (1) placement above the uppermost aquifer; (2) wetlands; (3) fault areas; (4) seismic impact zones; and (5) unstable areas. Ne w CCR landfills, existing and new CCR surface impoundments and all lateral expansions will be required to comply with all of the location restrictions. Existing CCR landfills, however, will be subject to only two of the location restrictions

– floodplains , and

unstable areas.

Existing landfills are already subject to the floodplains location restrictions in the existing 4089

CFR part 257, subpart A criteria. The rule does not change this requirement, and so facilities should already be in compliance. The Agency is finalizing the unstable area location restriction for existing CCR landfills because the record clearly shows that failure of CCR units in these areas (e.g., due to instabilities in Karst terranes) have and in all likelihood would continue, in th e absence of the restrictions in the final rule, to result in damage cases where constituents from

CCR are released affecting both groundwater and surface waters.

Conversely, EPA is not applying the following location restrictions tor existing CCR landfil ls: the requirement to construct a unit with a base located no less than five feet above the upper limit of the uppermost aquifer as well as the siting restrictions applicable to wetlands, fault areas, and seismic impact areas. The Agency is convinced tha t existing CCR landfills pose less risks and are structurally less vulnerable than existing CCR surface impoundments, and disposal capacity shortfalls, which could result if existing CCR landfills in these locations were required to close, raise greater en vironmental and public health concerns than the potential failure of CCR landfills

in these locales.

vii. CCR disposal in coal mines

The danger posed by disposal of CCR in active and abandoned coal mines is described in detail

in section VIII of these c omments. The huge volume dumped in mines every year without adequate safeguards has contaminated groundwater and surface water at numerous sites throughout the U.S. [Footnote 322: See Clean Air Task Force, Impacts of Water Quality from

Placement of Coal Co mbustion Waste in Pennsylvania Coal Mines, July 2008 and Earthjustice, Waste Deep: Filling Mines with Ash is Profit for Industry, But Poison for People, February 2009.]. The lack of regulations controlling this dumping ensures continued damage from placeme nt of CCR directly into groundwater and the continued substantial present or potential hazard to human health or the environment at the mine sites. We believe EPA has a duty under RCRA to regulate this disposal practice instead of passing the buck to the I nterior Department.

Response: The regulation of CCR disposal in active and abandoned coal mines (‘minefilling’) is outside the scope of EPA’s RCRA authority and is subject instead to OSM’s SMCRA authority.

According to the recommendation of the 2006 NAS report Managing Coal Combustion Residues

in Mines ( http://www.nap.edu/catalog/11592.html ), there are three primary regulatory

mechanisms that could be use d to develop enforceable minefilling standards: • Changes to SMCRA regulations to address CCRs specifically; • Joint Office of Surface Mining (OSM) and EPA rules pursuant to the authority of SMCRA and RCRA; or

• RCRA

- D rules that are enforceable through a SMCRA permit.

“Under SMCRA, the OSM and related state agencies that implement SMCRA currently have the regulatory framework in place to deal with CCRs used in mine reclamation, and have considerable expertise in review, permitting, and management of mine lands. On the other hand, under RCRA, EPA and its counterpart state and local agencies have developed significant technical and regulatory expertise in monitoring and oversight of waste disposal operations (e.g., landfills) that involve groundwater and tox ic substances. Regardless of the regulatory mechanism90

selected, coordination between OSM and EPA efforts is needed and would foster regulatory consistency with EPA’s intended rule

- making proposals for CCR disposal in landfills and impoundments.” As of Dece mber 2014, OSM has been drafting a final rule to regulate CCR in coal mines, while coordinating the effort with the EPA.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 10495

- 49 

### Organization 1 

### : Earthjustice et al.


### Commenter 1 : Lisa Evans Commenter Type: Advocacy Group

Classification: Substantive



### Comment Excerpt Text: iv. The nature and severity of the human health and environmental damage that has occurred as a result of the improper management of wastes containing the constituents.

In many places in t hese comments, we describe the nature, severity and scope of damage to human health and the environment from mismanagement of CCRs. Section III.D, supra, describes the 137 damage cases that have been documented by EPA and public interest groups. The report s referenced in that section provide much additional detail concerning the nature of the contamination. Certainly the litany of documented damage must lead EPA to conclude that the waste is capable of posing a substantial present or potential hazard to hum an health or the environment when improperly treated, stored, transported or disposed of, or otherwise managed.

Response: The Agency agrees with the commenter that the number of documented damage cases (EPA’s database now comprises around 150 confirmed CC R damage cases) demonstrates that CCRs, when improperly treated, stored, transported or disposed of, or otherwise managed, have the potential of posing a substantial present and potential risk to human health and the

environment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 10688_DC

- 039

- 1 

### Organization 1 

### : Physicians for Social Responsibility (PSR)


### Commenter 1 : Alan Lockwood Commenter Type: Advocacy Group

Classification: Substantive



### Comment Excerpt Text: Each year, coal

- fired utilities create and dispose of over 120 million tons of coal combustion residues. Ironically, as air pollution control technologies improve, this huge waste stream becomes increasingly hazardous as toxicants such as arsenic, selenium, and many others that had

been released into the air become a part of the CCR waste stream. If CCR stayed put, the problem we face would be much simpler. However, many of these toxicants leach into drinking water supplies, our waterways, into the air as dust, etc., and harm the health of those who are

expos ed. Several disposal sites are so toxic they have been added to the National Priorities List.

Time does not permit me to present the details of this complex problem. So, I will focus my91

comments on arsenic and selenium, two critical constituents of CCR.

Arsenic is a known carcinogen that causes cancers of the skin, lung, and urinary bladder. Arsenic in CCR placed in surface impoundments creates the greatest risk for the development of cancer. The cancer risk for individuals at the 50th percentile of exp osure is increased by a factor of about 30. Unlined and clay

- lined disposal sites have lower, but still appreciable risks. Leaching of arsenic, and other CCR toxins has forced the shutdown of water supplies in towns, such as the Town of Pines, Indiana. Exp osure to arsenic also increases the risk of developing Type II Diabetes Mellitus. As many of you know, Americans are experiencing an epidemic of this largely preventable, devastating, and expensive disease.

CCR also contains significant amounts of seleni um. The EPA's own analysis has demonstrated clearly that selenium from CCR disposal sites has devastated fish populations and resulted in fish consumption advisories. For example, in Belews Lake, North Carolina, selenium eliminated 16 out of 20 species of fish and led to a fish consumption advisory that was in effect for seven years.

These are but a few of the numerous well

- studied and proven instances of CCR damages. Other examples include the highly publicized collapse of a dam that contained CCR in King ston Tennessee that led to the discharge of about 1 billion gallons of toxic slurry into adjacent waterways. In 2009, an EPA sponsored survey showed that there were at least 50 CCR storage ponds that posed a "high risk" for failure and an additional 71 whe re the risk was described as "significant." Seventy

- five of all impoundments were behind dams that were more than 50 feet high. Thus, too many CCR repositories have the potential to cause additional, perhaps catastrophic effects on health and the environme nt.

Response: EPA concurs with the commenter about the prevalence of arsenic and selenium as toxicants leached from CCRs that infiltrate into groundwater and/or discharge into surface water, respectively. The Agency is also aware of the human and environm ental health risks associated with their release, and for selenium

– with its devastating effects on aquatic fauna due to its bioaccumulative nature. EPA also recognizes the potential failure hazard posed by surface impoundments. However, it should be note d that the ‘hazard’ ranking of CCR impoundments is not an indicator of their deficient structural integrity but rather a measure of the prospective loss in human life and property damage that are likely to occur as a result of dam failure and its

consequen ces.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 10736_DEN

- 048

- 3 

### Organization 1 

### : Earthjustice


### Commenter 1 : Melanie Kay Commenter Type: Advocacy Group

Classification: Substantive



### Comment Excerpt Text: Third, in view of our proximity to the headquarters of the American Coal Ash Association, it is important to dispel a misconception asserted repeatedly by the ACAA

- that there are no damage cases caused by coal ash reuse. We ask both EPA and the ACAA to review our report published last February, co

- authored by the Environmental Integrity Project, that describes two sites where92

the use of ash as structural fill contaminated groundwater. In addition, EPA itself documented that coal ash used as fill contaminated drinking water in Pines, Indiana and led, in part, to the town's designation as a federal Superfund site.

Response: EPA’s CCR damage case record reveals seven damage cases classified as structural fills, and two additional cases, where unregulated structural fill of CCRs preceded a subsequent

and different CCR management activity at the site. Proven damage cases which are classified as structural fills are Oak Creek, WI; Dairyland Stoneman, WI; NIPSCO Yard 520 (Pines), IN; Swift Creek, NC; and Trans Ash Inc., TN. In addition, Don Frame Trucking, NY, had unregula ted ‘structural fill’ activities prior to becoming a regulated CCR landfill. Potential damage cases which are classified as structural fills are Rezendes, MA; and Dominion Battlefield Golf Course, VA. In addition, Michigan City, IN, had an unregulated ‘str uctural fill’ prior to becoming a regulated CCR surface impoundment disposal site.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 11229_CHI

- 100

- 1 

### Organization 1 

### : Physicians for Social Responsibility and Earth Justice


### Commenter 1 : Commenter Type: Advocacy Group

C lassification: Substantive



### Comment Excerpt Text: [Attachment: see original comment for copy of report from Physicians for Social Responsibility and Earthjustice, entitled "Coal Ash: The Toxic Threat to our Health and Environment" by

Barbara Gottlieb with Steven Gilbert and Lisa Evans]

Response: As demonstrated by the findings of the Risk Assessment in the docket of this rule, EPA agrees with the commenters’ assessment that CCRs, when improperly managed (e.g., by unbridled use of massive amounts of unencapsulated CCRs for quarry reclamation, lands cape grading and by disposal in unlined management units, lack of control of fugitive dust, and poorly controlled effluents into cooling water reservoirs that also serve as a sport fishing venue), pose unacceptable human health and environmental risks. The requirements of the final rule that pertain to the location, design, and operation of CCR management units are addressing these

concerns.

EPA is also well aware that the increasing efficiency of air emission controls results in an increasing volume of C CRs. However, this rule defers a final Bevill Regulatory Determination for disposed CCRs until additional information becomes available on a number of key technical and policy questions. These still unsettled issue include the risks of CCR disposal based o n its arsenic content, the appropriate safe daily dose for arsenic and the speciation of arsenic in the environment, and the potential impacts of recent Agency air quality control regulations on the chemical composition of CCR. In addition, the Agency nee ds additional information on state programs before it is in a position to make a final Bevill Regulatory Determination.



### Comment Number: TRANS

- ARL

- 0060

- 1 

### Organization 1 

### : Commenter 1 : Mary Fox93

Commenter Type: Private Citizen

Classification: Substantive



### Co mment Excerpt Text: I would like to make four points. Coal ash contains multiple toxic constituents that can appear as mixtures in the ambient environment. Enforceable standards are needed for disposal in sand and gravel pits, quarries and landfills. We ne ed to know the locations of disposal pits, past and present. Risk assessments to data have likely underestimated health risks. The latest reviews show that arsenic cancer risks are higher than previously thought and noncancer risks are under

estimated if m ixture exposures are not evaluated. Regarding multiple contaminants, the proposed rule summarizes the Gambrills damages case in Anne Arundel County, Maryland where coal combustion waste was used to reclaim a former sand pit. Coal combustion waste constitu ents reached the drinking water wells of nearby residents. In total, 34 wells were contaminated with concentrations of aluminum, arsenic, beryllium, cadmium, lead, manganese, and thallium above drinking water standards. I would like to emphasize that sever al of those wells were contaminated with multiple coal ash constituents demonstrating the importance of assessing combinations of coal ash contaminants and vulnerabilities of unlined disposal areas. Three of the commonly used coal combustion waste

manageme nt practices, landfill, surface impoundment or use and reclamation in mines result in localized disposal. We will be unable to fully assess or correct environmental or public health risks unless disposal locations are known. To date, cancerous assessments of arsenic exposure have been based on studies of skin cancer. Epidemiological evidence on arsenic ingestion shows greater risks of several internal organ cancers such as bladder, kidney, lung, liver and prostate so that estimates using the skin cancer

da ta will underestimate total cancer risks from arsenic ingestion, and arsenic exposure is also associated with some noncancer outcomes including diabetes and hypertension. In conclusion, I believe my concerns would be best addressed and public health better protected to regulation

under RCRA Subtitle C.

Response: We appreciate your comment. See response to comment excerpt TRANS

- ARL

- 0060

- 1.



### Comment Number: TRANS

- ARL

- 0110

- 1 

### Organization 1 

### : EarthJustice


### Commenter 1 : Lisa Evans Commenter Type: Advocacy Group

Classification: Substantive



### Comment Excerpt Text: The decision facing EPA is of monumental importance, but it is not unprecedented. There are clear, legal mandates for this rulemaking that the agency cannot ignore. The proposed regulation

of coal ash as a special waste under Subtitle C, is dictated by the specific mandates of the Bevill Amendment, the regulatory definition of hazardous waste, and EPA's guidance concerning reduction of cancer risk. A special waste designation is the only option consistent w ith Administrator Jackson's pledge to rely on "sound science and risk

- based criteria protective of

human health and the environment."94

Many who oppose Subtitle C regulations want you to look back to the days when the TVA dam still stood, when we knew nothi ng of 70 additional damage cases, and when the TCLP test was not deemed irrelevant. They would have you ignore your new leach test that reveal arsenic leaching from ash at many times the threshold for hazardous waste. They would have you disregard state da ta documenting contaminated water at dozens of sites across the nation. They would prefer you forget the conclusions of the National Academy of Sciences, the EPA Science Advisory Board, and your own peer

- reviewed risk assessment. Lastly, they would have yo u disregard the gross deficiencies of an existing state law, which allow some of the largest coal states to avoid entirely the regulation of coal ash. In short, you are asked to base this critical rule on facts frozen in the last century. This course is

a s illegal as it is foolhardy. We trust that you will not join them in their way

- back machine. This law requires your decision be based on 21st century data and science. Further, the current reality of coal ash mismanagement by states across the nation requ ires a rural design to resolve this problem.

Response: We appreciate your comment. See response to comment excerpt TRANS

- ARL

- 0060

- 1.



### Comment Number: TRANS

- ARL

- 0120

- 1 

### Organization 1 

### : EarthJustice


### Commenter 1 : Emily Enderle Commenter Type: Advocacy Group

Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:

Other Sections: 3.1.1 

### Comment Excerpt Text: As you've noticed, this is of high importance to a number of the large environmental and public health groups in the Un ited States. I for example am here on behalf of the 220,000 plus members and supporters of Earthjustice to let you know that this is certainly one of our high

- priority rules. You are right now in the midst of looking at public comments, looking at technic al data and considering two particular options on how to deal with the disposal of coal ash. For us we would really appreciate and the public would really appreciate the scientifically defensible option which

is Subtitle C under the Resource Conservation a nd Recovery Act.

It's only under that particular subtitle that we would be able to ensure that communities are going to be protected from toxic coal ash. We've seen time and time again that the states, when left to operate under the status quo, that ther e are damage cases throughout the country. You have identified dozens of damages cases yourselves. We have certainly worked on several reports in the past identifying more damage reports looking into using data that's available at the state and

local level . I think that's one example and a lot of those are related to leaching. Then we have cases like the Kingston spill. That's an example of catastrophic failure. I am from a small town in rural Ohio. We are certainly a coal state. We are actually sixth, I t hink, in the country in terms of coal use and we generate 6.9 million tons per year. In Ohio we have six of the high

- hazard dams, which means if they were to fail one or more people would likely die

because of that failure. You know that there are a lot of structural integrity issues and you've95

collected the data. Personally I'm scared for my family, for citizens of Ohio as well as citizens across the country and there are hundreds of other ponds that haven't even been quantified in

terms of structural inte grity. So the catastrophic failure, as well as leachability are of high

concern.

Your own data shows 2,000 times the acceptable risk of arsenic is a possibility in terms of the leach test. You have the science. I mainly wanted to let you know that you ha ve the public's support and you have the scientific support. We hope that the rule that you decide to promulgate is ultimately that one that you put forth to OMB and that the politically more attractive yet the

less

- protective rule is the one that's left b ehind.

Response: We appreciate your comment. See response to comment excerpt TRANS

- ARL

- 0060

- 1.



### Comment Number: TRANS

- ARL

- 0146

- 1 

### Organization 1 

### : League of Conservation Voters


### Commenter 1 : Sara Chieffo Commenter Type: Advocacy Group

Classification: Substantive



### Comment Excerpt Text: I'm here to encourage the EPA to adopt strong federally enforceable coal ash regulations. U.S.

coal

- fired power plants generate more than 130 million tons of toxic coal ash annually. Coal ash

and other combustion wastes are not currently subject to federal regulation and most state laws are either far too weak or nonexistent. The dangers coal ash poses to public health and the environment have been known for a long time. This coal combustion byproduct is known to

contain harmful metals and chemicals like arsenic, lead, and mercury that lead to increased rates of cancer, birth defects, learning disabilities, and other illnesses. Currently much of the coal ash waste is stored in ponds, landfills, and abandoned mines that d o not have adequate safeguards. Whether through large

- scale and highly visible disasters like the massive coal ash spill in Tennessee in 2008, or the less

- visible contamination of groundwater, communities, public health, and the environment are unnecessari ly being threatened. In fact, a report released just last week by the Environmental Integrity Project, Earthjustice, and the Sierra Club, brings the total number of known contamination sites from toxic coal ash pollution to 137 sites spread across 34 state s. LCV strongly encourages the administration to adopt the Subtitle C option that has been proposed. Families across the country and drinking water sources will only be protected by federally enforceable standards and not by guidance to states which will only perpetuate the patchwork of inadequate state regulations that we currently have. No community should be exposed to these health risks especially when safer disposal methods exist and could be readily implemented.

Response: We appreciate your comment. See response to comment excerpt TRANS

- ARL

- 0060

- 1.96



### Comment Number: TRANS

- CHI

- 0118

- 2 

### Organization 1 

### : Commenter 1 : Ralph Zellner Commenter Type: Private Citizen



### Comment Excerpt Text: And another thing, I believe the stigma about the TVA or whatever, the Tennessee Valley Association down there where they had the big leak, I think it's just the stigma being used by the industry or fly ash industry to make it look like, you know, that we're putting something up. But

all I think is this was the last straw tha t broke the camel's back.

Response: Thank you for your comment.



### Comment Number: TRANS

- CHI

- 0125

- 3 

### Organization 1 

### : Environmental Integrity Project


### Commenter 1 : Sam Flenner Commenter Type: Advocacy Group



### Comment Excerpt Text:
Since then, there have been a number of EPA recognized damage cases which has increased from 6 to 67. Even if the recently released non

- profit reports are not factored in, that's a tenfold increase in damage cases which merits more investigation. And this type of investigation as

volun tary under Subtitle D is absolutely not going to happen. Anything that gets landfilled needs to go to Subtitle C.

Response: We appreciate your comment. See response to comment excerpt TRANS

- ARL

- 0060

- 1.



### Comment Number: TRANS

- CLT

- 0001

- 2 

### Organization 1 

### : Com menter 1 : Steve Scarborough Commenter Type: Private Citizen

Classification: Substantive



### Comment Excerpt Text: Roane County, Tennessee is my home. It is a beautiful part of America that I hope you all get to visit. It is also the site of the Kingston TVA coal ash disaster, the largest in American history, where millions of cubic yards of improperly handled and stor ed coal ash waste destroyed a way of life during the night on December 22, 2008. Had it not happened just after midnight on the longest and coldest night of the year, we would have had a body count to go with this disaster of geological proportions.

I cou nt myself lucky compared to those whose homes were there. I have two lake lots on the Emory River that were on the market then that I now cannot sell except for pennies on the dollar. Having real estate that you cannot sell is far better than having a life that cannot be made whole.97

This disaster was caused by incompetency and willful negligence at multiple levels but mainly in the financial decisions of a corporate bureaucracy focusing on shortsighted cost savings and a complicit state agency that allowed it to operate a massive coal storage facility without adequate oversight. For a savings of less than 20 million dollars TVA now faces a billion dollar bill for cleaning it up, and an additional burden that can never be paid for and people who were harmed

and cannot be made whole. There are no cost savings in inadequately protecting innocent people's lives. There is no justice in shifting the cost burdens from businesses which profit from coal power to innocent members of surrounding communities. Option C is the only moral choice. It is also the only financially sound choice. To do less would simply cost too much.

Response: We appreciate your comment. See response to comment excerpt TRANS

- ARL

- 0060

- 1.



### Comment Number: TRANS

- CLT

- 0003

- 1 

### Organization 1 

### : Comment er 1 : Dennis Lemly Commenter Type: Private Citizen

Classification: Substantive



### Comment Excerpt Text: My comments pertain to the aquatic hazard of selenium, which is a trace element that leaches out from coal combustion residues, or CCR, bioaccumulates in t he aquatic food chains and causes deformed young, reproductive failure, and other toxic effects. I have studied the environmental toxicology of selenium pollutant from CCR for over 30 years, beginning with Belews Lake, North Carolina and continuing today with the TVA ash spill in Tennessee, which has polluted an entire river ecosystem. Only 159 of the 2000

- plus CCR disposal sites across the country have undergone technical evaluation to determine risks and impacts. Yet 137 of these, or 86 percent, are prov en or suspected environmental damage cases, as determined by EPA and other investigators. What the damage cases show is that currently

used disposal techniques pose a substantial ecological hazard. From surface wet basins to quote, "dry landfills," unquote , all can produce selenium

- laden leachate that can poison fish and

wildlife. Little progress has been made in updating disposal practices to better protect fish and wildlife from toxins in CCR. For example, the 1970's Belews Lake case resulted from open s urface disposal of coal ash. So did the TVA catastrophe in 2008, more than 30 years later. Lessons about CCR disposal from Belews Lake were not heeded and the issue has expanded from a regional problem into a national one. In addition, we have learned that landfills and other so

called dry disposal methods offer little more protection for aquatic life than open surface storage. Even disposal sites with composite liners produce leachate that must be treated. There is no disposal method for CCR that is selen ium

- free.

Response: The revised Risk Assessment in the docket to this rule corroborates the commenter’s concerns about the risk of selenium in cooling lakes and its ecological impacts. The upcoming, complementary Office of Water steam industry ELG final ru le (due in September 2015) contains requirements for better control of CCR wastewater effluents that would address these concerns.98



### Comment Number: TRANS

- CLT

- 0096

- 1 

### Organization 1 

### : Earthjustice


### Commenter 1 : Abigail Dillen Commenter Type: Advocacy Group

Classification: Substantive



### Comment Excerpt Text: Over the past year, my colleagues and I have researched the State regulations, such as they are, that are currently on the books to guard against water pollution from coal ash. We have

documented extensive damage from coal ash around the country. And the picture that we see is a wholesale regulatory failure, and that failure is leaving us with a national legacy of

contamination. Given the history here, the claim that EPA can leave regulations to the state simply is incredible, and we will be making that case in detail to you in written comments. But since we are in Charlotte, let's talk about North Carolina, which is a perfect example. There are more high

- hazard dams here than in any other state in the cou ntry, but there are no regulations that apply to coal ash ponds and surface impoundments. That means no engineering and safety requirements, no required groundwater monitoring, no financial assurances, and no
post

- closure requirements for the many aging fa cilities that will soon have to retire. And you've heard of that from somebody living near the Riverbend plant here today what happened to that ash pond. There is simply no regulations in place to ensure that it will be closely

-- or safely

closed and moni tored. North Carolina should know better. Going back to the 1970s, regulators knew that selenium from coal ash was poisoning Belews Lake, eventually killing off 16 of its 20 resident fish species. This is just one of several known damage cases in this sta te, yet there has never been a real attempt to get a handle on the coal ash problem. And let's be clear, North Carolina is not an outlier. I'm going to end with a brief story about Pennsylvania, which supposedly has the most progressive coal ash regulatio n in the country. A couple of months ago, I was in the town of La Belle, and the highest point in La Belle is the coal ash ridge that surrounds a big ash

-- it's a little bit bigger than a pond; it looks more like an ash lake. And when it rains, storm wate r flows down through the ash flooding the back yards and the basements of the people who live below it. When the wind blows, they look up and they say they see a gray Sahara of ash blowing around. It blows under their windowsills, it blows into their barbe ques, into their garages, into their cars. Of 40 people I met at a town hall meeting, ten were suffering from cancer, and they all lived in

the same cul

- de

- sac under the ash dump. These are people who do not have the means to pick up and move. They are tr apped. And they are asking me, why aren't their rules against this? On their behalf, I implore you to make those rules under Subsection C.

Response: We appreciate your comment. See response to comment excerpt TRANS

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### Comment Number: TRANS

- CLT

- 0112

- 1 

### Organization 1 

### : Appalachian Voices


### Commenter 1 : Willa Mays Commenter Type: Advocacy Group99



### Comment Excerpt Text: In December of 2008, our staff was among the first to take water samples from the Emory River in the wake of the Kingston coal ash pond fa ilure in Harriman, Tennessee. We assembled a team of researchers from Appalachian State University and the Tennessee Aquarium Conservation Institute and over the past two years have expanded our initial testing to include water sediment

and fish in the Emo ry, Clinch, and Tennessee Rivers. We issued reports in January and May 2009 that detailed our findings. Arsenic, barium, cadmium, lead, and the selenium in the Emory River exceeded protective drinking water and/or aquatic life criteria levels. Ash and ash

- laden

river sediments had arsenic levels that exceeded EPA removal limits. Selenium levels increased dramatically downstream of the spill with levels in fish beyond the thresholds of toxicity for reproduction and growth. And in North Carolina, our staff re viewed groundwater data from 13 coal ash ponds operated by Duke and Progress Energy. We issued a report in October '09 that showed 681 exceedances of groundwater standards for arsenic, boron, cadmium, chloride, iron, lead, magnesium, pH, and total dissolve d solids. The level of exceedances ranged from 1.1 to 380 times higher than the North Carolina groundwater standard.

Response: Thank you for your informative comment.



### Comment Number: TRANS

- DEN

- 0069

- 1 

### Organization 1 

### : Commenter 1 : Mary Kaiser
Commenter Type: Private Citizen

Classification: Substantive



### Comment Excerpt Text: Thank you for allowing me to speak in support of Subtitle C. I am speaking not just for myself but for the many disadvantaged people living near coal ash dumping sites that pollute th e drinking water with arsenic, lead, mercury, and other heavy metals found to increase cancer 900 times above that which is defined as acceptable, and these remain toxic for years. About 129 million tons of coal ash is generated by the U.S. each year, mak ing it the nation's second largest waste stream. The toxic byproduct of coal combustion is disposed at approximately 600 coal ash landfills and industrial waste ponds nationwide. At least 23 states have poisoned surface or groundwater supplies as a result of improper disposal of coal ash. The industry would like people to believe that it is just dirt. It is not. It is a hazardous waste posing serious health risks to humans, wildlife, and the environment. The industry has hundreds of unregulated coal ash st orage ponds located next to rivers throughout the United

States. Environmental engineers at Duke and Georgia Tech and medical researchers from Duke's Comprehensive Cancer Center conducted a detailed assessment of the spill at the Tennessee Valley Authorit y's plant in Harriman, Tennessee. Their analysis of the ash samples revealed that the spilled sludge contained high levels of toxic materials and radioactivity, including 75 parts per million of arsenic, 150 parts per billion of mercury, and 8 picocuries p er gram of total radium. A picocurie is a standard measure of radioactivity. Fine particulates, which are roughly the same size as bacteria, are so small that they can easily be inhaled into the deepest reaches of the lungs. People with preexisting pulmon ary disease or100

infections would be more susceptible. Past studies have shown that fine particulates can also pose risks for people with diabetes or a susceptibility to vascular disease. According to the data collected in 1995, more than 60 percent of the country's coal ash disposal units are unlined or clay lined. The EPA also found that these composite liners

-- the use of a composite liner system significantly reduces the exposure to coal ash causing

- and health

threatening pollution to within acceptable levels. If the federal

-- but the federal government and most states do not require such protective measures. I, therefore, encourage you to support Subtitle C with monitoring by both the individual states

and the EPA who will set and enforce a national standard. We cannot continue to put those living storage locations at high risks of health problems. We need enforceable standards. Thank you for allowing me to speak in support of Subtitle C.

Response: We appreciate your comment. See response to comment excerpt TRANS

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### Comment Number: TRANS

- KNX

- 0001

- 1 

### Organization 1 

### : Commenter 1 : Steve Scarborough Commenter Type: Private Citizen

Classification: Substantive



### Comment Excerpt Text: As I read the proposed regulations, one thought kept coming back to me. Why is anyone opposed to this? Particularly after the disaster that we in Roane County are suffering through and are trying to recover from. It's a result of improperly handled and sto red coal ash. Why would anyone not want

-- an industry not want a level playing field for all of the businesses that make money from coal and coal ash? Why would these corporations and their lobbyists not willingly accept oversight that would guarantee to the public that they are operating safely and that the health and welfare of the people living near coal sites is being watched out for? This army of hired corporate spokesmen has come before you and whined that adequately protecting the public will cost too much or cost jobs or make coal ash seem like a bad

-- bad thing. We even heard the word "stigma" on coal ash as a result of this regulation. Well, if you want to see stigma, just come out to Roane County and see what it's like trying to put your life, business and property values back together when

-- after you get hit by the mother of all stigmas.

Response: Thank you for your comment.



### Comment Number: TRANS

- KNX

- 0165

- 1 

### Organization 1 

### : Earthjustice


### Commenter 1 : Emily Enderle Commenter Type: Advocacy Group

Classification: Substantive



### Comment Excerpt Text: Basically, I wanted to get up here and say a lot of things that are very wonky and very technical.101

But actually it's been really inspirational to see so many young people come out and talk about this particular issue and why it matters to them. And why, I think, really it's evident that their generation shouldn't be the one that has to finally deal with this mess. We're at a point in time where we can actually deal with coal ash in a way tha t's going to protect people across the country. And there's no better place, I think, to end this particular circuit than in Knoxville,

Tennessee. And I say this because I spent several hours this weekend at about 1200 feet above a lot of Tennessee, looki ng at coal ash impoundment sites and coal

- fired power plants across the
country. And what I don't think is clear to a lot of people is these dams are enormous. The dam that broke

at the TVA site is

-- was 60 feet high. There are facilities across the coun try; some are as high or expected to be as high as 100 feet. There are facilities, dozens of them that if they were to break, they would result in the loss of live. I think it's a miracle that nobody died in this case, and that

there haven't been more loss es of life. And we're at a point right now with regulations being proposed under C and D where we can actually regulate this in a way that will protect not only the people that are dealing with it now but also generations to come, including the folks in t his room. I did want to pass out just some of the pictures that were taken from aerial views. What I think they show is that houses are literally across the river way from these impoundment sites. If they were to break, they would knock out those beautifu l homes; they would knock out those nice boats and docks; they would contaminate those river ways; and they potentially kill people. And that's absolutely evident from these sites across Tennessee. And there are multiple. So I just wanted to pass these out for you guys to check out. One point I also wanted to make is we

-- I don't think we've talked a lot about arsenic. Arsenic is a known carcinogen. We all know that. Science is coming out regularly that says that even small

even smaller doses are contamin ating people and leading to possible cancer across the country. This is one particular contaminant of many that are in coal ash, and one that's been contaminating groundwater across the country. There are more than 100 proven damage cases either by the EPA or by public interest groups demonstrating that either the environment or public health has been compromised across the country. And here in Tennessee we've seen that not only one community has been devastated by this but two. If you look at Perry County and what they've been dealing with in terms of this ash being taken down there, the Arrowhead Landfill declaring bankruptcy, all of the things that they've had

to deal with.

Response: Thank you for the comment describing the potential risk posed by surfac e impoundments in Tennessee. This rule is addressing these risks by requiring, among others, a detailed and comprehensive inspection protocol. In addition, the findings of the Risk Assessment accompanying this rule corroborate the commenter’s concerns abou t the human health risk posed by arsenic leached from CCR that is disposed of in improperly designed management units. These risks are addressed in the final rule by introducing protective design requirements for CCR management units. For further details, see Unit VI of the preamble to the final rule.



### Comment Number: TRANS

- LVL

- 0099

- 2 

### Organization 1 

### : Greenpeace USA102



### Commenter 1 : Robert Gardner Commenter Type: Advocacy Group

Classification: Substantive



### Comment Excerpt Text: There are over 130 damage cases that have been clearly documented. This is an ongoing national health catastrophe and requires redress immediately. Business as usual will not protect the health and welfare of the American people. Responding to pressure fr om Big Coal, prior administrations have allowed the industry to police itself or self

regulate under a patchwork of state directives, leading to the extensive contamination of water and land by toxic heavy metals. This approach has not and will not protec t streams, ponds, rivers,

lakes and other waters. Here in Kentucky, there are at least three leaking impoundments. There are six high

- hazard impoundments. In the city of Louisville, there's a high

- hazard impoundment at Cane Creek that they are trying to e xpand to about 5.7 million cubic yards of CCW on site. This number of high

hazard impoundments places Kentucky third behind North Carolina and Arizona in the number of high

- hazard ash impoundments nationwide. A high

- hazard impoundment that fails will prob ably cause lo

-- loss of life. Energy should not cost lives, period. People living near unlined coal ash ponds, where water contaminated by arsenic and ash is mixed with coal refuse, have an extremely high risk of cancer, up to 1 in 50, 2,000 times greater than EPA's acceptable cancer risk.

Response: This final rule contains location, design, and operational requirements for the management of CCRs. These requirements address the commenter’s concerns about the protection of human health and the environment.



### Comment Number: TRANS

- LVL

- 0168

- 2 

### Organization 1 

### : Commenter 1 : Virginia Bush Commenter Type: Private Citizen

Classification: Substantive



### Comment Excerpt Text:

Furthermore, the

-- the coal ash sites in this area are situated in mixed use industrial and re sident

-- residential areas. So a proven damage case is, in practicality, not possible under the current criteria which requires health effect to be directly related to the coal combustion residuals in isolation from other surrounding industrial waste.

Th e Cane Run site is in the middle of a

-- of a chemical complex called "Rubbertown." So these

-

- so it's

-- the burden of proof is put on ill residents. Additionally, I would urge the EPA to put a moratorium on deposition of coal combustion residuals in non

- landfill and non

- impoundment sites such as abandoned mines until the risk of underground water and aquifer contamination can

be evaluated. Finally, how could uniquely associated waste such as precipitation runoff from a coal ash pile be

assessed? The coa l ash piles in Kentucky, like many states, are located on the banks or proximate103

to the rivers, which are also the water supply. In 2009, a U.S. climate change report commissioned by the

-- by President Bush in 2007, climatologists advised that an increase in flooding and severe storms is probable. 2010 bore this out with record torrential rainfall and flooding events in Tennessee, Arkansas, Wisconsin, North Dakota, Minnesota, Georgia, and Oklahoma. Could the stability of a 14

- story

coal ash site close to the Ohio River, as proposed by E.ON, be assured in a 500 or 1,000 year flood event? What would be the incalculable health and environmental cost of toxic exposure after the coal ash is redeposited in and along the length of the Ohio River? Following the D ecember 2009 Kingston, Tennessee impoundment failure, arsenic, skyrocketed to 2,000 PPM in drinking water there. When will that cost be added to a balance sheet? Yes, I believe coal ash should be regulated as a "Special Waste" under Subtitle C to the Reso urce Conservation and Recovery Act, but the long

- term answer is for power providers to move post

haste to clean non

- toxic and diversified energy sources so that humans and the environment are no longer devastated on both ends of the coal waste stream

-- fr om the extraction end where the coal slurry ponds flood, poison and kill to the post

- consumption end where the coal ash impoundments flood, poison and kill. I call on the EPA to stand up and lead the way.

Response: We appreciate your comment. See response to comment excerpt TRANS

- ARL

- 0060

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Section 8.3

- Damage case data are unreliable



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 05751

- 2 

### Organization 1 

### : Savannah River Nuclear Solutions, LLC (SRNS)


### Commenter 1 : Hal W. Morris Commenter Type: Other Company

Classification: Substantive



### Comment Excerpt Text: Comment Number 2 is on a case in the Table of EPA's Proven Damage Cases on page 35238 of the June 21, 2010 Federal Register. In column one on that page the damage case is listed as "U.S . Department of Ene rgy Savannah River Project." The correct name of the facility is the U. S. Department of Energy Savannah River Site. The brief description includes the sentences "A

coal

- fired plant sluices fly ash to a series of open settling basins. A continuous flow of sluice water exits the basins, overflows, and enters a swamp that in turn discharges to Beaver Dam Creek. Bullfrog tadpoles inhabiting the site have oral deformities . . ." And the basis for consideration as a proven damage case is "Scientific

- Evidence o f impacts on several species in a nearby wetland caused by releases from the ash settling ponds." A literature search found that there were several scientific research projects conducted at this site within SRS by the Savannah River Ecology Laboratory over the years. It is difficult to determine if all of the papers written on this subject at this site have been located. It would be helpful and more informative if the EPA would reference scientific papers by title, author and date; this would allow interest ed persons the opportunity to review the scientific studies in depth.

The scientific paper that seems to correlate most closely to the description at FR 35238 is104

Elevated Trace Element Concentrations in Southern Toads, Bufo terrestris, Exposed to Coal

Com bustion Waste (1998) W. A. Hopkins, M. T. Mendonca, C. L. Rowe, J. D. Congdon. This study compares "total body concentrations of 20 trace elements in adult southern toads inhabiting coal ash settling basins with toads that were not exposed to the combustio n wastes (reference)." Also, the study documents "the accumulation of trace elements in toads transplanted from reference sites to field enclosures in an ash settling basin." While this study and other similar

studies indicate elevated trace elements in or ganisms exposed to an ash contaminated site, this case does not seem to meet the criteria for a damage case given at FR 35146, where it is stated

"Under the Bevill Amendment for the `special waste' categories of RCRA, EPA was statutorily required to exami ne `documented cases in which danger to human health or the environment from surface runoff or leachate has been proved' from the disposal of coal combustion wastes [RCRA Section 8002(n)] ." It is perhaps a fine point, but the ash settling basins at SRS wh ere the referenced studies were conducted are not a coal ash disposal site, and did not involve surface runoff or leachate. These settling ponds are operated under a National Pollutant Discharge Elimination System (NPDES) permit issued by the State of Sout h Carolina (SCDHEC). All permit limits (to protect the environment) imposed by the state on the discharge from this pond system are met consistently. The toads and tadpoles in the referenced studies were developing and living within a wastewater treatment system, not a disposal site, nor in surface runoff or leachate. The ash is periodically removed from the settling basins and transferred to a permitted landfill. The landfill is monitored by wells located according to the permit issued by SCDHEC

for the la ndfill. The ponds in the area of this ash management system hold abundant wildlife, including various birds, frogs, snakes, fish and alligators, as well as a variety of mammals. It is misleading to list this area as a case of proven damage, as it does not meet the criteria established in the preamble discussion of these proposed rules. We respectfully request that it be removed from the table of proven damage cases, or at least, properly reference the applicable scientific papers to allow the documented inf ormation concerning study conditions and conclusions to be read by interested persons.

Response: The commenter claims that “the ash settling basins at SRS where the referenced studies were conducted are not a coal ash disposal site, and did not involve su rface runoff or leachate” and that “The toads and tadpoles in the referenced studies were developing and living within a wastewater treatment system, not a disposal site, nor in surface runoff or leachate.” The leaching of CCR particles, in addition to oth er possible liquid process waste from the Savannah River Site’s power plant, are the key contributors to the designation of the effluent as wastewater. Slurried CCRs stored in ponds constitute the prevalent mode of CCR management, and whether the pond is p eriodically dredged, it effluents are State

- permitted, and the CCRs are removed to a landfill is irrelevant to the fact that high levels of trace metal ceoncentrations in the eluted liquid have a demonstrated toxic impact on life forms down flow of the pon d.

Scientific reference on the biological impact of CCR at the Savannah River Site: Hopkins et al., (1997): Increased Circulating Levels of Testosterone and Corticosterone in Southern Toads, Bufo terrestris, Exposed to Coal Combustion Waste William A. Hopkins, Mary T. Mendonca, and Justin D. Congdon, General and Comparative Endocrinology 108, 237

– 246 (1997).

h ttp://ecophys.fishwild.vt.edu/wp

- content/uploads/2012/11/hopkins

- et

- al.

- 1997

- GCE.pdf105

Hopkins et al., (2004): Impacts of Aquatic Disposal of Coal Combustion By

- Products on Vertebrates on the Savannah River Site, Hopkins, William A. and Christopher L. Rowe, pp. 141

- 147 in the Proceedings of State Regulation of Coal Combustion By

- Product Placement at Mine Sites: A Technical Interactive Forum, Wyndham Hotel Harrisburg, Pennsylvania, May 4

- 6,

2004.

Hopkins (undated): Sublethal Impacts of Coal

- Derived Trace Ele ments on Amphibians, Reptiles,

and Invertebrates. B

. Hopkins, B

. Staub, C

. L. Rowe and J

. Congdon
, Savannah River Ecology laboratory, Herpetology Program, Unknown date. http://srelherp.uga.edu/projects/coal.htm

Ecological Assessment of Selenium in the Aquatic Environment, Appendix A. Selected Case Studies of Ecosystem Contamination by Selenium, Edited by Terry F. Young et al., CRC Press, 2010, Pages 265

– 269. http://wwwrcamnl.wr.usgs.gov/Selenium/Library_articles/chapman_etal_2010_appendixA.pdf

Lemly (2010): A White Paper on Environmental Damage from Coal Combu stion Waste: The Cost of Poisoned Fish and Wildlife, A. Dennis Lemly, December 15, 2010. Comment Document ID EPA

HQ

- RCRA

- 2009

- 0640

- 10493. http://www.regulations. gov/#!documentDetail;D=EPA

- HQ

- RCRA

- 2009

- 0640

- 10493

http://prairierivers.org/wp

- content/uploads/2012/03/Lemly

- 2010

- En vironmental

- Damage

- from

CCW.pdf



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06202

- 33 

### Organization 1 

### : American Coal Ash Association (ACAA)


### Commenter 1 : Thomas H. Adams Commenter Type: Trade Association

Classification: Substantive



### Comment Excerpt Text:

d. Response to EPA’s Specific Damage Cases

1. Existing Industry Standards for CCPs in Structural Fills Promote their Sound Use

As discussed in more detail above, there are numerous standards that have been developed to

address the use of CCPs in structural fills. The first was a handbook authored by the Electric Power Research Institute (EPRI) in 1979, “Fly Ash Structural Fill Handbook.” The first ASTM standard was issued in 1995 and updated and reissued in 1997, and again in 2003. Standards and technical gu idance are now available from a variety of sources (ASTM, PCA, FHWA, RMRC, ACI, AASHTO, and individual states).

Response: The availability of guideline documents does not guarantee their universal adoption by practitioners. This cannot be better illustrat ed than by the Gambrills, BBSS CCR quarry reclamation site in Mayland that was permitted by the State and operated between 1995 and106

2007; and the Battlefield Golf Club, Chesapeake, Virginia, where a large structural fill project

has been carried out betwee n 2002 and 2007. Precursory (2001) modeling of CCR placement at the Battlefield site had suggested that CCR leachate might impact the drinking water wells of the adjoining properties, but the project was still executed.

2. Damages Case Definitions

In a 2 007 report titled “Coal Combustion Waste Damage Case Assessments,” EPA identified 67 cases of CCP management with groundwater or surface water impacts that it categorized as “potential” or “proven” damage cases. As defined in the preamble of the proposed r ule, “potential damage cases” are those where there is a documented exceedance of a federal primary drinking water standard or maximum contaminant level (MCL) in groundwater beneath or close to the waste management unit; these are cases where exceedances h ave not been demonstrated at a sufficient distance from the unit to pose a human health concern. A “proven damage case” is

one where there are documented exceedances of an MCL or other health based standard at a

sufficient distance from a source such that it could cause a human health concern, or where a scientific study has documented damage to human health or the environment, or where there has been an administrative ruling with an explicit finding of a damage to human health or the

environment.

It shoul d be noted here that in the context of human health, the “damage” as defined by EPA relates to the concentrations of constituents in groundwater relative to a standard (e.g., MCL). The presence of an exceedance of an MCL in groundwater off

- site of a waste management unit,

or even in an off

- site drinking water well, may result in that situation being classified as a damage case, but it does not mean that actual damage to human health has occurred. Drinking water standards are generally set by EPA and state a gencies based on very conservative estimates of constituent toxicity and are generally set to be lower than levels that would be calculated to be safe for daily exposure even over a lifetime.

3. Damages Cases that Relate to Beneficial Uses

The damage cas es that EPA cites in its 2007 report that potentially relate to beneficial use are listed and summarized in Table 1 for proven damage cases and Table 2 for the potential damage cases (damage case numbering as provided in EPA’s report). The information for each case was obtained from an EPRI report entitled “Evaluation of Coal Combustion Product Damage Cases, Volumes 1 and 2” (EPRI Technical Reports Nos. 1020553 and 1020554; available at www.epri.com), that collected and evaluated data pertaining to each of the damage cases identified by EPA.

With the exception of one case, the damage cases all relate to the use of CCPs as fill for quarries. None of these cases represent “indiscriminant” uses of CCPs

– all were used for a specific purpose, to reclaim a quarr y, or to provide road base and fill to support roads. These activities occurred from as early as 1940 through the 1970’s, with two of the potential damage cases active in the 1980’s and 1990’s. Note that industry standards for various types of structural f ill projects, as described above, were not developed until the late 1990’s and beyond. Thus the use of CCP’s as fill in these cases predates the development of industry standards for their use.107

It is also instructive to note that remediation has been comp leted or is on

- going for all of these damage cases, mainly under state authority, but in two instances with federal oversight. Only two of the six proven damage cases indicate that drinking water was impacted by the filling activities, as evidenced by the provision of municipal water as a remedial action. These proven and potential damage cases were identified, investigated, and remediation conducted (and in many cases completed) without the involvement of a federal regulatory program such as that contempla ted by EPA under Subtitle C in this proposed rule

- making. Thus it is clear that the potential or proven damage from these instances of historic use of CCPs for quarry fill have been identified and addressed under existing state authorities or under existin g federal authority. The damage cases do not indicate a need nor provide support for providing direct federal regulatory authority for CCP regulation under a Subtitle C proposal. These cases do demonstrate that current and even historic state programs have adequately addressed environmental impact from

these sites.

In the preamble, EPA identifies several other damage cases that were not included in the 2007 report. One of these is the TVA Kingston facility; this damage case is due to a structural failure

a nd not an environmental failure. It is inappropriate to invoke a Subtitle C hazardous waste regulatory program on the basis of this case; as a structural failure, it can be addressed by dam safety programs. Another additional case is the Battlefield Golf C ourse in Chesapeake, VA;
EPA’s own evaluation of this case indicates that there are no off

- site impacts to groundwater and, thus, it is not classified as a proven damage case. Finally, EPA identifies the BBSS Quarry in Gambrills, MD as a new proven damage case and uses it to support their position that large scale structural fills are not legitimate beneficial uses. The comments being submitted by Constellation Energy on the proposed rule provides more detail on this case.

Table 1. Proven Damage Cases as Identified by EPA (1997) that Relate to Beneficial Use

2. City of Beverly/Vitale Brothers Fly Ash Pit, Massachusetts

• Sand & gravel quarry

– 18 acres

• Operation mid

- 1950’s to mid

- 1970’s

• Remediation performed

• Closed under state program

• No indi cation of drinking water impacts

6. Yorktown Power Station, Chisman Creek Disposal Site, Virginia

• Sand & gravel quarry

– 27 acres

• Operation 1957 to mid

- 1970’s108

• Added to National Priorities List (NPL), remediation performed, ROD signed

• Alternate water supply provided to 55 homes

14. Highway 59 Landfill, Wisconsin

• Gravel quarry

– 23 acres

• Operation between 1969 and 1978

• Remediation performed

• Alternate water supply provided to 10 homes and 4 commercial buildings

• State oversight

• No indication of drinking water impacts

17. Port Washington Facility, Wisconsin

• Limestone quarry

– 15 acres

– 735,000 yd3

• Operation in 1940’s and 1950’s

• Remediation performed

• EPRI evaluation concluded that there is no evidence that this is a proven damage case;

exceedances were on

- site and off

- site well was not above MCLs. 18. North Lansing Landfill, Michigan

• Sand & gravel quarry

– 27 acres

– 1 million yd3

• Licensed for disposal of inert materials

– Operation between 1980 and 1997

• Reme diation on

- going

• State oversight

• No indication of drinking water impacts

– urban area

19. Yard 520 Landfill (Brown’s Landfill), Township of Pines, Indiana109

• Coal ash landfill permitted by the state

– 45 acres

• Older area of landfill is unlined, newer area is clay

- lined on bottom and sides

• Operation in unlined landfill area between 1960’s and 1980’s

• Coal ash was used as road base and fill in areas of the town in the 1970’s

• Remedial Investigation conducted under federal Administrative Orde r; process on

- going; landfill has been closed under state program

• Municipal water was provided to approximately 250 addresses

Table 2. Potential Damage Cases as Identified by EPA (1997) that Relate to Beneficial Use

25. K.R. Rezendes South Main Stree t Ash Landfill, Massachusetts

• Sand & gravel quarry

– 31.5 acres

– 2.5 million tons

• Operation 1975 through 2001

• Remediation (capping) on

- going

• State oversight

• No drinking water impacts

58. Miamiview Landfill, Ohio

• Sand & gravel quarry

– 100 acres (with clay liner)

• Constructed in 1983 as reclamation project

• Closed and capped in 1996

• No drinking water impacts

62. Lemberger Landfill, Wisconsin

• Gravel pit

– 21

- acre municipal solid waste (MSW) landfill

– ash used as daily cover

• Open dump from 1940 to 1970

– permitted for MSW with ash as cover in 1969

• On the NPL in 1984110

• Remediation completed in 1996

• No drinking water impacts

Response: With the exception of three cases, EPA generally agrees with the commenter’s findings on CCR damage cases that are associated with beneficial use.

EPA disagrees with the commenter on the following cases:

City of Beverly/Vitale Brothers Fly Ash Pit, Massachusetts: Whereas CCRs have been disposed of at the site, a recent reevaluation deter mined that this is Not a Damage Case, because n on

- CCR wastes, primarily underground

- storage tanks (USTs), were the focus of MADEP remediation; no indication of offsite migration in groundwater of CCR

- specific contaminants; no explicit finding of specific damage due to CCRs in Administrative Orders which were limited to USTs.

Port Washington Facility, Wisconsin: Re

- designated as a potential damage case. This site was originally categorized by EPA as a proven damage case on the basis that selenium concentr ations

in an off

- site drinking water well exceeded a health based standard. However, the 2007 EPA Coal Combustion Waste Damage Case Assessments narrative is contradictory on selenium concentrations, because the history section notes that selenium concentra tions in this well were lower than the MCL. Furthermore, the power company’s database shows that the highest selenium concentration monitored in any well for this facility (14 μg/L) was a factor of three lower than the MCL and state standard of 50 μg/L, an d all other selenium concentrations are very low (2 μg/L or less). ”Considering that selenium has not exceeded the MCL, and that boron and sulfate have exceeded the corresponding secondary MCLs in a drinking water well that was originally offsite (prior to its purchase by WEPCO), this case qualifies as a potential damage

case.”

Lemberger Landfill, Wisconsin: According to the Third Five

- Year Review Report for Lemberger Landfill (Lemberger Flyash), Lemberger Transport and Recycling, Franklin Township,

Manito woc County, Wisconsin, U.S.EPA Region 5, Chicago, Illinois, July 2010: http://www.epa.gov/superfund/sites/fiveyear/f2010050003650.pdf

, t he Niagara dolomite aquifer serves as the primary drinking water source in the area. Most of the residential wells found to be affected by the Lemberger Landfill contamination in 1985 were screened near the top of the

dolomite rock and were replaced with w ells screened starting at about 250 feet below ground surface. This Superfund case represents a complex situation whereby the Lemberger Landfill (LL) served for much of its existence as a sanitary landfill, and the impacted groundwater

underneath the site and down

- gradient from it was mingled with CVOCs that have migrated away from the nearby Lemberger Transportation Landfill (the LTLserved as a repository of VOC solutions). Still, CCRs from the LL comtribute a suit of signatory CCR metals (arsenic, barium, chromium, cadmium, and lead) to the groundwater plume.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06202

- 34 

### Organization 1 

### : American Coal Ash Association (ACAA)


### Commenter 1 : Thomas H. Adams Commenter Type: Trade Association111

Classification: Substantive



### Comment Excerpt Text: 4. Evaluation of the CCW Risk Assessment with Respect to Beneficial Uses

EPA has used its report “Human and Ecological Risk Assessment of Coal Combustion Wastes” (CCW Risk Assessment) to support a Subtitle C listing for CCPs under the Resour ce Conservation and Recovery Act (RCRA). As noted in comments submitted on this rulemaking by the Utility Solid Waste Activities Group (USWAG), the numerous fundamental flaws in the EPA’s probabilistic CCW Risk Assessment preclude it from being able to be used to support a Subtitle C, hazardous waste, listing. These flaws, as detailed in the USWAG comments, result in a risk assessment that contemplates unrealistic exposure scenarios and grossly overestimates

risks.

However, even in this context, the CCW Ri sk Assessment can provide some perspective on the beneficial use of CCPs in large structural fills. Of the CCP management scenarios evaluated by the CCW Risk Assessment, the “Conventional CCW Landfill” scenario is most germane to

structural fills. Given th e inappropriate scenarios and assumptions used in the risk assessment, the potential risk associated with an unlined CCW landfill are still only slightly above EPA’s target excess lifetime cancer risk range of 1 in one million to 1 in ten thousand (for exa mple, at the 90th percentile, arsenic risks for the drinking water pathway for an unlined CCW landfill range from 2 in ten thousand to 4 in ten thousand). Conventional CCW landfill sizes included in EPA’s risk assessment ranged from a low of 80,000 yd3 (ap proximately 40,000 tons) to a high of 22,262,030 yd3 (approximately 40,000 tons 17,200,000 tons). This range, and especially the upper end of the range, is expected to be higher than the range of amounts of materials used in structural fills. For example, where information on mass is available for the damage cases presented on Tables 1 and 2, the amounts are in the mid

- to low end of the CCW landfill range. Thus the source term for evaluation of the potential impact to groundwater would be lower, and

the res ulting risks would also be expected to be lower, and likely within EPA’s target risk range.

Therefore, it would not be expected that risks in excess of regulatory targets would be demonstrated for structural fill project, even using EPA’s unrealistic risk and exposure scenarios.

Response: As articulated by commenters to the October 2011 NODA, size alone is not an adequate predictor of a potential damage that would be associated with an unlined CCR structural fill. Additional variables, such as the composi tion of the CCRs, the availability of run

on, and the permeability of the natural substrate would also determine the prospects for groundwater contamination. This view was adopted by the Agency in developing guidance for structural fill projects that deplo y more than 12,400 ton of CCRs.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06398

- 64 

### Organization 1 

### : Duke Energy


### Commenter 1 : Mike Stroben Commenter Type: Electric Utility Company

Classification: Substantive112



### Comment Excerpt Text: Duke Energy participated in the public hearings for the Proposed Rule and heard certain special interest groups allege that there are dozens of new damage cases, including some Duke Energy facilities. These groups have even published so

- called reports on this topic. However, a close examination of the facts reveals many flaws in these recent allegations, as many of the assertions are based on extremely flimsy evidence, with unfounded conclusions. EPA cannot rely on these assertions in any final rulemaking without conducting its own fa ctual, independent review of the alleged sites and allowing for public notice and comment on their findings.

Response: EPA, as a matter of course, does not rely on ‘certain special interest group’ submittals of alleged damage cases without subjecting them first to a vetting process, nor on stakeholders’ oral testimony which lacks documented data. The Commenter would appreciate the fact that the Agency’s confirmed damage case list has expanded by five new potential cases in North Carolina’s Duke Energy’s fa cilities (Sutton, Lee, Belews Creek, Asheville, and Dan River), as indicated by lawsuits filed by NC DENR against Duke in 2013 for violations of the State groundwater and surface water standards. All these sites had been identified in the two ‘so

- called

re ports’ issued by environmental advocacy groups in February and August 2010. This is on top of the undisputable February 2014 breach of a storm sewer line at one of the Dan River Station’s inactive (but still not closed) surface impoundments, which resulted in the release of some 27 million gallons of CCR slurry into the Dan River, a major water supply source to downstream communities. In response to this spill, NC DENR issued two Notices of Violation, and NC DHHS issued an advisory against eating fish and s hellfish from the Dan River downstream of the spill site.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06851

- 18 

### Organization 1 

### : American Electric Power (AEP)


### Commenter 1 : John M. McManus Commenter Type: Electric Utility Company

Classification: Substantive



### Commen t Excerpt Text: USEPA should use only proven damage cases when judging whether a Subtitle D or a Subtitle C

rule is warranted.

AEP believes that there are eight statutorily

- required study factors that USEPA has to evaluate when determining whether CCRs w arrant regulation under Subtitle C of RCRA. One of those is the need for USEPA to find "documented cases in which danger to human health or the environment from surface runoff or leachate has been proved" (RCRA Section 8002(n)(4)). "Proven" damage cases, a ccording to 75 Fed. Reg. at 35131, "means those cases with (1) Documented exceedances of primary maximum contaminant levels (MCLs) or other health

based standards measured in ground water at sufficient distance from the waste management unit

to indicate th at hazardous constituents have migrated to the extent that they could cause human health concerns, and/or (2) where a scientific study provides documented evidence of another type of damage to human health or the environment (e.g., ecological damage), and/ or (3) where there has been an administrative ruling or court decision with an explicit finding of specific damage to human health or the environment" AEP notes that the two reports issued in 2010 by113

environmental activist groups on February 24th and on Au gust 26th listed additional sites that they believed rose to the level of damage cases. However, it is not appropriate for USEPA to include potential damage cases in its evaluation of the right regulatory classification for CCRs going forward. Alleged dama ge cases presented by environmental activist groups are not proven and cannot be relied upon by USEPA in this rulemaking.

Response: EPA, as a matter of course, does not rely on submittals of alleged damage cases by stakeholders without resorting to a vetting process. This process involves comparing the alleged cases to the test of proof criteria cited by the commenter. As to relying o n other than proven damage cases to support the technical requirements adopted in the final rule, the Agency submits

that potential damage cases are also relevant under the third Bevill factor: “potential danger, if any, to human health and the environment from the disposal and reuse of such materials.” 42 U.S.C. § 6982(n)(4).



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06865

- 16 

### Organization 1 

### : Constellation Energy


### Commenter 1 : Charlene Zaruba on behalf of Paul Allen Commenter Type: Electric Utility Company

Cla ssification: Substantive



### Comment Excerpt Text: IV. The BBS Sand and Gravel Quarry Asserted Damage Case

- Evidence that Subtitle C Regulation of CCRs Is Not Needed Further illustrating two key points, that Subtitle C regulation is not needed and that state s are capable of fulfilling an enforcement role, EPA should correct the record with respect to one of the newly asserted damage cases, BBSS Quarry in Gambrills, Maryland (“BBSS Quarry"). The Bevill Amendment requires EPA to examine cases of "proven danger" to human health or the environment from the disposal of coal combustion waste. Because EPA relies upon damage cases to support its assertion that the proposed CCR rulemaking is needed, accuracy is important. Determination of a 'proven danger" must not be made lightly. Instead, EPA's policy and the law require the agency to use valid facts and sound science when assessing damage cases. Without the application of science, an asserted damage case cannot legally support any reversal of the

Bevill determination for CCRs under Subtitle C of RCRA. The localized environmental issues associated with the BBSS Quarry did not cause harm to human health and are being corrected without the need for EPA action; therefore the BBSS Quarry facts do not support any need for Subtitle C regulation. EPA relied on misleading information and inaccuracies, and failed to apply any scientific analysis when it re

- designated the BBSS Quarry as a damage case, a change from that site's previous designation as

·indeterminate." The record shows that EPA based its re

- designation of the BBSS Quarry largely on a one page summary from 2007 (2007 fact sheet), without any scrutiny of the data or evaluation that the conditions were capable of posing actual danger. As a result, EPA has published a misleading summary of the BBSS Quarry conditions that severely overstates the environmental conditions associated with CCRs. The data do not show a "proven danger," and no state or local agency made the required explicit finding of specific damage. Therefo re EPA satisfied neither the scientific nor administrative criterion for damage cases. EPA's decision in the BBSS Quarry re

- designation was "just in time" for use to support EPA's114

new regulatory proposals. In fact, EPA's determination on the BBSS Quarry s ite was rolled into the CCR proposal text. EPA should reverse this last

- minute damage case re

- designation because EPA neither followed its own procedures nor conducted a sufficient investigation to meet its burden of proof. Although the 2007 fact sheet su ggests the presence of contamination in "approximately one

- half of the wells," this fact sheet does not offer a conclusion with respect to CCRs or find proven damage. Instead, the fact sheet explains that "[t]he actual number of wells affected by fly ash i s undetermined since some of the sample results may reflect natural minerals in the area." Some data are explicitly explained as reflecting sources unrelated to the ash (such as lead from pipes). The fact sheet mentions the "presence" of arsenic in four w ells near the coal ash placement, but does not allege that the levels exceeded regulatory standards. The same fact sheet explains that the "trace metals' beryllium, cadmium and nickel have not been shown to increase cancer risk through drinking water.

In short, the 2007 fact sheet does not support any conclusion that half of the wells sampled by the county, or that some other high number of wells, were impacted in any way by CCRs. When all of the innuendo or misinterpretation is peeled away, the relevant d ata set is composed of four wells located just beyond the boundary of one of the BBSS pits. These wells did show one or more marginal exceedances of primary drinking water standards; however, the data was variable and the extent to which background or the mining conditions contributed to these concentrations is scientifically unconfirmed. Importantly, EPA should consider the degree to which an MCL was exceeded, as well as the short duration of any potential exposure, both of which helped to prevent actual d amage. Regardless of whether or not this particular site meets EPA's criteria for a damage case, the BBSS Quarry facts do not support the need for federal regulation under Subtitle C of RCRA. Instead, the BBSS Quarry serves as an example of a controlled a nd regulated activity. At this site, the operators were required to obtain permits, monitor the groundwater, make corrections, and protect human health and the environment. Although the record does not evidence any damage to human health, the record does s how that: 1) groundwater was monitored to prevent any harm; and 2) state authorities had ample regulatory authority to address any environmental issues. Under the three areas of analysis that EPA applies to damage cases, including an

assessment of the exte nt of damage, extent of risk, and the adequacy of state programs, the evidence does not support any need for the extraordinary measure of subjecting CCRs management to Subtitle C regulation. Attachment A to these comments includes a more complete discussi on and analysis of the BBSS Quarry issues, including information regarding: 1) the site; 2) how EPA's damage case evaluation process was inadequate; 3) analysis of why the damage case criteria (both scientific and administrative) were not proven; and 4) ho w application of EPA's three criteria for assessing damage cases show that the BBSS Quarry facts do not support selection of Subtitle C regulation

of CCRs.

Response: This rule will regulate CCRs under RCRA subtitle D: for further details, see unit IV of the preamble to the final rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06865

- 18 

### Organization 1 

### : Constellation Energy


### Commenter 1 : Charlene Zaruba on behalf of Paul Alle n115

Commenter Type: Electric Utility Company

Classification: Substantive



### Comment Excerpt Text: C. EPA's Proven Damage Case Classification of the BBSS Quarry Is Unsupported

1. EPA Procedure Was Flawed

EPA asserts that it has satisfied the scientific and ad ministrative prongs of the proven damage criteria as the basis for classifying the BBSS Site as a proven damage case. However, EPA has

not met this burden and should retract its determination. When deciding whether to subject CCRs to RCRA Subtitle C regul ation, EPA must consider the eight RCRA Section 8002(n) study factors. As one factor, EPA is required to study documented cases of proven danger to human health or the environment caused by the disposal of coal combustion residue. 15 EPA has developed four criteria for determining whether to designate a proven damage case though this is merely guidance rather than a legal standard. These criteria are: (1) exceedances of primary MCLs or other health based standards at a sufficient distance

from the waste man agement unit, (2) scientific studies demonstrating documented evidence of damage to human health or the environment, (3) administrative or court findings of specific damage to health or the environment, and/or (4) information implicating CCR in observed

da mage. EPA has referred to this 4

- part methodology as "tests of proof,” suggesting that there should be rigor in its analysis. In addition to these four factors, one of the over

- arching principles that EPA has identified is the

use of sound science. 16 Thi s principle is consistent with broader EPA policy. 17 Thus, before classifying any site as a proven damage case, EPA should complete a rigorous and independent evaluation that is consistent with scientific principles. While we have not reviewed the accurac y of data that pertains to other damage cases, we note for comparison that EPA described the following process to support its damage case determinations in 2000: We visited five states to gather specific information about state regulatory programs, FFC wa ste generators, waste management practices and candidate damage cases related to fossil fuel combustion. The five states we examined in great detail were: Indiana, Pennsylvania, North Carolina, Wisconsin, and Virginia. These five states account for almost 20 percent of coal

- fired utility electrical generation capacity. We also performed a variety of analyses, including human health and ecological risk assessments, analyses of existing federal and state regulatory programs, and economic impact analyses. We d iscussed and shared these results with all of our stakeholders. We also conducted an external peer review of our risk analysis. 18 EPA also has recognized that without a risk assessment, it may not be able to draw conclusions based upon certain data. 19

EP A has lacked sufficient information regarding certain prospective damage cases. In those circumstances, EPA should not rush to judgment on a damage case assessment. For instance in 2000, following public comments to the March 1999 Report to Congress on Was tes from the Combustion of Fossil Fuels, EPA designated 18 of the 59 identified cases alleging damage to

human health or the environment as indeterminate. 20 EPA described this decision as based upon a lack of information that was “critical to assessing and verifying candidate damage cases.· 21 EPA required additional review of these sites. 22 EPA contracted with Science Applications International Corporation (SAIC) to collect supplementary information from state agencies, EPA regions, and commentors to cl arify site details. On March 5, 2003, SAIC issued a detailed Final Revised Report resolving the 18 previously indeterminate sites. 23 This report specified the initial116

information that led to the indeterminate classification, the information needed for fur ther designation, the additional information collected, additional analysis, and a set of recommended

conclusions. 24 Subsequently, EPA published the results in the July 9, 2007 Damage Case Assessments.25 Thus, for the original 18 indeterminate cases, EPA changed its designation to a proven damage case only after substantial re

- investigation. The above procedures contrast sharply with EPA's superficial assessment of the BBSS Quarry. Like the other cases with insufficient records, the BBSS Site was initiall y designated as "indeterminate" (in the July 9, 2007 Damage Case Assessments). However, for BBSS, there is no indication that EPA conducted any rigorous follow

- up analysis to identify data gaps, make an effort to collect additional information, or analyze the full set of data. Instead, based upon inconclusive information from an extraordinarily thin record, EPA skipped the investigation step and identified the BBSS Site as a proven damage case. EPA simultaneously used this conclusion to support the regulato ry proposal at issue today. EPA's process was flawed, and its level of scrutiny was insufficient to support a damage case re

- designation. 2. EPA Did Not Prove the Damage Case Criteria Were Met

Scientific Criterion To make a proven damage case determinat ion under EPA's scientific criterion, EPA must use sound science and find exceedances of primary MCLs or other health

- based standards measured in groundwater at a sufficient distance from the waste management unit to demonstrate the

hazardous constituents have migrated "to the extent that they could cause human health

concerns."26 Furthermore, when reviewing if there is danger to human health, the example provided by EPA includes directly observed health effects such as elevated blood

- lead levels. The dange r could be acute or chronic effects, but must be proven. 27 EPA's record does not demonstrate proof of damage. EPA based its designation of the BBSS Quarry as a proven damage case on "[d]ocumented

exceedances of MCLs in numerous off

- site drinking water wel ls," stating "[t]esting of private wells in 83 homes and businesses in areas around the disposal site revealed MCL exceedances in 34 wells and SMCLs exceedances in 63 wells .•28 As discussed above, these EPA conclusions

were drawn from a one

- page fact shee t that tells a different story and EPA summarized the information in an exaggerated and misleading manner. To the extent that EPA suggests CCR placement caused MCL exceedances in 34 wells, EPA is entirely wrong. Many observed

exceedances were noted in the fact sheet as unrelated to CCRs. In addition, SMCLs do not support a damage case determination. 29 The fact sheet upon which EPA relies does not constitute a determination, and it does not scientifically establish damage from CCRs.

An MCL exceedance alone may allow a damage finding, but does not dictate that conclusion.

The scientific criterion focuses on the effect of an MCL exceedance on human health. 3O Therefore, an MCL value, standing alone, is only a portion of the scientific analysis; an

exceedance m ust be sufficient to pose some significant level of danger in order to serve as a valid damage case. With respect to the few wells that are closest to the BBSS Quarry, EPA should have evaluated actual data to determine whether any significant danger was po sed. As outlined above, the much touted "exceedances" that were close enough to the ash placement to reflect a contribution are confounded by several factors: (1) the results may be due to a combination of natural conditions and ash placement, and not sole ly reflecting ash

- associated risks; and (2) the exceedances were marginal. in most instances within several parts per billion of the federal Mel and dose to the reporting limit. EPA never imposed statistical scrutiny to this data, to determine whether it c an support EPA's purported conclusions. A more scientific 31117

consideration of "damage" would consider the statistical validity of the data, and would have assessed whether there is any realistic potential for the observed levels to cause hann at the specifi c location and for the period of exposure. Other factors, such as the absence of any evidence of directly observed health effects, such as elevated blood lead levels, would also be considered. Without a serious level of scrutiny, EPA should not rush to con clude that damage has been ·proven."

Administrative Criterion EPA also relies upon the administrative criterion to classify the BBSS Quarry as a proven damage case, but fails to satisfy its burden. The administrative criterion requires an

administrative ruling with an "explicit finding of specific damage to human health or the environment."32 EPA asserts as the basis for its damage case an October 1, 2007 Consent Decree with the Maryland Department of Environment (MDE). This document embodies a

settlement , and provides that there was no admission of fact. The allegations were never tested by any fact

- finder. Without some fact

- finding process, the administrative criterion is not

satisfied. Moreover, and importantly, the 2007 Consent Decree (including its u nproven allegations) does not contain any "explicit finding of specific damage to human health or the environment,· as required by EPA's criterion. Without the requisite finding of specific damage to human health or the environment, the settlement through a consent decree on its face does not satisfy the administrative prong of the proven damage case criteria. EPA's "test of proof” is missing from its

re

- designation of the BBSS Quarry.

Response: EPA’s records provide sufficient scientific and administrativ e basis for designating the BBSS Gambrill’s site as a proven damage case:

1. O n October first, 2007, MDE filed a consent order in Anne Arundel County, Maryland Circuit Court to settle an environmental enforcement action against BBSS Ltd., the owner of

the san d and gravel quarry, and Constellation Energy (CE), the owner of the coal fired power plants, for contamination of public drinking water wells in the vicinity of the sand and gravel quarry; a $1 million fine was imposed on CE. The Consent Decree includes r equirements for

re

- sampling the residential wells, replacement of five impacted wells and connection of all the other impacted wells to the County’s public water system; installation of additional; monitoring and Pump and Treat recovery well(s), and measur es for source and plume control. The defendants are required to (i) cease disposing of CCRs in the pits, unless subject to a pollution prevention plan approved by MDE, including laying a composite liner in an active cell and a leachate collection system; ( ii) cap the site; and (iii) continue groundwater monitoring even after the mining permits for the two pits expire, with a quarterly reporting and an annual, long

- term trend analysis and a summary of the status/effectiveness of the treatment systems in meet ing the remediation goals.

2. On September 17, 2010, CE provided to MDE a revised remediation proposal, (supplementing its May, 2008, proposal) with the following elements: (i) a cap would be installed as proposed at the Turner Pit (TP), and an enhanced cap w ould be installed at the Waugh Chapel Pit (WCP); this cap will be extended to limit vertical infiltration in swales outside the focused source control area. (ii) Focused source control to reduce lateral infiltration into WCP. (iii) Institutional controls f or the ash fill areas and continued groundwater monitoring; and (iv) four additional extraction wells.118

3. On October 1, 2007, Anne Arundel County passed legislation banning the disposal of CCRs in the County for one year, compelling CE to haul CCRs from its two Maryland power plants to a landfill in Virginia, some 200 miles away

. 4. On February 5, 2009, a $54 million settlement was finalized between 84 property owners and

CE. The settlement calls for CE to pay to convert 84 homes from well water to public water; set up two trust funds to compensate impacted property owners and to enhance the neighborhood; remediate and restore the former quarry site; and cease future deliveries of new coal ash to the quarry. The public water supply line was presumably insta lled by the end

of 2013.

In general, t he data developed since the 2012 groundwater contaminants’ trends summary report show an overall continuing improvement of groundwater quality in wells downgradient of the WCP and TP for nearly all analyzed parameters. However, there are still notable exceedances downgradient. These include thallium (maximum of 0.007 mg/L) in multiple wells (five of which are capture wells at the southern boundary of the TP), sulfate

- in multiple wells (maximum of 3,300 mg/L ), boron (up to 7.2 mg/L), lithium (up to 5 mg/L), and nickel (0.14 mg/L). For further details and full references pertaining to the response to this comment, the commenter is referred to the technical support documents of damage cases in the docket of the

final rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 07395

- 1 

### Organization 1 

### : Texas Coal Combustion Products Coalition (TCCPC)


### Commenter 1 : Michael J. Nasi Commenter Type: Trade Association

Classification: Substantive



### Comment Excerpt Text:

A. EPA Listed Texa s "Proven" Damage Cases Should Be Removed from EPA's List of Damage

Cases

In RCRA Section 8002(n), Congress directs EPA to conduct a detailed analysis of the environmental impacts of CCRs, if any, by considering eight factors. One of those factors is the analysis of "documented cases in which danger to human health and the environment from the disposal and reuse of [CCRs] has been proven.”[Footnote 2: RCRA 8002(n)(4); 42 U.S.C. § 6982(n)(4).] As a basis for proposing to regulate CCR disposal under Subtitle C of RCRA, EPA relies on several cases that it asserts are documented cases where damage to human health and the environment has been proven. EPA alleges that three such cases exist in Texas: Texas Utilities Electric Martin Lake Reservoir; Southwestern El ectric Power Co. Brandy Branch Reservoir; and Southwestern Electric Power Co. Welsh Reservoir. The basis of these cases is alleged increases in selenium levels in adjacent reservoirs. For the reasons outlined below, these damage cases do not provide any sc ientific or legal basis for a proposal to overturn the Bevill Amendment, they should be removed from EPA's list of damage cases, and they should be recognized as resolved.

For all three of these alleged cases, no state or federal authority ever scientific ally proved or

demonstrated a causal connection between those facilities and elevated selenium levels in those119

reservoirs. Further, in 2003, after reviewing fish tissue samples from the previous nineteen years (eighteen years for the Brandy Branch Reservoi r), the Texas Department of Health (now the Texas Department of State Health Services) found that the fish in the reservoirs were not adulterated with selenium or any other chemical contaminants that posed a risk to public health dating back to the early 1 980s. As a result of these studies, the Texas Commission on Environmental Quality (TCEQ) rescinded fish advisories for the reservoirs in 2004 and removed the reservoirs from the States' Clean Water Act list of impaired waters. This is consistent with

the f indings of the Texas Natural Resource Conservation (TNRCC, now TCEQ), which in a 2000 letter to EPA, detailed significant changes in the laws, regulations, and permit requirements that were implemented since the 1970s that effectively regulate the manageme nt of CCRs and concluded that additional federal regulation is unwarranted.

Finally, the Brandy Branch Reservoir damage case does not even involve the storage, handling, or disposal of CCRs. Rather, a review of the case clearly indicates that the alleged potential source for selenium loading to the reservoir was solely attributable to storm water runoff from the facility's lignite storage area. Indeed, this case is wholly unrelated to CCR disposal and should therefore be removed from EPA's list of damage c ases.

Response: Notwithstanding the current status of the three proven Texas damage cases involving past increases in selenium levels in adjacent reservoirs (Texas Utilities Electric Martin Lake Reservoir; Southwestern Electric Power Co. Brandy Branch Reservoir; and Sout hwestern Electric Power Co. Welsh Reservoir), which drove the Texas Department of Health to issue fish advisories, this rule will regulate CCRs under RCRA subtitle D: for further details, see unit IV of the preamble to the final rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 07802

- 4 

### Organization 1 

### : Alpha Natural Resources


### Commenter 1 : Michael R. Peelish Commenter Type: Other Company

Classification: Substantive



### Comment Excerpt Text: Even more troubling, the EPA's determination is not based on the sound science of which it claims to be a champion. EPA claims to base its reversal of its prior decision on additional and primarily anecdotal data regarding alleged exposures to some of the constituents of CCR. Yet even in the case of what EPA argues to be an egregiou s example of improper disposal at a Virginia golf course, actual data showed no risk whatsoever to the surrounding population. While the Kingston, TN release figures prominently in EPA's evaluation, it argues only for better evaluation of the safety of sur face impoundments. It provides no scientific evidence of any harm associated with potential exposures to CCR when properly disposed or beneficially used and cannot justify further regulation of CCR under RCRA.

Response: This rule will regulate CCRs under RCRA subtitle D: for further details, see unit IV of the preamble to the final rule.120



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08244

- 40 

### Organization 1 

### : Edison Mission Energy, LLC


### Commenter 1 : Basil G. Constantelos Commenter Type: Electric Utility Company

Class ification: Substantive



### Comment Excerpt Text:

2.0 REBUTTAL OF EIP “IN HARM’S WAY” PUBLICATION 2.1 Overview and Background Before addressing the specific statements relating to the “Joliet 9 Generating Station Damage Case,” a brief historical summary of relevant Illinois solid waste regulations is helpful to understanding the important fact that the Quarry landfill is and has been regulated for years by the State of Illinois. The Illinois solid waste regulations that apply to the Quarry landfill arise

fro m the U.S. EPA’s adoption of the initial RCRA Subtitle D standards in 1991, pursuant to RCRA and the Hazardous and Solid Waste Amendments of 1984 (HSWA), Pub.L. No. 98

- 616, 98 Stat. 3221. The RCRA Subtitle D standards called for stringent federal standards for the state regulation of non

- hazardous waste management facilities. See 40 C.F.R. Part 258. In response, the Illinois legislature amended the Illinois Environmental Protection Act to require the incorporation of the federal standards into the state reg ulatory system and authorized the Illinois Pollution Control Board (the “Board”) to adopt rules identical in substance to the federal RCRA Subtitle D requirements. (Illinois Environmental Protection Act, §22.40). The Board adopted regulations implementing the RCRA Subtitle D standards in 1993. See In re RCRA Subtitle D Amendments, PCB R93

- 10 (Sept. 15, 1993). Under these regulations, new Illinois landfills were required to meet the standards set forth in 35 Ill.Adm.Code Part 811 and existing landfills were regulated by the standards set forth in 35 Ill.Adm.Code Part 814. The Quarry landfill is regulated by 35 Ill.Adm.Code Part 814 which in turn incorporates the Part 811 regulations for requirements such as groundwater monitoring, leachate collection, etc.

B ecause the Parts 811 and 814 landfill regulations have general applicability and therefore, were not developed to address site

- specific conditions that may exist at certain Illinois landfills, there is a provision in the Illinois Environmental Protection A ct, Section 28.1 (415 ILCS 5/58.1 (1994)) under which a landfill owner or operator may seek to “adjust” these regulatory standards to fit the different conditions at its landfill which were not considered as part of the adoption of the landfill regulations . When the required technical demonstration is successfully made, the Act authorizes the Board to grant an “adjusted standard” that takes site

- specific conditions into account while still affording the same level of protection to public health and the envi ronment as the landfill regulations. [Footnote 1: A petition for an adjusted standard must demonstrated that: (a) site factors are substantially and significantly different from the factors relied upon by the Board in adopting the general regulation and ju stify an Adjusted Standard; (b) the requested standard will not result in environmental or health effects substantially and significantly more adverse than the effects considered by the Board in adopting the general regulation; and (c) the Adjusted Standar d is consistent with any applicable federal law.] Therefore, it is incorrect to refer to such adjusted standards as either “relaxed” or “reduced” standards, as does EIP. For example, the general landfill regulations require a daily soil cover to be placed over the waste material. This standard is not technically feasible for a former quarry facility such as the Quarry landfill which sluices the ash into the disposal unit. Therefore, the Quarry’s Adjusted Standard121

instead requires the ash be covered with wat er rather than soil.

The Quarry received an adjusted standard from the Board which, in relevant part, modifies the following Illinois Part 814 regulatory requirements governing nonhazardous solid waste landfill operations: 1. Leachate collection and manag ement system; 2. Groundwater monitoring requirements for certain inorganic and organic constituents; 3. Location of monitoring wells; 4. Zone of attenuation; and 5. Daily and final cover for the Quarry landfill.

In granting the Adjusted Standard, the Boar d agreed that the relevant factors for the Quarry landfill “are substantially and significantly different from the factors relied on by the Board in adopting the regulation for general applicability.” [Footnote 2: Opinion and Order of the Board,

AS96

- 9, 19 96, p.19.] After a review of the extensive technical and scientific information and data that was presented during the adjusted standard proceeding before the Board, the Board found, and IEPA agreed, that granting the Quarry landfill Adjusted Standard woul d not have an adverse affect on the environment. [Footnote 3: Opinion and Order of the Board, AS96

- 9, 1996, p.19.] Unlike several of the stories told in the “In Harm’s Way” EIP publication, the Quarry landfill is and has been subject to extensive state reg ulatory requirements that protect both the environment and public health.

2.2 Damage Case Rebuttal The following discussion rebuts various statements and allegations made in the ”In Harm’s Way” EIP publication relative to the “Joliet 9 Generating Station Damage Case,” as found on pages 41 through 47 of the publication. This rebuttal addresses items in various sections of the EIP publication starting with the summary found on page 41. For ease of reference and context,
the same section titles used in the “I n Harm’s Way” publication are included here and are

italicized as subsections.

2.2.1 Summary 1) Environmental Integrity Project Statement (pg. 41): Since 1996, the Landfill has been exempt from complying with Illinois Class I Groundwater Protection Standa rds and the Illinois Environmental Protection Agency (IEPA) has applied relaxed standards for boron, cadmium, selenium, and molybdenum that allow groundwater with concentrations up to 52 times standards for protection of public health to flow off

- site.

Cor rection: The Quarry landfill is not exempt from complying with Illinois Class I Groundwater Protection Standards. The Quarry facility must comply with the Part 811 “Standards for New Solid Waste Landfills” regulations regarding groundwater protection. The investigation, assessment and standards for groundwater are important components of the requirements for both Parts 811 and 814 Illinois solid waste landfills. Although the Quarry was an existing landfill within the meaning of the Part 814 landfill regulat ions, Part 814 incorporates many of the same requirements regarding groundwater standards, monitoring and assessment from the Part 811 regulations for new landfills and hence, those requirements are applicable to the Quarry landfill,

as discussed further b elow. [Footnote 4: 35 Ill.Adm.Code § 814.302(a) states that all requirements for new units described in 35 Ill.Adm.Code 811 will apply with the exception of122

(1) location standards, (2) foundation and mass stability analysis, (3) final cover for those units or portions of units that were closed/covered and vegetated prior to the effective date, (4) liner and leachate drainage/collection requirements and (5) hydrogeological site investigation requirements except that Part 814 existing landfills are not exempt from the requirements to implement a groundwater monitoring program in accordance with 811.318 and 811.319 and establish background concentrations for the purpose of establishing site

- specific AGQSs pursuant to 811.320.]

The groundwater program that is e stablished under Part 811 requires an in

- depth investigation of the groundwater conditions, the use of that data to make a model to predict the effect of the landfill on groundwater, the setting of groundwater quality standards and the monitoring of

actual groundwater conditions to make certain that the groundwater does not exceed the groundwater quality standards or the levels predicted by the model. The Quarry was required to and has complied with each of these regulatory requirements.

A groundwater moni toring network that satisfied the requirements of section 811.318(b) was established for the Quarry facility and approved by IEPA. The groundwater monitoring network consists of multiple monitoring wells at shallow and deeper depths. It has been expanded a s necessary to remain in compliance with the Part 811 regulations based on regular evaluations of the groundwater flow conditions in the vicinity of the Quarry. The groundwater monitoring network requirements, as approved by IEPA, are incorporated into the terms and conditions of the Quarry’s landfill permit. The Quarry facility’s landfill permit currently includes 26 routine monitoring wells (three of which are off

- site), one piezometer, one surface water monitoring

location and four additional off

- site gr oundwater assessment wells. The groundwater protection standards for each chemical constituent included in the monitoring program were established for the facility, and approved by IEPA, based on groundwater monitoring results and a statistical background evaluation, performed in accordance with the requirements of the Part 811 regulations.

Each Part 811 and 814 solid waste landfill has special groundwater standards applicable to it in accordance with 35 Ill.Adm.Code §811.320(a)(1). The default groundwater standard is the background concentration level (35 Ill. Adm. Code §811.320(a)(1)(A)). Background concentration levels are established using approved statistical techniques and one year’s monitoring data gathered during the groundwater investigation phase (35 Ill.Adm.Code §811.320(d)). These regulatory requirements were applied to the Quarry landfill. The Quarry statistical background evaluation used four quarters of consecutive groundwater monitoring data from several monitoring wells in the early 1990s. T his data provided the required “background concentrations” on which the site specific standards for the Quarry were based. These site specific standards are referred to in the Part 811 regulations as Applicable Groundwater Quality Standards (AGQSs). When a n AGQS is in place, it becomes the applicable groundwater standard for the facility (35 Ill.Adm.Code §811.320(a)(1)(B)). If the groundwater monitoring identifies a confirmed exceedance of an AGQS outside the zone of attenuation [Footnote 5: The zone of

att enuation for the Quarry is a three

- dimensional space that is above the bottom of the uppermost aquifer underlying the disposal unit and that has a horizontal extent that is more than 100 feet from the edge of the landfill but within the Midwest Generation property line, as described in the Quarry Adjusted Standard. See also 35 Ill.Adm.Code 810.103.], the facility must initiate an123

assessment monitoring program in accordance with Part 811.319(b) to determine whether the

exceedance is the result of a release f rom the regulated unit. If the assessment monitoring program determines that the exceedance is the result of a release from the regulated unit, then a remedial action must be implemented in accordance with Part 811.319 (d).

Because the AGQSs are based on existing background concentrations in the groundwater in the vicinity of the subject landfill, they may differ from the generic Illinois Class I Groundwater Protection Standards. If the AGQS for a particular parameter is higher than the Class I groundwater standard, it is because the relevant background concentration for that chemical constituent is higher than the Class I groundwater standard. The converse is also true. If the background concentration for a chemical constituent is lower than the Class I gr oundwater standards, then the AGQS is set at a level that is more stringent than the Class I groundwater standard. Thus, the AGQS achieves its purpose of protecting against degradation of the existing quality of the groundwater that might otherwise be caus ed by landfill operations. For this reason, the AGQSs are often equal to or more stringent than the Illinois Class I Groundwater Standards. Further, if IEPA identifies a constituent for monitoring based on the nature of the waste disposed

of in the landfil l, and there is no established Illinois Class I groundwater standard for that constituent, then an AGQS value is also established for that constituent using the same methodology as discussed above. For example, there is no promulgated Illinois Class I

Grou ndwater Standard (or federal Maximum Contaminant Level (MCL)) for ammonia. However, the IEPA required ammonia monitoring as part of the groundwater monitoring program for the Quarry landfill. Using the same background data set of four quarters of

monitorin g in the early 1990s, an AGQS of 1.57 mg/L for ammonia was calculated and established for the Quarry. By requiring an AGQS for constituents not regulated under the Illinois Class I Groundwater Standards, the established regulatory monitoring program using AGQS values actually provides broader and more complete protection of groundwater quality. Table 1 provides a comparison of the AGQSs and the Class I Standards for each chemical constituent that is sampled for as part of the monitoring requirements applica ble to the Quarry landfill. The bolded values designate site specific AGQSs that are set lower than existing Illinois

Class I Groundwater Protection Standards or for which a Class I standard does not exist. Eighteen of the 24 parameters monitored have AGQS values that are stricter than the corresponding Illinois Class I groundwater standards (or lack thereof). Clearly, the AGQSs for the Quarry do not constitute “relaxed” standards in comparison to the Class I groundwater standards. Further, the AGQSs do not “relax” the protection afforded to maintain existing background concentrations of these constituents in the vicinity of the Quarry landfill. [See the original comment for Table 1]

2) Environmental Integrity Project Statement (pg. 41): As of early 2007, u nsafe concentrations of arsenic, boron, and molybdenum were flowing off

- site to the south. Correction: A review of the permit monitoring data for all of the off

- site wells that existed “as of early 2007” and would have monitored flows to the south does not support EIP’s claim. The off

site wells are G38S, G38D and G39S. Our review included an evaluation of arsenic, boron and molybdenum data from these wells from 2007 (see Table 2). All of the data values were below both the established AGQSs and Illinois Cl ass I standards. [See the original comment for Table 2. 2007 Off

- site Groundwater Monitoring Results] It appears that because the off

- site well data showed no migration of contaminants, EIP may124

have instead used data from monitoring wells that are within t he landfill’s boundaries. There are three such monitoring wells, wells G46S, G47S and G48S, located along the south side of the Quarry Landfill. Groundwater monitoring did identify and confirm exceedances of the AGQS at

on

- site locations G47S and G48S duri ng the noted 2007 time period as well as in monitoring events since that time. It was determined that the exceedances were associated with the Quarry as a result of Laraway Quarry dewatering operations moving water from the Quarry to the

south/southeast. B ased on this evaluation, in accordance with both Part 811 regulations and permit requirements, Midwest Generation implemented corrective action through the installation and operation of an extraction well system which was rendered fully operational as of A pril 30, 2010. This is discussed in more detail under the response to item 6 below.

3) Environmental Integrity Project Statement (pg. 41): IEPA issued a Notice of Violation (NOV) in response to the groundwater contamination in late August 2009. The NOV id entified 50 exceedances of groundwater quality standards in ten wells, including high concentrations of arsenic, barium, boron, copper, and molybdenum. Arsenic was measured in two off

- site groundwater monitoring wells at 0.022 to 0.083 mg/L (2.2 to 8.3 tim es the Illinois Class I Groundwater standard of 0.01 mg/L). Correction: This allegation is false. A NOV was never issued by IEPA. As stated by Mr. Rick Cobb, IEPA Bureau of Water, in an August 27, 2010 Herald News article, a draft notice was developed base d on a hypothetical set of future conditions that never occurred and which were associated with the proposed dewatering of Boyd’s Quarry east of the Quarry. Because this future scenario on which the draft NOV was developed never occurred, the NOV was never finalized or issued. As Mr. Cobb told the Herald News: “The whole thing became moot”. The EIP’s statement that there were 50 exceedances is misleading as it combines both the initial

and confirmation re

- sampling (duplicate samples) performed each quarter, in order to double the number of alleged exceedances from a single quarterly sampling event. Therefore, the maximum number of potential exceedances that would have been alleged would be 25. Of the remaining 25, four would not have been “exceedances of gro undwater quality standards” because they are surface water sampling results for which groundwater standards (or AGQSs) are not applicable. Of the remaining 21 “exceedances”, 15 would have been for parameters which have a site specific AGQS set below (i.e., more rigorous and conservative than) the Illinois Class I groundwater standard as discussed under item 1 above. Of the remaining six exceedances, five would have been from wells G47S and G48S located along the southeast boundary of the facility. Both of t hese wells are “on

- site” wells and not off

- site wells, as EIP wrongly contends. Midwest Generation has installed groundwater control wells in the southeast area of the landfill to prevent further outward migration of any affected groundwater (see further d iscussion in Item 6 below). The last of the noted exceedances would have been for well A08S for boron. This well is located north of the Quarry and within the zone of attenuation. There were no boron exceedances further downgradient to the north within the zone of compliance. The current Illinois Class I groundwater standard for arsenic is 0.05 mg/L and not 0.01 mg/L, as incorrectly stated by EIP. Therefore, the alleged magnitude of the exceedances is also wrong and

one is not an exceedance because it is le ss than the correct Class I standard of 0.05 mg/L. A more detailed rebuttal of this issue is provided under item 15 below.

4) Environmental Integrity Project Statement (pg. 41): The locations of the groundwater monitoring wells indicate that contamination is flowing from the CCW Landfill off

- site to the125

southeast, south, west, and north. Correction: This statement is false. Any potential further migration from the southeast portion of the facility to the south/southeast associated with ongoing dewatering o perations at Laraway Quarry has been stopped through the installation of a groundwater extraction system (see discussion for item 6 below). Natural groundwater flow to the north and west is in accordance with the leachate management system under the Adjust ed Standard as discussed below. The Quarry facility operation consists of bottom ash and slag sluiced from Joliet 9 and 29 to a Main Quarry area. In accordance with the Adjusted Standard AS96

- 9 granted by the Pollution Control Board for the Quarry facility , Midwest Generation must maintain a leachate management system that consists of gravity fed water from the Main Quarry to the North Quarry and maintains the water level below the natural water table elevation. After settling, the water is gravity fed to t he North Quarry and is then discharged through Outfall 005, NPDES permit IL 0002216 to the Des Plaines River. This operation is substantially and significantly different than for a typical landfill. The Quarry manages 8.5 million gallons of “leachate” per day [Footnote 6: Opinion and Order of the Board, AS96

- 9, 1996, p. 4.] through this gravity flow treatment system. The gravity flow drainage system captures all but 1.2 percent (101,400 gpd) of the water volume leaving the site via groundwater flow. [Footno te 7: Petition of Commonwealth Edison Company for Adjusted Standard from 35 IAC 811.814, April 1, 1996.] The water volume leaving the site through a groundwater route is allowed to flow directly to the Des Plaines River

which is where it would have been ro uted by the North Quarry discharge. The Adjusted Standard allows this small percentage of flow to the north and west from the bedrock directly into the River rather than being channeled to the leachate management system. This is allowed because

the relevan t data and information shows that at the point at which this flow discharges to the Des Plaines River, there is no discernible effect on water quality in the River. The constituent concentrations in the groundwater have historically shown no discernible ef fect on water quality in the Des Plaines River. [Footnote 8: Opinion and Order of the Board, AS96

- 9, 1996, p. 14.] Table 3 summarizes background upstream river sampling (averaged data from United States Geologic Survey and Harza Engineering sampling), the calculated incremental weighted average of groundwater contributions discharging to the river from the site, along with applicable surface water quality standards as presented to the Pollution Control Board in support of the Adjusted

Standard for leachate management. The information in Table 3 shows that any effect of any Quarry

- related groundwater discharge is well below established surface water quality standards. In fact, many of the values are below analytical detection limits.

Under the Adjusted Stand ard for leachate management, Quarry leachate is not allowed to flow to the south or east. This is generally referred to as the “inward gradient” requirement for the landfill (i.e., the natural inward gradient from the south and east must be maintained resu lting in groundwater flow from those directions into the Quarry and not away). Since the issuance of the Adjusted Standard, the inward gradient from the east has always been maintained and there has only been one instance where the inward gradient from the south was not continuously maintained. Specifically, there was a loss of inward hydraulic gradient to the southeast resulting from unrelated dewatering activities that are part of the operations of the Laraway Quarry located approximately 1,000 feet south east of the Quarry landfill. As discussed under item 6 below, to reestablish the inward gradient in that area, four groundwater extraction wells have been installed by Midwest Generation. In addition, an interim groundwater management zone (GMZ) is being126

e valuated for an area of approximately 32.4 acres south/southeast along the Quarry facility boundary to assist in managing and remediating groundwater that may have been drawn in that direction due to ongoing Laraway Quarry dewatering activities to the sout heast. There are no residential wells or other groundwater receptors within the proposed interim GMZ area. Most of the area is within an existing Commonwealth Edison transmission/pipeline right

- of

- way. Therefore, no risks to human health ever existed due t o the temporary loss of the inward gradient

to the southeast. [See original comment for Table 3.]

5) Environmental Integrity Project Statement (pg. 42): The IEPA Bureau of Water recently found the CCW Landfill to be in an area with very high geologic vuln erability and a high potential for potable well contamination. There are 94 wells within a mile of the CCW Landfill. Drinking water wells up to a thousand feet south of the Landfill show evidence of degradation of water quality, and there is evidence to su ggest that contamination is moving toward the Smiley Subdivision northeast of the Landfill. Midwest Generation has bought out nearby residents or had deeper wells drilled for residents. Only limited sampling has been done by IEPA to assess

the extent of co ntamination in private drinking water wells. Correction: There is no factual basis for the EIP’s contention regarding the IEPA Bureau of Water’s alleged recent findings that is relevant to the Quarry. EIP provides no supporting

document or other informatio n that would support its implication that the Quarry landfill has affected any residential wells in the area.

EIP also has not produced data supporting its allegation that “drinking water wells up to a

thousand feet south of the Landfill show evidence of degradation of water quality.” In 2006, Midwest Generation sampled 18 residential wells located immediately to the south and southeast of the Landfill. The data showed that these wells were not degraded. Boron was used as an indicator parameter in this sam pling of residential wells to search for potential Quarry

- related effects. Boron (and its isotopes) is widely recognized as a good, conservative tracer compound due to its high solubility in water, natural presence in nearly all water, and its insensitivit y to evaporation, volatilization, oxidation

- reduction reactions or mineral precipitation or dissolution in all but extremely saline water. [Footnote 9: Munster, J., Hanson, J.N., Bokuniewicz, H., A Geochemical Study to Determine the Sources of Nitrate in t he Groundwater of Suffolk County, Long Island, NY. 2003. Conference on the Geology of Long Island and Metropolitan New York.] The use of boron as a tracer constituent was reviewed with and supported by IEPA. The resulting sampling data did not indicate any constituents above standards or degradation of water quality.

Midwest Generation did not “buy out” any residents nor did it offer to do so. This is another false EIP statement. Midwest Generation made an unconditional offer to provide new, deeper

wells f or these residents. Also, groundwater modeling done at that time did not show that any excursion of a groundwater standard would affect these residential wells in the future. Recognizing that nearby residents might not be adequately comforted by modeling r esults alone, Midwest Generation voluntarily and pro

- actively initiated the aforesaid residential well sampling program for residents to the south/southeast of the Quarry to both confirm that there had been no impact to their wells from the Quarry landfill ’s operations and to address their concerns about potential future developments, by offering to replace their residential wells with wells that obtain127

water from a deeper formation that is hydraulically isolated from any potential shallow groundwater impac ts (i.e., within the Silurian dolomite) so that these residents could not possibly be affected at some point in the future. The existing residential wells were sampled before any new wells were drilled and sampling results did not indicate any impacts to t he wells. Finally, with regard to the EIP contention that “there is evidence to suggest that contamination is moving toward the Smiley Subdivision northeast of the Landfill,” EIP does not state what the referenced “evidence” is or how it suggests that ther e is any threat to the Smiley Subdivision. The known facts and relevant data do not support any such “suggestion.” First, groundwater modeling does not indicate any migration of potential Quarry constituents, under either past or current conditions, toward the Smiley Subdivision. Second, no loss of the inward gradient on the east side of the facility has occurred (i.e., groundwater continues to flow from the east to the west, which is towards the Quarry landfill, not away from it). Third, in 2009, the IEPA collected water samples from multiple residential wells within the Smiley subdivision, with some as close as 300 feet from the boundary of the Quarry facility. A review of the data did not indicate any constituents above Illinois Class I drinking water sta ndards. The IEPA also stated that the results of the sampling did not indicate any contamination in these wells. EIP’s statement is wrong and it has provided no evidence to support it.

6) Environmental Integrity Project Statement (pg. 42): As of mid

- 2010, there was no evidence that IEPA had taken significant actions to address the contamination flowing off

- site in violation of the CCW Landfill operating permit. Correction: This statement is false. There was no permit violation to enforce against because th e required corrective action to address outward migration of groundwater in the southeast area of the Quarry Landfill was taken and successfully completed before mid

- 2010. In accordance with 35 Ill. Adm. Code 811.319(d)(1) and 811.319(d)(2), Midwest Genera tion submitted an Application for Significant Modification to Permit on September 2, 2009 which detailed a proposed corrective action for the loss of inward gradient at the southeast side of the Quarry facility. The proposed corrective action included the design and installation of a groundwater extraction system along the east portion of the south perimeter of the Quarry facility to intercept Quarry water moving to the south and partially pull back any groundwater with levels above the AGQS that may have m igrated past site boundaries. In addition, the proposed permit modification included conducting further investigation of off

- site groundwater quality to the south/southeast to assist in defining the extent of potential migration of constituents, if any.

Th e IEPA approved the Application for Significant Modification to Permit on December 1, 2009. In accordance with 35 Ill.Adm.Code 811.319(d)(3) and 811.319(d)(4), and the current operating permit, Midwest Generation has implemented the corrective action. The extraction well system was installed and rendered operational by April 30, 2010. The system has been pumping since that time. A cone of depression has been established between south perimeter wells G48S, G47S and G38S and the Quarry. Groundwater from the s outheast perimeter of the site is now being drawn back to the north to the extraction well system. Water from the Quarry that would flow to the south is also being intercepted by the extraction system. The extracted water is being discharged back into the Main Quarry. The off

- site groundwater investigation is in process and is expected to be completed shortly.

2.2.2 Test of Proof128

7) Environmental Integrity Project Statement (pg. 42): In May 1994, an Application for Significant Landfill Permit Modification documented exceedances of the applicable groundwater quality standard for boron, selenium, manganese, sulfate, total dissolved solids, molybdenum, zinc, pH, ammonia, chloride, potassium, sodium, and total organic carbon (TOC) levels. The application furthe r noted that any contaminants derived from CCW can migrate to downgradient areas and to the river bank area “with no significant reduction in concentration.” Clarification: The exceedances noted were generally within the zone of attenuation, as defined in the Quarry’s operating permit. Within this zone, exceedances can be managed such that they do not extend into the zone of compliance which is immediately downgradient of the zone of attenuation. This concept is similar to a groundwater management zone. As to the statement regarding migration to downgradient areas, the 1994 application was referring to the very small volume of groundwater that passes through the Quarry to the Des Plaines River without being captured by the gravity feed system at the Quarry. This is an area in which there are no groundwater receptors. Further, this issue was addressed in the 1996 Petition for Adjusted Standard in which it was demonstrated that this small percentage (i.e., 1.2%) of overall groundwater flow through the Quarry sy stem is discharged to the Des Plaines River and that the constituent levels will not adversely affect the Des Plaines River water quality (see detailed discussion under item 4 above). These findings and conclusions were supported by the IEPA and accepted a nd relied upon by the Pollution Control Board in its decision to grant the Adjusted

Standard.

8) Environmental Integrity Project Statement (pg. 42): IEPA permit reviewer notes for the Landfill dated August 1, 2002 and October 15, 2003 state that the groun dwater sampling “indicates that the site has caused statistically measured impacts on downgradient groundwater quality.” Clarification: Midwest Generation has not been privy to the noted reviewer comments. However, as required by the Quarry operating permi t, and applicable Illinois regulations, groundwater quality assessments were performed for various parameters subsequent to the referenced dates in the EIP statement, primarily within the zone of attenuation. Midwest Generation complied with all groundwate r assessment requirements and submitted the evaluations to IEPA. As noted above, the only downgradient area in which the groundwater evaluations indicated statistically measured effects on groundwater quality was in the southeast area of the Landfill and t his outward migration has been stopped.

9) Environmental Integrity Project Statement (pg. 42): In 2004, Andrews Engineering submitted to IEPA, on behalf of Midwest Generation, a proposed “assessment monitoring program” to

address confirmed exceedances of several pollutants. This submittal also clearly acknowledged that inward gradient was not being maintained at the Landfill’s Main Quarry. Clarification: In this 2004 submission, indications of a loss of inward gradient were referring only to the south side of the Quarry facility as a result of unrelated dewatering operations occurring at the Laraway Quarry located approximately 1,000 feet southeast of the Quarry. As noted in item 6 above, this limited loss of the inward gradient has been stopped. The inward gradient from the east side of the facility has historically been, and is currently being, maintained. Natural groundwater flow to the north and west is in compliance with the terms of the Adjusted Standard.129

10) Environmental Integrity Project Statement (pg. 42): Midwest Generation’s February 15, 2005 submittal (Log No. 2005

- 058) acknowledged that the Des Plaines River is a “major area of discharge for the Silurian dolomite aquifer” and identified elevated concentrations of pollutants

associated with the CCW Landfill operations in the groundwater monitoring wells located along

the River. Clarification: The Des Plaines River is a major discharge point for the Silurian dolomite on a regional basis, not just in the vicinity of the Quarry. This is not a unique situation as the EIP seems to suggest. As noted in the response to item 4 above, the Adjusted Standard for the Quarry allows for discharge of a small quantity of leachate through the Silurian dolomite aquifer to the Des Plaines River that is not captured by the gravity flow system. The constituent concentrations in the groundwater have historically had no discernible effect on water quality in the Des Plaines River. It is noted that if this small volume of leachate was captured by the gravity flow system, it would still eventually be discharged to the River via NPDES permitted outfall No. 005. A more detailed discussion of this part of the Adjusted Standard is provided in item 4 above.

11) Environmental Integrity Project Statement (pg. 42): The October 13, 2005 Significant Modification Application (Log No. 2005

- 413) concluded that “current water levels in the Main Quarry and the shallow monitoring wells indicate that there is an outward gradient from the Main Quarry such that groundwater movement is to the south, west and north.” Midwest Generation’s consultants, KPRG, confirmed to IEPA on February 22, 2006 that water level measurements in all of the existing monitoring well locations around the perimeter of the CCW landfill demonstrated a loss of hydraulic gradient at the landfill. This submittal stated that “evaluations are also being performed relative to potential corrective measures which may be implemented” to address the loss of hydraulic gradient. Clarification: The first part of this statement is cor rect as it states that there is an outward gradient from the Main Quarry to the south, west and north. However, the existence of an outward gradient to the west and north is compliant with the terms of the Adjusted Standard and the Quarry’s Permit, as alre ady explained. The outward gradient to the west and north is part of the natural flow system that is to be maintained for the facility and is in accordance with the Adjusted Standard. The outward gradient to the south is the result of unrelated dewatering operations occurring at the Laraway Quarry located approximately 1,000 feet southeast of the Quarry. The second part of this statement is worded in a manner that suggests a loss of hydraulic gradient on all sides of the Quarry. This is not true. At no time was there an indication of loss of hydraulic gradient to the east. Based on all available data and information, groundwater has been, and is currently flowing under natural conditions, from the east to the west (i.e., into and not out of the Quarry).

The last part of this statement is also correct. Midwest Generation performed a series of engineering evaluations to determine the best course of action to address the loss of hydraulic gradient to the south. As noted in the response to item 6 above, the outwa rd flow to the southeast has been stopped by the installation of a groundwater extraction wells system. .

12) Environmental Integrity Project Statement (pg. 42

- 43): In April 2006, Midwest Energy conducted sampling of 18 private wells on Brandon Road along the east side of the landfill and south to Laraway Road about 4,000 feet south of the southeast corner of the landfill. Only boron (and no other ash

- related contaminants) was analyzed in the samples. The results were reported to the residents in May 2006 (Arcadis, 2006). Concentrations of boron in two wells exceeded 1.0130

mg/L, with a maximum being 1.5 mg/L

– far above the natural background concentration, which has been identified by Midwest Generation’s consultant to be around 0.3 mg/L in the local

carbona te rocks in the vicinity of the Quarry (KPRG, 2008a). Boron concentrations in six other wells ranged between 0.33 to 0.71 mg/L, also above natural background concentrations. Assuming that the wells with elevated boron are from residents closest to the CCW Landfill, it appears that the groundwater quality has been degraded in wells possibly up to 1,000 feet south of the Landfill. The results of this sampling led Midwest Generation to either buy out or drill deeper wells for the residents south of the Landfil l. Nothing has been done to systematically sample private wells in the Smiley neighborhood northeast of the Landfill despite the fact that, as discussed in the next bullet, groundwater modeling indicates migration of contaminants in that

direction as well (Thompson, 2010).

Corrections and Clarifications: Correction of Purpose of the Residential Well Sampling Program: Midwest Generation offered to replace the residential wells without regard to what the sampling results from the subject

residential wells sho wed. Both the offer to replace the wells and the offer to sample them were made to these residents as part this effort. The decision to offer to replace these wells was made without knowledge of what the sampling results would show. The available informati on prior to the residential well sampling, such as the groundwater monitoring and modeling data, indicated that these wells were not being affected by the Quarry landfill. Contrary to EIP’s assertions, the sampling was not for the purpose of determining wh ether the residential wells were affected and therefore should be replaced. The purpose was to gather evidence that directly confirmed or refuted what the other available data showed, namely that these residential wells had not been impacted by any Quarry operations. It also served the goal of “transparency” with the residents. Midwest Generation conducted this sampling to confirm to the residents that its landfill had not impacted their wells and that the well replacement Midwest Generation was offering wa s a voluntary choice that each resident could either decide to make or refuse. As further explained below, the sampling results did confirm that none of these wells were being affected by the Quarry Landfill operations. None of these facts are disclosed in the EIP “In Harm’s Way” publication. These sampling results are persuasive, direct evidence that dispels the EIP’s false accusations that the residential wells had been impacted by the Quarry. As previously noted, Midwest Generation did not offer to, nor did it “buy out” any of the residents.

Clarification of Selection of Boron as Sampling Parameter for Residential Wells: As part of that well replacement program, Midwest Generation implemented a boron and boron isotope sampling program for the noted 18 we lls south of the facility. Boron was chosen as an indicator of potential Main Quarry water impacts due to its conservative nature in the environment, which means that of all the constituents that may be associated with an ash landfill, boron has the

abilit y to move uninhibited through the groundwater system and thus, it is the parameter that is reasonably expected to be the first indication of off

- site migration of groundwater. One of many literature references for the applicability of the use of boron as a conservative tracer compound was provided under Item 4 above. This information concerning boron’s ability to “out run” other

ash

- related constituents in groundwater is not acknowledged anywhere in the EIP’s publication. It is a commonly known, established fact in the scientific literature as well as among persons knowledgeable about ash constituents and their ability to migrate in groundwater. Although less well known, but also available in the relevant literature, the boron isotope analytical method is a means to identify whether or not boron detected in groundwater is associated with natural or131

anthropogenic sources such as coal ash [Footnote 10: Ruhl, L.A., Dwyer, G.S., 2009. Boron and Strontium Isotope Proxies for Tracing Environmental Impact of the TVA Coal Ash Spill, Kingston, TN. Geologic Society of America Annual Meeting, Portland, October 18

- 21. Abstracts with Programs, 41(7), 334.]. Boron has two naturally occurring stable isotopes, 11B (80.1%) and 10B (19.9%). 11B is the dominant isotope of boron and the average 11B/10B in nature is approximately 4.0. Boron isotope data can be reported as the 11B/10B ratio or in d (delta) notation in units of ‰ (per mil) relative to National Institute of Standards and Technology (NIST) standard NIST SRM 951. Negati ve delta values indicate that there is less 11B in the sample than in the standard. Positive delta values indicate that there is more 11B in the sample than in the standard. Water samples were collected from the residential wells for boron isotope analysis as well as a sample of Main Quarry leachate. Based on a comparison of the isotope ratios from the residential wells to that of the Main Quarry leachate, it was concluded that the boron detected within residential wells did not originate from the Quarry. B ecause Midwest Generation’s purpose in sampling the residential wells was to show the residents with direct evidence that they had not been affected by the Quarry’s operations, it was not necessary to identify other potential sources of boron in the ground water sampled. However, because boron is a constituent that does naturally occur in groundwater or due to other causes, Midwest Generation needed to conduct the boron isotope testing in anticipation of the fact that boron would likely be detected and if so , the question of whether it was coming from the Quarry landfill would need to be answered. The boron isotope results provided the answer to this question for those wells in which boron was detected. There was no need to include testing of other parameters in the residential well sampling that Midwest Generation conducted. Correction of the Boron Sampling Results: First, the EIP does not mention that all of the boron results were well below the AGQS for boron of 5,924.16 ug/L that applies to the Quarry land fill. Second, the boron results were all well below the Illinois Class I Groundwater standard for boron. Again, this is not mentioned by the EIP. Third, the boron isotope results showed that any

boron detections in those residential wells were not associat ed with boron that may have originated from the Quarry facility (i.e., the isotopes analyses indicated a different source of boron).

Correction of the Alleged Boron Natural Concentration of 0.3 mg/L: The EIP’s treatment of the

issue of the natural concent ration of boron that would occur in the groundwater in the vicinity of the Quarry landfill is another clear example of how it twists and misuses available information. For purposes of contaminant transport evaluations conducted by Midwest Generation’s

cons ultants, it was necessary to use a boron background concentration as an input to the model being used for this evaluation. This model input value is the source of the EIP’s 0.3 mg/L alleged boron background value. The boron value used for modeling purposes is an estimated value. As EIP scientists should be aware, such background concentration values are an estimated average from a larger data set. The noted background value was obtained from the Illinois State Geologic Survey (ISGS) Will County Water Qualit y Database for wells screened within the Silurian dolomite. A total of 689 data points for boron were available. The boron concentrations from these samples ranged from not detected to 2.88 mg/L. The mean (average) of the data was 0.34 mg/L with a median o f 0.23 mg/L. 15% of the detections were in excess of 0.90 mg/L. The residential well sampling results were not “above background concentrations.” All of the boron detections in the residential wells were well within the overall range of the Will County bor on dataset used for identifying a general background value for modeling purposes, with the highest132

boron value in the residential wells being 1.5 mg/L compared to the background dataset’s highest value of 2.88 mg/L.

Correction of EIP’s Smiley Subdivision Speculation: There is certainly no threat of any potential impact to the Smiley Subdivision residential wells caused by the Quarry Landfill. The IEPA has gathered direct evidence of the absence of any threat or impact to these residential wells in 2009

thr ough the collection of water samples from multiple residential wells within the Smiley Subdivision as close as 300 feet from the Quarry facility. The results of the sampling showed no contamination in these wells. This data is available in the public recor ds and was conveniently ignored by EIP. Further, groundwater modeling performed for past and current conditions does not indicate any loss of gradient or migration of constituents to the east/northeast toward the Smiley neighborhood. This is supported by a vailable field data for water level measurements from monitoring wells surrounding the Quarry facility. As discussed in the next response, groundwater model runs were made under a potential future scenario if the former owners of Boyd’s Quarry (a.k.a., Bra ndon Road Quarry) were allowed by IEPA to dewater their quarry for subsequent use as a construction debris landfill. Under those potential future conditions modeling suggested that there may be a loss of gradient to the east/northeast potentially resulting in migration of Quarry constituents in that direction. It is for this reason that Midwest Generation proactively approached the IEPA Bureau of Water to make the results of this modeling available to the Agency and to request that the pending permit applic ation for dewatering of the Boyd’s Quarry be thoroughly considered with this information in hand. Midwest Generation submitted that the issuance of an NPDES permit that allowed the dewatering of Boyd’s Quarry would not be consistent with applicable Illinoi s law. Midwest Generation also requested that if the IEPA disagreed and decided the NPDES permit should be issued, then Midwest Generation should be allowed the opportunity to institute precautionary measures to prevent the loss of the inward gradient that might result from a dewatering of Boyd’s Quarry. The IEPA encouraged Midwest

Generation to find a resolution of the matter. Midwest Generation resolved the matter in the most timely and protective way possible

– it bought Boyd’s Quarry. Midwest Generation , as the new owner of Boyd’s Quarry, has no plans to dewater it. It is unfortunate that EIP apparently relied on speculative, hearsay from a local activist resident and presented it as fact in its publication. There is no indication in the EIP’s “In Harm’s Way” document that it performed any investigation to attempt to confirm the accuracy of this unsupported accusation.

13) Environmental Integrity Project Statement (pg. 43): In response to concerns that dewatering of the Brandon Road/Boyd Quarry east of t he landfill would cause contaminants to migrate toward the residential area, groundwater modeling found that a boron contaminant plume with concentrations greater than 2.0 mg/L (Illinois Class I Groundwater Standard) would discharge into the dewatered Quar ry within 5 years, and that the 1.0 mg/L isoconcentration line for boron would extend for more than 1,000 feet into the Smiley residential area to the northeast (KPRG, 2008c). The Annual Groundwater Flow Evaluations submitted by KPRG to IEPA for Midwest

Ge neration CCW Landfill for 2006 to 2008 confirm a change in direction of groundwater flow at the Landfill and concede that the change in direction of groundwater flow “is also a change from the conditions that existed at the time of the adjusted standard fo r the facility” (Driver, 2009). Correction and Clarification: There is no contamination moving from the Quarry facility to the133

Smiley neighborhood to the northeast. Midwest Generation did have concerns that the proposed dewatering of Boyd’s Quarry, if it w ere allowed to occur, would change the direction of groundwater flow in the vicinity of the Quarry Landfill. Midwest Generation proactively voiced those concerns both to the IEPA and to local citizens at the community Baptist church within the Smiley subdi vision in a meeting to discuss this issue. However, as noted above, Midwest Generation eliminated the possibility that its concerns could become a reality by purchasing Boyd’s Quarry. EIP’s twisted description of the relevant facts never discusses the fact that this potential future scenario never came to be, that Midwest Generation timely disclosed its concerns to both the community and the IEPA, and that Midwest Generation prevented the issue from ever becoming a reality. Similarly, the EIP twists the tru th of the contents of the referenced Annual Groundwater Flow Evaluations. Those evaluations addressed an entirely different change in direction of groundwater flow beneath the Quarry facility that is unrelated to and has no possible effect upon the Smiley Subdivision residents. The referenced change from the groundwater flow conditions that existed at the time of the Adjusted Standard for the facility was describing the flow conditions along the south side of the Quarry landfill due to unrelated dewatering activities associated with the Laraway Quarry located approximately 1,000 feet southeast of Quarry. The same Annual Evaluations also clearly stated and demonstrated that the inward gradient from the east of the Quarry facility remained intact and that ther e is no movement of groundwater from the Quarry to the east/northeast. The EIP improperly chose to present this information in a distorted manner to wrongly imply that it is related to the flow of groundwater to the

east/northeast.

14) Environmental Integ rity Project Statement (pg. 43): KPRG’s 2007 Annual Report for the Landfill, submitted on behalf of Midwest Generation, showed high concentrations of arsenic, boron and molybdenum and pH above applicable groundwater quality standards in well
G47S...and well G48S...IEPA’s applicable groundwater quality standards (AGQSs) for the first quarter 2008 were exceeded for eight dissolved parameters (arsenic, boron, molybdenum, ammonia, chloride, sodium and fluoride), and concentrations of total copper and nitrate exceed ed the AGQS (KPRG, 2008c). Clarification: As noted above, this statement identifies groundwater monitoring results from on

site wells G47S and G48S located at the southeast side of the Quarry facility. Please see

discussion under item 6 above.

15) Environ mental Integrity Project Statement (pg. 43

- 44): On August 31, 2009, IEPA issued a Notice of Violation (NOV) to Midwest Generation for “failure to operate a leachate collection and management system that assures protection of Class I potable resource ground water” (IEPA, 2009a). The NOV cited exceedances of AGQS between July 14 to August 31, 2009 at the site as summarized below: [The statement proceeds with 8 bullet items summarizing various exceedances].

Correction: This statement is false. Neither the descr ibed NOV nor any other NOV was ever issued to Midwest Generation by IEPA. As stated by Mr. Rick Cobb, IEPA Bureau of Water, in an August 27, 2010 Herald News newspaper article, the draft notice was developed based on a hypothetical set of future conditions that never occurred. The hypothetical conditions were associated with the potential dewatering of Boyd’s Quarry east of the Quarry. Because these conditions never occurred, the NOV was never finalized or issued. As Mr. Cobb told the Herald134

News: “The whol e thing became moot”. Because EIP also mischaracterizes the contents of the draft NOV, the following additional errors in its description are also noted and corrected: · EIP Bullet (pg 43): Ten wells were identified where AGQS violations were found, includ ing “upgradient” G38S, four wells within zone of attenuation (G30S, R08S, G47S, G48S) and five compliance wells (G31S&D, G41S&D, G42D). Of these wells, G38S, G47S and G48S and five compliance wells are from 150 to 200 feet beyond the edge of the landfill a nd are called off

- site

wells in the discussion below. Correction: Wells G47S, G48S and all five compliance wells are “on site” wells (i.e., on Midwest Generation property), not off

- site wells as EIP claims. The only off

- site well EIP

references is G38S. Th e only parameter that was detected above the AGQS at this well location during the July 14 through August 31, 2009 timeframe was total nitrate. This well is within an actively cultivated farm field. Nitrates are a standard component of fertilizers and othe r agricultural amendments routinely applied to farm fields. There were no AGQS exceedances of other typical CCW constituents such as boron, arsenic and molybdenum. In fact, arsenic was not detected and molybdenum was at 21 ug/L, which is lower than even th e unpromulgated advisory level of 40 ug/L. · EIP Bullet (pg. 43): There were a total of 50 exceedances for individual monitoring parameters. Correction: The EIP’s statement that there were 50 exceedances is misleading as it combines

both the initial and co nfirmation re

- sampling (duplicative samples) performed each quarter, in order to double the number of alleged exceedances from a single quarterly sampling event. Therefore, the maximum number of potential exceedances that could have been alleged is 25. Of the remaining 25, four would not have been “exceedances of groundwater quality standards” because they are surface water sampling results for which groundwater standards (or AGQSs) are not applicable. Of the remaining 21 “exceedances,” 15 would have been f or parameters which have a site specific AGQS set below (i.e., more rigorous and conservative than) the Illinois Class I groundwater standard as discussed under item 1 above. Of the remaining six exceedances, five would have been from wells G47S and G48S l ocated along the southeast boundary of the facility. Both of these wells are “on

- site” wells and not off

- site wells, as EIP wrongly contends. Exceeding an AGQS in an on

- site well is not a permit violation. Midwest Generation has installed groundwater contr ol wells in the southeast area of the landfill to prevent further outward migration of any effected groundwater (see further discussion in Item 6 above).

The last of the noted exceedances would have been for well A08S for boron. This well is located

north of the Quarry and within the zone of attenuation. There were no boron exceedances further downgradient to the north within the zone of compliance. · EIP Bullet (pg 44): Exceedances of boron were in southeast wells G47S and G48S, but also in G46S and R08, i ndicating that contamination is also migrating to the south and west from the

Landfill.

Correction: The on

- site boron exceedances in wells G47S and G48S located along the east portion of the south perimeter have been addressed as noted above (see Item 6). The EIP statements regarding well G46S monitoring results are false. There have been no confirmed AGQS exceedances in well G46S either during the noted July 14 through August 31, 2009 time frame, prior to that time frame or during any monitoring since that timeframe through the third quarter of 2010 (most recent complete sampling as of this rebuttal). Well R08S is located north of the Quarry facility and is within the zone of attenuation. This well has historically indicated

elevated levels of boron above t he AGQS, however, compliance wells further downgradient of135

this location have not had any boron AGQS exceedances. The movement of some leachate through the groundwater system to the north (and west for that matter) is in accordance with the Adjusted Standa rd for the site as discussed in item 7 above. Relative to the statement that contamination is moving to the west of the site, none of the wells identified are west of the Quarry facility. Well cluster G44S/G44D is located west of the facility. These wells did not indicate any exceedances. This is yet another false statement by the EIP. · EIP Bullet (pg. 44): Discharge from NPDES Outfall S501 also violated the AGQS for barium (0.36 mg/L, AGQS 0.075), copper (0.03 mg/L, AGQS 0.02 mg/L) and dissolved nitrate ( 3.4 mg/L, AGQS 2.43 mg/L). Correction: Sampling point S501 is a surface water sample collected from the North Quarry settling pond. It is neither a NPDES outfall sampling point nor is it a groundwater monitoring point for which the AGQSs are applied. Sampl ing of the actual NPDES Outfall No. 005 for the Quarry facility did not indicate any discharge permit exceedances. It is also noted that the three identified compounds of barium, copper and dissolved nitrate have the AGQSs set below either

federal MCLs or IEPA Class I drinking water standards. These are:

- Barium: MCL and IEPA Class I

– 2.0 mg/L

- Copper: MCL

– 1.3 mg/L, IEPA Class I

– 0.650 mg/L

- Dissolved Nitrate: MCL

– none, IEPA Class I

– 10 mg/L The noted detections in the surface water of the North Quar ry are substantially below these

standards. 16) Environmental Integrity Project Statement (pg. 44): The current NPDES permit, issued by IEPA for the CCW Landfill in 2009, identifies Outfall No. 5 as “Quarry (ash pond) discharge”. Despite the extensive docu mentation of contamination of groundwater by ash constituents, and the fact that surface water discharges are mostly water that has been in contact with the ash that is slurried to the landfill, IEPA requires only testing of pH and total suspended solids. The latest IEPA Inspection Report indicates that Midwest Generation is in compliance with the permit (IEPA 2009a). The limited data contained in this report indicates that from January 2008 to May 2009, pH exceeded the AGQS (6.14 to 8.56) in 7 of the 17 sa mpling events (maximum pH of 8.8). As noted above, apparently separate sampling related to the Groundwater NOV found exceedances of the AGQSs for barium, copper, and nitrate at the No. 5 Outfall. Correction: Total suspended solids (TSS), pH and oil and gre ase are required routine indicator parameters for NPDES Outfall No. 005 discharge monitoring in accordance with the permit. However, as is required for all NPDES permit applications in order to obtain the permit, an expanded list of parameters was analyzed for in the influent North Quarry water before its discharge to the Des Plaines River. These analytical results were submitted to IEPA as part of the Midwest Generation discharge permit application. They are part of the public record for the

Midwest Genera tion NPDES Permit and would have been available for review by the EIP with any Freedom of Information Act request. Based on EIP’s unsubstantiated allegation, it is not currently known whether the EIP reviewed this information. For the subject Outfall No. 0 05 discharge, this list included the following 36 parameters: TSS, pH, color, fluoride, nitrate

- nitrite, total nitrogen, oil and grease, phosphorous, sulfate, sulfide, surfactants, aluminum, barium, boron, cobalt, iron, magnesium, molybdenum, manganese, ti n, titanium, antimony, arsenic, beryllium, cadmium, chromium, copper, lead, mercury, nickel, selenium, silver, thallium, zinc, cyanide and phenols. This expanded list must also be analyzed for with permit renewal applications. Based on the levels of these 36 parameters in the influent to Outfall No. 005, IEPA determined that monitoring requirements for TSS, pH and oil and grease was necessary. The EIP136

does not identify any basis for its opinion that the monitoring requirements for Discharge No. 5 are inadeq uate.

The noted EIP document reference to IEPA 2009a as an “Inspection Report” is wrong. This “IEPA 2009a” reference is the draft NOV which was never issued (the correct internal document reference probably should be IEPA 2009b). The EIP also either inten tionally or carelessly makes another mistake. It takes a groundwater standard, the AGQS for pH of 8.8, which does not apply to surface water discharges like the Outfall No. 005 discharge, and applies it to the Outfall No. 005 discharge. This is the basis o f the EIP’s false accusation that IEPA issued an inspection report that indicated that the facility was in compliance when there were allegedly exceedances of pH limits. As EIP should be aware if it reviewed the NPDES permit for Outfall No. 005, the applic able pH limits for the Outfall No. 005 discharge is 6.0 to 9.0, which is the pH limit typically contained in Illinois discharge permits to protect surface waters. The monitored discharge from Outfall No. 005 was consistently within these limits. The EIP pu t forth no explanation, nor could it, for why it ignored the applicable pH discharge limit and instead used the inapplicable AGQS standard for groundwater in order to create its false claim that the surface water discharge violated pH limits. Please also s ee further discussion under item 15 above. In addition, besides the fact that an NOV was never issued by IEPA, the EIP’s contention that “apparently separate sampling related to the groundwater NOV found exceedances of the AGQSs for barium, copper, and nit rate at the No. 5 Outfall” makes absolutely no sense and is pure speculation. No proof is provided of any such “separate sampling” of the NPDES outfall related to the alleged NOV and Midwest Generation is not aware of any such sampling being

conducted. The sampling and analytical data submitted with Midwest Generation’s discharge permit application shows that there are no exceedances of applicable effluent and water quality standards associated with the Outfall No. 5 discharge.

2.2.3 Regulatory Action 17) Environmental Integrity Project Statement (pg. 44): The operating permit for the Landfill has gone through a complex series of modifications since 1994 related to groundwater at the site, with additions and removals of monitoring wells and parameters monit ored. The latest Significant Modification of the Landfill operating permit was submitted in 2006 (KPRG, 2006) and approved in 2007 (IEPA, 2007). Correction: First, it is important to understand the nature and intent of a Significant Modification

to Permit. This term should not be misconstrued to imply that something negative has occurred which requires a permit modification, which appears to be the EIP’s intent. An Application for Significant Modification to Permit is a regulatory requirement for submittal and IEPA approval whenever there is a proposed change in the operation of the facility that is not specifically accounted for in the facility’s operating permit. For example, when Midwest Generation identified a beneficial reuse for ash that required the r emoval of that material from the landfill, this was a significant change in the operation of the landfill, albeit a positive change, and the operator (Midwest Generation) was required to apply for and obtain a Significant Modification to the Permit prior t o being able to initiate the recycling operation. The noted permit modification is not the latest modification as stated by EIP. There have been several approved Significant Modifications since the one noted above. Specifically, these are: · Application fo r Significant Modification to Permit dated October 10, 2007 and approved by IEPA as Permit Modification 11 on July 21, 2008. This modification was for the removal of up137

to 40,000 tons of ash annually from the northwest corner of the Main Quarry for benefic ial reuse in sand blasting and asphalt shingles. · Application for Significant Modification to Permit dated September 2, 2009 and approved by IEPA as permit Modification 12 on December 1, 2009. This modification was for the installation/implementation of a corrective action to address the loss of hydraulic gradient and potential migration of Quarry water to the south/southeast of the facility. · Application for Significant Modification to Permit dated April 6, 2010 and approved by IEPA as permit Modificatio n No. 13 on July 1, 2010. This modification was for a minor schedule

extension for off

- site well installations due to property access issues.

At least the first two documents noted above should have been available to EIP at the time of its alleged IEPA fil es review. Perhaps because these modifications and associated actions are positive and proactive measures being taken by Midwest Generation, they have been ignored by EIP because they contradict the negative statements in its publication. 18) Environmental Integrity Project Statement (pg. 44

- 45): The groundwater monitoring program ...A “G2” list of parameters that must be sampled annually includes: barium, copper, iron, lead, mercury, and nitrate (unfiltered total concentration). The request in the latest Sig nificant Permit Modification (KPRG, 2006) to eliminate ten parameters from the G2 list (dissolved antimony, beryllium, chromium, cobalt, cyanide, iron, lead, mercury, nickel, and thallium) was approved by IEPA (IEPA, 2007).

Clarification and Correction: Wh ile the referenced Significant Modification to Permit is not the “latest”, it is true that Midwest Generation requested the noted parameters to be removed from the annual monitoring G2 list. In Section X. Groundwater Monitoring Program, Condition 13,

List G2, Note iii of the operating permit, there is a provision to re

- evaluate the appropriateness of the G2 list of parameters being monitored at the site. Specifically, this permit item states that if after five years of monitoring for an inorganic constituen t listed in List G2, there has been no statistically significant increase above the AGQS, the operator may propose to discontinue monitoring for that constituent as a permit modification. EIP does not acknowledge that this permit provision provides the bas is for the request to remove the subject parameters. The List G2 annual groundwater monitoring data through 2005 (the Application for Significant Modification to Permit was dated May, 2006) shows that there were a number of parameters that

had not shown a statistically significant increase above the AGQS for at least the last 5 years of monitoring. Specifically, these parameters were antimony, beryllium, chromium, cobalt, cyanide (total and dissolved), iron (total and dissolved), lead (total and dissolved), mercury (total and dissolved), nickel and thallium. In fact, antimony, beryllium, chromium, cobalt, cyanide, mercury and thallium were generally not detected at all. A detailed description of this extensive period of monitoring data for each parameter was provided in the document EIP referenced. IEPA’s approval of the permit modification on January 31, 2007 (Modification No. 10) approved the removal of some of the requested parameters, not all of them as stated incorrectly by EIP. Iron, lead and mercury we re not approved for removal from List G2 monitoring and continue to

be monitored on a routine basis.

19) Environmental Integrity Project Statement (pg. 45): A review of the AGQSs, as defined in the latest significant permit modification approval, indicate s that the modified standards for boron, cadmium, manganese, molybdenum, and selenium for the landfill are significantly higher

than either Illinois Class I Groundwater Standards or other health

- based water quality standards (IEPA, 2007). [The statement pr oceeds with 5 bullet items summarizing AGQS values relative to138

other standards]. Clarification: See explanation of how the AGQS is determined, using background groundwater information, and the chart comparing the AGQS to Class I Groundwater Standards in It em 1 above. To the extent that the EIP is apparently also contending that the AGQS groundwater standards should be as strict as the Illinois surface water quality standards, this is a contention that goes well beyond the scope of the compliance status of t he Quarry landfill and which is not a position that either the IEPA nor the U.S. EPA has supported.

20) Environmental Integrity Project Statement (pg. 45): A consequence of the IPCB’s AS for groundwater, combined with the AGQSs that have been set, is that groundwater with significant

concentrations of toxic metals can move off

- site and be in compliance with the terms of the current Landfill operating permit. Correction: EIP has not provided any evidence that shows movement of metals off

- site at significant concentrations, let alone at any concentrations that would be toxic to the public. EIP’s statement that such groundwater would be allowed to move off

- site and be in compliance with the Quarry landfill permit is wrong. For groundwater flows to the north an d west, as established and discussed above under item 7, the Adjusted Standard allows for the movement of groundwater under natural flow conditions from the Quarry to the north and west with eventual discharge to the Des Plaines River at levels so low that their effect, if any, is indiscernible. There is absolutely no way that anyone could ever be exposed to any significant concentrations of metals in this direction because there are no residential wells or any other potable wells present

between the landfi ll and the point of eventual discharge to the Des Plaines River. There are no

residential wells located within a one

- mile radius to the west or north of the Quarry facility. Applicable standards must be met at the point of compliance prior to discharge to the River either via groundwater or through the permitted NPDES outfall. In addition, the AS does not allow for the movement of potentially affected groundwater to the south or east. The corrective action work which Midwest Generation has done to stop outw ard migration of groundwater to the southeast, as discussed in item 6 above, demonstrates that the permit’s requirements are effective in protecting the environment and the public health.

21) Environmental Integrity Project Statement (pg. 45): Despite evi dence that groundwater contamination at the Landfill has repeatedly exceeded even the relaxed AGQSs that have been allowed by IEPA, no significant enforcement action was taken until a Notice of Violation dated August 31, 2009 was issued. The details of the NOV are summarized in the Test of Proof

section. Correction: This statement is false. The descriptions of the exceedances, the AGQSs, the NOV’s alleged issuance and the need for any enforcement action are all inaccurate. Please see detailed

discussions un der items 3 and 15 above. .

22) Environmental Integrity Project Statement (pg. 45): The IEPA Ash Impoundment Assessment identifies the Lincoln Quarry Ash Landfill as having an IPCB Groundwater Management Zone (GMZ) designation (IEPA, 2009c). Such a design ation has the potential for allowing off

- site contamination of groundwater within a designated zone. However, according to IEPA internal communications there is no GMZ at the site (EPA, 2010). The only information available as part of the voluminous materi al eventually received in response to FOIA requests for information about the Joliet 9 ash disposal site that would indicate that a GMZ is even being139

considered is a June 2009 map prepared by KPRG showing proposed locations of initial GMZ monitoring wells. Clarification: Relative to the first part of this statement, not being privy to the internal IEPA communications referenced (Midwest Generation performed a detailed FOIA file review on September 15, 2010 and these documents were not in the files made avai lable), it appears that there may be confusion between the Zone of Attenuation established under the Illinois Pollution Control Board approved Adjusted Standard and a GMZ. Relative to the second part of the statement, the eventual establishment of an inter im GMZ is part of the overall approved corrective action being implemented by Midwest Generation for the southeast corner of the Quarry facility. Work to adequately define the interim GMZ is ongoing. 2.2.4 Hydrogeologic Conditions

23) Environmental Integr ity Project Statement (pg. 46): Consultants for Midwest Generation have developed a nine

- layer model three dimensional groundwater flow model for the site (KPRG, 2008b), details of which have been questioned by consultants for Brandon Road Properties (owne rs of the old Quarry east of the ash landfill) (C&E, 2008). Clarification: In response to the C&E questions, KPRG provided to IEPA, on behalf of Midwest Generation, a Technical Memorandum dated November 12, 2008 documenting the numerical groundwater flow m odel along with a diskette that included a working copy of the model along with various calibration runs and supporting backup. It is our understanding that C&E was provided with this information (including the diskette with the flow model for their evalua tion) two times as apparently C&E misplaced the first copy that was provided to them. In addition, a second submittal was provided to IEPA dated January 30, 2009 which addressed each individual item in the above referenced C&E letter. To our knowledge, C&E did not review the submitted model, associated backup and answers to their initial questions. C&E also did not provide any technical backup or discussions regarding the basis for the questions associated with the modeling effort.

24) Environmental Integr ity Project Statement (pg. 46): A proposal by Brandon Road Properties (BRP), LLC to dewater an inactive Quarry immediately east of the Lincoln Quarry Ash Landfill (referred to in documents variously as the BRP, Boyd, and former De Be Land Quarry) raised

co ncerns that groundwater would also begin to flow east to this Quarry and northeast toward a residential area. This concern led IEPA to deny BRP’s application for an NPDES permit, a denial that BRP has contested (Driver, 2009). Even without dewatering of th e BRP Quarry, there is evidence that contamination is moving to the northeast into the Smiley subdivision, probably as a result of residential well usage.
Clarification and Correction: The unidentified source of the referenced “concerns” that were

expresse d about a change in groundwater flow direction that might arise from a dewatering of Boyd’s Quarry was Midwest Generation. Midwest Generation was the party who brought these concerns to the attention of IEPA, BRP and to the community and proposed alternati ves to prevent any such risk from occurring. EIP doesn’t reveal this fact because it would undermine its attempt to characterize Midwest Generation as an “unconcerned” landfill operator. But more importantly, EIP also does not identify any information to s upport its allegation that even without the dewatering of Boyd’s Quarry, contamination is moving to the northeast into the Smiley Subdivision because none exists. This allegation is unsubstantiated by any information or data provided in the EIP report. Rel evant site data and direct sampling of Smiley Subdivision140

residential wells shows that contamination is not moving to the northeast towards the Smiley Subdivision. Groundwater modeling performed for past and current conditions does not indicate any loss of gradient or migration of constituents to the east/northeast toward the Smiley neighborhood. Standard residential well usage does not affect this conclusion. This is also supported by available field data of water level measurements from monitoring wells

s urrounding the Quarry facility. Finally, IEPA has collected water samples from multiple residential wells within the Smiley subdivision in 2009 as close as 300 feet from the Quarry facility. The results of the IEPA’s residential well sampling did not indic ate any contamination in

these wells.

2.2.5 “At Risk Population” 25) Environmental Integrity Project Statement (pg. 46): There are 94 wells used for drinking

water within a one

- mile radius of the Landfill (IEPA, 2009c). An unincorporated area lies

northea st of the landfill, a few private residences lie to the south. Private and public well data for the state of Illinois is maintained on a county by county basis via online database operated by the Illinois State Water Survey. Plotting the wells from this da tabase on a map is nearly impossible for the reason that instead of each well being assigned an exact x and y location (Latitude and Longitude), the exact position of the well falls in a one

- to five

- mile area of a square that is arranged by section, towns hip, and range. It is unknown how many wells are downgradient of the

site. Clarification and Correction: The Illinois State Water Survey database for residential wells is organized in a manner that makes it difficult to plot the well locations on a map. Ho wever, there are other ways to identify downgradient drinking water wells in the vicinity of a landfill. Proper due diligence and scientific rigor should include at least a windshield survey of the area and a thorough understanding of local groundwater flo w conditions. These same suggestions are contained in an IEPA Fact Sheet for evaluating and identifying potential groundwater receptors

for a site. A windshield survey of the area indicates that residential wells within a one

- mile radius of the Quarry are located to the northeast and south/southeast of the facility. There are no residential

wells located within a one

- mile radius to the west or north of the Quarry facility

– which is the downgradient direction. Therefore, it is known how many potential resid ential wells are currently

within one

- mile downgradient of the Quarry facility that obtain potable water from the Silurian dolomite (shallow aquifer). The answer is none.

Response: EPA appreciates the detailed arguments raised by Edison Mission Energy, LL C (EME) to refute and/or clarify evidence cited in EIP’s In Harm’s Way regarding the alleged regulatory infractions at Midwest Generation’s Juliet 9 (MG) Lincoln Stone Quarry (LSQ)

Landfill. EPA presents the following evidence to justify designating this s ite as a potential damage case :

MG concedes that groundwater monitoring did confirm exceedances of the AGQS at on

- site locations G47S and G48S, along the southern side of the LSQ during and since 2007. These exceedances were associated with the LSQ as a result of dewatering operations some 1,000 feet southeast of the LSQ, moving groundwater from the Laraway Quarry to the south/southeast. IEPA approved a corrective action of pumping wells for the southeastern LSQ area in 2009, along with additional groundw ater assessment. MG implemented the corrective action in 2010;141

in 2011, IEPA approved the assessment reports along with an interim GMZ for the southeast area of the facility, together with a proposal for additional, preventative, corrective action along th e southern side of the LSQ. The corrective action has a two

- fold purpose: to control the source (and reintroduce an inward gradient required by the IPCB) and to mitigate impacts in the south of the LSQ landfill. Currently, there are two approved GMZs encom passing the LSQ landfill and its immediate vicinity, and groundwater assessment and evaluation continues at the site.

EIP claims that on August 31, 2009, IEPA issued a NOV to MG for “failure to operate a leachate collection and management system that ass ures the protection of Class I potable resource groundwater”. The NOV cited exceedances of AGQS between July 14 and August 31, 2009 at the site. While MG insists that such a NOV has been never finalized, i n the September 16, 2010 Chicago, IL public hearing in the wake of the proposed CCR rule (Comment to the docket

TRANS

- CHI

- 0167, Transcript pages 459

- 461), Jeff Stant of IEP stated that IEPA, in response to a FOIA request, had provided EIP with a copy of a NOV dated August 31, 2009, citing 50

violations of a groundwater standard at the site. EIP insist they have this NOV. http://www.epa.gov/osw/nonhaz/industrial/special/fossil/ccr

- rule/ccr

- hearing.htm

.

In summary, the onsite exceedances of certain AGQSs and the subsequent administrative actions undertaken by IEPA justify the designation of the Joliet 9 LSQ site as a potential damage case.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08787

- 10 

### Organization 1 

### : Association of State and Territorial Solid Waste Management Officials (ASTSWMO)


### Commenter 1 : Stephen A. Cobb Commenter Type: State Government

Classification: Substantive



### Comment Excerpt Text: The "proven damage cases" are one basis for listing CCRs as "sp ecial waste". The cases are also used to validate certain results in the risk assessment. The heavy reliance on the cases in the Regulatory Determination requires that the identification of the "proven damage cases" be sound.

In reviewing EPA's Coal Comb ustion Waste Damage Case Assessments, July 9, 2007, (Case Assessments) it seems that very little evidence (which the report refers to as a "test of proof") is required to classify damage to groundwater as a "proven damage case."

Groundwater or surface wa ter impacts are typically determined by geologists, scientists and engineers during groundwater investigations or review of groundwater monitoring data from the facilities. While a field inspection may lead to an investigation, it is highly unlikely that d amage could be verified in a field inspection alone. Therefore, identifying a damage case based on the "conclusions of a site report by a field inspector" without more to validate the information is not a rigorous test of proof.

Another source identified as acceptable is a scientific study that contains "information on contamination of drinking water aquifer with contaminant levels which exceed drinking water standards." But, there is no requirement that a scientific study has determined whether the142

conta mination is due to naturally occurring metals, other potential sources of contamination or

co

- disposed materials. Damage cases based on such limited evidence are weak cases at best.

The Case Assessments also requires "documented exceedances of primary MC Ls or other health

based standards measured in groundwater at sufficient distance from the waste management unit to indicate that hazardous constituents have migrated to the extent that they could cause human health concerns." This criterion is vague enoug h that the site in question need not be the source of the MCL exceedance. There is no requirement that a nexus be established between the disposal unit and the contamination. Important factors need not be considered, such as other possible sources of conta mination or naturally occurring levels of contaminants. Site summaries in the Case Assessments may not provide enough information to determine whether any of these

conditions existed at the sites.

The age and nature of the disposal facilities in the 23 d amage cases make them irrelevant because they do not reflect current land disposal practices to which the proposed regulations apply. Disposal "units" included five sand and gravel pits, two quarries and one lake impoundment. Half of the sites began operat ing in 1970 or before. At least six sites began operating in the early '50s. It appears that only three sites operated after 1990. Several sites were operated pre

- RCRA, for example, one site was managed from 1952 to 1969. Wastes in the co

disposal faciliti es included: sewage sludge, tannery waste, materials from another landfill, yard sweepings, demineralizer regenerant, soil, concrete, brick and "other wastes". These are hardly representative of the disposal units that would be regulated pursuant to the pr oposed rules.

In addition, there is no evidence about the quality of the data or that any assessment was made of other possible sources of contamination or naturally occurring background levels of contaminants, such as arsenic or selenium.

EPA's proven damage cases were assessed in a National Academy of Sciences [Footnote 6: National Academy of Sciences, Managing Coal Combustion Residues in Mines; The National Academies Press, Washington, DC, 2006.] report: "Many of the damage cases ... involve older

le gacy sites that were developed under less rigorous regulations than now exist. Many were either slurry impoundments that drained to nearby surface waters or abandoned aggregate quarries that, by their very nature, were in highly permeable geologic environm ents. ... For example, landfills developed before the implementation of RCRA were not subjected to requirements for covers, compaction, liners, and other characteristics ... of RCRA compliant

landfills ..."

Other points from the NAS report: o [EPA] did n ot independently investigate most damage cases o EPA also acknowledged in the Regulatory Determination of May 22, 2000 (40 CFR Part 261) that it did not use a statistical sampling method and reviewed possible damage cases in only a

subset of States

o It should be noted here that the landfills discussed in relation to damage cases are typically not

the well

- designed structures with covers, compaction, and other characteristics discussed in the definition of landfills..., but rather are less engineered loca tions used to store wastes143

The value of the damage cases overall is questionable.

Response: To address the commenter’s critique about the Agency’s presumed past failure to establish a nexus between the disposal unit and the contamination, in the techni cal support document on damage cases which is included in the docket of the final rule, EPA endeavors

– for as many cases for which such information is available

- to present a record of groundwater well monitoring data, standards’ exceedance records, and subsequent state regulatory responses. In reference to the commenter’s statement that the "proven damage cases" in the proposed rule are one basis for listing CCRs as "special waste," the final rule will regulate CCRs under RCRA

subtitle D: for further det ails, see unit IV of the preamble to the final rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08858

- 2 

### Organization 1 

### : Cogentrix Energy, LLC


### Commenter 1 : C. Richard Neff Commenter Type: Electric Utility Company

Classification: Substantive



### Comment Excerpt Text: Regulating CCRs as a Hazardous Waste under RCRA Subtitle C is not justified under EPAs

Rules.

Cogentrix does not believe that regulating CCRs as a hazardous waste under 40 CFR 261 is supported by EPAs data. Specifically, 40 CFR 261.11(a)(3)(ix) exp licitly states that damages alleged for a listed material

- in this case CCRs

- must provide the "nature and severity" as factors for assessing the damages. EPAs data in Appendix I holds individual chemical parameters to a variety of standards (i.e., MCLs) without providing a rationale why the regulatory bar is being varied. These variable standards are then used qualitatively when EPA aggregates alleged damage cases (i.e., providing a generalized discussion on the "nature" of the damage) while failing to n ote the "severity" of any specific case. The discussion on damages also are observed to group multiple, disparate cases into a single "nature" description in spite of the fact the multiple (mis)grouped events do not share a clearly identifiable causal fact or (e.g., "the improper management of waste containing the constituent").

Finally, the damage cases presented in the 2010 proposed rules do not provide substantiated, quantitative information proving that CCR management practices conforming to the 1993 a nd 2000 Bevill determinations have resulted in "damages". Absent such data and analysis, EPAs apparent support for the Subtitle C option is not technically justifiable under its rules as presented in 40 CFR 261.

Response: This rule will regulate CCRs unde r RCRA subtitle D: for further details, see unit IV of the preamble to the final rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09728

- 4 

### Organization 1 

### : Intermountain Power Service Corporation (IPSC)


### Commenter 1 : Jon A. Finlinson Commenter Type: Electric Utili ty Company144

Classification: Substantive



### Comment Excerpt Text:

4. The EPA has mis

- categorized damage cases under RCRA statutes.

The EPA is relying heavily on the number of proven damage cases and potential damage cases in making an argument for regulation of CCR under Subtitle C. IPSC believes that the EPA has erred in designating many of these cases as proven under RCRA. The EPA indicates that it added another criteria beyond RCRA statutes in determining whether a case comprises proven damage

from CCR. We believe it is improper to compare a case to RCRA for ecological damage. Ecological damage cases ignore the specific constituent involved, and generally cannot be determined to be caused solely due to CCR rather than any other type of material that could d o similar damage. This holds true for the Kingston tragedy. The mudslide that caused significant damage in Tennessee was not due to being CCR, but rather poor engineering and poor disposal practice in general. Any other bulk material so managed would have caused similar damage. The EPA has not determined injury due specifically to any purported hazardous waste characteristic of CCR, i.e., it's ignitability, corrosivity, reactivity, or toxicity. This is true of several of the cases that the EPA considers pro ven. When properly categorized, the number of actual proven damage cases are reduced, weakening the EPA's argument for Subtitle C regulation of CCR.

It is interesting to note here that the EPA strongly believes that federal oversight is needed for

proper management of CCR. The Kingston CCR impoundment was under federal oversight (i.e., TVA and NPDES) and ended up being the largest ecological disaster on the EPA's "proven" damage case list.

Response: This rule will regulate CCRs under RCRA subtitle D: for further details, see unit IV of the preamble to the final rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09765

- 41 

### Organization 1 

### : Electric Power Research Institute (EPRI)


### Commenter 1 : Ken Ladwig Commenter Type: Trade Association

Classification: Substantive



### Comment Excerpt Text: US EPA Damage Cases

The EPRI two

- volume report referenced in the preamble of the Proposed Rule was a 2009 draft. The final EPRI report is appended to these comments as Attachments G (Volume 1) and H (Volume 2) (EPRI 2010a, b). The pu rpose for developing the EPRI report was to collect and provide additional data to supplement the information available to US EPA on the nature and extent of groundwater impacts at the damage cases cited in the 2007 US EPA report, and to evaluate any commo n characteristics among these cases. Evaluation of the commonalities can provide insight into the best measures for avoiding similar issues in the future. Data collection was accomplished by performing detailed literature and internet searches, and contact ing site owners to obtain additional and more recent data. Results are briefly summarized below.145

Fifty

- four of the 67 proven and potential damage cases in US EPA (2007) involved groundwater impacts associated with CCRs. [Footnote 6: Four of the 67 damage cases were oil ash sites, and nine were surface water sites.] Of these, 16 were classified as proven damage cases and 38 were potential damage cases. The most prominent commonality among the groundwater impact sites is that more than 90 percent were unline d or partially lined sites, including all of the proven damage cases. Leachate collection systems were installed at only a few facilities. The absence of liners and leachate collection systems reflects the fact that these cases largely represent older

faci lities; 86% of the sites for which operational periods were available were opened prior to 1980. As has been noted by US EPA and 6 others, almost all new CCR disposal areas are constructed with liners (US DOE and US EPA, 2006). Because the composite liner requirements are the same in both the Subtitle C and Subtitle D options, they would have substantively the same effect on reducing risk from unlined facilities if properly implemented.

Constituents most commonly observed in groundwater at the sites that w ere associated with CCR releases varied by site. Sulfate and boron were the two constituents with the most groundwater quality standard exceedances, and they were observed at the highest percentage of sites where they were monitored. Sulfate and boron are typically used as leachate indicators at fly ash management sites due to their common presence in fly ash leachate and relatively high mobility in groundwater. Their occurrence at the damage case sites is consistent with previous research showing that thes e two constituents were by far the most common drivers of groundwater remediation at CCR sites (EPRI, 2006). Most of the documented exceedances at the damage

cases were in on

- site wells; in our analysis 8 of the 54 groundwater damage cases had off

- site

gro undwater exceedances, and 3 of the 54 had off

- site exceedances of a maximum contaminant level (MCL). It is recognized, however, that not all sites had both on

- site and off

- site wells, and

not all sites monitored the same constituents.

In our analysis, sli ghtly more than 60 percent of the damage case sites were located in areas with low potential for groundwater receptors. CCR facilities that did not have receptors were usually either in a remote location, served by a public water supply, or located adjacen t to a surface water body such as a river or lake that intercepts groundwater before it can reach potential users. Our analysis also found that groundwater remediation was either completed or ongoing at 23 of the 24 proven damage case sites, as well as 24 of the potential damage cases, thereby significantly limiting potential for future risk from these sites. As previously noted, remediation is typically driven by the early arrival of the indicator constituents boron and sulfate, which mitigates the potenti al for impacts from the less mobile metals species (EPRI, 2006).

Of the nine surface water cases, eight were categorized as proven cases and one as potential. Five of the nine surface water cases are cooling water reservoirs where no CCPs were directly

de posited; four of these received discharge waters from CCP impoundments and one received runoff from a coal pile. Only two of the nine surface water cases had documented exceedances of water quality standards. The other cases were listed due to occurrence o f coal ash in sediment either within a surface water body or wetland, or due to selenium concentrations in fish tissue (three of which were later rescinded by the State of Texas).146

Response: The Agency generally concurs with EPRI’s conclusions about the de sign deficiencies and other characteristics of the 54 damage cases associated with impact to groundwater (16 classified as proven damage cases and 38

- as potential damage cases) that were compiled in EPA’s July 2007 report Coal Combustion Waste Damage Cas e Assessments that were assessed in EPRI’s 2010 reports. Characteristics shared by many of these cases include scarcity of liners and leachate collection systems (a reflection on their construction prior to or early on in the adoption of RCRA requirements by the states); not all sites had both on

- site and off

- site groundwater monitoring wells and not all sites monitored the same constituents; and that many of the surface water damage cases involved cooling water reservoirs where no CCRs were directly deposi ted but which received CCR effluents. However, presently the number of confirmed damage cases stands at around 150 (40 proven and the reminder

– potential), where the average construction age(s) are more recent (e.g., about six percent of the damage cases impacting groundwater were constructed after 1990); they are still predominated by the scarcity of liners and leachate collection systems; many still lack off site groundwater monitoring and not all sites have been monitoring for the same constituents; and whereby many of the surface water cases involve NPDES permits characterized by either limited and/or lax regulatory standards or by the absence of requirements for monitoring metal constituents in the CCR wastewater

effluents.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 10483

- 20 

### Organization 1 

### : Utility Solid Waste Activities Group (USWAG) et al.


### Commenter 1 : James R. Roewer Commenter Type: Trade Association

Classification: Substantive



### Comment Excerpt Text: C. The Alleged Damage Cases Presented by Envi ronmental Groups Are Not Proven and Cannot Be Relied Upon by EPA in This Rulemaking

EPA references the allegations of additional damage cases by certain environmental organizations, including in particular assertions made by the Environmental Integrity Pr oject (“EIP”) and Earthjustice in a February 24, 2010 report (75 Fed. Reg. at 35148) and, more recently, an August 26, 2010 report from the same two environmental organizations and the Sierra Club. EPA acknowledges that it has not had time to review these allegations, though it promises to review this information and encourages other stakeholders to also comment on these allegations. Id.

As an initial point, it is inappropriate for EPA to rely on the allegations of these environmental groups in any final r ulemaking for CCRs before the Agency has fully evaluated the allegations and provided an opportunity for public hearing and comment on EPA‘s initial conclusions. Indeed, this is precisely what the Bevill Amendment requires. Before making any final regulato ry determination, EPA is required to submit its initial recommendation, along with the reasons for this recommendation, in a Report to Congress, and to provide an opportunity for public comment and hearings on these initial findings. For EPA to base a new regulatory determination on the mere allegation of additional damage cases without first providing the public an opportunity to review and comment on EPA‘s initial conclusions regarding the147

allegations would be inconsistent with the dictates of the Bevill Amendment.

Past experience underscores the importance of this statutorily

- prescribed vetting process, as many of the previous allegations of damage cases identified by environmental groups have been meritless and have been dismissed by EPA as unsubstantia ted and/or incorrect. For example, prior to initiating this rulemaking, EPA gathered or received information on 135 alleged damage cases, many of which were submitted to EPA by the same environmental organizations referenced above. 75 Fed. Reg. at 35147. A fter evaluating these allegations, close to half (62) were dismissed “because there was little or no information supporting the concerns identified.” Id. Another six were outside the scope of the rulemaking. Id. Of the remaining 67 allegations, 24

were ide ntified as proven damage cases, but this included the 14 proven cases already identified in the 2000 Regulatory Determination. Id. The point is that less than two

- tenths of the cases “alleged” to have been damage cases have, in the end, been determined by EPA to be “proven” damage cases.

The same over

- counting of damage cases exist in the case of the more recent damage allegations submitted by EIP, Earthjustice and the Sierra Club. An initial analysis by EPRI of certain of these allegations reveals that th ere are similar factual errors and/or lack of a factual basis for classifying these sites as damage cases. As EPRI reports, these groups have identified 70 new alleged damage cases, “based primarily on researching state records.” EPRI Comments on CCR Propo sal (Nov. 19, 2010) (“EPRI Comments”) at 43. EPRI‘s summary review of these new allegations reveals the same type of factual errors and/or misinterpretations as contained in past damage case allegations presented by these groups. For example, EPRI reports that “[o]ff site migration claims are frequently not substantiated,” pointing out that for 35 of the alleged cases (half of the alleged new cases), environmental groups claim that groundwater contamination is “moving off

- site.” Id. at 47. In fact, however, the EPRI Report reveals that “there appears to be

little or no documentation of actual off

- site movement at these sites, and in fact the reports state many of these sites don‘t have off

- site wells.” Id. The lack of factual foundation and simple

factual er rors also undermine the veracity of the new allegations. In one case, single occurrences of elevated levels of certain metals were reported as evidence of contamination, when subsequent samples over the next 12 years were all very low, indicating that the “single occurrences clearly appear to be outliers.” Id. at 44. In yet another case, the groundwater well that is relied upon for alleging that contamination has been observed off

- site, is in fact located on

- site. Id. at 48. These types of factual errors an d unfounded assertions underlie many of the new allegations of damage cases made by the above organizations See id. at 43

- 49.

In fact, similar factual inaccuracies were identified by the Pennsylvania Department of Environmental Protection (“PADEP”) with r espect to the damage case allegations by EIP and Earthjustice in their February 2010 report entitled “Out of Control: Mounting Damages from Coal Ash Waste Sites.” In that report, EIP and Earthjustice identified four facilities located in the southwest regi on of PADEP as constituting “damage cases.” PADEP explains that “[s]ince the EIP report did not contain standard scientific documentation, the Department has responded based on a scientific review of each facility‘s data and the Department‘s familiarity of the sites and their groundwater data and impacts.” Commonwealth of Pennsylvania Department of Environmental Protection Southwest Region, Review of the Environmental Integrity Project and Earthjustice Report: “Out of Control: Mounting Damages From Coal Ash Waste Sites,” (Oct.13,148

2010) (attached as Appendix 24). The PADEP “reviewed and responded to each specific allegation point by point” and concluded, after a “methodical, organized and scientific review” of its data, that “the allegations regarding groundw ater and surface water contamination by Primary MCL‘s are unfounded.” Id.

In short, the Bevill Amendment prohibits EPA from relying on the new allegations of damage cases without first fully examining these allegations and providing the public with an opp ortunity to evaluate and comment on the Agency‘s initial findings. Given that the vast majority of similar allegations in the past have been meritless, this type of careful review is necessary to ensure that unfounded and/or incorrect charges of new damage cases are not used as the basis for any final

decisions.

Response: This rule will regulate CCRs under RCRA subtitle D: for further details, see unit IV of the preamble to the final rule.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0227

- 6 

### Organization 1 

### : Enter gy Services, Inc. (Entergy)


### Commenter 1 : Myra Glover Commenter Type: Electric Utility Company



### Comment Excerpt Text: The Alleged Damage Cases Presented By Environmental Groups Are Not Proven And Do Not Support The Subtitle C Option

The NODA identifies two reports prepared by environmental groups that, when taken together, allege that 70 CCR sites are “damage cases” that should be considered in the CCR rulemaking. The report, titled Out of Control: Mounting Damages From Coal Ash Wastes Sites (February 24,

20 10) (“Out of Control”), [Footnote 2: Environmental Integrity Project, Earthjustice, Out of Control: Mounting Damages From Coal Ash Waste Sites (Feb. 2010) (EPA

- HQ

- RCRA

- 2011

- 0392

- 0005).] presents 31 alleged CCR damage cases that EPA explains were not includ ed or recognized as proven damage cases in EPA’s July 2007 Coal Combustion Waste Damage Case Assessments (“EPA 2007 Report”). 76 Fed. Reg. at 63256. The second report, titled In Harm’s Way: Lack Of Federal Coal Ash Regulations Endangers Americans And Their Environment (August 26, 2010) (“In Harm’s Way”), presents an additional 39 alleged CCR damage cases [Footnote 3: Environmental Integrity Project, Earthjustice, Sierra Club, In Harm’s Way: Lack of Federal Coal Ash Regulations Endangers Americans And Their Environment (Aug. 2010) (EPA

HQ

- RCRA

- 2011

- 0392

- 0006).]. As discussed below, nothing presented in the alleged damage cases in Out of Control or In Harm’s Way support the regulation of CCR under RCRA Subtitle C or undermine EPA’s original decision in the 200 0 regulatory determination that the best means to address the damage cases is to “develop national Subtitle D regulations.” 65 Fed. Reg. at 32216.

The vast majority of alleged damage cases identified in In Harm’s Way and Out of Control do not present adeq uate information to even be considered as meeting the test of proof criteria necessary for EPA to evaluate the sites as proven damage cases. The small number of alleged damage cases that, based on the allegations taken at face value, potentially meet the c riteria for evaluation as a proven damage case, are either inactive units where remediation is complete149

and/or undergoing active remediation. Finally, the proposed Subtitle D regulations will prevent future damage cases. Therefore, nothing presented in In Harm’s Way or Out of Control supports the authors’ call for the regulation of CCR under RCRA Subtitle C when EPA’s proposed Subtitle D option will effectively address future issues associated with their alleged concerns regarding CCR management. Given the underlying goal of the Bevill Amendment that EPA avoid the Subtitle C regulation of CCR “if at all possible” (EDF v. EPA, 852 F.2d at 1314), there is no basis for EPA to rely on the damage case allegations in the above reports as the basis for pursuing the Subtitle C option.

Response to Environmental Integrity Project August 26, 2010 Report: In Harm’s Way: Lack of Federal Coal Ash Regulations Endangers Americans and Their Environment

– Independence

Steam Station

Entergy’s Independence Plant was included in the August 26, 2010 In Harm’s Way report. That report concluded that there is demonstrated damage to groundwater based on exceedances of federal maximum contaminant levels (MCLs) for arsenic, cadmium, and lead and exceedances of secondary MCLs (SMCLs) for iron, manganese, pH, total dissolved solids (TDS) and sulfate, and exceeded SMCLs along the eastern property line which make it extremely likely that off

- site contamination is occurring. The EIP report authors appear confused that no corrective action,

of f

- site monitoring or enforcement actions have occurred and that ADEQ did not object to the

cessation of a site

- wide monitoring program. Entergy agrees that plant activities have affected groundwater quality, especially with respect to sulfate and TDS but d isputes the facts and overtones that are presented in the report.

Test of Proof

The plant operated a site

- wide groundwater monitoring system from 1991 through 2008. The sitewide system consisted of a network of 32 monitoring wells, which includes a subse t of eight monitoring wells that continue to be used for monitoring the Class 3N ash landfill. Contrary to the assertion in the EIP report that other wells around the surge pond, various treatment ponds, and the plant are no longer sampled, Entergy has con tinued to voluntarily sample a smaller number (seven) of site

- wide wells in addition to the ash landfill wells to monitor potential impacts on groundwater quality from these ponds.

The majority of comments and opinions expressed in the EIP report concerni ng the condition of groundwater at the Independence site are based on data collected from February 2002 through October 2009 as part of the ash landfill monitoring program. Some consideration was given to

site

- wide historical data collected from 1991 to 19 95. Site

- wide data and information contained in one annual report and six biennial reports that were subsequently submitted to ADEQ between 1996 and 2008 form the basis for reducing the site

- wide monitoring program and were apparently ignored by EIP. Consi stent with EIPs presentation of their assessment, comments regarding this “test of proof” assessment are grouped into “historical site

- wide data” and “ash landfill monitoring program.”

Historical Site

- Wide Data150

All of the inorganic parameters (and more) shown on the table on page 8 of the EIP report occur in the earth’s crust thus they also occur naturally in groundwater, and some of these constituents have been detected in site groundwater. The EIP report wrongly concluded that heavy metal

concentrations of arsenic, lead, and cadmium concentrations in groundwater beneath the site exceed federal maximum contaminant levels (MCLs) for the following reasons:

• Groundwater beneath the Independence Plant currently does not have arsenic concentrations

above dri nking water standards. Arsenic has only been detected above the current MCL in two of 379 samples (1991

- present) that have been analyzed for arsenic. In September 1992, arsenic was detected in the samples from wells 409 and 410 (located near the recycle po nd and cooling towers, respectively) at concentrations that were above the current 10 μg /L MCL but below the 50 μg/L MCL applicable at the time of sampling. Arsenic has not been detected above the MCL since September 1992.

• Groundwater beneath the Indep endence Plant currently does not have lead concentrations above drinking water standards. Lead was detected at a concentration above its MCL in one of 396 samples that were analyzed (1991

- 1996). In September 1992, lead was above the current 15 μg/L MCL in the sample from well 410. There was no MCL for lead in 1992, but there was the

copper

- lead rule where a limit of 15 μg /L lead applied to public drinking water supplies (related to leaching of lead and copper in pipes). No lead was detected above the MCL i n sampling events subsequent to September 1992.

• Groundwater beneath the Independence Plant currently does not have cadmium concentrations above drinking water standards. Cadmium was detected in only one of 396 groundwater samples analyzed for cadmium (1 991

- 1996). Cadmium was above the 0.005 mg/L MCL in the sample from well 410 (0.006 mg/L) in February 1993. Cadmium was not detected above the MCL in sampling events subsequent to February 1993.

It is worthy to note that site

- wide monitoring for heavy meta ls ceased in 1997 with ADEQ concurrence because there were so few metal detections during the 1991

- 1996 monitoring period. The EIP report states that strontium levels in groundwater and source waters are too high and that secondary maximum contaminant leve ls (SMCLs) for some constituents were routinely exceeded. Following is a response to these concerns:

• The USEPA (2010) publishes tap water screening levels for some contaminants that do not have drinking water MCLs. Tap water screening levels are based o n ingestion of tap water and inhalation of chemicals volatilizing during residential indoor water use. The screening level for strontium is 22 mg/L. All of the data for the site show that strontium concentrations in groundwater and in potential source wate rs (surge pond, recycle ponds, and cooling tower sump) are approximately an order of magnitude below the EPA screening level, thus strontium levels are not too high nor do they represent a health threat.

• Entergy agrees that SMCLs for some constituents h ave been exceeded. The highest concentration of TDS (1,796 mg/L) cited in the EIP report occurred in a sample from the facility’s up gradient monitoring well (501D). Movement of groundwater from the surge pond, coal storage pile, etc. toward this well is p revented by the cone of depression that is created by151

the plant production wells. Thus the elevated TDS in this well indicates an off

- site source for

TDS.

The EIP report claims that Entergy’s interpretation regarding agricultural irrigation impacts to

sit e groundwater at well C

- 413 is flawed because C

- 413 is downgradient of the coal pile during

the summer months when off

- site irrigation pumping is greatest; rice requires more water for irrigation, therefore more pumping for rice should increase the rate of flow away from the plant property; and because TDS, strontium, and sulfate are classic indicator parameters of CCW runoff and are consistent with groundwater flow to the north from pumping. The report’s interpretation of groundwater flow and water quality data is based on a review of 1995 water level data and historical water quality data and ignores 15 years of subsequent data, which includes data from many more monitoring wells that were installed to improve interpretations of groundwater flow and qualit y. Contrary to the EIP report assertions,

• Well C

- 413 is not located downgradient of the coal pile, and groundwater from the coal pile does not pass through the well.

• TDS and sulfate are also classic indicators of agricultural impacts from irrigation return water
and sulfur

- containing fertilizers used on rice and soybeans.

• Off

- site agricultural impacts to groundwater along the northern property have been well documented. Irrigation water returns substantial volumes to groundwater especially where ri ce is concerned because, as EIP has stated, rice generally requires more water for irrigation. High mineralization in irrigation return flow makes it a prime source of pollution of groundwater. Geochemical analysis of groundwater samples from the northern perimeter show a water type (having elevated levels of TDS, chloride, and sodium) that is very different from that observed beneath other parts of the Plant.

Ash Landfill Data

The EIP report repeatedly refers to a “shortened list” of analytical parameter s that are being monitored at the ash landfill, implying that sampling is not being conducted in compliance with the permit. Such statements regarding the requirements of the Class 3N landfill permit indicate incomplete research on the part of the EIP auth ors because monitoring required by the permit is being performed. The Class 3N landfill was issued a permit modification on February 14, 2002. Prior to that date Entergy operated the landfill under Permit No. 0220

- S, which was issued in

October 1982. The m odified permit formalized the landfill groundwater monitoring program that had been in existence since 1991. The permit required monitoring of 28 parameters and that Entergy submit a statistical approach for evaluating groundwater data that conformed to

Re gulation 22. The permit, as well as Regulation 22.1204(a)(1) as indicated in paragraph 12 of ADEQ’s letter dated October 20, 2000, also allowed modification of the list of analytical parameters with ADEQ approval. Thus, upon completion of two years of quar terly sampling to establish background groundwater quality for the 28 permit parameters, A Statistical Evaluation Plan (“Plan”)(FTN, April 28, 2004) was developed as required by the permit, and based on the data evaluation, the Plan proposed an alternate l ist of 16 analytical parameters, which ADEQ approved by letter dated May 18, 2004. In 2009, the list of analytical parameters was expanded152

to 21 parameters in anticipation of an additional permit modification. Among these parameters are chromium, mercury, and selenium. None of these metals have been detected at concentrations above their respective MCLs (mercury and chromium have not been detected).

The EIP report summarized what were considered to be “key points” for the landfill monitoring program from 2 002 to 2007 (page 9) and the period from 2007 to 2009 (page 10). These key points are related to exceedances of SMCLs, presence of boron in groundwater, the laboratory detection limit for arsenic, rejection of data, and an expectation for corrective action based on statistically significant increases (SSIs) in data. Responses to these key points follow below.

EPA has established National Secondary Drinking Water Standards (NSDWS) that set non

mandatory water quality standards for six site

- related contamina nts. Neither EPA nor the state of Arkansas enforces these SMCLs. They are established only as guidelines to assist community water systems in managing their drinking water for aesthetic considerations, such as taste, color

and odor. These contaminants are not considered to present a risk to human health, and community water systems are not required to reduce these chemicals below the SMCL. However, water utilities control the levels of these chemicals in the water in order to prevent tap

water odor

- and tas te

- related customer complaints. The EIP report cites exceedances of the SMCLs for pH, iron, manganese, TDS, and sulfate, as follows:

• The SMCL for pH is 6.5 to 8.5 su because at pH levels below 6.5, water may corrode metal pipes imparting a metallic tast e to the water. The pH of pure water at 25°C is 7.0 su. Most natural groundwater found in the United States has pH values ranging from about 6.0 to 8.5 su (USGS 1970). EIP states that the “worst” results, i.e., pH values of 5.5 and 6.2 su, were for the

dow ngradient landfill wells. The landfill data show that in only 8 of 168 measurements in landfill monitoring wells were the pH measurements below 6.0 su, and five of those readings occurred during a single sampling event. It should be noted that similarly “w orst” results (pH less than 6.0 su) have also been reported for monitoring wells that are located upgradient of the facility and have not been affected by plant activities, and landfill leachate should increase pH in groundwater, not reduce it. Furthermore , data evaluations have shown that the landfill is not affecting the pH of groundwater.

• The EIP report identified exceedances of the iron SMCL only in the data for monitoring wells located downgradient of the landfill (604S and 605S), when iron also exc eeded the SMCL in upgradient landfill wells (413S and 602S). The report also stated that the highest iron concentration was 39.3 mg/L, which was a value that had been rejected after rigorous data review. The highest valid result was 17.4 mg/L. The EIP repo rt also fails to mention that the historical data shows iron concentrations above the SMCL in samples from monitoring wells located upgradient of the facility (i.e., D501, D508, and D509). The USEPA (2010) tap water screening level for iron is 26 mg/L. The data indicate that iron concentrations in groundwater are

below this health

- based screening level. Data evaluations have shown that the landfill is not affecting iron concentrations in groundwater.

• Manganese has been monitored only in relation to the l andfill monitoring program. The EIP report states that highest concentration measured is 8.35 mg/L, which was a value that had been rejected after rigorous data review. The highest valid result was 2.08 mg/L, found in an153

upgradient landfill monitoring well (602S). Manganese concentrations are above the 0.05 mg/L SMCL in landfill monitoring wells (including upgradient monitoring wells 602S and 413S); however, the data indicate that manganese concentrations in groundwater tend to be below the 0.88 mg/L tap

- wa ter screening level (USEPA 2010), although exceedances of this screening level have been observed in monitoring wells 602S (upgradient) and 606S (downgradient). A statistically significant increase (SSI) in manganese was reported for monitoring well 604S, which is located near the eastern property boundary as EIP has stated. The manganese concentration (0.11 mg/L, June 2007), however, was below the health

- based screening level and even lower manganese concentrations have been observed in the well since the June 2007 sampling event.

• The EIP report asserts that the highest reported TDS and sulfate concentrations as well as the most frequent exceedances of the SMCL were associated with wells closest to the landfill. However, there are data associated with th e site

- wide monitoring program that show exceedances of the SMCL for TDS and/or sulfate at eight other well locations that are not associated with the landfill, including 501D, which is a monitoring well that is located hydraulically upgradient of the enti re facility. For example, in October 2003, when EIP reports the highest concentration for TDS (910 mg/L) in well 603S, TDS levels were 930 mg/L in 410S, 1,000 mg/L in 600, and 2,500 mg/L in 501D. It is true that TDS and sulfate concentrations in groundwate r exceed their respective SMCLs, which are not health

- based limits, and this fact has been clearly documented in reports submitted to ADEQ by Entergy.

The EIP report raises concerns about boron concentrations in groundwater because boron is a

coal ash ind icator. The report stated that the highest reported concentrations were in samples from upgradient monitoring wells 603S (0.319 mg/L) and 511S (0.607 mg/L). Boron has historically been observed in groundwater site

- wide, including locations upgradient of th e facility. Boron is considered to be a minor constituent of most natural groundwater and important in agriculture as small amounts of boron are essential to plant growth. The USEPA (2010) tap water screening level for boron is 7.3 mg/L. Maximum boron conc entrations in site groundwater are an order of magnitude below this screening level.

The EIP report states that the detection limit for arsenic, which was equal to the MCL, made it impossible to determine if arsenic concentrations were increasing “until t he MCL had already been exceeded.” However, the MCL had not been exceeded in landfill wells. In October 2009, the laboratory detection limit was lowered from 0.010 mg/L to 0.0005 (an order of magnitude lower than that cited by EIP). No exceedance of the ar senic MCL has been found even with the lower laboratory detection limit. The EIP report further states that the arsenic concentration in 605S (0.007 mg/L) was “slightly less” that the MCL in October 2009, but the arsenic level in this

well was an order of magnitude less than the MCL (0.001 mg/L) in May 2010, demonstrating the variability of metals concentrations in groundwater.

During each reporting period, data are vigorously reviewed, verified, and validated. A specific process is followed in deciding to accept, reject, or qualify data. EIP report authors apparently takes issue with rejecting data. Specifically,

• EIP states (page 9) that arsenic exceeded the MCL by more than six times in one well (i.e.,154

upgradient well 602S) and implies that rejecting t he data due to high turbidity was improper. Data for 602S (up gradient of the landfill) from September 2006 showed elevated metals in general and arsenic was above the MCL. Metals concentrations in groundwater samples are affected by the presence of suspen ded sediment in the sample. There is evidence (turbidity measurements) which shows the level of suspended sediment in the sample was very high, therefore the analytical results were rejected because the sample was not representative, which is not only stan dard professional practice but this practice conforms to Arkansas Regulation 22 requirements.

• EIP states (page 10) that “AP&L rejected data for some sampling events when results were too high.” The examples they cited were metals in the September 2006 s ample from 602S, which have already been discussed. The manganese and iron in the May 2004 sample from 605 were also rejected based on turbidity readings. Prediction limit analysis of results from the October 2004 sampling produced SSIs for manganese at mo nitoring well 413S. Independent evidence of an error (calculation or transcription) in the manganese result for this wells was not corroborated by the laboratory, thus verification re

- sampling was conducted on December 2004 using the "one of two" approach (FTN 2004). No SSIs were detected in the verification data. In short, the bases for rejecting data are clearly supported and documented in monitoring reports, which EIP apparently did not review.

• Additionally, EIP apparently takes issue with rejecting t he groundwater data elevation for 605s (page 10). FTN (2009) described data from the well as “potentially anomalous” because the water level maps resulting from the anomalous data point indicated the presence of a groundwater “high” where there is no mecha nism to cause groundwater mounding. The reference point for the well was subsequently resurveyed and the elevation error was identified

and corrected.

The EIP report claims (page 9) that statistically significant increases (SSIs) in constituent

concentrat ions are a basis for corrective action and notes that an SSI for chloride in the data for 605S was detected. Chloride is not a significant constituent in subbituminous landfill ash leachate; it is not included in Appendix 3 of Regulation 22; and it does no t have a health

- based limit, thus FTN (2007) concluded the facility was in compliance with Arkansas Regulation 22.1204(c). SSIs do not trigger corrective action, but they may trigger if verification sampling

confirms the SSI.

The EIP report references cor respondence sent by Entergy to ADEQ (page 11) on September 17, 2009 regarding the permit modification application for the landfill. Two points about EIP’s assertions are worth addressing:

• The report mischaracterizes the letter by leaving out the primary reason why wells located 3⁄4 mile west of the landfill should not be used as “background” monitoring wells. EIP authors appear to be concerned about Entergy’s proposal to place background monitoring wells west of the landfill [upgradient] in an area “alread y contaminated” by other sources to determine if SSIs are occurring. This concern reflects an ignorance concerning the detection monitoring program and a lack of understanding of how statistics are used to determine if a waste management unit,

in this case , the ash landfill, is impacting groundwater. Importantly, USEPA (2004) states that “it155

is crucial to the detection monitoring hypothesis and use of interwell, upgradient

- to

downgradient comparisons that changes in groundwater quality only be caused by on

- site waste management activity and that they only affect downgradient wells. Otherwise it may be difficult if not impossible to accurately pinpoint the facility in question as the source or cause of the contaminated groundwater.” While monitoring wells loc ated 3⁄4 mile west of the landfill are have been used as background wells for the entire plant, groundwater at this location is not representative of background groundwater upgradient of the landfill.

• The EIP report claims that Entergy said it would not u se pre

- 2002 groundwater data to determine background, when in fact the referenced letter followed up on an ADEQ’s inquiry about why the data was not included in the database, to which Entergy responded that it was not

included in the database because it wa s not required by the permit.

At Risk Populations

The EIP report indicates there are 25 irrigation wells and three drinking water wells within a 2

- mile radius of the plant. It is not clear from the EIP report if the referenced irrigation wells are

near t he Independence Plant or near the Flint Creek site, as stated in the report. Previous work by Entergy has documented the presence of 45 wells within a 2 to 3 mile radius of the plant. Most of these wells are used for irrigation. The Plant’s three productio n wells are not used for drinking water supply. The Plant has two drinking water supply wells that the Arkansas Department of Health (ADH) tests on a regular basis. All ADH reports have stated, “the finished water quality

is within the allowable limits of the primary drinking water standards.”

The EIP report maintains that ADEQ has never required off

- site sampling of private or public wells near the facility to define the extent of contamination. The reason for this is that groundwater conditions are well below any MCL or risk

- based groundwater standards. The report further states that it is unclear what influence CCW disposal is having on the nearby White River; however, groundwater reports show that contamination does not extend south of the Plant

to the White River. Additionally, the Plant is in compliance with its NPDES permit which allows discharges from the waste management systems to the White River.

Regulatory Actions

As stated in the EIP report, ADEQ has not ordered any assessment monitoring or co rrective action because as stated in ADEQ’s letter dated October 16, 2009, “current groundwater concentrations near the landfill appear to be well below any MCL or risk

- based groundwater
standard.”

Contrary to the EIP statement about Entergy no longer mon itoring the plant area and surge pond, Entergy continues to voluntarily sample select plant area and surge pond monitoring wells and evaluate the data, however, Entergy no longer submits biennial reports to ADEQ.

With respect to the EIP statement regardin g the lack of corrective action, it should be noted that Entergy is committed to identifying cost

- effective best management practices (BMPs) to mitigate potential impacts on groundwater quality. For example,156

• Because sulfuric acid is intermittently added to generation unit cooling water for pH control, Entergy previously concluded that leaking underground cooling water pipes may be contributing to a higher than normal concentration of sulfates in groundwater. Maintaining the integrity of those pipes and c ontrolling leaks is an important plant maintenance objective and has been identified by plant management as a BMP for reducing the potential infiltration of cooling water into local groundwater resources. During scheduled maintenance outages at the plant, specialized contractors are employed to locate and repair significant leaks that occur at pipe joints and in cooling tower basins.

• The Independence Plant has two recycle ponds, which are used in the management of bottom ash and are potential sources aff ecting concentrations of TDS and sulfate in groundwater. Ash that accumulates in the ponds as a result of operations is periodically removed. Although not initially known, it was suspected that past ash removal activities in the ponds had lowered the pond bottom elevation thus reducing the flow path to the aquifer. In 2004 and 2005, Entergy undertook a voluntary program to construct clay liners in the pond bottoms and return the bottoms to their original design elevation.

The area of groundwater impacted b y enriched sulfate has decreased and numerous decreasing trends were observed in the data indicating that repairs to the recycle pond liners and on

- going efforts to repair leaking underground water lines appear to be having a positive effect on groundwater quality (FTN 2009).

In summary, the EIP report is flawed because it is based on incomplete research and lack of understanding of Arkansas environmental regulations; it’s authors selected data which had been rejected through a rigorous data validation pro cess to support their supposition; and the report fails to look at the bigger picture or entire site because at least 15 years of data from the site

- wide monitoring program have been ignored. Had the study been complete, EIP would have

concluded the follow ing:

• There are no heavy metals in groundwater above MCLs;

• There are no site

- related contaminants that exceed health

- based levels;

• Impacts from plant activities are related primarily to elevated levels of sulfate and TDS (sulfate being a primary co mponent of TDS);

• It is likely that off

- site migration of TDS and sulfate east of the plant is occurring;

• No regulatory enforcement or corrective action is necessary; and

• Entergy has voluntarily implemented best management practices/corrective acti ons which appear to be having a positive effect on groundwater quality beneath the site.

Response: Thank you for the detailed rebuttal of EIP’s claims. Without delving into the specific points of contention between EIP (the authors of the August 26, 2010 In Harm’s Way report) and157

Entergy, EPA designated the Independence Steam Station site in Newark, Arkansas as a confirmed potential damage case, based on the following conclusive statements by Entergy: (i) Impacts from plant activities are related primarily to elevated levels of sulfate and TDS (sulfate being a primary component of TDS); and (ii) it is likely that off

- site migration of TDS and sulfate east of the plant is occurring. In addition, in its comment to the 2011 NODA docket:

EPA

- HQ

- RCRA

- 2011

- 0392

- 0 249, Arkansas Department of Environmental Quality (ADEQ) stated that recent (May 2011 sampling) groundwater monitoring results indicate that there are no wells with primary MCL exceedances of arsenic, chromium, mercury, and selenium. Of the eight

wells aro und the landfill, the number of wells with water quality that exceeded SMCLs in that sampling event is as follows: TDS

– five wells; iron

– two wells; and pH

– two wells.



### Comment Number: TRANS

- CHI

- 0021

- 2 

### Organization 1 

### : Duke Energy


### Commenter 1 : Richard Meiers Commenter Type: Electric Utility Company

Classification: Substantive



### Comment Excerpt Text: Certain activist groups are alleging dozens of new damage cases, including Duke Energy facilities. In the final May 2000 Regulatory Determination concluding the CCRs do not warrant Subtitle C regulations, EPA was aware of 14 proven damage cases and 36 potential damage cases. EPA has since listed an additional 13 proven damage cases and only 4 four more potential damage cases, bringing the total to 27 proven da mages and 40 potential damage cases, respectively.

A close examination of the facts reveals many flaws in recent allegations made by activist groups regarding additional damage cases. Many of the assertions are based on extremely flimsy

evidence with unf

ounded conclusions. EPA cannot rely on those assertions in any final rulemaking without conducting its own factual, independent review of the sites and allowing for public comment on their findings.

Response: See response to comment excerpt EPA

- HQ

- RCRA

- 2009

- 0640

- 06398

- 64.



### Comment Number: TRANS

- CLT

- 0161

- 2 

### Organization 1 

### : Duke Energy


### Commenter 1 : Allan Stowe Commenter Type: Electric Utility Company

Classification: Substantive



### Comment Excerpt Text:

Environmental groups allege dozens of new damage cases, listing some Duke Energy facilities. The actual number of proven damage cases is quite small. The current total is 27 proven damage cases and 40 potential damage cases. A close examination of the facts will reveal many flaws in the recent allegations made regarding damage cases. Many of the assertions in the reports are based on extremely flimsy evidence, with unfounded conclusions meant to scare the public. EPA158

cannot rely on these assertions in any final rulemakin g without conducting its own factual, independent review of the sites and allowing for public notice and comment on its findings. For example, an Electric Power Research Institute analysis of the EPA damage case report in 2008 shows only a handful of thes e cases actually involve MCL exceedances. For example, of the 54 proven or potential damage cases cited by EPA in the report involving groundwater contamination, only three involved off

- site contamination exceeding MCLs. The same is likely true with the a lleged new damage cases cited by environmental groups. In fact, during their press conference, they acknowledged that some of these cases do not involve

off

- site contamination, but were merely speculating that the damage may migrate off

- site at some point in the future.

Response: See response to comment excerpt TRANS

- CHI

- 0021

- 2.



### Comment Number: TRANS

- PIT

- 0107

- 2 

### Organization 1 

### : Ohio Coal Association


### Commenter 1 : Mike Carey Commenter Type: Trade Association

Classification: Substantive



### Comment Excerpt Text: The EPA's new proposed rule is a reactionary response to isolated incidents and is nothing more than another attempt to put coal, only with the companies and individuals that we represent, out of business. The efforts to destroy the Appalachian coal indust ry is simply not going unnoticed.

Response: The Agency does not harbor any animosity towards the Appalachian coal industry. EPA is rather concerned about instances of CCR mismanagement by the utilities, which result in

threat to human health and the envir onment. This threat includes the health of employees of the coal industry and their family members residing next to coal

- fueled power plants who resort to the consumption of well water which is contaminated at times by an assortment of CCR

- leached metals, and the health of those among these employees and their kin who periodically engage in sport fishing. As clearly demonstrated by scientific studies, fish communities residing in cooling water reservoirs receiving effluent discharge from coal

- fired power pl ants frequently contain unacceptably high levels of selenium, a human toxicant that typically bioaccumulates in such

fish communities.

Section 8.4

- Damage cases reflect old practices



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06011

- 10 

### Organization 1 

### : Public Service Commission (PSC)

- State of North Dakota


### Commenter 1 : Tony Clark Commenter Type: State Government
Classification: Substantive



### Comment Excerpt Text: We noted that the preamble to EPA's proposed rules (F.R. pages 35235 and 35236) lists two159

North Dako ta ash disposal sites with damage to groundwater. However, these sites were initially constructed long before the Health Department adopted its rules for coal ash disposal in the mid

1980's.

Response: EPA now has records of four confirmed damage cases in North Dakota (Heskett Station, Neal Plant, Coal Creek Station, and Leland Olds). EPA agrees with the commenter that practically all the North Dakota CCR management units that are implicated in the impact to groundwater were constructed prior to the 1980s.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06202

- 33 

### Organization 1 

### : American Coal Ash Association (ACAA)


### Commenter 1 : Thomas H. Adams Commenter Type: Trade Association

Classification: Substantive Comment Category:



### Comment Excerpt Text: d. Response to EPA’s Specific Damage Cases

1. Existing Industry Standards for CCPs in Structural Fills Promote their Sound Use

As discussed in more detail above, there are numerous standards that have been developed to

address the use of CCPs in structural fills. The first w as a handbook authored by the Electric Power Research Institute (EPRI) in 1979, “Fly Ash Structural Fill Handbook.” The first ASTM standard was issued in 1995 and updated and reissued in 1997, and again in 2003. Standards and technical guidance are now ava ilable from a variety of sources (ASTM, PCA, FHWA, RMRC, ACI, AASHTO, and individual states).

Response: The availability of guidance documents does not necessarily guarantee the universal adoption of their guidelines by practitioners. This cannot be bette r illustrated than by the Gambrills, BBSS CCR quarry reclamation site in Mayland that was permitted by the state and operated between 1995 and 2007; and the Battlefield Golf Club, Chesapeake, Virginia, where a large structural fill project was carried out between 2002 and 2007. In the latter case, the fill project was executed although a precursor modeling (in 2001) suggested that CCR leachate might impact the drinking water wells of the adjoining properties.

2. Damages Case Definitions

In a 2007 report t itled “Coal Combustion Waste Damage Case Assessments,” EPA identified 67 cases of CCP management with groundwater or surface water impacts that it categorized as “potential” or “proven” damage cases. As defined in the preamble of the proposed rule, “potent ial damage cases” are those where there is a documented exceedance of a federal primary drinking water standard or maximum contaminant level (MCL) in groundwater beneath or close to the waste management unit; these are cases where exceedances have not been demonstrated at a sufficient distance from the unit to pose a human health concern. A “proven damage case” is

one where there are documented exceedances of an MCL or other healthbased standard at a160

sufficient distance from a source such that it could caus e a human health concern, or where a scientific study has documented damage to human health or the environment, or where there has been an administrative ruling with an explicit finding of a damage to human health or the

environment.

It should be noted he re that in the context of human health, the “damage” as defined by EPA relates to the concentrations of constituents in groundwater relative to a standard (e.g., MCL). The presence of an exceedance of an MCL in groundwater off

- site of a waste management un it,

or even in an off

- site drinking water well, may result in that situation being classified as a damage case, but it does not mean that actual damage to human health has occurred. Drinking water standards are generally set by EPA and state agencies based on very conservative estimates of constituent toxicity and are generally set to be lower than levels that would be calculated to be safe for daily exposure even over a lifetime.

3. Damages Cases that Relate to Beneficial Uses

The damage cases that EPA c ites in its 2007 report that potentially relate to beneficial use are listed and summarized in Table 1 for proven damage cases and Table 2 for the potential damage cases (damage case numbering as provided in EPA’s report). The information for each case was obtained from an EPRI report entitled “Evaluation of Coal Combustion Product Damage Cases, Volumes 1 and 2” (EPRI Technical Reports Nos. 1020553 and 1020554; available at www.epri.com), that collected and evaluated data pertaining to each of the damage ca ses identified by EPA.

With the exception of one case, the damage cases all relate to the use of CCPs as fill for quarries. None of these cases represent “indiscriminant” uses of CCPs

– all were used for a specific purpose, to reclaim a quarry, or to prov ide road base and fill to support roads. These activities occurred from as early as 1940 through the 1970’s, with two of the potential damage cases active in the 1980’s and 1990’s. Note that industry standards for various types of structural fill projects, as described above, were not developed until the late 1990’s and beyond. Thus the use of CCP’s as fill in these cases predates the development of industry standards for their use.

It is also instructive to note that remediation has been completed or is o n

- going for all of these damage cases, mainly under state authority, but in two instances with federal oversight. Only two of the six proven damage cases indicate that drinking water was impacted by the filling activities, as evidenced by the provision of municipal water as a remedial action. These proven and potential damage cases were identified, investigated, and remediation conducted (and in many cases completed) without the involvement of a federal regulatory program such as that contemplated by EPA un der Subtitle C in this proposed rule

- making. Thus it is clear that the potential or proven damage from these instances of historic use of CCPs for quarry fill have been identified and addressed under existing state authorities or under existing federal aut hority. The damage cases do not indicate a need nor provide support for providing direct federal regulatory authority for CCP regulation under a Subtitle C proposal. These cases do demonstrate that current and even historic state programs have adequately a ddressed environmental impact from

these sites.161

In the preamble, EPA identifies several other damage cases that were not included in the 2007 report. One of these is the TVA Kingston facility; this damage case is due to a structural failure

and not an env ironmental failure. It is inappropriate to invoke a Subtitle C hazardous waste regulatory program on the basis of this case; as a structural failure, it can be addressed by dam safety programs. Another additional case is the Battlefield Golf Course in Ches apeake, VA;
EPA’s own evaluation of this case indicates that there are no off

- site impacts to groundwater and, thus, it is not classified as a proven damage case. Finally, EPA identifies the BBSS Quarry in Gambrills, MD as a new proven damage case and uses it to support their position that large scale structural fills are not legitimate beneficial uses. The comments being submitted by Constellation Energy on the proposed rule provides more detail on this case.

Table 1. Proven Damage Cases as Identified by EPA (1997) that Relate to Beneficial Use

2. City of Beverly/Vitale Brothers Fly Ash Pit, Massachusetts

• Sand & gravel quarry

– 18 acres

• Operation mid

- 1950’s to mid

- 1970’s

• Remediation performed

• Closed under state program

• No indication of drin king water impacts

6. Yorktown Power Station, Chisman Creek Disposal Site, Virginia

• Sand & gravel quarry

– 27 acres

• Operation 1957 to mid

- 1970’s

• Added to National Priorities List (NPL), remediation performed, ROD signed

• Alternate water supply provided to 55 homes

14. Highway 59 Landfill, Wisconsin

• Gravel quarry

– 23 acres

• Operation between 1969 and 1978

• Remediation performed

• Alternate water supply provided to 10 homes and 4 commercial buildings162

• State oversight

• No indication of drinking water impacts

17. Port Washington Facility, Wisconsin

• Limestone quarry

– 15 acres

– 735,000 yd3

• Operation in 1940’s and 1950’s

• Remediation performed

• EPRI evaluation concluded that there is no evidence that this is a proven damage case; exceedances were on

- site and off

- site well was not above MCLs

18. North Lansing Landfill, Michigan

• Sand & gravel quarry

– 27 acres

– 1 million yd3

• Licensed for disposal of inert materials

– Operation between 1980 and 1997

• Remediation on

- go ing

• State oversight

• No indication of drinking water impacts

– urban area

19. Yard 520 Landfill (Brown’s Landfill), Township of Pines, Indiana

• Coal ash landfill permitted by the state

– 45 acres

• Older area of landfill is unlined, newer area is clay

- lined on bottom and sides

• Operation in unlined landfill area between 1960’s and 1980’s

• Coal ash was used as road base and fill in areas of the town in the 1970’s

• Remedial Investigation conducted under federal Administrative Order; process on

- going; landfill has been closed under state program

• Municipal water was provided to approximately 250 addresses Table 2. Potential Damage Cases as Identified by EPA (1997) that Relate to Beneficial Use163

25. K.R. Rezendes South Main Street Ash Landfill , Massachusetts

• Sand & gravel quarry

– 31.5 acres

– 2.5 million tons

• Operation 1975 through 2001

• Remediation (capping) on

- going

• State oversight

• No drinking water impacts

58. Miamiview Landfill, Ohio

• Sand & gravel quarry

– 100 acres (wit h clay liner)

• Constructed in 1983 as reclamation project

• Closed and capped in 1996

• No drinking water impacts

62. Lemberger Landfill, Wisconsin

• Gravel pit

– 21

- acre municipal solid waste (MSW) landfill

– ash used as daily cover

• Open dump fr om 1940 to 1970

– permitted for MSW with ash as cover in 1969

• On the NPL in 1984

• Remediation completed in 1996

• No drinking water impacts

Response: See response to comment excerpt EPA

- HQ

- RCRA

- 2009

- 0640

- 06202

- 33, “ 3. Damage

Cases that Relate to Ben eficial Use.”



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06202

- 45 

### Organization 1 

### : American Coal Ash Association (ACAA)


### Commenter 1 : Thomas H. Adams Commenter Type: Trade Association

Classification: Substantive164



### Comment Excerpt Text: EPA Question: While EPA does not want to negatively impact the legitimate beneficial use of CCRs unnecessarily, we are also aware of the need to fully consider the risks, management practices, state controls, research, and any other pertinent information. Thus, to help EPA

determine whether to revise its approach and regulate, for example, unencapsulated uses of CCRs on the land, we solicit comments on whether to regulate, and if so, the most appropriate regulatory approach to be taken.

ACAA Answer: In its proposal, EPA has suggested that it may regulate the unencapsulated uses of CCPs either through Subtitle C or Subtitle D of RCRA. The rationale given to regulate beneficial use as presented in its proposal is based upon so called damage cases that occurred many years ago, and infers that these practices that occurred years ago reflect the current state of the beneficial use of coal ash in the United States. ACAA recognizes the fact that some states may not have those procedures in place that follow the recommended practices outlined above for all structural fills to ensure proper engineering procedures and safeguards to the environment from beneficial use. We are not aware of any states that have reported damage to the environment or negatively impacted public health that warrants the regulation of the beneficial use of coal ash by Subtitle C of RCRA. If EPA finds it necessary to regulate the beneficial use of CCPs, the only acceptable and reasonable approach would be through Subtitle D of RCRA.

Response: This rule will regulate CCRs under RCRA subtitle D, while the Bevil exemption is retained for most applications of beneficial use. For further details, see Unit IV of the preamble

of the final rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06202

- 58 

### Organization 1 

### : American Coal Ash Association (ACAA)


### Commenter 1 : Thomas H. Adams Commenter Type: Trade Association

Classification: Substantive



### Comment Excerpt Text: 1. Damage Cases

In its proposal, EPA has offered two options to regulate the unencapsulat ed use of CCPs: either through Subtitle C or Subtitle D of RCRA. The rationale given to regulate beneficial use is based upon “...damage cases associated with disposal in sand and gravel quarries that occurred many years ago, as well as a few cases...” of what EPA refers to as “large

- scale fill projects.”

ACAA agrees with EPA that there is a need to further strengthen engineering and environmental considerations that are used in implementing beneficial use in certain limited applications, namely high

- volume st ructural fill uses where the volume and site characteristics may require more engineering to protect public health and the environment. However, ACAA does not agree with EPA that past poorly planned and executed disposal practices at sand and gravel quarri es are relevant as they relate to the impacts that the beneficial use of CCPs has on the environment or to the threat they pose to public health. These damage cases only point out the need for165

properly engineered projects, and bear no resemblance to the us es described in this comment

document.

Response: As articulated by commenters to the October 2011 NODA, size alone is not an adequate predictor of a damage that could potentially be associated with an unlined CCR structural fill. Additional variables, suc h as the composition of the CCR, the availability of run

on, and the permeability of the natural substrate would also determine the prospects for groundwater contamination. This view was adopted by the Agency in developing guidance for structural fill proj ects that deploy more than 12,400 ton of CCRs. For further details, the commenter is referred to Unit IV of the preamble to the final rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06202

- 70 

### Organization 1 

### : American Coal Ash Association (ACAA)


### Commenter 1 : Tho mas H. Adams Commenter Type: Trade Association

Classification: Substantive



### Comment Excerpt Text: EPA Question: EPA solicits comments on EPRI’s report and welcomes additional data regarding the proven damage cases identified by EPA, especially the degree to which there was offsite

contamination.

ACAA Answer: The so

- called damage cases reported by EPA are not representative of beneficial use projects that are designed and constructed using the guidelines provided in ACAA’s

comments.

Response: See response to comment excerpt EPA

- HQ

- RCRA

- 2009

- 0640

- 06202

- 33.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06202

- 71 

### Organization 1 

### : American Coal Ash Association (ACAA)


### Commenter 1 : Thomas H. Adams Commenter Type: Trade Association



### Comment Excerpt Text: EPA Question: We e ncourage commenters on the proposal to consider this material (footnote), which EPA has placed in the rulemaking docket, as they prepare comments. Footnote: On February 24, the Environmental Integrity Project and EarthJustice issued a report on 31 'new'

al leged CCRs damage cases...[as well as the EPRI report]

ACAA Answer: Same comment as Question 14.

Response: Note: This response is addressing the arguments summarized in the last paragraph of the Executive Summary of comment EPA

- HQ

- RCRA

- 2009

- 0640

- 6202: < The overwhelming technical, legal, economic and practical arguments included in these comments support implementation of a national standard for the management and disposal of all coal combustion166

residuals under a subtitle D program within RCRA that will a llow the continued use of these valuable materials without regulatory cloud or stigma.>

The EPA decided to regulate the disposal of CCR under subtitle D of RCRA by issuing minimum national criteria. Similar to the subtitle C option, this option would req uire composite liners, groundwater monitoring, structural stability requirements, corrective action, and closure/post closure care. However, given available statutory authorities, EPA proposed this option to be a self

- implementing rule with no direct fede ral oversight, with an effective six months after publication in the Federal Register . The Agency is deferring its final Bevill Regulatory Determination with respect to CCRs that are disposed in CCR landfills and CCR surface impoundments until additional i nformation is available on a number of key technical and policy questions, including the risks of CCR disposal based on its arsenic content, such as the appropriate safe daily dose for arsenic and the speciation of arsenic in the environment, and the
poten tial impacts of recent Agency regulations on the chemical composition of CCR. In addition, the Agency needs additional information on state programs before it is in a position to make a final Bevill Regulatory Determination.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06202

- 73 

### Organization 1 

### : American Coal Ash Association (ACAA)


### Commenter 1 : Thomas H. Adams Commenter Type: Trade Association



### Comment Excerpt Text: EPA Question: In the interest of reaching a more complete understanding of the nature and

number of damage cases....EPA encourages commenters to consider all of these analyses in developing their comments.

ACAA Answer: Same comment as Question 14.

Response: See response to comment excerpt EPA

- HQ

- RCRA

- 2009

- 0640

- 06202

- 71.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06202

- 86 

### Organization 1 

### : American Coal Ash Association (ACAA)


### Commenter 1 : Thomas H. Adams Commenter Type: Trade Association

Classification: Substantive



### Comment Excerpt Text: EPA Question: While EPA does not want to negatively impact the legitimate be neficial use of CCRs unnecessarily, we are also aware of the need to fully consider the risks, management practices, state controls, research, and any other pertinent information. Thus, to help EPA determine whether to revise its approach and regulate, for example, unencapsulated uses of CCRs on the land, we solicit comments on whether to regulate, and if so, the most appropriate regulatory approach to be taken.167

ACAA Answer: In its proposal, EPA has suggested that it may regulate the unencapsulated uses

of CCPs either through Subtitle C or Subtitle D of RCRA. The rationale given to regulate beneficial use as presented in its proposal is based upon socalled damage cases associated with simple disposal in sand and gravel quarries that occurred many years ago, and infers that these practices that occurred years ago reflect the current state of the beneficial use of coal ash in the

United States.

ACAA recognizes the fact that some states may not have those procedures in place that follow the recommended practic es outlined here to ensure proper engineering procedures and safeguards to the environment from beneficial use. Even though procedures for the beneficial use of coal ash across the states are not uniform, no states to our knowledge have reported damage to the environment or negatively impacted public health that warrants the regulation of the beneficial use of coal ash by Subtitle C of RCRA.

If EPA finds it necessary to regulate the beneficial use of CCPs, the preferable approach would be through Subtitle D of RCRA. Most states that have successful programs, for example Wisconsin under NR 538, regulate the beneficial use of ash through regulations similar to those procedures recommended here rather than demonizing its use by inferring the material is

hazard ous.

Response: See response to comment excerpt EPA

- HQ

- RCRA

- 2009

- 0640

- 06202

- 71.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06203

- 15 

### Organization 1 

### : Arizona Public Service Company (APS)


### Commenter 1 : Scott Davis Commenter Type: Electric Utility Company

Classifica tion: Substantive



### Comment Excerpt Text:

IV. DAMAGE CASES

EPA suggests that the newly identified "damage cases" may warrant reversal of its final 2000 Regulatory Determination, resulting in the regulation of CCRs under RCRA Subtitle C. [FN 6:

One of the eight statutory study factors that EPA must evaluate in determining whether CCRs warrant regulation under RCRA Subtitle C is "documented cases in which danger to human health or the environment from surface runoff or leachate has been proved." RCRA § 8002( n)(4). These cases are referred to by EPA as "damage cases." See 75 Fed. Reg. at 35146.] 75 Fed. Reg.

at 35155

- 56. However, the new damage cases, which are limited almost exclusively to older, unlined units as were the original damage cases, in no way unde rmine EPA's original decision in the 2000 Regulatory Determination that the best means to address the damage cases is to "develop national Subtitle D regulations." 65 Fed. Reg. at 32216.

At the time of the final 2000 Regulatory Determination, EPA had iden tified 14 "proven" damage cases[FN 7: "Proven" damage cases "means those cases with (i) Documented exceedances of primary maximum contaminant levels (MCls) or other health

- based standards measured in ground water at sufficient distance from the waste manag ement unit to indicate that168

hazardous constituents have migrated to the extent that they could cause human health concerns, and/or (ii) where a scientific study provides documented evidence of another type of damage to human health or the environment (e.g. , ecological damage), and/or (iii) where there has been an administrative ruling or court decision with an explicit finding of specific damage to human health or the environment." 75 Fed. Reg. at 35131.] and 36 "potential" damage cases. [FN 8:

Potential da mage case means those cases with documented MCl exceedances that were measured in ground water beneath or close to the waste source. In these cases, while the association with CCRs has been established, the documented exceedances had not been demonstrated at a sufficient distance from the waste management unit to indicate that waste constituents had migrated to the extent that they could cause human health concerns. Id.] 75 Fed. Reg. at 35142. Since that time, EPA has identified 13 additional proven damage cases and four more potential damage cases, bringing the total to 27 proven cases and 40 potential damage cases. Id. at 35143. Virtually all of these damage cases involve unlined units that began operation prior to 1990;

these cases do not involve the newe r, lined units that have commenced operation since that time. See "Evaluation of Coal Combustion Product Damage Cases," Electric Power Research Institute ("EPRI"), July 2010 (EPRI Report No.1 020553) ("EPRI Damage Case Report").

The proposed Subtitle D re quirements

- including the liner, groundwater monitoring, corrective action and structural stability requirements

- would be fully effective in addressing EPA's concerns about the damage case sites without the attendant adverse impacts of the Subtitle C

op tion. Therefore, the new damage cases justify neither the reversal of EPA's 2000 final Regulatory Determination nor the resulting regulation of CCRs under Subtitle C.

APS also feels it is important to emphasize that it is inappropriate for EPA to include potential damage cases in its evaluation of the appropriate regulatory option for CCRs. The Bevill Amendment provides that, in considering the "documented cases" of danger from the management of CCRs, the Agency was only to evaluate those instances where s uch danger "has been proved." RCRA § 8002(n)(4) (emphasis added). EPA has acknowledged this statutory limitation, observing in its final 2000 Regulatory Determination that, although the potential damage cases may pose a "potential danger" to human health a nd the environment in some circumstances, they do not "satisfy the statutory criteria of documented, proven damage cases because damage to human health or the environment has not been proven ...." 65 Fed. Reg. at 32225. Therefore, it is inconsistent with t he plain language of the statute for EPA to include the potential damage cases in its assessment of the "documented cases" of danger to human health and the environment from the management of CCRs. EPA cannot use the potential damage cases

as the foundatio n for a reversal of its final 2000 Regulatory Determination.

Response: This rule will regulate CCRs under RCRA subtitle D: for further details, see unit IV of the preamble to the final rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06223

- 1 

### Organization 1 

### : O hio Utility Group


### Commenter 1 : Michael E. Born Commenter Type: Trade Association



### Comment Excerpt Text:169

In the preamble, U.S. EPA notes that the impetus behind its new initiative is based on a single tragic accident that occurred at a TVA facility in Decemb er, 2008. For U.S. EPA to change the course of over thirty years of regulation based on a single occurrence is unsupportable. While EPA also refers to other incidents that have occurred to support its proposals, virtually all such

incidents were a function of a failure of older, unlined containment systems and do not in any way support the conclusion that CCRs have suddenly become a hazardous waste. The overwhelming majority of the record before U.S. EPA demonstrates that the current approach to regulation

– wherein the states, such as Ohio, regulate CCRs as a nonhazardous waste

– has worked well and proven itself environmentally sound and cost effective. U.S. EPA cannot justify its current proposal on either the overall record of states’ successful regulati on of CCRs to date, or the singular event of TVA’s Kingston structural failure (which had no basis in the CCR’s status as a nonhazardous waste but resulted from the unique management techniques and other critical factors at that TVA facility).

Response: This rule will regulate CCRs under RCRA subtitle D: for further details, see unit IV of the preamble to the final rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06260

- 104 

### Organization 1 

### : Kentucky Department for Environmental Protection


### Commenter 1 : R. Bruce Scott Commenter Type: State Government



### Comment Excerpt Text: The EPRI report is consistent with the findings of the Commonwealth in that contaminants associated with the facilities in the damage cases are likely to be older, unlined facilities.

Response: Whereas unlined facilities still predominate the expanded record of damage cases now confirmed by the Agency, the fact that about six percent of the CCR management units that are associated with groundwater impacts have been constructed since 1990 is of g reat concern to the Agency. Furthermore, c onsidering the lag time between the construction of many of the disposal units and the first detection of their groundwater impact by groundwater monitoring wells as well as the significant number of CCR management units that still lack such monitoring, EPA believes that the damage case record in hand is far from complete and is skewed towards older

waste units.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06352

- 1 

### Organization 1 

### : Dayton Power & Light Company (DP&L)


### Commenter 1 : JoAnne Rau Commenter Type: Electric Utility Company

Classification: Substantive



### Comment Excerpt Text: Subtitle C Option

In its background to the proposed rule, USEPA states that the decision to propose federal170

oversight for CCRs is " ... driv en in part bi the failure of a surface impoundment retaining wall in Kingston, TN in December 2009" (sic) [FN 2: 75 Fed. Reg. at 35132. The Kingston release occurred in 2008.] and refers elsewhere in the preamble to this incident as one of the main

factors precipitating the agency's actions. While DP&L recognizes the seriousness of this event, the fact of the matter is that the release was the result of a structural failure in the impoundment

from which the release occurred and was not a function of the cha racteristics of the CCRs that were being managed. In addition, the type of management practice that was being performed at the TVA Kingston facility (wet stacking) is not one in which DP&L engages and to DP&L's understanding is not a common technique in th e industry as a whole. Furthermore, the numerous

follow

- up studies conducted on the TVA Kingston release verify that the resulting environmental impact did not rise to the level justifying the imposition of a hazardous waste program regulating CCRs pursuan t to subtitle C of RCRA. In short, even a release of unprecedented size like the TVA failure, did not result in the kind of environmental harm that would be typical for a release of hazardous waste. The TVA release suggests that steps may need to be taken to improve the physical impoundment structures, management practices, maintenance and monitoring. But that would true even if the massive release consisted merely of clean fill dirt. The TVA release does not suggest that CCRs that have long been classified as non

- hazardous waste should now be

reclassified as hazardous wastes.

Additionally, USEPA cites the release of CCRs from the Martins Creek plant in Martins Creek, Pennsylvania as a driver for the proposed rulemaking. Again, this release was not a functi on of the material managed at the impoundment but of a failed outfall gate. Proper management and oversight of CCR facilities would prevent these types of occurrences through regulation without the inappropriate hazardous waste designation for the material being handled.

Response: This rule will regulate CCRs under RCRA subtitle D: for further details, see unit IV of the preamble to the final rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06446

- 15 

### Organization 1 

### : Hoosier Energy Rural Electric Cooperative (RE C), Inc.


### Commenter 1 : Michalene Reilly Commenter Type: Electric Utility Company

Classification: Substantive



### Comment Excerpt Text: F. State Enforcement of CCR Regulations

Hoosier Energy is located in the State of Indiana which currently has a very vibrant and effective program for managing CCRs. Landfill design is based the risks posed by the level of constituents in the ash. In fact, a Type I facility has the same requirements as a municipal solid waste landfill. Landfill operators are required to certifie d and then receive annual training. Regular inspections include additional solid waste personnel (such as the permit manager, a representative from IDEMs engineering or geology section) during times of permitting or if there is an issue with the facility. Hoosier Energy supports state regulation of facilities by the individual states. If a state refuses to regulate, EPA can step in. However, adequate programs that are doing the job should not be usurped by federal regulation. It should be noted that much of the evidence submitted171

against state regulation sites damage cases. Many of those cases come from facilities that were in place long before RCRA was even a law. In Indiana, many facilities were in place before the Department of Environmental Management wa s created. To say that RCRA standards are required based on the standards of what was done in the 1980’s vs. how State’s have regulated CCRs in the last 5 years, appears to be arbitrary and lacking any kind of logic.

Response: This rule will regulate CCRs under RCRA subtitle D: for further details, see unit IV of the preamble to the final rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06534

- 6 

### Organization 1 

### : Lafarge North America Inc.


### Commenter 1 : Brian Gasiorowski on behalf of Craig S. Campbell Commenter Typ e: Beneficial User



### Comment Excerpt Text: 1. The Seventeen (17) Damage Cases and the Kingston Event In 1993 and 2000, EPA issued final regulatory determinations based upon two separate Reports to Congress, concluding that “. . . CCRs do not warrant regulat ion under RCRA’s hazardous waste program. Instead, fully protective federal rules for CCRs can be developed under RCRA’s Subtitle D non hazardous waste program.”

EPA’s current proposal references seventeen damage cases. A number of these damage cases

occu rred many years ago and seem to involve either an indiscriminate or untested filling of large scale fill projects associated with disposal in sand and gravel quarries or other geologically or hydrogeologically sensitive areas. These poorly planned projects that proceeded with inadequate attention to appropriate engineering and / or environmental controls should not be allowed to taint the countless competently constructed projects finalized over the course of nearly 65 years.

Response: See response to comm ent excerpt EPA

- HQ

- RCRA

- 2009

- 0640

- 06260

- 104.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06726

- 1 

### Organization 1 

### : The North American Coal Corporation


### Commenter 1 : Joseph D. Friedlander Commenter Type: Other Company



### Comment Excerpt Text: In the preamble to the proposed rule, EPA cites damage cases that they have become aware of since their May 2000 regulatory determination. 75 Fed. Reg. 35,142

- 35,143. However, some of these may have been created several years ago before a general awareness of potential hazards from uncontrolled placement of CCRs. Recent state regulation, guidance and modern waste handling techniques may preclude similar events, without the necessity of Subtitle C hazardous waste designation. There is little support for the notion that a new Subt itle C hazardous waste designation for CCRs and subsequent federal regulation at this time would have avoided these previous cases, especially in light of new management techniques used by utilities and increased state regulation.172

Response: This rule will regulate CCRs under RCRA subtitle D: for further details, see unit IV of the preamble to the final rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06815

- 32 

### Organization 1 

### : Michigan Department of Natural Resources and Environment (DNRE)


### Commenter 1 : Liane J. Shekter Smith Commenter Type: State Government
Classification: Substantive



### Comment Excerpt Text: Michigan has eight sites that have been subject to corrective action due to releases from facilities that accept or have accepted CCR. All of these damage cas es were from releases to the ground or surface water from historical unlined landfills or surface impoundments, and all sites have either ceased accepting CCR and have been capped, or have closed and capped the portion of the disposal facility that was the source of the release. The releases from these unlined facilities were detected by the hydrogeological monitoring systems required under Michigan's Solid Waste Management Act. Upon detection of an exceedance of the background groundwater quality, each

fac ility was required to institute corrective action measures, including a response action plan, a remedial investigation to determine the extent of contamination, and the development of a corrective action plan, known in Michigan as a Remedial Action Plan, t o address the release. No structural failures of surface impoundments have occurred. Only one of these sites was included in the Table of EPA's Proven Damage Cases found in the Preamble. Please see Attachment 5 for a summary of damage cases in Michigan.

R esponse: We appreciate Michigan DNRE’s initiative to supplement our database of confirmed damage cases. Moreover, we also appreciate the fact that Michigan's Solid Waste Management Act has been applied early enough to detect the release associated with the se cases, as well as Michigan’s fastidious implementation of remedial action steps, including a response action plan, a remedial investigation to determine the extent of contamination, and the development of a corrective action plan to address the releases

.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06817

- 39 

### Organization 1 

### : Portland Cement Association


### Commenter 1 : Robert Hirsch Commenter Type: Trade Association



### Comment Excerpt Text: The NPRM’s preamble makes clear that the catalyst for this rulemaking was the failure of the impoundment at Kingston, Tennessee, 75 Fed. Reg. at 35132, as well as the other damage cases involving CCRs that the agency has analyzed. A review of investigative findings for the Kingston, TN failure and also the other damage cases EPA has analyzed makes abundantly clear that, in every instance, the cause for the leaching or spill can be attributed to an inadequacy in the containment system.173

Response: We agree with the commenter that the majority of CCR damage cases are associated with improperly designed surface impoundments.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06817

- 41 

### Organization 1 

### : Portland Cement Association


### Commenter 1 : Robert Hirsch
Commenter Type: Trade Association



### Comment Excerpt Text: It is also especially noteworthy, that the damage case investigative report conducted for EPA did not focus on identifying the root cause for the spill or leaching from any of facilities investigated,

and ins tead focused on the consequences. [FN 49: “Evaluation of Coal Combustion Product Damage Cases,” Vol. 2: Site Information. EPA

- HQ

- RCRA

- 2009

- 0640

- 0327.] Based on the information that is provided in EPA’s damage case assessment, what becomes clear is that the facilities involved in those cases lacked an appropriate liner and/or had been improperly designed. It is also significant that the facilities that were involved in the proven damage cases were quite old and had been opened between 1948 and 1983, with a m edian opening of 1963. [FN 50: “Evaluation of Coal Combustion Product Damage Cases,” Vol. 1: Date Summary and

Conclusions at 3

- 10. EPA

- HQ

- RCRA

- 2009

- 0640

- 0326.] Similarly, according to EPA’s damage case analysis, the facilities listed as potential damage ca ses had been opened between 1947 and 1989, with a median of 1975. [FN 51: Id.] Further, EPA’s damage case analysis also has recognized that “most [facilities] were built prior to landfill regulations requiring liner and leachate collection systems,” [FN 52 : Id.] and that “State requirements for disposal of non

hazardous industrial waste were developed subsequently with varying requirements and timing.” [FN 53: Id.]Thus, the only conclusion that can be reached from EPA’s own damage case analysis is that, if there is a need for federal regulations governing CCR disposals to be adopted, EPA’s focus, and the outcome of this rulemaking, should be on the technical and engineering controls that are needed to ensure the safe disposal of CCRs generated by the utiliti es.

Response: Thank you for your comment. The final rule establishes requirements pertaining to the location, design, and operational standards of CCR management units, in line with the commenter’s suggestion.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06865

- 18 

### Organization 1 

### : Constellation Energy


### Commenter 1 : Charlene Zaruba on behalf of Paul Allen Commenter Type: Electric Utility Company

Classification: Substantive



### Comment Excerpt Text: C. EPA's Proven Damage Case Classification of the BBSS Quarry Is Unsuppo rted

1. EPA Procedure Was Flawed EPA asserts that it has satisfied the scientific and administrative prongs of the proven damage criteria as the basis for classifying the BBSS Site as a proven damage case. However, EPA has174

not met this burden and should retract its determination. When deciding whether to subject CCRs to RCRA Subtitle C regulation, EPA must consider the eight RCRA Section 8002(n) study factors. As one factor, EPA is required to study documented cases of proven danger to human health or t he environment caused by the disposal of coal combustion residue. 15 EPA has developed four criteria for determining whether to designate a proven damage case though this is merely guidance rather than a legal standard. These criteria are: (1) exceedances of primary MCLs or other health based standards at a sufficient distance from the waste management unit, (2) scientific studies demonstrating documented evidence of damage to human health or the environment, (3) administrative or court findings of specific damage to health or the environment, and/or (4) information implicating CCR in observed damage. EPA has referred to this 4

- part methodology as "tests of proof,” suggesting that there should be rigor in its analysis. In addition to these four factors, one of the over

- arching principles that EPA has identified is the

use of sound science. 16 This principle is consistent with broader EPA policy. 17 Thus, before classifying any site as a proven damage case, EPA should complete a rigorous and independent evaluation that is consistent with scientific principles. While we have not reviewed the accu racy of data that pertains to other damage cases, we note for comparison that EPA described the following process to support its damage case determinations in 2000: We visited five states to gather specific information about state regulatory programs, FFC waste generators, waste management practices and candidate damage cases related to fossil fuel combustion. The five states we examined in great detail were: Indiana, Pennsylvania, North Carolina, Wisconsin, and Virginia. These five states account for almo st 20 percent of coal

- fired utility electrical generation capacity. We also performed a variety of analyses, including human health and ecological risk assessments, analyses of existing federal and state regulatory programs, and economic impact analyses. W e discussed and shared these results with all of our stakeholders. We also conducted an external peer review of our risk analysis. 18 EPA also has recognized that without a risk assessment, it may not be able to draw conclusions based upon certain data. 19 EPA has lacked sufficient information regarding certain prospective damage cases. In those circumstances, EPA should not rush to judgment on a damage case assessment. For instance in 2000, following public comments to the March 1999 Report to Congress on Wastes from the Combustion of Fossil Fuels, EPA designated 18 of the 59 identified cases alleging damage to

human health or the environment as indeterminate. 20 EPA described this decision as based upon a lack of information that was “critical to assessing and verifying candidate damage cases.· 21 EPA required additional review of these sites. 22 EPA contracted with Science Applications International Corporation (SAIC) to collect supplementary information from state agencies, EPA regions, and commentors to c larify site details. On March 5, 2003, SAIC issued a detailed Final Revised Report resolving the 18 previously indeterminate sites. 23 This report specified the initial information that led to the indeterminate classification, the information needed for fu rther designation, the additional information collected, additional analysis, and a set of recommended

conclusions. 24 Subsequently, EPA published the results in the July 9, 2007 Damage Case Assessments.25 Thus, for the original 18 indeterminate cases, EPA changed its designation to a proven damage case only after substantial re

- investigation. The above procedures contrast sharply with EPA's superficial assessment of the BBSS Quarry. Like the other cases with insufficient records, the BBSS Site was initial ly designated as "indeterminate" (in the July 9, 2007 Damage Case Assessments). However, for BBSS, there is no175

indication that EPA conducted any rigorous follow

- up analysis to identify data gaps, make an effort to collect additional information, or analyze the full set of data. Instead, based upon inconclusive information from an extraordinarily thin record, EPA skipped the investigation step and identified the BBSS Site as a proven damage case. EPA simultaneously used this conclusion to support the regulat ory proposal at issue today. EPA's process was flawed, and its level of scrutiny was insufficient to support a damage case re

- designation.

2. EPA Did Not Prove the Damage Case Criteria Were Met

Scientific Criterion To make a proven damage case determin ation under EPA's scientific criterion, EPA must use sound science and find exceedances of primary MCLs or other health

- based standards measured in groundwater at a sufficient distance from the waste management unit to demonstrate the

hazardous constituent s have migrated "to the extent that they could cause human health

concerns."26 Furthermore, when reviewing if there is danger to human health, the example provided by EPA includes directly observed health effects such as elevated blood

- lead levels.

The dan ger could be acute or chronic effects, but must be proven. 27 EPA's record does not demonstrate proof of damage. EPA based its designation of the BBSS Quarry as a proven damage case on "[d]ocumented

exceedances of MCLs in numerous off

- site drinking water w ells," stating "[t]esting of private wells in 83 homes and businesses in areas around the disposal site revealed MCL exceedances in 34 wells and SMCLs exceedances in 63 wells .•28 As discussed above, these EPA conclusions

were drawn from a one

- page fact sh eet that tells a different story and EPA summarized the information in an exaggerated and misleading manner. To the extent that EPA suggests CCR placement caused MCL exceedances in 34 wells, EPA is entirely wrong. Many observed

exceedances were noted in th e fact sheet as unrelated to CCRs. In addition, SMCLs do not support a damage case determination. 29 The fact sheet upon which EPA relies does not constitute a determination, and it does not scientifically establish damage from CCRs.

An MCL exceedance alon e may allow a damage finding, but does not dictate that conclusion.

The scientific criterion focuses on the effect of an MCL exceedance on human health. 3O Therefore, an MCL value, standing alone, is only a portion of the scientific analysis; an

exceedance must be sufficient to pose some significant level of danger in order to serve as a valid damage case. With respect to the few wells that are closest to the BBSS Quarry, EPA should have evaluated actual data to determine whether any significant danger was posed. As outlined above, the much touted "exceedances" that were close enough to the ash placement to reflect a contribution are confounded by several factors: (1) the results may be due to a combination of natural conditions and ash placement, and not so lely reflecting ash

- associated risks; and (2) the exceedances were marginal. in most instances within several parts per billion of the federal Mel and dose to the reporting limit. EPA never imposed statistical scrutiny to this data, to determine whether it can support EPA's purported conclusions. A more scientific 31 consideration of "damage" would consider the statistical validity of the data, and would have assessed whether there is any realistic potential for the observed levels to cause hann at the speci fic location and for the period of exposure. Other factors, such as the absence of any evidence of directly observed health effects, such as elevated blood lead levels, would also be considered. Without a serious level of scrutiny, EPA should not rush to c onclude that damage has been ·proven."176

Administrative Criterion EPA also relies upon the administrative criterion to classify the BBSS Quarry as a proven damage case, but fails to satisfy its burden. The administrative criterion requires an

administrati ve ruling with an "explicit finding of specific damage to human health or the environment."32 EPA asserts as the basis for its damage case an October 1, 2007 Consent Decree with the Maryland Department of Environment (MDE). This document embodies a

settlem ent, and provides that there was no admission of fact. The allegations were never tested by any fact

- finder. Without some fact

- finding process, the administrative criterion is not

satisfied. Moreover, and importantly, the 2007 Consent Decree (including it s unproven allegations) does not contain any "explicit finding of specific damage to human health or the environment,· as required by EPA's criterion. Without the requisite finding of specific damage to human health or the environment, the settlement throu gh a consent decree on its face does not satisfy the administrative prong of the proven damage case criteria. EPA's "test of proof” is missing from its

re

- designation of the BBSS Quarry.

Response: EPA’s records provide a sufficient record to satisfy the A gency’s scientific and administrative test of proof criteria for designating the BBSS Gambrill site in Maryland as a proven damage case:

5. O n October first, 2007, MDE filed a consent order in Anne Arundel County, Maryland

Circuit Court to settle an environm ental enforcement action against BBSS Ltd., the owner of the sand and gravel quarry, and Constellation Energy (CE), the owner of the coal fired power plants, for contamination of public drinking water wells in the vicinity of the sand and gravel

quarry; a $1 million fine was imposed on CE. The Consent Decree includes requirements for

re

- sampling the residential wells, replacement of five impacted wells and connection of all the other impacted wells to the County’s public water system; installation of additi onal; monitoring and Pump and Treat recovery well(s), and measures for source and plume control. The defendants are required to (i) cease disposing of CCRs in the pits, unless subject to a pollution prevention plan approved by MDE, including laying a compo site liner in an active cell and a leachate collection system; (ii) cap the site; and (iii) continue groundwater monitoring even after the mining permits for the two pits expire, with a quarterly reporting and an annual, long

- term trend analysis and a summ ary of the status/effectiveness of the treatment systems in meeting the remediation goals.

6. On September 17, 2010, CE provided to MDE a revised remediation proposal, (supplementing its May, 2008, proposal) that would include the following elements: (i) the development cap would be installed as proposed at the Turner Pit (TP), and an enhanced cap would be installed for Waugh Chapel Pit (WCP), and to be extended to limit vertical infiltration in swales outside the focused source control area. (ii) Focused sour ce control to reduce lateral infiltration into WCP. (iii) Institutional controls for the ash fill areas and continued groundwater monitoring; and (iv) adding four additional extraction wells.

7. On October 1, 2007, Anne Arundel County passed legislation ban ning the disposal of CCRs in the County for one year, compelling CE to haul the CCRs from its two Maryland power plants to a landfill in Virginia, some 200 miles away

. 8. On February 5, 2009, a $54 million settlement was finalized between 84 property owners and

CE. The settlement calls for CE to pay to convert 84 homes from well water to public water;177

set up two trust funds to compensate impacted property owners and to enha nce the neighborhood; remediate and restore the former quarry site; and cease future deliveries of new coal ash to the quarry. The public water supply line was presumably installed by the end

of 2013.

Finally, whereas t he data developed since the 2012 gro undwater contaminant trends summary report show a continuing improvement in groundwater quality in wells downgradient to the WCP and TP for nearly all analyzed parameters, there are still notable exceedances downgradient. These include thallium (maximum of 0.007 mg/L) in multiple wells (five of which are capture wells at the southern boundary of the TP), sulfate

- in multiple wells (maximum of 3,300 mg/L), boron (up to 7.2 mg/L), lithium (up to 5 mg/L), and nickel (0.14 mg/L). For further details and

the co mplete references pertaining to the response to this comment, the commenter is referred to the technical support documents on damage cases in the docket of the final rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 07047

- 20 

### Organization 1 

### : Great River Energy


### C ommenter 1 : Erik Silvola Commenter Type: Electric Utility Company



### Comment Excerpt Text: Stanton Station (SS) was listed as a potential damage case. Stanton’s landfill was built during the early eighties in an area of old coal mine spoils. Groundwater moni toring here has shown similar analytical groundwater concentrations in upgradient monitoring wells when compared to the concentrations observed in the downgradient monitoring locations. The older ash ponds were located near the plant. These ponds were dewa tered and excavated and new bottom ash/dewatering ponds were installed with composite liners in the early 1990s when the plant converted to dry ash handling. GRE works closely with the NDDH to assess the performance of

these facilities.

Response: Thank you for your comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 07395

- 2 

### Organization 1 

### : Texas Coal Combustion Products Coalition (TCCPC)


### Commenter 1 : Michael J. Nasi Commenter Type: Trade Association



### Comment Excerpt Text: B. EPA Has Not Given Appropria te Credit to the Gains Made by the States in Regulating CCR Disposal which Skews their Opinion About the Sufficiency of State Programs.

Yet another study factor contained in RCRA Section 8002(n) requires EPA to review "present disposal and utilization pra ctices.” [Footnote 3 Id. at § 8002(n)(2).] In performing this study, EPA relies on various studies relating to regulatory oversight requirements of the states, as well as industry practices. EPA engages in a detailed discussion regarding what it perceives as a lack of regulatory authority in states to regulate, but to a great extent, overlooks the actual practices178

that are taking place in the industry. The TCCPC believes that EPA's conclusions regarding state regulatory authority and industry practices do n ot hold true with regards to the requirements and practices in the United States, and particularly, Texas.

1. Industry Practices and Advancements

In the 2006 joint EPA and Department of Energy report Coal Combustion Waste Management at

Landfills and Surf

ace Impoundments, 1994

- 2004,[Footnote 4: Deborah Elocock and Nancy L. Ranek, Environmental Science Division, Argonne National Laboratory, Coal Combustion Waste Management at Landfills and Surface Impoundments 1994

- 2004 (August 2006) (herein known

as "EPA/D OE 2006 Report")] (EPA/DOE 2006 Report) EPA and the DOE found dramatic improvement in the management of CCRs [Footnote 5: Id. at S

- 5.]. The report found that liner usage had become "essentially ubiquitous" with 55 of the 56 new units having liners [Footnot e 6:

Id. at S

- 5.]. The vast majority (91 %) of the studied units built or expanded between 1994 and 2004 had groundwater monitoring [Footnote 7 Id. at S

- 5

- S

- 6.]. EPA also found that Texas had tightened control when it came to the regulatory designation of coal combustion wastes (CCWS) [Footnote 8: ld atS

- 7.].

These advancements in the management of disposed CCRs are particularly striking when compared to the gains found in the May 2000 Bevill Determination. In determining the Subtitle C Regulation was not required in the 2000 Bevill Determination, EPA noted the significant improvements in waste management practices, stating that for units built between 1985 and 1995, liners were used at 75 percent of landfills and 60 percent of surface impoundments [Footnot e 9: Notice of Regulatory Determination on Wastes From the Combustion of Fossil Fuels, 65 Fed. Reg. 32,214, 32,229 (May 22, 2000) (herein referred to as the "2000 Bevill Determination").]. Groundwater monitoring was implemented at 88 percent of landfills a nd at 65 percent of surface impoundments [Footnote 10: Id.].

Industry gains were reiterated by the DOE in its interagency working comments, stating:

"EPA ruled in 2000 that a Subtitle C designation was unwarranted, and all available evidence supports the conclusions made at the time. Continued evidence does show that unlined units have caused environmental damage; however, the promulgation of this Subtitle C regulation to treat all CCRs as hazardous waste does not appear to be justified, especially when, as mentioned by EPA in the preamble, the disposal practices at power plants have shown a history of improvement and are continuing to improve. The benefits of CCR regulation under Subtitle C are not apparent and DOE urges EPA to fully understand the implic ations of such a regulation before going forward with the current proposed designation." [Footnote II: Interagency Working Comments on Draft Rule under EO 12866, repost of EPA

- HQ

- RCRA

- 2009

- 0640

- 0263, EPA

HQ

- RCRA

- 2009

- 0640

- 0349 at 21 (herein referred to as "Interagency Working Comments").]

Many of these gains can be attributed to proactive measures taken by members of the coal

- fired utility industry. In particular, USWAG created the Utility Industry Action Plan for the Management of Coal Combustion Products to address the concerns EPA had voiced in the 2000 Bevill Determination. The plan is comprehensive, and focuses on key handling and disposal components like groundwater protection standards and monitoring, corrective action, and other179

measures. By 2008, 7 5% of USWAG members' (by coal

- fired megawatts capacity) either were implementing the Action Plan or had acknowledged they were operating in accordance with the plan. As this plan is fully implemented, these proactive industry actions will propel additional gains.

The record is clear

- significant advancements and improvements in management practices by the industry have been made after EPA's declaration in the May 2000 Bevill Determination that regulations under RCRA Subtitle C were not warranted. The basis of EPA's conclusion in the 2000 Bevill Determination was directly tied to its acknowledgement and recognition of the management practices of the industry, which have only improved. Moreover, as EPA readily admits in its rule proposal, the information in th e record with respect to existing units and management of these units is over fifteen years old [Footnote 12: Hazardous and Solid Waste Management System; Identification and Listing of Special Wastes; Disposal of Coal Combustion

Residuals From Electric Uti lities; Proposed Rule (to be codified at 40 CFR Parts 257, 261, 264 et al.), 75 Fed. Reg. 35,128, 35,152 (June 21, 2010) (herein referred to as "Coal Ash Rule Proposal").]. Given these advancements, EPA's path reversal in the present rulemaking is

unwarran ted.

Response: This rule will regulate CCRs under RCRA subtitle D: for further details, see unit IV of the preamble to the final rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08211

- 11 

### Organization 1 

### : North Dakota Department of Health


### Commenter 1 : L. David Glatt Commenter Type: State Government



### Comment Excerpt Text: We noted that the preamble to EPA's proposed rules (F.R. pages 35235 and 35236) lists two North Dakota ash disposal sites with damage to groundwater. These sites were initially constructed long before the standards for CCR disposal were implemented. Both sites were investigated in the 1980s due to concerns raised by the NDDoH, one was closed, and the other was upgraded with a composite (clay and synthetic) liner. Neither site has impacted a sourc e of drinking water.

Response: EPA now has records for four confirmed damage cases in North Dakota (Heskett Station, Neal Plant, Coal Creek Station, and Leland Olds). EPA agrees with the commenter that practically all these North Dakota CCR management un its that are implicated in impacts to groundwater were constructed prior to the 1980s. Concerning the commenter’s closing statement: ‘Neither site has impacted a source of drinking water,’ at the Basin Electric Neal Plant, EPA’s records indicate that it is unclear whether an impacted drinking water well was

located on

- site or off

- site.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08211

- 12 

### Organization 1 

### : North Dakota Department of Health


### Commenter 1 : L. David Glatt180

Commenter Type: State Government



### Comment Excerpt Text: Earth Justice and the Environmental Integrity Project also released a report of additional damage claim sites in 2010, two of which were located in North Dakota. The NDDoH believes their cursory review and assessment had many shortcomings and overst ated the risk from these sites. Again, both sites are documented by the NDDoH solid waste program and are public information. Similar to the previously noted sites, these facilities were constructed prior to our current CCR disposal standards. There is no indication that the limited impacts from these sites extend beyond their compliance boundaries, though the report implied that public water supplies as far away as five miles (and also up gradient) were at risk. The clay lined waste unit that received only dry CCRs at one of the facilities was closed in 1998. This site is located in reworked mine spoils, and the side gradient well referenced by the Earth Justice

- Environmental Integrity Project likely reflects spoil impacted water from the relatively low y ielding, highly mineralized wet zone located at the base of reclaimed spoils. The other facility on a river terrace, with state encouragement, converted to a dry fly

- ash handling system and closed the fly

- ash disposal ponds in 1996, with the remaining impo undments only used for low

- toxicity boiler slag. Dry fly ash from this facility is now disposed in a more environmentally favorable landfill several miles from the Missouri River. Newer waste units at the sites were constructed following

the current Subtit le D

- equivalent standards. Arsenic concentrations in wells at the old sites did exceed drinking water standards. However, they failed to realize that naturally occurring arsenic concentrations exceed those measured in these wells, at many locations in Nort h Dakota. One reference to elevated lead appears to be an anomaly, since it is an upgradient well, and lead is not typically elevated in North Dakota CCRs.

Response: EPA has considered the information presented by stakeholders

(owner/operator, NDDoH, and environmental advocacy groups) that pertains to the Antelope

Valley Station/Basin Electric Power Cooperative in Beulah and concluded that it should be

rejected as a CCR damage case. The site was rejected on the grounds that CCR disposal has

taken place in a landfill that is located in a mined out lignite pit (‘this site is located in reworked

mine spoils’): CCR minefill is outside the scope of this rule.

Concerning the ‘The other facility on a river terrace, with state encouragement, converted

to a dry f ly

- ash handling system,’ here identified as the Leland Olds Station

- Basin Electric

Power Cooperative: in its comment to the docket, the owner/operator does not deny arsenic181

exceedances in two of the site’s groundwater monitoring wells. According to EIP’s In Harm’s

Way (August 2010) report, no state enforcement actions have been taken. EPA captured in its

damage case records that it was with state encouragement that Leland Olds converted to a dry

fly

- ash handling system and closed the fly

- ash disposal pond s in 1996, with the remaining

impoundments only used for low

- toxicity boiler slag. For further details, see the technical

support documents on damage cases in the docket of the final rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08244

- 15 

### Organization 1 

### : Edison Mission Energy, LLC


### Commenter 1 : Basil G. Constantelos Commenter Type: Electric Utility Company

Classification: Substantive



### Comment Excerpt Text: 2. EPA’s “Damage Cases” Are Not Representative Of And Overstate The Risks Posed By CCRs

In addition to the scientific deficiencies in EPA’s proposal, the damage cases identified by the Agency do not validate its modeling results and are contrary to its claims. EPA relies on 24 “proven” damage cases as confirmation of the appropriateness of its Subtitle C ap proach because those cases allegedly demonstrate the mismanagement of these wastes [Footnote 156: 75 Fed. Reg. at 35,147.]. EPA’s reliance is misplaced. The universe of “proven” damage cases represents a period of time that spans nearly 60 years of coal as h disposal, ranging from 1952 to present [Footnote 157: U.S. EPA, Coal Combustion Waste Damage Case Assessments, at 13

- 25 (July 9, 2007), available at http://www.publicintegrity.org/assets/pdf/CoalAsh

- Doc1.pdf. EPA cites the Salem Acres Site (Massachusetts ) as one of its “proven” damage cases. Salem Acres operated as a disposal site, according to EPA, from at least 1952 to 1969. EPA also relies on the U.S. Department of Energy Savannah River Project (South Carolina), which commenced operations

and coal ash disposal in 1952, where it sluiced fly ash to a series of open settling basins and, ultimately, released CCRs into a nearby swamp and the Beaver Dam Creek.]. It also captures over 25 years of EPA’s response to the circumstances outlined in those cases [Foo tnote 158: Id.

at 13

- 16. The Virginia Power Yorktown Power Station, Chisman Creek Disposal Site (Virginia) received coal fly ash from 1957 to 1974. EPA proposed listing the site on its National Priorities List (“NPL”) in September 1983, but did not begin c leanup of the site until late 1986. Similarly, EPA proposed adding the Salem Acres Site to the NPL in October 1984. The Agency ultimately added it in 1986, and signed a Consent Order in 1987 to evaluate the nature and extent of contamination and to present technical options for cleanup.]. The Agency relies on two cases in particular

– (1) a 2005 release of 0.5 million cubic yards of fly ash slurry into the Delaware River at the Martin’s Creek Power Plant in Pennsylvania, and (2) the well

- documented 2008 rel ease of 5.4 million cubic yards of fly ash sludge over land and into a branch of the Emory River from the TVA’s Kingston, Tennessee facility [Footnote 159: Id.]. EPA alleges that these cases definitively

demonstrate the hazard to human health and the envir onment posed by CCR disposal sites. This182

assertion simply mischaracterizes what these damage cases represent [Footnote 160: EME understands that EPRI has completed a report and submitted it to the docket for the Proposed Rule that provides information on t he 67 “proven” and potential damage cases originally cited by EPA in 2007, as well as four new damage cases outlined in the preamble. EPRI’s report also addresses 31 alleged damage cases identified by the July 2010 Environmental Integrity Project,

Earth Ju stice, and Sierra Club report titled, “In Harm’s Way: Lack of Federal Coal Ash Regulations Endangers Americans and Their Environment.” EPRI analyzed the data from the damage cases and collected additional information both to assess the extent of groundwate r impacts and to evaluate commonalities that may exist among the sites. EPRI found that more than 90 percent of the sites were either unlined or partially lined, including all of the “proven” damage cases. CCR constituents identified in the groundwater in each of the damage cases varied by site, with sulfate and boron exceeding groundwater standards more often than the other constituents. According to EPRI’s analysis, more than 60 percent of the damage cases occurred in locations with low potential for grou ndwater receptors. EPRI also found that groundwater remediation was either completed or ongoing at 23 of the 24 “proven” damage case sites and at 24 of the potential damage case sites. See EPRI Comments, Hazardous and Solid Waste Management System; Identif ication and Listing of Special Wastes; Disposal of Coal Combustion Residuals From Electric Utilities, No. EPA

- HQ

- RCRA

- 2009

- 0640, at 49

- 50 (November 19, 2010).]. As explained below, the damage cases flagged by EPA illustrate only the hazards associated with the sudden release of large quantities of materials. The resultant damage in each instance would have been the same whether mud, water, CCRs or any other material were released from the failed impoundments, given the volume of materials involved. Moreover , despite EPA’s claims, neither damage case offers any evidence of unacceptable exposure to the CCR materials themselves or their constituents. For example, no homes were located in the path of the Martin’s Creek spill and all damages/impacts from it were confined to the EGU site itself [Footnote 161: 75 Fed. Reg. at 35,147.]. Thus, EPA’s emphasis on these spills as evidence supporting its Subtitle C approach is misplaced because it improperly suggests that some undefined

characteristic of the CCRs created the problem, as opposed to the volume of the material stored.

Response: This rule will regulate CCRs under RCRA subtitle D: for further details, see unit IV of the preamble to the final rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08251

- 2 

### Organization 1 

### : Massachusetts Department of Environmental Protection


### Commenter 1 : James C. Colman Commenter Type: State Government
Classification: Substantive



### Comment Excerpt Text: Coal Ash Management in Massachusetts

In the Federal Register notice, EPA requested inform ation regarding how coal ash is managed in the states and how coal ash management has changed over time.

Massachusetts has four coal

- fired power plants (Mt. Tom, Brayton Point, Somerset and Salem183

Station) that generated approximately 440,500 tons of coal ash in 2008 [Footnote 1: Data based on a telephone survey and emails with each facility conducted in 2008] (bottom ash and fly ash) [Footnote 2: In 2008 Salem Station generated only about one

- half its normal annual capacity. The Somerset plant has since c losed and removed its coal pile. In addition, the Brayton Point facility has the potential to generate a maximum of approximately 50,000 tons per year of flue gas desulfurization (FGD) waste from a dry scrubber and the Mt. Tom facility has the potential

to generate a maximum of approximately 36,000 tons per year of FGD waste, also from a dry scrubber.] Approximately 8%, or 35,000 tons, was disposed in landfills in 2008. All ash disposed was placed in lined municipal waste combustor ash landfills in Massachu setts and Connecticut. The remaining 92%, or 405,500 tons, was beneficially used, primarily in cement products and flowable fill, with much smaller amounts used as daily cover and grading and shaping material at an old, unlined landfill undergoing closure. In addition, 600 tons were used for sludge stabilization and other uses. In addition to the fly ash and bottom ash, FGD waste has been used as an ingredient in grading and shaping material being used to close an old, unlined municipal

landfill as a demons tration project or disposed in lined landfills.

In contrast, in 1998, [Footnote 3: Data from 8/3/2001 MassDEP Coal Ash Paper and supporting material.] the four coal

- fired power plants generated 535,100 tons of bottom ash and fly ash of which 45%, or 243, 500 tons, were beneficially used and 55%, or 292,000 tons, were disposed, all

or most of that in unlined landfills or as "fill" material at unlined sites.

By statute, coal ash is exempt from being regulated as a solid waste unless it is being disposed (S olid Waste Statute, C.1l1, s.150A, see Appendix A for the language). This exemption, specifically for coal ash, states, in part, that coal ash used "... as a raw material for concrete block manufacture, aggregate, fill, base for road construction, or other commercial or industrial purpose, or stored for such use" is exempt from regulation. As a result of the exemption for "fill", ash was, in effect, disposed of in what amounted to landfills in several locations in

Massachusetts without liners or leachate co llection systems. Two such locations (Salem Acres and Vitale Fly Ash Pit) are noted in the Table of EPA's Damage Cases, where groundwater contamination has been documented for antimony, arsenic, manganese, aluminum, iron and

selenium. Undocumented use of m uch smaller amounts of ash as a fill material has also occurred

at numerous sites.

In spite of the statutory exemption identified above, ash management in Massachusetts has changed significantly over the past 10 years: moving away from disposal in unline d landfills and

use as an un

- encapsulated fill material and moving toward increased beneficial use, primarily in encapsulated cement products or disposal in lined landfills with composite or double

- composite liner systems. In part, this movement toward rec ycling and away from unlined landfilling resulted from increased scrutiny of industry ash management practices that occurred due to the cleanup of ash at the Vitale Fly Ash Pit.

Response: EPA has reviewed information on three of the sites cited by the co mmenter: (i) New England Power, Brayton Point Power Station, Somerset, (ii) Salem Acres Site, Salem, and (iii)

the Vitale Fly Ash Pit, Beverly. Although groundwater contamination has been documented in all these sites for several metal constituents, all th ree sites were rejected as CCR damage cases because their waste management units recieved, in addition to CCRs, also significant amounts of184

other waste types, such as oil combustion waste and hazardous waste. Such instances of co

mingled waste are outside the scope of this rule. For additional information about the scope of the rule, see Unit III of the preamble to the final rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08253

- 36 

### Organization 1 

### : Xcel Energy


### Commenter 1 : Terry Coss Commenter Type: Electric Utility Company



### Comment Excerpt Text: 17 Damage Cases: We caution EPA to conduct the necessary due diligence to ensure the alleged damage eases are valid and based on credible scientific data. For the purposes of this rulemaking, EPA should als o differentiate between damages associated with current disposal practices

- vs

- legacy or historic practices that are no longer in use and may not meet current industry or regulatory standards. It is inappropriate to develop or justify a regulatory program on the basis of practices that are no longer accepted and are unlikely to be permitted in the future.

Response: Whereas the confirmed damage cases cited in the proposed rule include many ‘old’ facilities with legacy or historic practices that are no long er in use and may not meet current industry or regulatory standards, the expanded record of damage cases now confirmed by the Agency indicates that about six percent of the CCR management units associated with groundwater impact damage cases have been cons tructed since 1990. Furthermore, c onsidering the lag time between the construction of many of the disposal units and the first detection of their groundwater impact by subsequently installed groundwater monitoring wells, the Agency believes that the damage case record in hand is far from complete and skewed towards older

waste units.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08787

- 10 

### Organization 1 

### : Association of State and Territorial Solid Waste Management Officials (ASTSWMO)


### Commenter 1 : Stephen A. Cobb (Al) Commenter Type: Association of State Governments



### Comment Excerpt Text: The "proven damage cases" are one basis for listing CCRs as "special waste". The cases are also used to validate certain results in the risk assessment. The heavy reliance on the case s in the Regulatory Determination requires that the identification of the "proven damage cases" be sound.

In reviewing EPA's Coal Combustion Waste Damage Case Assessments, July 9, 2007, (Case Assessments) it seems that very little evidence (which the rep ort refers to as a "test of proof") is required to classify damage to groundwater as a "proven damage case."

Groundwater or surface water impacts are typically determined by geologists, scientists and engineers during groundwater investigations or review of groundwater monitoring data from the185

facilities. While a field inspection may lead to an investigation, it is highly unlikely that damage could be verified in a field inspection alone. Therefore, identifying a damage case based on the

"conclusions of a site report by a field inspector" without more to validate the information is not a rigorous test of proof.

Another source identified as acceptable is a scientific study that contains "information on contamination of drinking water aquifer with contamin ant levels which exceed drinking water standards." But, there is no requirement that a scientific study has determined whether the contamination is due to naturally occurring metals, other potential sources of contamination or

co

- disposed materials. Damage cases based on such limited evidence are weak cases at best.

The Case Assessments also requires "documented exceedances of primary MCLs or other health

based standards measured in groundwater at sufficient distance from the waste management unit

to indi cate that hazardous constituents have migrated to the extent that they could cause human health concerns." This criterion is vague enough that the site in question need not be the source of the MCL exceedance. There is no requirement that a nexus be establ ished between the disposal unit and the contamination. Important factors need not be considered, such as other possible sources of contamination or naturally occurring levels of contaminants. Site summaries in the Case Assessments may not provide enough in formation to determine whether any of these

conditions existed at the sites.

The age and nature of the disposal facilities in the 23 damage cases make them irrelevant because they do not reflect current land disposal practices to which the proposed regul ations apply. Disposal "units" included five sand and gravel pits, two quarries and one lake impoundment. Half of the sites began operating in 1970 or before. At least six sites began operating in the early '50s. It appears that only three sites operated a fter 1990. Several sites were operated pre

- RCRA, for example, one site was managed from 1952 to 1969. Wastes in the co

disposal facilities included: sewage sludge, tannery waste, materials from another landfill, yard sweepings, demineralizer regenerant, so il, concrete, brick and "other wastes". These are hardly representative of the disposal units that would be regulated pursuant to the proposed rules.

In addition, there is no evidence about the quality of the data or that any assessment was made of

other possible sources of contamination or naturally occurring background levels of contaminants, such as arsenic or selenium.

EPA's proven damage cases were assessed in a National Academy of Sciences [Footnote 6: National Academy of Sciences, Managing Coal C ombustion Residues in Mines; The National Academies Press, Washington, DC, 2006.] report: "Many of the damage cases ... involve older legacy sites that were developed under less rigorous regulations than now exist. Many were either slurry impoundments that drained to nearby surface waters or abandoned aggregate quarries that, by their very nature, were in highly permeable geologic environments. ... For example, landfills developed before the implementation of RCRA were not subjected to requirements for cove rs, compaction, liners, and other characteristics ... of RCRA compliant

landfills ..."

Other points from the NAS report:186

o [EPA] did not independently investigate most damage cases o EPA also acknowledged in the Regulatory Determination of May 22, 2000 (40 CFR Part 261) that it did not use a statistical sampling method and reviewed possible damage cases in only a

subset of States o It should be noted here that the landfills discussed in relation to damage cases are typically not

the well

- designed struct ures with covers, compaction, and other characteristics discussed in the definition of landfills..., but rather are less engineered locations used to store wastes

The value of the damage cases overall is questionable.

Response: Whereas the confirmed da mage cases cited in the proposed rule include many ‘old’ facilities with legacy or historic practices that are no longer in use and may not meet current industry or regulatory standards, the expanded record of CCR damage cases now confirmed by the Agency i ncludes about six percent of the CCR management units associated with groundwater impacts damage cases that have been constructed since 1990. Furthermore,

c onsidering the lag time between the construction of many of the disposal units and the first

detecti on of their groundwater impact by subsequently installed groundwater monitoring wells, the Agency believes that the damage case record in hand is far from complete and skewed

towards older waste units.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08850

- 6 

### Organization 1 

### : Lansing Board of Water & Light (BWL)


### Commenter 1 : Lansing Board of Water & Light (BWL) Commenter Type: Electric Utility Company



### Comment Excerpt Text: Current Management Practices for CCRs and Protective of Human Health and the Environment.

W e would emphasize that damage cases cited in the preamble are due to historical mismanagement of CCRs. Current industry management techniques, most under the oversight of robust state subtitle D programs, have engineered site specific disposal and storage facilities designed to prevent leaching and groundwater monitoring where appropriate.

Response: See response to comment excerpt EPA

- HQ

- RCRA

- 2009

- 0640

- 08787

- 10.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09230

- 1 

### Organization 1 

### : Maryland Department of Natural Resources Power Plant Research Program (PPRP)


### Commenter 1 : Paul Petzrick and Shawn Seaman Commenter Type: State Government
Classification: Substantive



### Comment Excerpt Text: PPRP supports regulating the disposal of CCRs under Subtitle D as a non

- hazardous w aste. PPRP notes that the vast majority of damage cases reported by EPA regarding the dry disposal of CCRs (i.e. not surface impoundments) are related to unlined landfills or unlined structural fill187

projects. It is reasonable to assume that the inclusion o f liners and leachate collection systems at these facilities would have dramatically decreased or prevented impacts to ground water. Under the two approaches proposed by EPA, the engineering and construction requirements for CCR

landfills would be the same as for municipal solid waste landfills, which are regulated under Subtitle D (Section VI of the proposed rule). Thus, regulation under Subtitle C would not provide additional protection against damage from unlined CCR landfills and would only impose

burde nsome and costly recordkeeping and administrative requirements.

Response: This rule will regulate CCRs under RCRA subtitle D: for further details, see unit IV of the preamble to the final rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09281

- 3 

### Organization 1 

### : Exelon Power


### Commenter 1 : Victoria K. Will Commenter Type: Electric Utility Company

Classification: Substantive



### Comment Excerpt Text: In its study of potential regulatory approaches for CCR disposal units under the criteria established by the Bevill Amendment, EPA identified 67 cases of groundwater or surface water impacts associated with CCRs as meeting the criteria for a proven or pote ntial damage case. 75 Fed. Reg. 35230

— 31; “Coal Combustion Waste Damage Case Assessments,” U.S. Environmental Protection Agency, Office of Solid Waste (July 9, 2007). These cases show that where damage to the environment can be attributed to CCRs, such inc idents are primarily associated with older, legacy disposal units that were constructed in earlier times when they were much less likely to have been equipped with liners and/or groundwater monitoring systems. The Electric Power Research Institute (“EPRI”) analyzed the 67 damage case studies in a separate publication entitled “Evaluation of Coal Combustion Product Damage Cases” (hereafter, “EPRI Report”), which reviewed EPA’s assessment. The EPRI Report offered the following perspective:

The power industr y has managed coal ash for more than 60 years. The majority of [CCR] damage case sites identified in the 2007 USEPA report are older sites that began operation prior to enactment of current waste disposal regulations. Although results suggest that unlined sites can be a source of groundwater impacts, such sites are not representative of modem nonhazardous waste disposal designs that include liners and leachate collection systems. Most new [CCR] disposal facilities built in the last 15 years are constructed with liners and monitor groundwater.

EPRI Report at vi. The EPRI Report observed that “two

- thirds of the sites with known operational dates were opened prior to promulgation of RCRA in 1976, and all with known operational dates opened before 1990.” EPRI Report 8

- 1. Such units were less likely to be subject to regulations that imposed protective technological standards. Further, proven damage cases were more likely to involve impoundments rather than landfills, and the median opening year for proven damage case facilities was 1967. EPRI Report at 3

- 4, 3

- 8. Exelon believes that these conclusions from the EPRI Report are valid and support EPA’s adoption of a Subtitle D188

program which, as proposed, would require uniform protective standards for new or lateral

e xpansions of landfills and impoundments, groundwater monitoring for all existing landfills and impoundments, and the eventual retrofit with liners and leachate collection systems of impoundments which choose to continue operating. The proposed Subtitle D p rogram can adequately fill any gaps that may exist between modem regulatory requirements and appropriate controls that may not have been previously required for older units.

Bringing all CCR management units into conformity with state

- of

- the

- art technolo gy, including Mine Safety and Health Administration (“MSHA”)

- like stability/design standards, over a 5

— 7 year period under EPA’s Subtitle D proposal would help protect the environment by limiting the likelihood of the more typical damage case recurring. As highlighted in the EPRI Report, the majority of the instances identified by EPA as proven damage cases are connected to impoundments constructed and/or operated prior to 1990.

Response: This rule will regulate CCRs under RCRA subtitle D: for further deta ils, see unit IV of the preamble to the final rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09284

- 63 

### Organization 1 

### : Virginia Department of Environmental Quality


### Commenter 1 : Jeffery A. Steers Commenter Type: State Government



### Comment Excerpt Text: Two Virgi nia sites were discussed in the report, In Harm's Way (August 2010). This report discussed historical releases from storage ponds into adjacent rivers from the American Electric Power's Clinch River Plant (1967) and the Glen Lyn plant (1970's and early 198 0's). It should be noted that these are not recent cases and are legacy issues which are not an accurate picture of Virginia's current regulatory programs.

Response: Thank you for your comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09358

- 10 

### Organization 1 

### : Interstate Power and Light Company (IPL) and Wisconsin Power and Light Company (WPL)


### Commenter 1 : Kathleen A. Lipp Commenter Type: Electric Utility Company



### Comment Excerpt Text: 3. EPA's assertion that increased CCR "proven damage cases" support the Sub title C option is flawed. In general the proven damage cases reflect unlined landfills, unlined surface impoundments, sand/gravel pits, etc.

--- all constructed prior to the application of design criteria and standards being proposed under this proposed ru le. While WPL acknowledges that proven damage cases do exist, EPA should place more focus on the reaction and response by responsible companies and state regulatory agencies. The need for aggressive changes for CCR management is significantly reduced if cu rrently identified damage cases are being responsibly addressed.189

WPL has direct knowledge of two such cases, one a listed damage case and the other identified as a possible damage case by environmental groups. WPL owns and operates the Nelson Dewey

Generat ing Station which was previously designated as a CCR proven damage case due to a previously active fly ash sluicing impoundment/landfill which had impacted an adjacent drinking water well. WPL, working closely with the WDNR, took action to change its ash m anagement activities, converting to dry fly ash handling and closing the landfill with an engineered design cover, while continuing to monitor groundwater on and off site. These actions are addressing the environmental concerns at this facility

- there are no longer impacts to the offsite well near this site and groundwater quality levels have improved across the site, with many water quality parameters at or near historical low concentrations. Regardless of the improvements, the facility

has remained on th e EPA's damage case list and is included as an example in support of Subtitle C regulation. However, considering the ground water quality improvements that have been achieved over time, it is possible this site would not be classified as a proven damage ca se if evaluated today. WPL also operates and is a joint owner of the Columbia Energy Center which has an active and closed CCR landfill. This facility was recently alleged to be a "damage case" by environmental groups in a report titled IN HARMS WAY: Lack of Federal Coal Ash Regulations Endangers Americans and Their Environment. Examining this example more closely shows this charge to be questionable. The report refers to activities at the facility which took place in the late 1970's when the facility has j ust begun operation and was handling fly ash wet. Again WPL worked closely with the WDNR to take corrective actions and has addressed the concern. These two examples are indicative of how WPL worked closely with the WDNR to mitigate a

concern related to a sh management. They reflect on the successful nature of a strong state regulatory program, demonstrating that state programs can in fact address these type of environmental concerns without the need for a federal Subtitle C program.

Response: This rule wi ll regulate CCRs under RCRA subtitle D: for further details, see unit IV of the preamble to the final rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09614

- 1 

### Organization 1 

### : City of Fitzgerald, Georgia, and Fitzgerald/Ben Hill County Chamber of Commerce, Geor gia


### Commenter 1 : Cam Jordan Commenter Type: Local Government

Classification: Substantive



### Comment Excerpt Text: We are anticipating the construction of a proposed 850 MW coal plant in our community

sometime in the next 3

- 5 years. We have extensively researched the issues surrounding the coal industry and agree that a uniform federal rule on coal ash storage or disposal is in order. We further feel that regulation of coal ash is most appropriate under subtitle D of the RCRA. We are

familiar with this t echnology, having operated an MSW site for a number of years and have full confidence in its safety. We have reviewed the 39 instances of problems with coal ash storage cited by EPA in addition to the Kingston, TN disaster and feel in every instance, Subti tle D containment would have precluded these problems. This classification will also serve to preserve and enhance legitimate recycling of coal ash without the unnecessary stigma of hazardous waste190

designation. It represents a viable solution to a problem we all recognize, without without sacrificing an industry our country can ill afford to lose at this time.

Response: This rule will regulate CCRs under RCRA subtitle D: for further details, see unit IV of the preamble to the final rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09618

- 1 

### Organization 1 

### : Waste Permits Division, Louisiana Department of Environmental Quality (LDEQ)


### Commenter 1 : Don Caffery Commenter Type: State Government



### Comment Excerpt Text: LDEQ supports the goal of establishing protective and enforceable management standards for Coal Combustion Residuals (CCRs). The December 2008 TVA impoundment failure in Kingston, TN, and the other 26 damage cases documented in the Proposed Rule, highlight this need. We note that in many of these cases, unfor tunately, there appears to have been a complete lack of engineering foresight or standards, such as in placing CCRs in abandoned gravel pits, with direct communication to groundwater.

Response: Thank you for your comment: EPA agrees with the observations made by the

commenter.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09631

- 5 

### Organization 1 

### : Porter Wright Morris & Arthur LLP


### Commenter 1 : Christopher R. Schaff Commenter Type: Law Firm

Classification: Substantive



### Comment Excerpt Text: Finally, USEPA appears to rely upon "proven damage cases" where inadequate handling and disposal of CCRs resulted in measureable contamination of groundwater or other environmental resources. See 75 FR at 35234 et seq. Virtually all of the "proven damage c ases" involve disposal of CCRs which occurred more than 25 years ago, and which predate the regulatory programs now in place in states such as Ohio. The lack of demonstrable problems from CCR disposal facilities approved under comprehensive state regulator y programs suggests that these "legacy" CCR disposal facilities should be handled under the corrective action authority of USEPA and state environmental agencies, rather than be used as a basis for launching a new regulatory program which will prove duplic ative of existing state regulatory programs, and the costs of which will outweigh any likely environmental benefits.

Response: See response to comment excerpt EPA

- HQ

- RCRA

- 2009

- 0640

- 08787

- 10.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09765

- 41 

### Organization 1 

### : Electric Power Research Institute (EPRI)191



### Commenter 1 : Ken Ladwig Commenter Type: Trade Association

Classification: Substantive



### Comment Excerpt Text: US EPA Damage Cases

The EPRI two

- volume report referenced in the preamble of the Proposed Rule was a 2009 draft. The final EPRI report is appended to these comments as Attachments G (Volume 1) and H (Volume 2) (EPRI 2010a, b). The purpose for developing the EPRI report was to collect and provide additional data to supplement the information available to US EP A on the nature and extent of groundwater impacts at the damage cases cited in the 2007 US EPA report, and to evaluate any common characteristics among these cases. Evaluation of the commonalities can provide insight into the best measures for avoiding sim ilar issues in the future. Data collection was accomplished by performing detailed literature and internet searches, and contacting site owners to obtain additional and more recent data. Results are briefly summarized below.

Fifty

- four of the 67 proven an d potential damage cases in US EPA (2007) involved groundwater impacts associated with CCRs. [Footnote 6: Four of the 67 damage cases were oil ash sites, and nine were surface water sites.] Of these, 16 were classified as proven damage cases and 38 were

po tential damage cases. The most prominent commonality among the groundwater impact sites is that more than 90 percent were unlined or partially lined sites, including all of the proven damage cases. Leachate collection systems were installed at only a few f acilities. The absence of liners and leachate collection systems reflects the fact that these cases largely represent older facilities; 86% of the sites for which operational periods were available were opened prior to 1980. As has been noted by US EPA and 6 others, almost all new CCR disposal areas are constructed with liners (US DOE and US EPA, 2006). Because the composite liner requirements are the same in both the Subtitle C and Subtitle D options, they would have substantively the

same effect on reduci ng risk from unlined facilities if properly implemented.

Constituents most commonly observed in groundwater at the sites that were associated with CCR releases varied by site. Sulfate and boron were the two constituents with the most groundwater quality s tandard exceedances, and they were observed at the highest percentage of sites where they were monitored. Sulfate and boron are typically used as leachate indicators at fly ash management sites due to their common presence in fly ash leachate and relativel y high mobility in groundwater. Their occurrence at the damage case sites is consistent with previous research showing that these two constituents were by far the most common drivers of groundwater remediation at CCR sites (EPRI, 2006). Most of the documen ted exceedances at the damage

cases were in on

- site wells; in our analysis 8 of the 54 groundwater damage cases had off

- site groundwater exceedances, and 3 of the 54 had off

- site exceedances of a maximum contaminant level (MCL). It is recognized, however, that not all sites had both on

- site and off

- site wells, and

not all sites monitored the same constituents.

In our analysis, slightly more than 60 percent of the damage case sites were located in areas with low potential for groundwater receptors. CCR faci lities that did not have receptors were usually either in a remote location, served by a public water supply, or located adjacent to a surface192

water body such as a river or lake that intercepts groundwater before it can reach potential users. Our analysis also found that groundwater remediation was either completed or ongoing at 23 of the 24 proven damage case sites, as well as 24 of the potential damage cases, thereby significantly limiting potential for future risk from these sites. As previously noted, r emediation is typically driven by the early arrival of the indicator constituents boron and sulfate, which mitigates the potential for impacts from the less mobile metals species (EPRI, 2006).

Of the nine surface water cases, eight were categorized as pro ven cases and one as potential. Five of the nine surface water cases are cooling water reservoirs where no CCPs were directly deposited; four of these received discharge waters from CCP impoundments and one received runoff from a coal pile. Only two of the nine surface water cases had documented exceedances of water quality standards. The other cases were listed due to occurrence of coal ash in sediment either within a surface water body or wetland, or due to selenium concentrations in fish tissue (three of which were later rescinded by the State of Texas).

Response: See response to comment excerpt EPA

- HQ

- RCRA

- 2009

- 0640

- 09765

- 41.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09765

- 42 

### Organization 1 

### : Electric Power Research Institute (EPRI)


### Commenter 1 : Ken Ladwig Commenter Type: Trade Association

Classification: Substantive



### Comment Excerpt Text: In the preamble, US EPA identified four additional damage case sites, three proven (Kingston, Martins Creek, and Gambrills), and one potential (Chesapeake). We have not co llected any additional information on these sites that is not already available to US EPA. However, consistent with the previously described damage cases, all of these are unlined sites, and remediation is either completed or ongoing at the three proven da mage case sites.

Response: Thank you for your comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09765

- 9 

### Organization 1 

### : Electric Power Research Institute (EPRI)


### Commenter 1 : Ken Ladwig Commenter Type: Trade Association

Classification: Substantive



### Comment Excerpt Text: Damage Cases

EPRI performed a detailed assessment of the proposed and potential damage cases identified by US EPA in 2007. Our purpose in doing so was to collect and provide additional data to supplement the information available to US EPA o n the nature and extent of groundwater impacts at the damage cases listed in the 2007 US EPA report, and to evaluate any common193

characteristics among these cases.

In general, the damage cases are primarily older, unlined facilities. Remediation activities are either ongoing or completed at 26 of the 27 proven damage cases for which data are available (the status of one site is unknown), as well as most of the potential damage case sites. In most cases, off

- site groundwater impacts were not documented. The damage case sites do not reflect the design of new lined CCR disposal site cells built over the last 15 years. Because the liner requirements proposed in the Subtitle D and Subtitle C options are identical, from a technical perspective the two options shou ld perform equivalently to mitigate groundwater releases.

Response: This rule will regulate CCRs under RCRA subtitle D: for further details, see unit IV of the preamble to the final rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09884

- 10 

### Organization 1 

### : Lum inant


### Commenter 1 : Shawn Glacken Commenter Type: Electric Utility Company



### Comment Excerpt Text: IV. The Martin Lake SES damage case should be closed

The damage case list cited by the EPA contains inaccuracies and does not warrant the need for a

Subtitle C option. Impacts are often the result of operational methods that are no longer in practice throughout the industry. These historical damage cases certainly do not reflect a current problem with CCR surface impoundments and landfills. At sites where regula tory actions occurred and remedial actions were successfully carried out, EPA continues to list these sites as active damage cases. This is misleading. An example of this is at Luminant's Martin Lake Steam Electric Station. A fish advisory was placed on th e reservoir due to elevated levels of selenium. Tins advisory was lifted on October 14, 2003 after sufficient monitoring verified there was no threat to human health or the environment. It does not now provide any legitimate basis for EPA's proposed rule.

Response: This rule will regulate CCRs under RCRA subtitle D: for further details, see unit IV of the preamble to the final rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09885

- 11 

### Organization 1 

### : Progress Energy, Inc.


### Commenter 1 : Caroline Choi Commenter Typ e: Electric Utility Company

Classification: Substantive



### Comment Excerpt Text: The damage cases do not support the Subtitle C option

EPA suggests that the newly identified “damage cases” may warrant reversal of the 20001 94

Regulatory Determination, resulting in the regulation of CCRs under RCRA Subtitle C. However, the new damage cases, which are limited almost exclusively to older, unlined units (as were the original damage cases), in no way undermine EPA’s original decision in the 2000 Regulatory Determinat ion that the best means to address the damage cases is to “develop national Subtitle D regulations.”

Some of the damage cases identified by EPA have had environmental impacts. At the same time, the proposed Subtitle D requirements

– including the liner, g roundwater monitoring, corrective action and structural stability requirements

– will be fully effective in addressing EPA’s concerns about the damage case sites without the attendant adverse impacts of the Subtitle C option. Therefore, the new damage case s justify neither the reversal of EPA’s 2000 final Regulatory Determination nor the resulting regulation of CCRs under Subtitle C. The proven damage cases represent only a subset of CCR management units, and EPA’s concerns about this distinct subset

of uni ts will be adequately addressed under the Subtitle D option.

The damage cases represent a subset of older, unlined CCR disposal units

At the time of the final 2000 Regulatory Determination, EPA had identified 14 “proven” damage cases and 36 “potential” d amage cases. Since that time, EPA has identified 13 additional proven damage cases and four more potential damage cases, bringing the total to 27 proven cases and 40 potential damage cases. Virtually all of these damage cases involve unlined units that beg an operation prior to 1990; these cases do not involve the newer, lined units that have commenced operation since that time. It is inappropriate for EPA to include potential damage cases in its evaluation of the appropriate regulatory option for CCRs. The Bevill amendment provides that, in considering the “documented cases” of danger from the management of CCRs, the agency was only to evaluate those instances where such danger “has been proved.” EPA has acknowledged this statutory limitation, observing in i ts final 2000 Regulatory Determination that, although the potential damage cases may pose a “potential danger” to human health and the environment in some circumstances, they do not “satisfy the statutory criteria of documented, proven damage

cases because damage to human health or the environment has not been proven...” It is inconsistent with the plain language of the statute for EPA to include the potential damage cases in its assessment of the “documented cases” of danger to human health and the environ ment from the management of CCRs. EPA cannot use the potential damage cases as the foundation for a reversal of its final 2000 Regulatory Determination.

It is important to note that even the proven damage cases are limited to only a subset of the

universe of CCR disposal units; namely, older, unlined units. Of the 16 proven damages cases identified in the 2007 Notice of Data Availability (NODA) that involved groundwater contamination, 15 of the 16 units were unlined (with the remaining unit being a surface impoundment where it was unclear whether the unit was lined or unlined). The only other proven damage case involving groundwater contamination identified since the 2007 NODA is the BBBS Sand and Gravel Quarries in Gambrills, MD, also an unlined site.

Eve n assuming for purposes of argument that it is appropriate to include the potential damage cases in this evaluation, the vast majority of impacts to groundwater from the potential damage cases are similarly from unlined facilities. According to EPRI’s comp rehensive evaluation, of the195

combined total of damage cases identified in the 2007 NODA, only six (10%) had liners. Since issuance of the NODA, the only other potential damage case identified by EPA is the Battlefield Golf Course in Chesapeake, VA, an unli ned site.

In addition, virtually all of the damage cases, both proven and potential, involve older units that commenced operations prior to implementation of what is now the common practice of installing liners in CCR disposal units. Of the 63 proven and potential damage cases identified in the 2007 NODA, approximately two

- thirds of the facilities for which operating periods could be established began operations prior to 1976, and all began operations prior to 1990. The data are even more striking when thi s analysis is properly limited to the proven damage cases; all of the 24 proven damage cases identified in the NODA commenced operations between 1948 and 1983, with “the median opening year of 1967.”

As EPA itself reported in the joint DOE/EPA report, the vast majority of CCR disposal units that have been constructed since 1990 are “better designed, in that they are lined and have installed groundwater monitoring systems, and therefore the total percentages of unprotected units have been reduced.” In fact, the joint DOE/EPA Report found that “[t]he vast majority (98%) of the 56 identified units (both landfills and surface impoundments)” built or expanded from 1994 to 2004 have liners.” The damage cases involve older and almost exclusively unlined units and represent only a segment of the total universe of CCR disposal units.

Not only do the damage cases involve only a subset of CCR disposal units, legitimate questions exist regarding whether even this limited subset of units are truly “damage” cases. EPRI’s Damage Case Report identifies a number of important flaws with the proven and potential damage cases identified in the 2007 NODA, including, among other things, that (1) characterization of at least 13 of the sites as “damage” cases was questionable becau se of the lack of any long

- term impacts that could be attributed to CCRs; (2) nearly two

- thirds of the 54 groundwater damage case facilities were located at sites where there was a low potential for downgradient receptors; and (3) off

- site exceedances of m aximum contaminant levels (MCLs) attributable to CCR impacts, a fundamental criterion for being classified as a proven damage case, were observed in only three cases of the combined total of 54 proven and potential groundwater damage cases.

These findings underscore the fact that the damage cases, in particular the proven damage cases, represent only a fraction of CCR disposal units and that the limited number and nature of these cases do not warrant Subtitle C regulation. The lack of justification for CCR regulation under Subtitle C is underscored by the fact that the Subtitle D controls can fully address EPA’s

concerns with these facilities.

The proposed Subtitle D controls will prevent future damage cases, and existing damage cases are being effectively remediated

EPA’s primary concerns with the identified damage cases involve surface and groundwater contamination from CCR disposal units and the structural failure of CCR surface impoundments. These are precisely the risks that the proposed Subtitle D co ntrols are designed to address.196

EPA has stated repeatedly that the standards for CCR disposal units are identical under the Subtitle C and Subtitle D options, with both proposed regulatory programs requiring liners and leachate collection systems for new disposal units and lateral expansions of existing units, as well as the retrofitting of existing CCR impoundments. Further, under the Subtitle D option, existing CCR disposal units would be subject to groundwater monitoring standards that will

allow for th e early detection of any groundwater contamination from both lined and existing unlined units. The Subtitle D option would impose structural integrity requirements on all CCR surface impoundments, thus addressing EPA’s concerns with the potential structura l failure of such units that served as the basis for identifying the TVA Kingston facility and Martin’s Creek Power Plant as proven damage cases.

While the Subtitle D regulations will be effective in preventing future damage cases, the existing damage cas es already are being properly remediated under state and federal remediation programs. As EPA acknowledged with respect to the proven damage cases identified in the 2000 Regulatory Determination, all of these cases are being addressed adequately by the sta tes (and in two cases, by EPA under the Superfund program), which EPA explained shows “the effectiveness of states responses when damages were identified.” In addition, the newly identified damage cases are being effectively remediated. The EPRI Damage Cas e Report includes a detailed analysis of the remediation efforts at these additional sites and found that “[a]vailable information indicates that remediation is complete or underway at all sites where remediation was required.” Indeed, of the 16 proven cas es of damages to groundwater, EPA has confirmed that “corrective actions have been completed in seven cases and are ongoing in the remaining nine cases.”

In short, existing damage cases are already being adequately addressed, and the proposed

Subtitle D r egulations will prevent future damage cases. Therefore, there is no reason for EPA to pursue the Subtitle C option when the Subtitle D option will effectively address the issues associated with the damage cases. Given the underlying goal of the Bevill amen dment that EPA avoid the Subtitle C regulation of CCRs “if at all possible” ( EDF v. EPA , 852 F.2d at 1314), there is no basis for EPA to rely on the damage cases as the basis for pursuing the Subtitle C option.

Response: This rule will regulate CCRs under RCRA subtitle D: for further details, see unit IV of the preamble to the final rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 10483

- 18 

### Organization 1 

### : Utility Solid Waste Activities Group (USWAG) et al.


### Commenter 1 : James R. Roewer Commenter Type: Trade Asso ciation

Classification: Substantive



### Comment Excerpt Text: EPA suggests that the newly identified “damage cases” may warrant reversal of the 2000 Regulatory Determination, resulting in the regulation of CCRs under RCRA Subtitle C. 75 Fed. Reg. at 35155

- 56. [Footnote 20: One of the eight statutory study factors that EPA must evaluate in determining whether CCRs warrant regulation under RCRA Subtitle C is “documented cases197

in which danger to human health or the environment from surface runoff or leachate has been proved.” RCRA § 8002(n)(4). These cases are referred to by EPA as “damage cases.” See 75 Fed. Reg. at 35146.] However, the new damage cases, which are limited almost exclusively to older, unlined units as were the original damage cases, in no way unde rmine EPA‘s original decision in the 2000 Regulatory Determination that the best means to address the damage cases is to “develop national Subtitle D regulations.” 65 Fed. Reg. at 32216.

USWAG acknowledges that some of the damage cases identified by EPA h ave had environmental impacts. At the same time, however, the proposed Subtitle D requirements

– including the liner, groundwater monitoring, corrective action and structural stability requirements

– will be fully effective in addressing EPA‘s concerns abo ut the damage case sites without the attendant adverse impacts of the Subtitle C option. Therefore, the new damage cases justify neither the reversal of EPA‘s 2000 final Regulatory Determination nor the resulting regulation of CCRs under Subtitle C. We dis cuss below the fact that the proven damage cases represent only a subset of CCR management units and that EPA‘s concerns about this distinct subset of units will be adequately addressed under the Subtitle D option.

A. The Damage Cases Represent A Subset O f Older, Unlined CCRnDisposal Units

At the time of the final 2000 Regulatory Determination, EPA had identified 14 “proven” damage cases [Footnote 21: “Proven” damage cases “means those cases with (i) Documented exceedances of primary maximum contaminant l evels (MCLs) or other health

- based standards measured in ground water at sufficient distance from the waste management unit to indicate that hazardous constituents have migrated to the extent that they could cause human health concerns, and/or (ii) where a scientific study provides documented evidence of another type of damage to human health or the environment (e.g., ecological damage), and/or (iii) where there has been an administrative ruling or court decision with an explicit finding of specific damage to human health or the environment.” 75 Fed. Reg. at 35131.] and 36 “potential” damage cases. [Footnote 22: Potential damage case means those cases with documented MCL exceedances that were measured in ground water beneath or close to the waste source. In these cases, while the association with CCRs has been established, the documented exceedances had not been demonstrated at a sufficient distance from the waste management unit to indicate that waste constituents had migrated to the extent that they could c ause human health concerns. Id. ] 75 Fed. Reg. at 35142. Since that time, EPA has identified 13 additional proven damage cases and four more potential damage cases, bringing the total to 27 proven cases and 40 potential damage

cases. Id. at 35143. Virtuall y all of these damage cases involve unlined units that began operation before 1990; these cases do not involve the newer, lined units that have commenced operation since that time. See “Evaluation of Coal Combustion Product Damage Cases,” Electric Power

Re search Institute, July 2010, EPRI Report No. 1020553 (“EPRI Damage Case Report”).

Before addressing the nature of the damage cases, it is important to emphasize that it is inappropriate for EPA to include potential damage cases in its evaluation of the ap propriate regulatory option for CCRs. The Bevill Amendment provides that, in considering the “documented cases” of danger from the management of CCRs, the Agency was only to evaluate those instances where such danger “has been proved.” RCRA § 8002(n)(4) (e mphasis added). EPA has acknowledged this statutory limitation, observing in its final 2000 Regulatory198

Determination that, although the potential damage cases may pose a “potential danger” to human health and the environment in some circumstances, they do not “satisfy the statutory criteria of documented, proven damage cases because damage to human health or the environment has not been proven. . . .” 65 Fed. Reg. at 32225. Therefore, it is inconsistent with the plain language of

the statute for EPA to incl ude the potential damage cases in its assessment of the “documented cases” of danger to human health and the environment from the management of CCRs. EPA cannot use the potential damage cases as the foundation for a reversal of its final 2000 Regulatory De termination.

It is important to note that even the proven damage cases are limited to only a subset of the universe of CCR disposal units; namely, older, unlined units. Of the 16 proven damages cases identified in the 2007 NODA that involved groundwater c ontamination, 15 of the 16 units were unlined (with the remaining unit being a surface impoundment where it was unclear whether the unit was lined or unlined). 75 Fed. Reg. at 35147. The only other proven damage case involving groundwater contamination ide ntified since the 2007 NODA is the BBBS Sand and Gravel Quarries in Gambrills, MD, also an unlined site. Id.

Even assuming, for purposes of argument, that it is appropriate to include the potential damage cases in this evaluation, the vast majority of imp acts to groundwater from the potential damage cases are similarly from unlined facilities. According to EPRI‘s comprehensive evaluation of the combined total of 63 proven and potential damage cases identified in the 2007 NODA, only six (10%) had liners. EP RI Damage Case Report at 3

- 5. Since issuance of the NODA, the only other potential damage case identified by EPA is the Battlefield Golf Course in Chesapeake, VA, an unlined site, although EPA has recently issued a report concluding that no residential wel ls were impacted by CCRs at the site and that there are no adverse health effects expected from exposure

to surface water or sediments at the site. See http://yosemite.epa.gov/opa/admpress.nsf/0/72D8A4102AE78DA88525770D00546146.

In addition, virtually all of the damage cases, both proven and potential, involve older landfills that began operating before it was common practice to install liners in CCR disposal units. Of the 63 proven and potential damage cases identified in the 2007 NODA, approximately two

- thirds of all the facilities for which operating periods could be established began operations before 1976 and all began operations before 1990. Id. at 3

- 7

– 3

- 8. The data are even more striking when this analysis is properly limited to the proven damage c ases; all of the 24 proven damage cases identified in the NODA commenced operations between 1948 and 1983, with “the median opening year of 1967.” Id. at 3

- 8.

As EPA itself reported in the DOE/EPA Report, the vast majority of CCR disposal units that

have been constructed since 1990 are “better designed, in that they are lined and have installed groundwater monitoring systems, and therefore the total percentages of unprotected units have been reduced.” 75 Fed. Reg. at 35150. In fact, the DOE/EPA Report foun d that “[t]he vast majority (98%) of the 56 identified units (both landfills and surface impoundments)” built or expanded from 1994 to 2004 have liners. Id. at 31. The point is that the damage cases involve older and almost exclusively unlined units and re present only a segment of the total universe of CCR disposal units.199

Not only do the damage cases involve an unrepresentative subset of CCR disposal units, legitimate questions exist regarding whether even this limited subset of units are truly “damage”

ca ses. The EPRI Damage Case report identifies a number of important flaws with the proven and potential damage cases identified in the 2007 NODA, including, among other things, that (1) characterization of at least 13 of the sites as “damage” cases was quest ionable because of the lack of any long

- term impacts that could be attributed to CCRs; (2) nearly two

- thirds of the 54 groundwater damage case facilities were located at sites where there was a low potential for downgradient receptors; and (3) off

- site exc eedances of MCLs attributable to CCR impacts, a fundamental criterion for being classified as a proven damage case, were observed in only three cases of the combined total of 54 proven and potential groundwater damage cases. Id. at vi of Report Summary.

T hese findings underscore the fact that the damage cases, including in particular the proven damage cases, represent only a fraction of CCR disposal units and that the limited number and nature of these cases do not warrant Subtitle C regulation. The lack o f justification for CCR regulation under Subtitle C is underscored by the fact that the Subtitle D controls can fully
address EPA‘s concerns with these facilities.

Response: This rule will regulate CCRs under RCRA subtitle D: for further details, see unit IV of the preamble to the final rule.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0221

- 2 

### Organization 1 

### : Exelon Corporation


### Commenter 1 : Kathleen Barron Commenter Type: Electric Utility Company

Classification: Substantive



### Comment Excerpt Text: II. Reports Regarding Alleged Damage Cases

EPA identified reports regarding alleged damage cases that were submitted by: (1) Electric Power Research Institute ("Evaluation of Coal Combustion Product Damage Cases: Volume 1: Data Summary and Conclusions," dated July 1, 2010, and "Evaluation of Coal Combustion Product Damage Cases: Volume 2: Case Summaries," dated September 2010); (2) Environmental Integrity Project and Earth justice, ("Out of Control: Mounting Damages From Coal Ash Waste Sites," released Fe bruary 24, 2010); and (3) Environmental Integrity Project, Earthjustice, and Sierra Club ("In Harm's Way: Lack of Federal Coal Ash Regulations Endangers Americans And Their Environment," released August 26, 2010). 76 Fed. Reg. 63256. In its

comments on the proposed rule, Exelon referenced findings in the July 1, 2010 Electric Power Research Institute ("EPRI”) report, and expressed its belief that the conclusions of that report were valid. See Exelon Comments at 3. The damage case reports prepared by the env ironmental groups do not change Exelon's view that it is the older disposal units that tend to be associated with allegations of water contamination.

Assuming arguendo that the damage cases alleged in "Out of Control: Mounting Damages From

Coal Ash Waste Sites," and "In Harm's Way: Lack of Federal Coal Ash Regulations Endangers200

Americans And Their Environment," (hereafter, "Alleged Damage Case Reports") can be considered proven, [Footnote 3: By referencing and discussing the Alleged Damage Case Reports, t hese comments should not be interpreted as implying that the alleged contamination incidents are credible. Exelon notes that several state agencies who have weighed in on the supposed damage cases in their states largely dispute information or conclusions in the Alleged Damage Case Reports. See generally Draft Report from the Commonwealth of Pennsylvania, Department of Environmental Protection, Southwest Region, "Review of the Environmental Integrity Project, Earth justice and Sierra Club Report: 'In Harm's Way: Lack of Federal Coal Ash Regulations Endangers Americans and Their Environment' 'Thirty

- nine New Damage Cases of Contamination From Improperly Disposed Coal Combustion Waste,' dated August 26, 2010 for the Sites: Little Blue Run Disposal Impoundment, Hatfield Ferry Power Station Disposal Site (Jan. 3, 2011) (Attachment A); Commonwealth of Kentucky, Energy and Environment Cabinet,

Document No. EPA

- HQRCRA

- 2011

- 0392

- 0078 at 29

- 31 ("[T]he study fails to ' ... demonstrate that damages are significant in t erms of impacts on human health or the environment. "'); and Tennessee Department of Environment and Conservation, Document No. EPA

- HQ

- RCRA

- 2011

- 0392

- 0080 at 11 ("Given the concentrations of groundwater contaminants and rates of groundwater flow, the depar tment has not identified any danger to public health and the environment associated with either offsite groundwater or the adjacent river at [the six Tennessee sites identified by environmental groups)."). It is Exelon's understanding that the Pennsylvania Department of Environmental Protection intends to update the draft report attached here to address additional alleged damage sites in the Commonwealth.] the vast majority of alleged damage cases that contain enough information to determine the date a disp osal unit was built, commissioned or initially used still support the notion that older disposal units (e.g., pre

- 1990) are associated with environmental contamination. Based on the information presented in the Alleged Damage Case Reports and applying reas onable assumptions to determine the date a disposal units was built, commissioned or initially used, the following trends emerge: [Footnote 4: Due to the inconsistent reporting of information related to the alleged damage cases, this chart does not represe nt disposal units alleged to be damage cases at all sites identified in these reports. Some site reports gave no reasonable basis for making any assumptions about the dates for all or some units referenced in the report. Moreover, this chart does not attem pt to capture unit modifications or expansions that may have been undertaken in subsequent years. Exelon will make available the detailed background assumptions and analyses at EPA's request, but makes no representations as to the quality or accuracy of th e underlying data.]

[Please see original attachment for the graph titled Alleged Damage Cases (with reasonable date assumptions)]

Under this analysis, 92% of the disposal units in the alleged damage cases relate to landfills or impoundments constructed before 1990. Almost 72% of these pre

- 1990 units are surface impoundments, and over 97% of the total cases relating to surface impoundments involve pre

1990 construction. Thus, even if one assumes that the damage cases alleged in these reports were

proven damage cases, it appears that the trend where damages arise would be towards damages related to older units, and that those older units are more likely to be ponds/impoundments rather than landfills (presumably not likely to be constructed to modem standar ds). Accordingly, Exelon continues to believe that EPA's promulgation of a Subtitle D regulatory program can201

adequately fill any gaps that may exist between modem regulatory requirements and controls that may not have been previously required at existing, older units.

Response: This rule will regulate CCRs under RCRA subtitle D: for further details, see unit IV of the preamble to the final rule.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0225

- 2 

### Organization 1 

### : Northern Indiana Public Service Company (NIPSCO)


### Co mmenter 1 : Dale Helmers Commenter Type: Electric Utility Company

Classification: Substantive



### Comment Excerpt Text: Alleged Damage Case Information

The NODA addresses one particular alleged damage case related to NIPSCO in the June 24,

2011 document "Web Resources, Assessment of CCR Damage Cases", which is Northern Indiana Public Service Corp. (NIPSCO) Yard 520 Landfill Site (Brown's Landfill), Northern Indiana Public Service Corp. (NIPSCO), Township of Pines, Porter County, Indiana. This landfill, permane ntly closed in 2001, represents a historic approach to CCR disposal and does not accurately reflect NIPSCO's current standards for landfill disposal. NiSource would like to comment on the following report:

- Gamma Count Rate Survey in Pines, Indiana, Con ducted October 10

- 15, 2009 PINES (People in Need of Environmental Safety), October 27, 2009.

On October 12, 2011, based upon a request by People in Need of Environmental Safety, EPA provided comments on the above

- referenced Gamma Count Rate Survey. In su mmarizing their comments, EPA noted significant weaknesses in instrumentation, survey methodology and interpretation, and conclusions and recommendations associated with the survey. Based on EPA's comments regarding the survey, it is not representative of CCRs and should not be relied upon in this rulemaking. A copy of the letter is attached to these comments.

Response: In order t o resolve the debated conclusions of the Gamma Count Rate Survey cited by

the commenter , i n spring 2014 a preliminary soil testi ng was performed in about 45 residential yards to confirm the amount of coal ash in yards and rights of way and to learn if elevated radiation levels are present. A follow

- up testing in August 2014 intended to take more precise soil samples at approximatel y nine different private properties, focusing on specific radioactive compounds as well as other “contaminants of concern” such as boron and arsenic. EPA is not

aware of the results of these two recent initiatives.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0225

- 4 

### Organization 1 

### : Northern Indiana Public Service Company (NIPSCO)


### Commenter 1 : Dale Helmers Commenter Type: Electric Utility Company

Classification: Substantive202



### Comment Excerpt Text:

From : Matthew Ohl/R5/USEPA/US To : pkysel@li ve . com Cc : EUGENE JABLONOWSKI/R5/USEPA/US@EPA, Janet Pope/R5/USEPA/US@EPA, Timothy Thurlow/R5/USEPA/US@EPA, kim . ferraro@leafindiana . org

Date : 10/12/2011 06:03AM Subject : Gamma Count Rate Survey Report , Pines , Indiana

Hi Paul:

As preside nt of the community group, People In Need of Environmental Safety (PINES) you requested a review of the report titled, "Gamma Count Rate Survey, Pines, Indiana. In reviewing the report there appears to be significant weaknesses in instrumentation, survey m ethodology and interpretation, and conclusions and recommendations. Please see the comments below.

Thank you.

Matthew J . Ohl Remedial Project Manager United States Environmental Protection Agency 77 West Jackson Boulevard, SR

- 6J Chicago, IL 60604

– 3590

phone : 312 . 886 . 4442

fax : 312

- 692

- 2447

e

- mail : ohl .matthew@epa . gov

INSTRUMENTATION

The calibration of the survey instrument is unusual because the probe and electronics were calibrated separately and not as a single survey instru ment. The documentation in the report is silent on the operating point of the probe and the settings of the electronics when the detector was connected. Without the instrument having been calibrated as a single unit, and readings

correlated with the concen tration of radionuclides of interest, quantitative interpretation of instrument readings is not possible. The probe was calibrated using cesium 137 (Cs

- 137), a man

made radionuclide. Cs

- 137 is not a radionuclide of interest in the Pines surveys. No calibra tion with the radionuclides of interest is reported.

The probe background when calibrated was reported as 10, 370 counts

- per

- minute (cpm). The instrument sensitivity is approximately 9650 counts per minute per microcurie of Cs

- 137. This

calibration off

ers no indication of the instruments performance in the presence of the radionuclides of interest. Without information about the sensitivity of the instrument to the radionuclides of interest, their concentrations above the reported background cannot be203

de termined. An instrument with a low background and high sensitivity may double its readings in the presence of a slightly elevated concentration of radionuclides of interest. An instrument with a high background and low sensitivity may have no perceptible i ncrease in reading when the concentration is much higher than the nominal background concentration. For this reason of the readings reported during the survey cannot be treated as quantitative and, at best, may be

considered relative.

SURVEY METHODOLOGY AND INTERPRETATION

Survey methodology is questionable and the use of double background as an indication of elevated concentrations of radionuclides of interest is not quantitative. Table 1 provides the range of background readings at the three background sites identified in the report.

Table 1: Background Reading Levels Background Site: Carolina Ave and Bike Trail Background response (cpm): 3 , 052

- 11 , 684

Table 1: Background Reading Levels Background Site: 1602 North Background response (cpm): 4835

Table 1: Background Reading Levels Background Site: 1674 Alabama Background response (cpm): 4458

Multiple measurements were recorded for one of the three background sites. The range of background measurements was 3052 cpm to 11, 684 cpm. Selecti on of an average of the lowest readings may bias the results toward over

- reporting the possible presence of radionuclides of interest. If the full range of background is considered, most of the investigation sites fall with in the range of background. No investigation site measurement was double the upper range of background reading. Table 2. provides the range of readings at thirteen investigation sites.

The interpretation of results is ambiguous because the survey teams identify what is described as

a glistening black material as either fly ash or sandblasting grit. The relationship between sandblasting grit and the fly ash that may have originated from burning coal is not established. On the investigation sites, the survey results range from below the lowest background value to slightly above the highest background value. Concluding that the investigation sites have elevated concentration of the radionuclides of interest is difficult. Elevated readings appear to be

localized and the data do not indicate if the cause is fly ash, sand blasting grit or naturally occurring material.

[Please see original attachment for Table 2: Readings at Investigation Sites]

CONCLUSIONS AND RECOMMENDATIONS

The possible interpretations of the results range from no dete ctable concentrations of204

radionuclides of interest above background levels to low concentrations of the radionuclides of interest slightly above the concentrations of those radionuclides at the background sites. The significance of the presence of this mat erial is not explored and human exposure pathways are not discussed in the report. The report states that fly ash may have been used in construction of roads but does not discuss whether or not a human pathway exists or if the use in construction of

roads may present some potential health risk. The absence of a discussion of pathways or human health risk is a weakness of the survey.

The first recommendation is chat confirmation be made of the PINES’ data. The recommendation does not identify what is to be confirmed or the significance of the data.

The second recommendation is that a determination be made as to the component giving elevated Gamma count races (e.g. black glittery material). The survey should have made this determination because the report does not contain any information relating the black glittery material to the sites where fly ash from burning coal is known to be present.

The third recommendation is chat determination be made by Gamma spectroscopy as co the isotopic identities of the g amma

- ray emitters. If this were needed, samples should have been collected during the survey. This easily performed task would have clarified whether the elevated readings observed during the survey are due to radionuclides of interest or naturally occurr ing potassium 40 whose content in soil is variable.

The fourth recommendation is a restatement of the third. This determination may establish the radionuclides present but not the source. These radionuclides are ubiquitous in soil and it may

not indicate that they are related to CCBs.

The fifth recommendation that a review be made of well data to determine the concentration of

radium

- 226 , radium

- 228 , uranium

- 238 , uranium

- 234, and uranium

- 235 . The presence of

these radionuclides in water is a hu man health hazard. The drinking water supply provides a human pathway independent of the origins of the radionuclides. Water analysis itself will not

indicate which of the radionuclides are inherent in the well water.

Response: See response to the comment excerpt EPA

- HQ

- RCRA

- 2011

- 0392

- 0225

- 2.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0279

- 3 

### Organization 1 

### : Associated General Contractors of America (AGC)


### Commenter 1 : Melinda Tomaino Commenter Type: Trade Association

Classification: S ubstantive



### Comment Excerpt Text: 4. EPA Should Take into Account the Lack of Damage Cases Related to the Beneficial Use of

CCRs in Construction

In reviewing the docket for the NODA, AGC looked closely for documents on alleged or proven damage cases asso ciated with fly ash disposal and management. AGC identified one report,205

which is summarized below, that mentions two alleged damage cases involving “beneficial use.” A closer examination of the report, however, revealed that neither of these cases, in fact

, involved the beneficial use of fly ash material. Rather, they appear to be instances of the same large scale disposal as the other alleged damage cases included in the report

— which all focus largely on impoundments and landfills.

Particularly striking to note is that: “Most damage case facilities were opened before current state

and federal non

- hazardous landfill regulations were promulgated. Specifically, two

- thirds of the sites with known operational dates were opened prior to promulgation of RCRA in 1976, and all with known operational dates opened before 1990.” (EPA

- HQ

- RCRA

- 2011

- 0392

- 0007) This would suggest that current practices at the state level have alleviated many of the instances of proven damage cases.

Also worthy of note is that all of the proven damage cases have either been resolved and

cleaned

- up or are in the process of remediation.

AGC maintains that sufficient information and analysis are needed before the damage cases are used in a regulatory context. More site

- specific information is required to place each site in the proper context in terms of disposal practices at the site and current status of the site. This information is critical to assure that the assessments do not rely solely on old or incomplete data.

EPA

- HQ

- RCRA

- 2011

- 03 92

- 0005: Out of Control: Mounting Damages from Coal Ash Waste

Sites This report initially indicates that it includes “high hazard ash ponds,” and then goes on to state that two alleged damage cases relate to beneficial use

— structural fill practices at Roc ky Acres in Illinois and Swift Creek in North Dakota. However, it is evident from the report that these instances are not typical of beneficial use construction applications and are more aptly considered “landfilling”

— as described by EPA in its proposed ru lemaking

EPA has identified a few problems involving large

- scale fill operations

— most involved the placement of fly ash and bottom ash in sand and gravel quarries and one involved the beneficial use of 1.5 million yards of fly ash to contour a golf cours e. Because of these cases, EPA is proposing not to accept large

- scale placement of CCRs (which it likens to disposal) as an approved beneficial use. However, EPA recognizes that these uses are not typical of the construction industry’s beneficial use of CC Rs. (75 FR 35164) (AGC Comment Letter, November 2010)

Later, the report no longer describes the Rocky Acres site as beneficial use and instead refers to it as a disposal site in which allegedly 380,000 tons of CCRs were placed in a ravine. According

to t he report, the owner had stated their intention to build a structure on top of the CCR

- filled ravine, which is why the owner had declared that the site was utilizing a beneficial use practice. Also according to the report, “State sent notice that the site was an illegal open dump in 2006; in 2007, Bunge Corp. agreed to monitor groundwater and submitted groundwater work plan.”

According to the report, the second alleged damage case involves placing of coal ash directly into a wetland and ground water in/or around Swift Creek for approximately a 10

- year period.206

Again, the owner had allegedly declared the site to be utilizing a beneficial use practice. In this case, the report indicates “State issued Notice of Violation in 2002 and Compliance Order in 2006 (a ssessing $4,000 penalty); corrective action system installed in 2008 to intercept groundwater.”

EPA

- HQ

- RCRA

- 2011

- 0392

- 0007: Evaluation of Coal Combustion Product Damage Cases: Volume 1: Data Summary and Conclusions and EPA

- HQ

- RCRA

- 2011

- 0392

- 0008: Evaluat ion of Coal Combustion Product Damage Cases: Volume 2: Case Summaries “This report provides a detailed technical evaluation for 63 of the CCP damage cases categorized as proven or potential.”

“Review of available and assembled information on the 63 CCP damage cases indicates that they are largely older, unlined facilities. The constituents identified most often were sulfate and boron, and impacts were generally contained on site. Remediation is completed or ongoing at

facilities where it was determined t o be necessary.” And “Most new CCP disposal facilities built in the last 15 years are constructed with liners and monitor groundwater.”

“Most damage case facilities were opened before current state and federal non

- hazardous landfill regulations were prom ulgated. Specifically, two

- thirds of the sites with known operational dates were opened prior to promulgation of RCRA in 1976, and all with known operational dates opened before 1990.”

“Review of available and assembled information on the 63 CCP damage c ases reported in the 2007 USEPA Damage Case Assessment shows that groundwater impacts were mostly observed

in on

- site monitoring wells, and few cases had documented impacts to drinking water wells. When exceedances were observed, sulfate and boron, which d o not have MCLs, were the most common constituents with exceedances, although exceedances of MCLs were observed at many

sites

— mostly in on

- site monitoring wells. Remediation is completed or ongoing at most of the facilities, significantly lowering the prob ability that off

- site water supplies will be impacted.”

“These cases are not representative of the designs used at new CCP landfill and impoundment units, nearly all of which are constructed using liners, and often leachate collection systems. The damage case facilities, all constructed prior to 1990, are mostly unlined and rarely have leachate collection systems. As such, these facilities reflect past practices, many predating current state

and federal non

- hazardous waste disposal regulations. While the damage cases are relevant to evaluating the potential from older units still in operation today, they provide limited insight relevant to new units or for comparing the technical performance of common designs in use today.”

Response: As articulated by com menters to the October 2011 NODA, size alone is not a sufficient predictor of damage that would be potentially associated with an unlined CCR structural fill. Additional variables, such as the composition of the CCR, the availability of run

on and the perm eability of the natural substrate would also determine the prospects for groundwater contamination. This view was adopted by EPA in developing guidance for structural fill projects that deploy more than 12,400 ton of CCRs. Unfortunately, not all
‘beneficia l use’ project that involve the use of CCRs represent older, ‘legacy’ operational207

practices. This is illustrated by the Gambrills, BBSS CCR quarry reclamation site in Mayland that was permitted by the State and operated between 1995 and 2007; and the Battl efield Golf Club, Chesapeake, Virginia, where a large structural fill project was executed between 2002 and 2007. In the latter case, the fill project was executed although a precursor modeling (in 2001) suggested that CCR leachate might impact the drinki ng water wells of the adjoining properties.



### Comment Number: TRANS

- DEN

- 0053

- 2 

### Organization 1 

### : Association of State and Territorial Solid Waste Management Officials


### Commenter 1 : Gary Baughman Commenter Type: Association of State Governments



### Comment Excerpt Text: The environmental damage sites the EPA has analyzed are all instances where some, if not all, of the disposal activity was conducted prior to strengthening of the design requirements for such activity during the 1990s.

Response: See response to comm ent excerpt EPA

- HQ

- RCRA

- 2009

- 0640

- 08787

- 10.

Section 8.5

- Damage cases reflect current practices, and their numbers are growing



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06314

- 18 

### Organization 1 

### : Earthjustice et al. (analyses prepared for Earthjustice et. al. by Russell Boulding, Boulding Soil

- Water Consulting, and submitted by Earthjustice)


### Commenter 1 : Lisa Evans Commenter Type: Advocacy Group

Classification: Substantive



### Comment Excerpt Text:

Contamination is Not an Artifact of Past Practices. The electric p ower industry has argued that contamination at CCR disposal sites is a problem associated with past practices and that improved disposal practices address these concerns. The number of damage cases that involved active disposal sites shows this argument to be false (see Table A

- 3 for additional data). [see original comment for ATTACHMENT 4, which contains Table A

- 3]

- Contamination at the large majority of combined EPA and EIP damage cases (84.7%) that involve surface impoundments is being caused by impoun dments that are still operating.

- Less than half of EPA’s damage cases involving landfills (46.7%) and almost three quarters (72.2%) of the EIP damage cases involving landfills are from active units. The fact that EPA’s damage cases include a relatively high percentage of inactive landfills (53.3%) suggests that EPA’s earlier regulatory determinations have failed to examine the effectiveness of safeguards at active landfills in preventing contamination.

Response: Whereas the percentages of CCR management units that are still active have fallen since the comment was submitted to the docket (due to reduced power demand during the208

recession, industry’s reluctance to invest in older generating boilers to comply with t he requirements of new air emission rules, and the switch to more cost

- effective natural gas), it is still noteworthy that about six percent of the units associated with impacts to groundwater were

constructed from 1990 onwards.



### Comment Number: EPA

- HQ

- RC RA

- 2009

- 0640

- 06314

- 21 

### Organization 1 

### : Earthjustice et. al. (analyses prepared for Earthjustice et. al. by Russell Boulding, Boulding Soil

- Water Consulting, and submitted by Earthjustice)


### Commenter 1 : Lisa Evans Commenter Type: Advocacy Group

Classification: Substantive



### Comment Excerpt Text: Placement of CCR Below the Water Table, the Worst Contamination Scenario, Continues to Be Allowed by States.

In the regulatory analysis for EPA proposed rulemaking, of 25 state regulations reviewed, only

five states have location restrictions below the natural water table for surface impoundments: (North Carolina, North Dakota, Oklahoma, West Virginia and Wyoming), and eight states have location restrictions below the natural water table for landfills (Florida, Iowa, Mich igan, Minnesota, North Carolina, North Dakota, Ohio and Tennessee.

Several EIP damage cases involve active CCR landfills operating under state permits where CCR has been placed below the water table in old quarries:

- Bottom ash and boiler slag from the Joliet 9 and 29 Power Plants, Illinois, is has been sluiced into an unlined limestone quarry pit since 1962. A contaminant plume is moving to the southeast with levels of arsenic exceeding the MCL, levels of boron and molybdenum that exceed the IL

Class I groundwater standard in a well 150 feet from the edge of the landfill. Elevated levels of boron have been found in private wells downgradient from the contaminated monitoring well and the Illinois Environmental Protection Agency has taken no regulatory ac tion.

- The TransAsh landfill in Tennessee places CCR from the Johnsonville Power Plant in an old chert quarry. Despite Tennessee regulations prohibiting placement of CCR below the water table, ash has been placed below the water table, and required liner s ineffective. A private well 400 feet from the disposal sites was found to be contaminated with mercury above the MCL, prompting an Emergency Removal Action by USEPA to provide a water line to the residence.

Although the state of Iowa restricts placement of CCR below the water table in landfills, under the guise of “beneficial” use CCR can be placed in old quarries to “reclaim” them without any requirements for liners or groundwater monitoring. The following old quarries receive CCR:

Goose Lake Quarry Re clamation, Wendling Quarries/Beneficial Tech . (Permit 23

- SDP

- 15

- 03X)

– Goose Lake [Approved January 23, 2008

– Started accepting material in December 2008]. Receives CCR from the ADM Co

- Generation plant located in Clinton, lA.209

Lee Crawford Quarry Reclama tion, Cedar Rapids (Permit 57

- SDP

- 23

- 97X)

– Cedar Rapids [Approved September 29, 1997

- Started accepting material in October 1998]. Receives CCR

from the ADM Co

- Generation plant located in Clinton, IA.

Waterloo South Quarry Reclamation, BMC Aggregates (P ermit 07

- SDP

- 20

- 02X)

– Waterloo [Approved/Started April 25, 2002]. Receives CCR fro m Iowa State University (fluidized ash, stoker ash, stoker bottom ash, fly ash), University of Northern Iowa (Boiler #11 ash), and University of Iowa (fly ash and bottom ash). Voluntary groundwater monitoring began at this site in early 2010.

Response: EPA agrees that the placement of CCR into groundwater is a practice that would ultimately lead to groundwater impacts, as demonstrated at the Lincoln Stone Quarry Landfill (LSQL) in Illinois and the Trans

- Ash Landfill in Tennessee. Concerning the LSQL, Mi dwest Generation claims that Boron was merely used as a 'fingerprint' tracer isotope in a groundwater study at the site and that no residential wells were impacted by the landfill. At the three Iowa quarries cited by the commenter, it is likely that ground water impacts would be detected as soon as or soon after groundwater monitoring systems are put in place.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06314

- 25 

### Organization 1 

### : Earthjustice et. al. (analyses prepared for Earthjustice et. al. by Russell Boulding , Boulding Soil

- Water Consulting, and submitted by Earthjustice)


### Commenter 1 : Lisa Evans Commenter Type: Advocacy Group

Classification: Substantive



### Comment Excerpt Text: The Number of Damage Cases Continues to Grow and Many More Damage Cases Are Likely to Be Identified.

In the process of preparing the damage cases in the two EIP reports, groundwater and surface water contamination was identified at many other sites, but did not meet the criteria established for inclusion in the reports (significant exceedances of MCLs) usually because limited monitoring and available data were not sufficient to provide the detailed documentation of damage.

Response: Thank you for your comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06315

- 2 

### Organization 1 

### : Earthjusti ce et al.


### Commenter 1 : Lisa Evans Commenter Type: Advocacy Group

Classification: Substantive



### Comment Excerpt Text:210

o Damage from Coal Ash is Serious, Pervasive and Mounting

Damage cases (sites with documented groundwater or surface water contamination) have

increased 10

- fold in the last 10 years to 137 sites, even without any real effort by EPA to find them. These sites have poisoned drinking water, destroyed entire fish populations, killed scores of livestock, created superfund sites, sickened families and destroyed livelihoods. The damage includes leaks, major spills, and the pervasive contamination of underground drinking water sources. The contamination involves pollutants measured at hundreds of times above safe drinking water standards and some of t he most toxic chemicals known to man and aquatic life, including arsenic, cadmium, chromium, lead mercury and selenium. The damage at most of the newly identified sites is largely unmitigated, and it represents present disposal practices, not just

historic al past practices.

EPA has identified 67 sites that it has defined as either “actual” or “potential” damage cases, based largely on review of data brought to the Agency by environmental organizations. Our comments incorporate two reports that we have prev iously shared with the Agency, and which identify an additional 70 sites that meet EPA’s damage criteria. Because our analysis was limited to selected states and sites with at least some groundwater data, we include evidence to show that

contamination is h ighly likely at many other locations. Although evaluating the damage is one of EPA’s responsibilities in determining how to regulate coal ash, the Agency has done very little to seriously investigate the problem. If that continues to be the case, we hope t hat EPA will at least review the information that we have gathered at our own expense, and determine whether these sites are as contaminated as the data suggests.

Response: EPA appreciates the invaluable disclosure of new, alleged damage case sites by

env ironmental advocacy groups. The Agency has assessed the 90 cases submitted by these groups in their two 2010 reports ( Out of Control and In Harm’s Way ) as well as in their 2011 report ( Risky Business ) and concluded that ten of them qualify as proven damage cases, 61

- as potential damage cases, and the remainder were either rejected or, due to the lack of adequate information, defined as indeterminate.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06315

- 61 

### Organization 1 

### : Earthjustice et. al.


### Commenter 1 : Lisa Evans Commenter Type: Advocacy Group

Classification: Substantive



### Comment Excerpt Text: 2. CCR Damage Cases Are Not An Artifact of Past Practices

An examination of the 137 damage cases shows that more than 90 percent of the cases involving
wet storage or disposal are occurring at operating surface impoundments and two thirds of the cases involving dry disposal are occurring at operating landfills. ( Sentence deleted per #10492 technical corrections, corrected sentence per #10492 follows ) An examination of t he 137 damage cases shows that 85 percent of the cases involving wet storage or disposal are occurring at operating surface impoundments and 62 percent of the cases involving dry211

disposal are occurring at operating landfills. [Footnote 323 ( corrected per # 10492, with

deletions in strikeout and additions in bold ): See Appendix F. Appendix F_4, Table A

- 3. ] Rather than being an artifact of past practices, damage is an ongoing reality at operating units,

both new and old. Some 130 power plants, more than one

- fo urth of the 495 plants identified in EPA’s Regulatory Impact Analysis, are involved in these damage cases. ( Sentence deleted per #10492 technical corrections, corrected sentence per #10492 follows ) Some 121 power plants,

one

- fourth of the 495 plants identi fied in EPA’s Regulatory Impact Analysis, are involved in these damage cases. [Footnote 324 ( corrected per #10492, with deletions in strikeout and

additions in bold ): See Appendix F. Appendix F_1, at 2. ] The conditions that spawned these damage cases

— misma nagement of coal ash in unlined or inadequately lined landfills, pond and pits

— are practices that continue today. Placement of CCR in wetlands, water tables, and unlined gravel pits are unfortunately 21st century disposal practices. [Footnote 325 ( new foot note inserted per #10492 technical corrections ): Appendix F_1, at 10.] Even worse, the absence of monitoring at many of these sites means that there are likely many more CCR

- contaminated sites of which regulators and nearby residents are simply unaware.

R esponse: While EPA’s database of around 150 confirmed CCR damage cases is not identical to that cited by the commenter, the Agency agrees that most of the impacts to groundwater are caused by unlined or inadequately lined CCR surface impoundments.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06346

- 3 

### Organization 1 

### : Commenter 1 : Kelly Spencer Commenter Type: Private Citizen

Classification: Substantive



### Comment Excerpt Text: It is also evident that less than adequate companies continue to operate disposal site s. For example, three of the dump sites (Brandywine Landfill in Prince George’s County, Faulkner Fly Ash Storage in Charles County, Westland Fly Ash storage site in Montgomery County) for coal ash operated by the Mirant company in Maryland alone had ground water contamination by leaching fly ash, yet they are allowed to easily move on and continue to operate at new locations.

Response: EPA concurs with the commenter’s observation about the three CCR damage cases in Maryland, where groundwater is being imp acted. However, absent specific examples of cases where “they (Mirant) are allowed to easily move on and continue to operate at new locations”, and in light of Mirant’s December 2010 merger with RRI Energy (formerly, Reliant Energy ) to form GenOn Energy, the Agency cannot verify nor refute the commen ter’s statement.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06346

- 6 

### Organization 1 

### : Commenter 1 : Kelly Spencer Commenter Type: Private Citizen

Classification: Substantive212



### Comment Excerpt Text: Also, please keep in mind the continual recurrence of failed disposal sites and the negative impacts each has caused and will undoubtedly continue to cause if ash is not treated as a

hazardous waste.

Response: EPA decided to regulate the disposal of CCR under subtitle D of RCRA by issuing

minimum national criteria. Similar to the subtitle C option, this option would require composite liners, groundwater monitoring, structural stability requirements, corrective action, and closure/post closure care. However, given available statutory authorities, EPA proposed this option to be a self

- implementing rule with no direct federal oversight, with an effective six months after publication in the Federal Register . The Agency is deferring its final Bevill Regulatory Determination with respect to CCRs that are disposed in CCR landfills and CCR surface impoundments until additional information is available on a number of key technical and policy questions, including the risks of CCR disposal based on its arsenic content, such as the appropriate safe daily dose for arsenic and th e speciation of arsenic in the environment, and the potential impacts of recent Agency regulations on the chemical composition of CCR. In addition, the Agency needs additional information on state programs before it is in a position to

make a final Bevill Regulatory Determination.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 10807_DA

- 037

- 1 

### Organization 1 

### : Earthjustice, EIP and Sierra Club


### Commenter 1 : Commenter Type: Advocacy Group

Classification: Substantive



### Comment Excerpt Text: [See original comment for cop y of "Coal Ash: SIX MYTHS the Utility Industry Wants You to Believe and SIX FACTS You Need to Know," published by Earthjustice, EIP and Sierra Club]

Response: See response to comment excerpt EPA

- HQ

- RCRA

- 2009

- 0640

- 06314

- 18.



### Comment Number: TRANS

- ARL

- 0034

- 1 

### Organization 1 

### : Physicians for Social Responsibility


### Commenter 1 : Alan Lockwood Commenter Type: Advocacy Group

Classification: Substantive



### Comment Excerpt Text: Each year coal

- fired utilities create and dispose of over 120 million tons of c oal combustion residues. Ironically, as air pollution control technologies improve, this huge waste stream becomes increasingly hazardous as toxicants such as arsenic, selenium, and many others that had been released into the air and become a part of the C CR waste stream. If CCRs stayed put, the problem we face would be much simpler. However, many of these toxicants leach into drinking water supplies, our waterways, into the air as dust, et cetera, and harm the health of those who are exposed. Several dispo sal sites are so toxic they have been added to the national priorities213

list. Time does not permit me to present the details of this complex problem, so I will focus my comments on arsenic and selenium, two critical constituents of CCR. Arsenic is a known carcinogen that causes cancers of the skin, lung, and urinary bladder. Arsenic and CCR placed in surface impoundments creates the greatest risk for the development of cancer. The cancer risk for individuals at the 50th percentile of exposure is increased b y a factor of about 30. Unlined and clay

- lined disposal sites have lower but still appreciable risks. Leaching of arsenic and other CCR toxins has forced the shutdown of water supplies and towns such as the town of Pines, Indiana. Exposure to arsenic also increases the risk of developing Type 2 diabetes mellitus. As many of you know, Americans are experiencing an epidemic of this largely preventable, devastating, and expensive disease. CCR also contains significant amounts of selenium. The EPA's own analy sis has demonstrated clearly that selenium from CCR disposal sites has devastated fish populations and resulted in fish consumption advisories. For example, Devil's Lick, North Carolina, selenium eliminated 16 out of 20 species of fish and led the Fish Con sumption Advisory that was in effect for 7 years. These are but a few of the numerous, well

- studied, and proven instances of CCR damages. Other examples include the highly publicized collapse of a dam that contained CCR in Kingston, Tennessee, that led t o the discharge of about 1 billion gallons of toxic slurry into adjacent
waterways. In 2009, EPA's sponsored survey showed that there were at least 50 CCR storage ponds that posed a significant high risk for failure. Seventy

- five of all of the impoundment s were behind dams that were more than 50 feet high, thus too many CCR repositories have the potential to cause additional, perhaps catastrophic, effects on health and the environment. On behalf of our members and all Americans, PSR urges the EPA to adopt the measures for regulating CCR described in Subtitle C so that the Agency can best fulfill its mission to protect

health and the environment.

Response: See response to comment excerpt EPA

- HQ

- RCRA

- 2009

- 0640

- 06346

- 6.



### Comment Number: TRANS

- ARL

- 0052

- 1 

### Organization 1 

### : Commenter 1 : Lisa Graves

- Marcucci Commenter Type: Private Citizen

Classification: Substantive



### Comment Excerpt Text: What about health? In 1995, the Pennsylvania DEP granted permission to allow 1 million and a half tons of fly ash to be dumped in my parents' back yard. That's how my story begins. I sought help from the Pennsylvania DEP, but was told, and this is a direct quote, "We the Department will presume these wastes are safe until citizens can prove otherwise." Why would it be the responsibility of the citizens to prove fly ash was unsafe? Why would the Pennsylvania DEP protect ash and not health? Who gave this dir ective? We soon learned that the Pennsylvania DEP was considering a statewide general permit that would allow fly ash to be dumped virtually anywhere in our state without protections, but called beneficial. We requested a public hearing before the general permit was issued, and we were told one would be held if sufficient interest was expressed. Hundreds of requests were submitted, however, we214

never did receive our public hearing, and the general permit was granted on December 23, 1997, without any public input. I believe this was by design, done systematically to exclude public scrutiny, clearing the way for a statewide cheap unregulating coal ash dumping. To policymakers, rules mean facts and figures on a printed page, but communities like mine live

with the deadly consequences these misguided policies create. It is long overdue. Protecting human health from toxic coal ash should be priority number one, not saving money for wealthy industries and their lobbyists. Throughout the next few weeks you will be introduced to real people living and dying with the dangers created by mismanaged coal ash dumping. Pro

- industry policies at the Pennsylvania DEP are running rampant as evidence by file reviews and the recent reports "Out of Control" and "In Harm's Way." I have reviewed tens of thousands of Pennsylvania documents throughout the past decade and I can tell you unequivocally I have never reviewed a coal ash disposal site in Pennsylvania that did not have contamination. Every single site I have reviewed has b een highlighted in yellow or circled in pencil but filed back in the file. Time and time again the Pennsylvania DEP does nothing to enforce. I ask you to remember our faces. We are real people, we have real concerns, we are here because of our health, and we ask you to please focus the decision

- making on health protections.

Response: EPA’s database of CCR damage cases contains four proven and four potential CCR cases in Pennsylvania (for details, see the damage case technical support documents in the final rule’s docket). This evidence lends support to the commenter’s complaint about deficiencies in the oversight of CCR in Pennsylvania.



### Comment Number: TRANS

- CHI

- 0051

- 2 

### Organization 1 

### : Sierra Club


### Commenter 1 : Bruce Nilles Commenter Type: Advocacy Group

Clas sification: Substantive



### Comment Excerpt Text: How much more study do we need? We have 137 sites in 34 states where we know there are serious problems. And the more we look the more we find. So, we have a very simple message. You've been studying this prob lem for 25 years, every year the problem gets worse. It's time to say no. This industry will have to play by the same rules that everyone else plays by. And all we're saying is if you're going to burn coal in the United States, then you need to make sure t hat you're paying the full price of generating electricity from coal and stop pawning off these huge costs on the communities who are being threatened with poisoned water today.

Response: By introducing requirements for proper location, design, and operation of CCR management units, the final CCR rule aims at addressing those of the electrical utility’s CCR management practices that pose actual and potential risks to human health and the e nvironment.



### Comment Number: TRANS

- CHI

- 0083

- 1 

### Organization 1 

### : New Age Fastening Systems


### Commenter 1 : Steve Swartz215

Commenter Type: Other Company

Classification: Substantive 

### Comment Excerpt Text: Earlier, there was a testimony from Harsco Corporation, an envi ronmental engineer, and he spoke about that they have 15 sites within a 500 mile radius area. What they're producing is coal slag abrasives. I want to submit the, this is a picture of a facility that's literally ten miles from this position, over 20,000 to 30,000 tons of coal combustion waste on the ground. It's not in any lined containers or any type of containment. This is a typical site. They have 15 of these sites. You're talking about a million tons of this a year on the ground.

Next exhibit is Exhibi t B. Now, this is the same shot but it's a little farther shot. And it gives you a good indication of where this plant is in proximity to Lake Michigan, literally less than four miles away. So, right now, I think it was September 7th, the EPA, actually Lis a Jackson had said that President Obama has made protecting the Great Lakes a national priority. Now, when I look at these pictures, we keep talking about common sense, to me it doesn't seem like it's very commonsensical that you would put all this materia l near a treasured waterway. You know, this is the second that I've come to these hearings and I keep hearing the word TCLP. Earlier, the engineer had spoken about TCLP which is a testing means for leaching in a landfill. Now, understand when you have 30, 000 tons of material, okay, in a landfill, okay, I need to do a little, I just need to explain this, it's in a landfill. I understand the leaching part of that. I don't totally agree with the test but I understand that. But when you have the same amount of material that's on the ground, what does the TCLP have to do with that? I'm just, I don't understand that. So, if someone could explain that to me? It just, to me, it doesn't sound like it's relevant. In closing, July 19th, 2010, an executive order was r eleased from the White House citing the immediate attention paid to the overall stewardship of the oceans, coasts and the Great Lakes. The true definition of stewardship is a person using every talent and repeatedly sacrificing desires to do the right thin g. I think at this point we just need to do the right thing, and we trust

that the EPA will do that.

Response: By introducing requirements for proper location, design, and operation of CCR management units, the final CCR rule aims at addressing those of t he electric utility’s CCR management practices that pose actual and potential risks to human health and the environment. The protection of lakes and waterways would be further enhanced once the steam industry Effluent Guidelines final rule amendment is sig ned in September 2015.



### Comment Number: TRANS

- CHI

- 0170

- 1 

### Organization 1 

### : Commenter 1 : Molly Kurtz Commenter Type: Private Citizen

Classification: Substantive



### Comment Excerpt Text: At the Southern Illinois Power Cooperative Lake of Egypt plant near Marion, Illinois, toxic coal ash and sludge have been placed in six unlined ponds, one unlined landfill, and one lined pond since 1963. The landfill was built in the floodplain between the confluence of Saline Creek and South Fork Saline Creek. Groundwater monitoring has been required in the vicinity of the landfill and ponds only since 1994. And high concentrations of the toxic heavy metal cadmium216

were first detected in 1997.

In the wake of the 2008 Kingston, Tennessee disaster, Illinois conducted a statewide review of ash impoundments. Illinois EPA found elevated boron, cadmium, and iron above Illinois Class 1 groundwater standards at the Marion site. The little Saline Creek is now contam inated. Does this affect people? Gene who is a farmer worries about the leachate from this dump contaminating his cattle pasture. Sue who works at a nearby federal prison worries about the groundwater pollution and the high rate of cancer among her co

- wor kers. Other people are worried, too, but they're afraid to speak up. Those that live at the Lake of Egypt feel intimidated by Southern Illinois Power because the company owns the lake they live on.

Response: EPA’s records indicate that T he Southern Illino is Power Cooperative’s ( SIPC) Marion impoundments straddle areas ranging between ’Low’ to ’Moderately High’ Potential for Aquifer Recharge (as determined in IEPA’s October 2011 Ash Impoundments Strategy Progress Report)

. I n the 1990s, SIPC obtained a boron

- adjusted water quality standard from the Illinois Pollution Control Board for a long segment of the receiving stream next to the Marion plant. Still, because SIPC apparently fails to meet regularly the boron permit limits that is predicated on the adjuste d standard, IEPA instructed the Plant to conduct further assessment of groundwater impacts.



### Comment Number: TRANS

- CLT

- 0073

- 1 

### Organization 1 

### : Commenter 1 : Christine Ellis Commenter Type: Private Citizen

Classification: Substantive



### Comment Excerpt Text: The Waccamaw River is a significant feature in our area. It's our source of drinking water. It affords myriad recreational opportunities: Fishing, swimming, boating, aesthetic beauty, and supports a unique and diverse flora and fauna. It flows through the city of Conway and in fact the city of Conway has embraced the river for all of its benefits, both environmental and economic. The city of Conway and the Waccamaw River lie within the shadow of the Dolphus M. Grainger steam generation station. The Grainger plant, owned by Central Electric Power Cooperative, and operated and maintained by Santee Cooper, began operation in 1966. It has two ash ponds. The first was constructed in '66, then expanded in '67. The second was constructed in '77 and expanded in 1990 . In 2009, a Santee Cooper task force was struck to evaluate the need and extent for future structural integrity testing of those two ponds. These units, as you know, are not regulated by state or federal agencies. In 2000, nine years before the task forc e was struck, Santee Cooper reported that groundwater monitoring results showed arsenic concentrations above the drinking water standard. The two wells in fact had extremely high concentrations, up to 91 times the drinking water standard.

Surface water sa mpling was taken up in 2001, 2006 and 2010 and not yet had there been shown to be concentrations of arsenic in surface water above drinking water standards. However, I say not yet because even though there's no data for the Waccamaw River, there's plenty o f evidence

of off

- site impacts of other coal plant sites.

Response: EPA’s records indicate that the Grainger power plant shut down its operation in May 2012. A November 2013 Consent Agreement requires semi

- annual groundwater monitoring to217

continue up to t wo years past the full removal of ash, a clean closure plan, and reporting of any discharge and dike breach to South Carolina regulatory agency and to citizen groups. Citizen groups sued Santee Cooper, the owner of the Grainger power plant, in federal and State courts, but the lawsuits were withdrawn following a November 2013 Consent Agreement with the state for clean closure by December 2023.



### Comment Number: TRANS

- CLT

- 0146

- 1 

### Organization 1 

### : Appalachian Voices


### Commenter 1 : Eric Chance Commenter Type: Advocacy Group

Classification: Substantive



### Comment Excerpt Text: Based on a review of the voluntary groundwater monitoring data, every coal ash pond in North Carolina for which data was available is leaching heavy metals and other pollutants into groundw ater. This leaching is causing heavy metals to be taken outside of the waste boundary. Equally as alarming is the prevalence of groundwater contamination at these sites is the level of contamination. Monitoring showed 681 exceedances of State groundwater s tandards including arsenic levels up to 8.8 times the State standard, boron levels up to 16.6 times the State standard, chromium levels up to twice the State standard, iron levels up to 380 times the State standard, lead levels up to three times the State standard, and manganese up to 200 times the State standard. This contamination not only has the potential to damage nearby waterways, but it can also contaminate the drinking water of nearby residents. And only one of the 13 ash ponds reviewed by this stud y has NC Department of Environmental and National Resources required any sort of cleanup or monitoring or further monitoring action. Appalachian Voices has also partnered and researched in the wake of the Kingston, Tennessee coal ash spill. Research has b een ongoing since the spill and has shown levels of arsenic, barium, cadmium, lead and selenium in the Emory River exceeding protective drinking water standards and/or aquatic life criteria. Although water quality has returned to a more normal state since the spill, ash and ash

- laden sediments with high levels of arsenic have washed far downstream from the spill site. Also, selenium levels in fish downstream from the site continue to rise and at exceeded threshold levels for reproduction and growth.

Our re search clearly shows that coal combustion waste has significant impacts on groundwater, surface water and aquatic organisms. Current regulatory framework does not adequately address the toxicity of coal ash and has allowed the contamination of our nation's water to go on for too long.

Our research shows that coal ash is hazardous to the environment and we believe it should be regulated as a hazardous waste under Subtitle C.

Response: See response to comment excerpt EPA

- HQ

- RCRA

- 2009

- 0640

- 06346

- 6.



### Comment Number: TRANS

- DAL

- 0052

- 1 

### Organization 1 

### : Environmental Integrity Project


### Commenter 1 : Ilan Levin Commenter Type: Advocacy Group

Classification: Substantive218



### Comment Excerpt Text: About halfway between Austin and Houston is a large coal

- fired power plant. It's in Fayette County, Texas. It's called the Fayette Power Plant. It's operated by the Lower Colorado River Authority. Groundwater sampling on the site shows levels of selenium, cobalt, and molybdenum that exceed drinking water standards. The Texas Commission on Environmental Quality has notified a couple of neighboring landowners that their wells may be contaminated. But that's just the tip of the iceberg. The real

issue and the real concern today is what we don't know because of the remarkable lack of groundwater monitoring in Texas and across the country. The threat to public health and the damage to the environment that is documented by EPA and others in recent reports is mou nting evidence of the accumulating harm from poorly regulated coal combustion waste disposal sites. The quantum leap in coal ash sites with documented contamination from the seven sites identified by EPA in its report to Congress in 1999, to about

137 site s that we know about today, demonstrate that whenever we look, whenever we do groundwater monitoring, onsite or offsite, we invariably find contamination at virtually every coal ash pond and landfill currently operating.

The Electric Power Research Instit ute, EPRI, and some state agencies stubbornly insist that coal ash is safe because it passes the EPA's toxicity leaching test, but the National Research Council warned in 2006 that the leach test was not an accurate method for measuring the leaching
potent ial for toxic metals. In closing, let me say that contamination of the environment and water supplies with toxic levels of arsenic, lead, and other chemicals is a pervasive reality at America's coal ash disposal sites because states are not preventing it. The case for a national recommendation setting common

- sense safeguards for states to meet, such as liners, monitoring, cleanup standards, could not be more persuasive, and the need for

direct EPA involvement is clear.

Response : EPA agrees with the comme nter’s complaint about the lack of adequate groundwater monitoring requirements in many of the states with coal

- fueled power plants. This situation provides the impetus for the mandatory requirement in the final CCR rule for groundwater monitoring of all C CR management units, both existing and prospective.



### Comment Number: TRANS

- KNX

- 0096

- 1 

### Organization 1 

### : Appalachian Voices


### Commenter 1 : Eric Chance Commenter Type: Advocacy Group

Classification: Substantive



### Comment Excerpt Text: In North Carolina, a review of voluntary groundwater monitoring data revealed that every coal ash pond for which data was available is leaching heavy metals and other pollutants into groundwater. Equally as alarming is the prevalence of this contamination; is the fact that at all of these sites, the levels of contamination were very high. The monitoring showed 681 exceedances of North Carolina state groundwater standards, including arsenic levels up to 8.8 times the state standard, boron levels up to 16.6 times the state219

standard, chromium levels up to twice the state standard, iron levels up to 380 times the state standard, lead levels up to three times the state standard, and manganese levels up to 200 times

the state standard.

This contamination not onl y has the potential to damage nearby waterways, but it also can contaminate drinking water of nearby residents. The extent and degree of this off

- site contamination is largely unknown because it has not been studied, and there is no legal requirement for t he companies responsible for it to do so under the current regulatory

framework. And at only 1 of the 13 ash ponds reviewed in this study did the North Carolina Department of Environmental and Natural Resources require any sort of clean up.
In Tennessee, Appalachian Voices has also partnered in research in the wake of the Kingston coal ash spill. Research has been ongoing since the spill, and has shown levels of arsenic, barium, cadmium, lead, selenium in the Emory River in exceedance of drinking water an d aquatic life criteria. Although water quality has returned to a more normal states, ash and ash laden river sediments with high levels of arsenic have washed far downstream from the spill site. Also, selenium levels

in fish downstream from the site cont inue to rise, and have exceeded threshold levels for reproduction and growth. Our research clearly shows that coal combustion waste has significant impacts on groundwater, surface water, and aquatic organisms. The current regulatory framework has not adeq uately

addressed the tox

-- toxicity of coal ash, and has allowed this contamination to go on for too long. We believe that it should be regulated under Subtitle C.

Response: See response to comment excerpt EPA

- HQ

- RCRA

- 2009

- 0640

- 06346

- 6.



### Comment Number: TRANS

- KNX

- 0114

- 1 

### Organization 1 

### : Solar Valley Coalition


### Commenter 1 : Brian Paddock Commenter Type: Advocacy Group

Classification: Substantive



### Comment Excerpt Text: In 2009, I became aware of a pollution from the Trans

- ash landsfill (sic) called the Bevins landfill. And without going into the history of that landfill, I would like to submit in aid of this

comment a

-- a dir

-- a commission's order directed to the operators of that monofill coal ash

landfill. It lays out the history in which a permit by rule permit for the first section of a

-- of coal ash dumping in a

-- essentially unlined gravel pit was permitted for the Johnsonville TVA plant's ash. The edges

-- apparently, the vertical walls were lined, but the bottom was not. And the

installation was si mply not done as set up by the permit. Ultimately, the commissioner's order I've handed in was given out.

The

-- there has since then been a Phase 2. And as TVA admitted in the environmental assessment for Phase 2, they said, well, a lot of leachate came out of that, even though we didn't expect any. Essentially, we expected it to all leak into the ground, but it started coming out in a pool. So we've had to collect it up and pump it, and take it over

-- back over to the plant, where we pit it in ponds tha t essentially leak back into the Tennessee River. So that's the state of

-- of220

that. And I'm going to give as Web page here that has the complete environmental assessment

-- the complete environmental assessment links for TVA's analysis of what went wrong with Phase 1, and what they're going to do in Phase 2. Originally, Phase 2 was requested again as a permit by rule. And in fact, after the public hearing, someone discovered a page of exemptions that were being requested of the commissioner to

essentiall y strip away most of the protections in the standards for containment. Ultimately, the department found its courage and said that this was going to have to be a full Class 2.

Response: The May 2009 Final Supplemental Environmental Assessment for the Phase II Bevins landfill indeed notes that TVA requested from TDEC waivers for Class II geological buffer and liner requirements as well as for cap requirements (“Even though leachate modeling utilizing this design indicates the concentration of COCs would not exceed the applicable MCLs in the uppermost aquifer underlying the site...., the design does not strictly meet TDEC’s minimum requirements for a Class II disposal facility” and “modeling has shown that the designed cover system would prevent long

- term migrat ion of leachate within the facility. However, ... because the design does not strictly meet Class II standards, a waiver has been requested.” EPA appreciates the commenter’s information regarding TDEC’s insistence on having the Phase II landfill designed in accordance with Tennessee’s Class II landfill requirements.



### Comment Number: TRANS

- KNX

- 0191

- 1 

### Organization 1 

### : Environmental Integrity Project


### Commenter 1 : Sam Flenner Commenter Type: Advocacy Group

Classification: Substantive



### Comment Excerpt Text: I really wasn't planning to testify here but I'm just going to sort of wing it because there's just one thing that I think needs to be made very clear. The people that came and testified from the Mount Carmel area, including people from east Mount Carmel or Prince ton area, Duke Energy ran municipal water out to a number of people because it was clear that they contaminated their wells. They had to stop fishing in the pond that they had, and that's when they started the dry

landfill. There are several other neighbo rs down the highway from where they ran water to, their wells are, we believe, contaminated. We don't have the means to do the testing at this point in time. We're trying to raise the means so that we can make this further than hearsay.

This is the reason why we need Subtitle C. We need somebody other than the Indiana state regulatory regulators who will not do anything about this. Duke will not do anything about this. And, in fact, one person who had a lawsuit and dropped it against Duke, who owns a bait shop that is in east Mount Carmel, has constantly told us, as we've asked him to testify, "You can't beat Duke. Duke's got the politicians bought." And, you

know

-- and this is just they way people are. The apathy is just absolutely terrible. Now we go t o Mount Carmel, across the river, to look for some support. Larry here, his wife was ill today, she was going to come and speak. She speaks a little bit better. But he just handed in 250 petitions from people in Mount Carmel who asked their city council to pass a resolution and

-- endorsing Subtitle C. And they didn't. And I've heard rumors as to why they didn't but it's221

hearsay, so I really can't testify to it with any accuracy. But, you know, one person who told us he was going to come here and then didn 't come here, though, told us the

-- that Duke's outreach is very, very and deep. And so we had somebody here who told us he was going testify, then for some reason, because of Duke's influence in the area there, decided not to testify. So, this is

-- th is is why I'm testifying today. I know there's just a little bit of time left. But without Subtitle C, without federal enforceability, without the federal government being able to say, yes, you will go out and see that these, you know

-- that you will do t he testing, that you will

document and make

-- and

-- and make explicit or transparent what's going on, thi

-- it's not going to happen. And the Indiana's regulatory commission, they're not going to do anything. If the EPA doesn't do it, then the number of damage cases will continue to rise. There's a huge cancer cluster in Mount Carmel right now. And, again, we have to get more documentation. It's there. It's just going to take some time. Thank you.

Response: See response to comment excerpt EPA

- HQ

- RCRA

- 2009

- 0640

- 06346

- 6.

Section 8.6

- Additional data/info provided about specific CCR damage cases: EPA seeks comment on extent of existing damage cases (35133); EPA seeks additional data regarding proven damage ca ses identified by EPA, focusing on off

- site contamination (35148, 35224)



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06298

- 14 

### Organization 1 

### : Tennessee Department of Environment and Conservation (TDEC)


### Commenter 1 : Paul L. Sloan Commenter Type: State Government
Classification: Substantive



### Comment Excerpt Text:

- 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 and poor operation.

- T he 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 demonstrates that CCR must be dis posed in well designed geologically stable structures.

Response: Thank you for your comment. In the final CCR rule, EPA is introducing specific requirements for periodic inspections to ensure the structural integrity of CCR impoundment dams, as well as lo cation requirements to prohibit the construction of new impoundments in seismically unstable areas.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06298

- 15 

### Organization 1 

### : Tennessee Department of Environment and Conservation (TDEC)


### Commenter 1 : Paul L. Sloan Commenter Type: State Government
Classification: Substantive Comment Category:222

Current Task: Examine Context Assigned/Due:

Other Sections: 9.3.9 

### Comment Excerpt Text:

- The TVA Kingston failure disrupted lives, destroyed property and caused significant environmental damage which requires remediation. However, EPA's total economic impact estimation 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 mi llion.

Response: For response to the comment, see volume 16 of the Comment Summary and Response

document.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06298

- 16 

### Organization 1 

### : Tennessee Department of Environment and Conservation (TDEC)


### Commenter 1 : Paul L. Sloan Commenter Type: State Government
Classification: Substantive



### Comment Excerpt Text:

- 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 Rid ge Associated Universities and Vanderbilt University Hospital examined more than 200 Roane County residents following the TVA Kingston spill and found no adverse effects to human health due to coal ash exposure. Additionally, the Tennessee Department of He alth and the federal Agency for Toxic Substances and Disease Registry did not identify any chemical toxicity health

effects from coal ash.

Response: Studies conducted in the Emory River in 2010, within about 18 to 24 months following the TVA Kingston December 2008 spill, revealed several impacts: (i) selenium concentrations were identified above criterion continuous concentration (CCC) set by the U.S. EPA in all available water samples, and sediment samples were elevated up to 21 times background concentrations for arsenic following the spill; (ii) fish body burdens for arsenic and selenium were statistically elevated in the months following the spill, particularly in redear sunfish; (iii) concentration of selenium in fish tissues were found above proposed biological effects concentrations, particularly in redear sunfish which had hepatic selenium concentrations at levels above 20 mg/kg; and (iv) elevat ed levels of arsenic and mercury were found in reduced sediments of the Clinch and Emory rivers down

- stream of the spill. The methylation potential of mercury from coal ash would increase because the coal ash also provides sulfate, an essential

nutrient th at encourages microbial methylation, and the accumulation of arsenic

- rich fly ash in bottom sediment in the Emory River’s aquatic system could cause fish poisoning via both food

chains and decrease of benthic fauna that is a vital food source. These findin gs suggest there is a viable potential for ecologic impact and a long

- term potential health risk to practitioners of sport fishing.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06298

- 2 

### Organization 1 

### : Tennessee Department of Environment and Conservation (TDEC)223



### Commenter 1 : Paul L. Sloan Commenter Type: State Government
Classification: Substantive



### Comment Excerpt Text: Tennessee agrees with the statements made early in President Barack Obama's Administration

that environmental decisions result from consideration of science and fact. Data from the analysis of all samples of the coal ash from the TVA Kingston release have demonstrated that the

coal ash contains concentrations of metals and other constituents well below the levels for regulation as a hazardous waste. The TVA other constituents well below the levels for regulation as a hazardous waste. The TVA Kingston landfill failure was not caused by the level of metals in

the coal ash.

As part of the remediation activities at Kingston, EPA and TDEC agreed that coa l ash from the site could be safely disposed at a Subtitle D solid waste landfill that is properly constructed; well maintained and operated; includes a ground water monitoring program; and has an approved closure and post closure monitoring and maintenanc e program. To date, approximately four million tons of coal ash has been safely disposed in the Arrowhead Landfill in Perry County,

Alabama.

Response: This rule will regulate CCRs under RCRA subtitle D: for further details, see unit IV of the preamble to the final rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06298

- 34 

### Organization 1 

### : Tennessee Department of Environment and Conservation (TDEC)


### Commenter 1 : Paul L. Sloan Commenter Type: State Government
Classification: Substantive



### Comment Excerpt Text:

The De cember 2008 ash pond failure in Kingston, Tennessee was not due to a lack of regulations or the chemical properties of fly ash. The TVA Kingston failure was due to structural failure. TVA's investigation revealed that TVA was aware of the potential structu ral failure of the landfill via information from its employees and consultants. The TVA Office of Inspector 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 safe ty modifications to the TVA ash ponds. These 'red flags' were raised by both TVA employees and consultants hired by TVA. Specifically, a 1985 internal memorandum written by a TVA engineer and two 2004 reports by external engineering consultants raised conc erns 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 prevent this incident. The failure of TVA to address these problems resulted in a spill with costs that may exceed $1.3 billion.224

Response: Thank you for your comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06298

- 35 

### Organization 1 

### : Tennessee Department of Environment and Conservation (TDEC)


### Commenter 1 : Paul L. Sloan Commenter Type: State Government
Classification: Substantive



### Comment Excerpt Text: 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 procedures; (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 Genera l, July 23, 2009 Report, "Review of the Kingston Fossil Plant Ash Spill Root Cause Study and Observations about Ash Management", 2008

- 12283

- 02)

Response: Thank you for your comment. The purpose of the final CCR rule is to introduce technical and operation al requirements to ensure that the implementation of corrective actions to prevent future incidents akin to the December 2008 Kingston CCR slurry spill is no longer dependent on the good will of the owner/operator. This rule introduces requirements for the periodic inspection of impoundment dams, on the findings of which the owner/operator is required to promptly pursue preventative and/or remedial measures.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06298

- 40 

### Organization 1 

### : Tennessee Department of Environment and Conservation (TDEC)


### Commenter 1 : Paul L. Sloan Commenter Type: State Government
Classification: Substantive



### Comment Excerpt Text: 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 categorization 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 structural design, operation and maintenance that resulted in a catastrophic structural failure. The chemical characteristics of the fly ash did

not cont ribute to the landfill failure.

Response: This rule will regulate CCRs under RCRA subtitle D: for further details, see unit IV of the preamble to the final rule.225



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06298

- 42 

### Organization 1 

### : Tennessee Department of Envir onment and Conservation (TDEC)


### Commenter 1 : Paul L. Sloan Commenter Type: State Government
Classification: Substantive



### Comment Excerpt Text: 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 Vanderbilt University Medical Center in Nashville released their report and found there were no adverse health effects due to the landfill failure and subse quent 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 publi shed a report 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.pd f). 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 expo sed 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 irritation will stop as soon as the coal ash is washed off.

- Although arsenic was found at concentrati ons 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 i n 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 cold, wet weather and the fencing of the ash to prevent contact, as well as the diligence of pa rents 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 or adults.

- Except in the immediate vicinity of the coal ash release, the coal ash or the met als 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 ash release. The Army Corps of Engineers and the Coast Guard are patrolling this area to prev ent 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 Kingston 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.

- 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 December 31, 2008. Metals in air have consistently been within226

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 harm people’s health.

- Concentrations of radionuclides are below the regulatory limi ts 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 a sh 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 pre

- existing respiratory or heart conditions. Such effects could include upper airwa y 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/hydr oseed 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.

Response: The commente r cites references to illustrate that other than a massive fish kill and smothering of benthic fauna in the Emory River down flow from the breached impoundment in the immediate wake of the dam breach and the CCR slurry spill, that short

- term human health

a nd environmental impacts were not clearly identified. However, studies conducted in the Emory River in 2010, within about 18 to 24 months following the TVA Kingston December 2008 spill, revealed several impacts: (i) selenium concentrations were identified above criterion continuous concentration (CCC) set by the U.S. EPA in all available water samples, and sediment samples were elevated up to 21 times background concentrations for arsenic following the spill; (ii) fish body burdens for arsenic and selenium were statistically elevated in the months following the spill, particularly in redear sunfish; (iii) concentration of selenium in fish tissues were found above proposed biological effects concentrations, particularly in redear sunfish which had hepatic sel enium concentrations at levels above 20 mg/kg; and (iv) elevated levels of arsenic and mercury were found in reduced sediments of the Clinch and Emory rivers down

- stream of the spill. The methylation potential of mercury from coal ash would increase becaus e the coal ash also provides sulfate, an essential nutrient that encourages microbial methylation, and the

accumulation of arsenic

- rich fly ash in bottom sediment in the Emory River’s aquatic system could cause fish poisoning via both food chains and decre ase of benthic fauna that is a vital food

source. These findings suggest a viable potential for ecologic impact and a long

- term potential health risk to practitioners of sport fishing.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06298

- 6 

### Organization 1 

### : Tennessee Department of Environment and Conservation (TDEC)


### Commenter 1 : Paul L. Sloan Commenter Type: State Government227

Classification: Substantive



### Comment Excerpt Text: The December 22, 2008 Tennessee Valley Authority Kingston disaster

-- in which 5.4 mil lion cubic yards of coal ash was released into the Emory River, its embayments and surrounding

lands

-- was the largest single environmental release in the history of Tennessee. The catastrophic release disrupted lives, damaged property and utility infrast ructure, and impaired natural resources and aquatic habitat. Local, 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 D epartment of Health, Tennessee Department of Environment and Conservation, 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 over sight and environmental monitoring activities to ensure the community is protected and the area is restored.

Response: Thank you for your comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06298

- 8 

### Organization 1 

### : Tennessee Department of Environment and Conse rvation (TDEC)


### Commenter 1 : Paul L. Sloan Commenter Type: State Government
Classification: Substantive



### Comment Excerpt Text: Immediately following the December 2008 spill, agencies worked together to protect the public and assess the impacts 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 sample s 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 Departmen t 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

concerns.

- In May 2009, E PA 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 implemente d 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 short and long term. TDEC provides independent monitoring in addition to reviewing TVA monitoring results and the department enlisted the assistance of the228

U.S. Army Engineer Research and Development Center to provide independent analysis of

whet her 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 local public health. TDEC operat es 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 University Hospital examined more th an 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 p erformed 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 D epartment 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 land fill. 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 month, 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 Pond 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 Kingston release addressing

violati ons 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 pe nalty outlined in the June 2010

order.

Response: EPA appreciates TDEC’s prompt and assertive response to the TVA Kingston CCR slurry spill, and its cooperation with EPA Region 4 in, among others, requiring and overseeing

clean

- up operations, pursuing admi nistrative measures against the TVA, putting in place monitoring, and sponsoring studies to screen for human health and environmental risks caused by the spill.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06311

- 3 

### Organization 1 

### : Earthjustice et al.


### Commenter 1 : Lisa Evans Commenter Type: Advocacy Group229

Classification: Substantive



### Comment Excerpt Text: Many acknowledged benefits of CCR regulation are not monetized

The RIA’s monetary estimate of risks avoided by regulation omits all health risks from CCR dispos al except one category of cancer risks, and addresses ecological damage only through weak surrogates, such as the cost of groundwater cleanup. These omissions are not hidden from view, the RIA makes clear (pp.7

- 8):

The proposed regulation has categories o f other benefits from avoiding future CCR impoundment structural failures which this RIA did not quantify and monetize, including potential avoided costs associated with a few possible benefit categories:

1. Litigation costs: Avoided litigation and relate d costs associated with such damage events.

2. Riparian damages: Reduction of toxic chemical contaminated effluent discharges from CCR impoundments to surface waters (i.e., rivers and lakes) through future phase

- out of surface impoundments.

3. Non

- cancer health risks: Reduction in human health risks from future reduction in human
exposure to non

- carcinogenic but otherwise toxic chemicals contained in CCR, such as selenium, cobalt, nitrate/nitrite, and molybdenum, which, as currently managed in CCR disposa l units, can exceed the human health hazard quotient (HQ) or Maximum Contaminant Limit (MCL).

4. Dry CCR disposal risks: Human health effects from improperly managed dry disposal, which are based on ongoing research by EPA’s Office of Research & Developme nt (ORD), may pose greater risks than previously estimated by EPA in 2000 and 2007.

The RIA omits additional costs of pollution for the utilities that are responsible for CCR disposal, such as litigation and related costs due to major spills and releases, the need to buy up adjacent properties when groundwater becomes contaminated by releases from CCR disposal sites, and the supply of drinking water to residents to compensate for the contamination of wells. Litigation costs can be substantial, as illustrat ed by two recent settlements. In December of 2008, Constellation Energy Group paid $54 million to settle a class action suit brought by residents affected by groundwater contamination at the company’s ash disposal site in Anne Arundel County, Maryland. [Fo otnote 3 Shultz, S. (2008), “Constellation Reaches $54 Million Settlement of Fly Ash Lawsuit,” Baltimore Business Journal, Dec. 31. Available online at http://www.bizjournals.com/baltimore/stories/2008/12/29/daily26.html.] The agreement resulted

in closure of the site, which is costing Constellation $14 million a year (according to the RIA), as coal ash must be shipped to a Virginia landfill nearly two hundred miles away. Landowners near the Colstrip plant in Montana settled another CCR contamination case f or $25 million. [Footnote 4 Goldman, N. (2010), “Federal Regulation Needed for Coal Fly Ash,” The Missoulian, April 27. Available online at http://missoulian.com/news/opinion/columnists/article_fe67cc86

- 5204

- 11df

- 80ee

- 001cc4c03286.html.]230

Other pending law suits suggest that litigation costs are likely to increase in the future, absent standards that require safer management of CCR. A second group of landowners is reportedly still pursuing legal action in the Colstrip case, [Footnote 5 Ibid.] while nearly 40 0 residents of Centreville, Virginia, are seeking over $1 billion in damages from Dominion Virginia Power, alleging that fly ash used to contour a nearby golf course has contaminated an aquifer that supplies the community with drinking water. [Footnote 6 M cCabe, R. (2009), “400 Residents Sue Dominion, Developer, over Fly Ash Site,” The Virginian

- Pilot, March 27. Available online at http://hamptonroads.com/2009/03/400

- residents

- sue

- dominion

- developer

- over

- flyash

- site.] Victims of the TVA Kingston spill are a lso seeking damages, while neighbors of an Alabama landfill that had been receiving ash from the Kingston cleanup filed a citizen suit alleging violations of the Clean Air Act. [Footnote 7 Huotari, J. (2009), “$165M TVA Lawsuit Could Get Bigger,” Oak Ridge r, Jan 1. Available online at http://www.oakridger.com/community/x1277304648/

- 165M

- TVA

- lawsuit

- could

- get

- bigger. Also, Spencer, T. (2010), “Opponents of Coal Ash Landfill in Perry County File Federal Lawsuit,” The Birmingham News, June 26. Available online at http://blog.al.com/spotnews/2010/06/opponents_of_coal_ash_landfill.html.]

Responsible parties have had to pay for alternative drinking water supplies for residents affected by coal ash sites, and these costs are likely to rise in the absence of protec tive standards that prevent groundwater contamination from spreading. For example, Dominion Virginia Power has committed $6 million to bring municipal water to residents concerned about ash leachate from the nearby golf course, and the city has requested a dditional funds. [Footnote 8 Saewetz, M. (2009), “Chesapeake to Extend Public Water to Fly Ash Site,” The Virginian

- Pilot, Aug. 26. Available online at http://hamptonroads.com/2009/08/chesapeake

- extend

- public

- water

- fly

- ash

site.] Northern Indiana Public Se rvice Companies and other parties have paid for municipal connections for 270 households in the Town of Pines, Indiana, after high levels of boron and molybdenum left private wells unfit for use. The EPA should have no trouble obtaining cost data here, as the Agency is directing Superfund cleanup at this site. [Footnote 9 U.S. Environmental Protection Agency (2009), “Town of Pines Groundwater Plume.” Region 5 Superfund. EPA ID#

INN000508071. Available online at http://www.epa.gov/region5superfund/npl/sas_si tes/INN000508071.htm.]

Response: In response to yours and similar comments, the revised RIA is now addressing the four key issues that went unnoticed in the RIA that accompanied the proposed rule: transaction and litigation costs, natural resources damage , non

- cancer health risks (i.e., risks associated with the neurotoxins mercury and lead), and impacted air quality. For further details, the commenter

is referred to the revised RIA in the docket of this rule and to volume 16 of the Comment Summary and Res ponse document.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06311

- 41 

### Organization 1 

### : Earthjustice et al.


### Commenter 1 : Lisa Evans Commenter Type: Advocacy Group

Classification: Substantive231



### Comment Excerpt Text: Comments by Mary A. Fox, PhD, MPH

Thank you for the opportunity to comment on the coal ash residual’s rule, Docket ID# EPA

HQRCRA

- 2009

- 0640. I am Dr. Mary Fox, Assistant Professor in the Department of Health Policy and Management at the Johns Hopkins University Bloomberg School of Public Health. I

am a risk assessor with doctoral training in toxicology, epidemiology and environmental health policy. I have been working in the field of environmental public health for 20 years. These comments are my own and do not represent the position of Johns Hopkins Uni versity.

I would like to highlight two topics:

• Coal ash contains multiple toxic contaminants that can appear as mixtures in the environment

• Risk assessments have underestimated health risks

These points are clearly illustrated by the Gambrills, Mar yland damages case where coal combustion residuals (CCR) were used to reclaim former quarry pits. The disposal of CCR began in 1995 and within 12 years CCR constituents were detected in the drinking water wells of nearby residents. In 2007 a total of 34 re sidential wells were found to have concentrations of aluminum, arsenic, beryllium, cadmium, lead, manganese, and thallium above primary and secondary drinking water standards. Further, the proposed rule summarizes the Gambrills case

but does not mention th at several of the wells were contaminated with multiple CCR

constituents.

The facts of the Gambrills case point to two limitations of EPA’s 2010 risk assessment. First, the CCR constituents reached drinking water wells in only 12 years not the hundreds or thousands of year timeframes modeled in the risk assessment. Second, health effects of exposure to multiple CCR constituent mixtures were not evaluated, consequently the public health impacts of the disposal methods studied were not fully characterized. T he importance of assessing exposure to CCR mixtures arises from our understanding of the toxic effects of CCR constituents, briefly summarized in Table 1. Several CCR constituents contribute to common target organs or systems, for example, barium, cadmium and mercury are kidney toxins, and lead, manganese and aluminum are neurotoxins. Exposure to combinations or mixtures of these CCR constituents

increases risks to health.

Cancer risks from arsenic exposure have also been underestimated. To date cancer ris k assessments of arsenic exposure have been based on studies of skin cancer. Epidemiological evidence on arsenic ingestion now shows greater risk of several internal organ cancers (e.g., bladder and lung) so risk estimates using the skin cancer data will u nderestimate total cancer risks from arsenic ingestion [Footnote 1 Chiou, H

- Y; Chiou, S

- T; Hsu, Y

- H; et al. (2001) Incidence of transitional cell carcinoma and arsenic in drinking water: a follow

- up study of 8,102

residents in an arseniasis

- endemic area in northeastern Taiwan. Am J Epidemiol 153:411

– 418.] [Footnote 2 Ferreccio, C; González, C; Milosavjlevic; et al. (2000) Lung cancer and arsenic concentrations in drinking water in Chile. Epidem 1:673

– 679.]. Coal combustion waste is complex mixture. Risk ass essments to date have underestimated cancer and non

- cancer health232

risks. Absent a complete understanding of health risks, public health will be better protected through regulation under Subtitle C.

Table 1. Health effects of coal combustion residual (CCR) constituents

CCW Constituent: Aluminum

Health Effect(s) of Concern (Exposure by Ingestion): Neurological

Information Source: ATSDR 2007

CCW Constituent: Antimony

Health Effect(s) of Concern (Exposure by Ingestion): Longevity, changes in blood glucose and

cholesterol

Information Source: EPA IRIS

CCW Constituent: Arsenic

Health Effect(s) of Concern (Exposure by Ingestion): Cancer, hyperpigmentation, keratosis of

skin

Information Source: EPA IRIS

CCW Constituent: Barium

Health Effect(s) of Concern (Exposure by Ingestion): Nephropathy

Information Source: EPA IRIS

CCW Constituent: Beryllium

Health Effect(s) of Concern (Exposure by Ingestion): Gastrointestinal

Information Source: EPA IRIS

CCW Constituent: Boron

Health Effect(s) of Concern (Exposu re by Ingestion): Decreased fetal weight

Information Source: EPA IRIS

CCW Constituent: Cadmium

Health Effect(s) of Concern (Exposure by Ingestion): Significant proteinuria233

Information Source: EPA IRIS

CCW Constituent: Chromium (III)

Health Effect(s) of Concern (Exposure by Ingestion): No effects observed

Information Source: EPA IRIS

CCW Constituent: Chromium (VI)

Health Effect(s) of Concern (Exposure by Ingestion): No effects observed

Information Source: EPA IRIS

CCW Constituent: Cobalt

Health E ffect(s) of Concern (Exposure by Ingestion): Blood

Information Source: ATSDR 2007

CCW Constituent: Copper

Health Effect(s) of Concern (Exposure by Ingestion): Gastrointestinal

Information Source: ATSDR 2007

CCW Constituent: Fluorine

Health Effect(s) of Concern (Exposure by Ingestion): Cosmetic fluorosis of teeth

Information Source: EPA IRIS

CCW Constituent: Iron

Health Effect(s) of Concern (Exposure by Ingestion): NA

Information Source: NA

CCW Constituent: Lead

Health Effect(s) of Concern (Expos ure by Ingestion): Neurological

Information Source: CDC 2005

CCW Constituent: Manganese234

Health Effect(s) of Concern (Exposure by Ingestion): Neurological

Information Source: EPA IRIS

CCW Constituent: Mercury

Health Effect(s) of Concern (Exposure by I ngestion): Kidney

Information Source: ATSDR 2007

CCW Constituent: Molybdenum

Health Effect(s) of Concern (Exposure by Ingestion): Increased uric acid levels

Information Source: EPA IRIS

CCW Constituent: Nickel

Health Effect(s) of Concern (Exposure by Ingestion): Decreased body and organ weight

Information Source: EPA IRIS

CCW Constituent: Potassium

Health Effect(s) of Concern (Exposure by Ingestion): NA

Information Source: NA

CCW Constituent: Selenium

Health Effect(s) of Concern (Exposure by Ing estion): Selenosis

—hair and nail loss

Information Source: EPA IRIS

CCW Constituent: Silver

Health Effect(s) of Concern (Exposure by Ingestion): Argyria

— benign skin pigmentation

Information Source: EPA IRIS

CCW Constituent: Strontium

Health Effect(s) of Concern (Exposure by Ingestion): Bone growth and mineralization

Information Source: EPA IRIS235

CCW Constituent: Thallium

Health Effect(s) of Concern (Exposure by Ingestion): Change in blood chemistry

Information Source: EPA IRIS

CCW Constituent: Vana dium

Health Effect(s) of Concern (Exposure by Ingestion): Decreased hair cystine

Information Source: EPA IRIS

CCW Constituent: Zinc

Health Effect(s) of Concern (Exposure by Ingestion): Decreased red blood cell copper and enzyme activity

Information So urce: EPA IRIS

Response: For a response to this comment, the commenter is referred to volume 13 of the Comment Summary and Response document.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06398

- 66 

### Organization 1 

### : Duke Energy


### Commenter 1 : Mike Stroben Commenter Ty pe: Electric Utility Company

Classification: Substantive



### Comment Excerpt Text: Of the 54 proven or potential damage cases cited by EPA in the NODA involving groundwater contamination, only three involved off

- site contamination exceeding primary MCLs. The lack of, or low level of, off

- site contamination is likely true with the alleged new damage cases. In fact, during their press conference when the reports were released, the special interest grou ps acknowledged that many of these cases do not involve off

- site contamination; instead, they speculated that certain contaminants may migrate off

- site at some point in the future.

Response: Contrary to the commenter’s observation, EPA found a score of ne w damage cases that were first alleged in the two 2010 “the special interest groups” reports that qualify as proven damage cases due to offsite migration of primary MCLs. In addition, Duke Energy should be familiar with a more recent, proven damage case th at involves one of its North Carolina plants. This case involves a February 2, 2014 Dan River CCR slurry spill from one of the Dan River steam plant’s inactive CCR surface impoundments.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06726

- 3 

### Organization 1 

### : The No rth American Coal Corporation236



### Commenter 1 : Joseph D. Friedlander Commenter Type: Other Company

Classification: Substantive



### Comment Excerpt Text: EPA significantly uses the December 2008 ash slurry pond dam failure at Kingston, Tennessee, as a primary reaso n for developing hazardous waste regulations, stating in the preamble's opening background paragraph, describing why they are developing new rules, "This decision is driven in part by the failure of a surface impoundment retaining wall in Kingston, TN in

D ecember 2009 [sic

- note this should be 2008]".75 Fed Reg. 35,132. EPA then goes on to cite this failure 35 times throughout the preamble, in a variety of ways to dramatize the serious damage that can result from poorly regulated ash containment structures

.

However, in the year following the dam failure the Tennessee Department of Health conducted an exhaustive health effects study (Tennessee Department of Health. 2009. Public Health Assessment. Tennessee Valley Authority (TVA) Kingston Fossil Fuel Plant Coal Ash Release. US Department of Health and Human Services. Agency for Toxic Substances and Disease Registry, Division of Health Assessment and Consultation. Atlanta, GA.). They found no negative health impacts from the coal ash that was spilled, includi ng touching the ash, and even going so far as to evaluate effects on children who could play in the spilled ash and accidentally eat it (Conclusion #4: "The Tennessee Department of Health concludes that no harm to people's health is expected from accidenta lly eating a small amount of coal ash."). While the spill could have caused physical damage because of its magnitude, the material spilled was certainly not hazardous in the manner commonly associated with an EPA hazardous waste. This significant

state hea lth agency report is hardly a profound endorsement for calling spilled CCRs a hazardous waste. Despite the repeated citation of this dam failure throughout the preamble, this highlighted event is a very poor rationale for new federal regulation of CCRs as a Subtitle C hazardous

waste.

Response: This rule will regulate CCRs under RCRA subtitle D: for further details, see unit IV of the preamble to the final rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06825

- 1 

### Organization 1 

### : National Solid Wastes Management Association (NSWMA)


### Commenter 1 : Edward W. Repa Commenter Type: Trade Association

Classification: Substantive



### Comment Excerpt Text: In the proposed CCR rule under Section I. A. 1. Basis of Why EPA Is Proceeding With Today’s

Co

- Proposals, EPA states that i t was “revisiting its regulatory determination for CCRs under the Bevill Amendment. This decision is driven in part by the failure of a surface impoundment retaining wall in Kingston, TN in December 2009.” However, the Tennessee Department of

Health under a cooperative agreement with the U.S. Department of Health and Human Services’ Agency for Toxic Substances and Disease Registry released a public health assessment on September 2010 for the coal ash release from the surface impoundment at the Kingston Foss il237

Plant. The final report concluded that:

Harm to people from touching the coal ash when they had to climb out of their damaged houses or to those who returned to retrieve personal property was unlikely;

No harm to the community’s health was expected from touching the coal ash, including children who might touch the ash while playing;

No harm to people’s health is expected from accidentally eating a small amount of coal ash;

Using municipal drinking water from the water treatment plants will not ha rm people’s health because the raw and finished water have continuously met drinking water standards;

Using well or spring water within four miles of the coal ash release will not harm people’s health from exposure to coal ash or metals in the coal ash b ecause evidence has not been found of groundwater contamination; and

Breathing the ambient air near the coal ash release is not expected to harm people’s health as long as adequate dust suppression measures are in place.

With more than 5.4 million cubi c yards of coal ash mixed with 327 million gallons of water released at the Kingston Fossil Plant, little impact to human health was observed. Because there was minimal impact on public health, classifying CCRs as a hazardous waste under the Resource

Conse rvation and Recovery Act (RCRA) Subtitle C is not supported by the data from one of the nation’s largest CCR disposal units and subsequent failure.

Response: This rule will regulate CCRs under RCRA subtitle D: for further details, see unit IV of the pream ble to the final rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06844

- 2 

### Organization 1 

### : Intermountain Power Agency (IPA)


### Commenter 1 : James A. Hewlett Commenter Type: Electric Utility Company

Classification: Substantive



### Comment Excerpt Text:

Evaluation of Potential Risks

In the preamble to the proposed rules, the EPA stated that part of the decision to revisit its regulatory determination for CCR under the Bevill amendment was driven by the failure of a surface impoundment at Tennessee Valle y Authority (TVA) Kingston fossil plant in December 2009 and by the revision of risk assessment methodology based on new information. As a result of these revisions, the EPA co

- proposed regulations of the CCR under RCRA Subtitle C.

At the TVA Kingston pl ant, the release of 5.4 million cubic yards of coal ash (mixed with 327 million gallons of water) covered about 300 acres of land surface and water bodies. Due to the238

potential harm to the environment, the utility, local and federal environmental agencies immediately began sampling and analysis of the ash itself, surface water, groundwater, drinking water, and air. The Tennessee Department of Health reviewed all analytical results to ensure that public health was protected.

On September 7, 2010, the Tenne ssee Department of Health released the Final Report of Public Health Assessment which was prepared under a cooperative agreement with the U.S. Department of Health and Human Services Agency for Toxic Substances and Disease Registry.

The report found mini mal health risks from the coal ash spill at TVA's Kingston facility and noted that the significant risk is the safety risk of engulfment by the ash to people in the path of the ash release. It appears that it was not the "toxicity" or the environmental "ha zard" of CCR specific waste found in that impoundment that caused the ecological disaster, but the sheer size of the release. The ecological damage would have been severe even if the material released was simply mud.

Potential risks from CCR, including da m safety, can be properly addressed by federal nonhazardous and equally protective Subtitle D regulations. Previously, EPA has agreed that hazardous waste regulation will result in unnecessary regulation. In its final Regulatory.

Determination issued on Ma y 22, 2000, EPA concluded that hazardous waste regulation was not warranted for coal ash. The Agency found that the inflexible nature of the federal hazardous waste program would result in excess costs and unduly burdensome regulations for coal ash.

Most r ecently, EPA has found that the coal ash being recovered from the Kingston release site can be safely disposed of in a RCRA Subtitle D non

- hazardous waste facility. Rather than regulating coal ash under Subtitle C, the EPA should work with other federal an d state agencies by focusing on developing dam integrity programs to enhance surface impoundment safety.

Response: This rule will regulate CCRs under RCRA subtitle D: for further details, see unit IV of the preamble to the final rule.



### Comment Number: EP A

- HQ

- RCRA

- 2009

- 0640

- 07802

- 4 

### Organization 1 

### : Alpha Natural Resources


### Commenter 1 : Michael R. Peelish Commenter Type: Other Company

Classification: Substantive



### Comment Excerpt Text: Even more troubling, the EPA's determination is not based on the sound science of which it claims to be a champion. EPA claims to base its reversal of its prior decision on additional and primarily anecdotal data regarding alleged exposures to some of the constituents of CCR. Yet even in the case of what EPA argues to be an e gregious example of improper disposal at a Virginia golf course, actual data showed no risk whatsoever to the surrounding population. While the Kingston, TN release figures prominently in EPA's evaluation, it argues only for better evaluation of the safety of surface impoundments. It provides no scientific evidence of any harm associated with potential exposures to CCR when properly disposed or beneficially used and cannot justify further regulation of CCR under RCRA.239

Response: First, this rule will regula te CCRs under RCRA subtitle D: for further details, see unit IV of the preamble to the final rule.

Secondly, the implications of contaminated drinking well groundwater by secondary MCLs immediately next to the Battlefield Golf Course in Chesapeake, Virgin ia are still under litigation. As to the human health effects caused by the TVA Kingston slurry spill, studies conducted in the Emory River in 2010, within about 18 to 24 months following the TVA Kingston December 2008 spill, revealed several impacts: (i) selenium concentrations were identified above criterion continuous concentration (CCC) set by the U.S. EPA in all available water samples, and sediment samples were elevated up to 21 times background concentrations for arsenic following the spill; (ii) fis h body burdens for arsenic and selenium were statistically elevated in the months following the spill, particularly in redear sunfish; (iii) concentration of selenium in fish tissues were found above proposed biological effects concentrations, particularly in redear sunfish which had hepatic selenium concentrations at levels above 20 mg/kg; and (iv) elevated levels of arsenic and mercury were found in reduced sediments of the Clinch and Emory rivers down

stream of the spill. The methylation potential of mer cury from coal ash would increase because the coal ash also provides sulfate, an essential nutrient that encourages microbial methylation,

and the accumulation of arsenic

- rich fly ash in bottom sediment in the Emory River’s aquatic system could cause fish poisoning via both food chains and decrease of benthic fauna that is a

vital food source. These findings suggest a viable potential for ecologic impact and a long

- term potential health risk to practitioners of sport fishing.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09536

- 1 

### Organization 1 

### : Tennessee Valley Authority


### Commenter 1 : John W. Myers Commenter Type: Electric Utility Company

Classification: Substantive



### Comment Excerpt Text: Extensive data collection and analysis during recovery from the Ki ngston ash spill show no significant impacts from CCR constituents on human health and the environment, including aquatic and terrestrial species and habitats. While TVA accepts responsibility for the Kingston Fossil Plant dike failure and acknowledges the need for clear regulatory requirements for the handling and disposal of CCRs, TVA and others have gained extensive information from testing and analysis about the characteristics of coal ash material and its effect on human health and the

environment. The se data confirm the following facts: 1) CCRs do not exhibit any toxicity characteristic of a hazardous waste, 2) although CCRs do contain some constituents that may be found in hazardous waste, these constituents in the coal ash are not at levels where the leachate exceeds the Toxicity Characteristic Leaching Procedure (TCLP) regulatory thresholds, and 3) CCRs do not exhibit any other characteristic of a hazardous waste (corrosivity, ignitability, or reactivity). Therefore, CCRs are not hazardous wastes as defined by EPA's Subtitle C regulations. The greatest known impact and risk to human health and the environment from the Kingston dike failure has been the physical impact of the mass released rather than impacts from ash constituents. As stated above, TVA believes regulating CCRs as solid wastes under Subtitle240

D is the regulatory framework the data supports, rather than as a hazardous or special waste

under Subtitle C.

Response: This rule will regulate CCRs under RCRA subtitle D: for further details, see unit IV of the preamble to the final rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09536

- 18 

### Organization 1 

### : Tennessee Valley Authority


### Commenter 1 : John W. Myers Commenter Type: El ectric Utility Company



### Comment Excerpt Text: Additional Data and Information for Evaluating Risks Are there any additional data that are representative of CCR constituents in surface impoundment or /landfill leachate (from literature, state files, industry or other sources) that EPA has not identified and should be used in evaluating the risks presented by the land disposal of CCRs? (75 FR 35222). TVA believes that the extensive data collection, monitoring, studies, and

assessments related to the Ki ngston release are relevant to the proposed rulemaking and should be used in evaluating the risks associated with CCRs. The information developed to date (through September 2010) does not support a hazardous waste listing for CCRs. While research

on any po tential long

- term effects continues, studies to date indicate that the greatest threat from a release such as the Kingston coal ash spill is the physical release of the material rather than risk

of harm from the chemical constituents of the ash. Monitorin g, Data Collection, Studies, and

Assessments

Health Assessments

• Oak Ridge Associated Universities (ORAU), Kingston Project Surveillance Program, Baseline Medical Screening Results, August 17, 2010. Conducted independently by ORAU personnel and

the Va nderbilt University Medical Center (VUMC) physician medical toxicologists. (http://www.orau.org/documents/kingstonprojecUKingston

- FIy Ash

- Results

- Report.pdf)

• Tennessee Department of Health, Public Health Assessment, Tennessee Valley Authority (TVA) Kin gston Fossil Plant Coal Ash Release, September 7, 2010. Prepared under a Cooperative Agreement with U.S. Department of Health and Human Services Agency for Toxic Substances and Disease Registry. (httpJ/health.state.tn.us/Environmental/PDFs/pha

- e

- TVA Kingst on Fossil Plant Final.pdf)

Environmental Monitoring

• Performed 3,147,012 direct, in

- river water quality measurements and collected a total of 9,215 environmental samples producing 258,038 individual results for metals and other water quality

constitue nts.

Breakdown:241

o 267,188 measurements of particles in the air (PM 10) throughout the community by mobile air monitors;

o 2,879,824 individual HydrolabTM water quality measurements;

o 1460 fixed

- station air samples for PM 10, PM 2.5, and total susp ended particulates (TSP), producing 3791 individual analytical results;

o 2920 surface water samples from the Emory, Clinch, and Tennessee Rivers, producing 157,771 individual analytical results;

o 1208 process water samples (embayment, stilling pond, plant effluent) producing 30,659 individual analytical results;

o 116 groundwater samples producing 5310 individual analytical results;

o 356 ash, soil, and sediment samples producing 5425 individual analytical results;

o 406 municipal water treatmen t plant samples producing 5876 individual analytical results;

o 1731 biota samples (fish, mayflies, snails, birds & bird eggs, frogs, toads, turtles, mammals, and vegetation) producing 45,658 individual analytical results;

o 347 radiological samples pr oducing 1494 individual analytical results;

o 671 samples of waste generated for disposal during the cleanup process producing 5054 individual analytical results.

o These evaluations continue.

• Implementing Engineering Evaluation/Cost Assessment (Ri ver EElCA) Sampling and Analysis Plan to evaluate potential long

- term effects of ash that may remain in the river

system; Sampling and Analysis Plan prepared by Arcadis, Inc.; approved by EPA and TDEC following public comment period.

Data Quality Assur ance

• Implemented a rigorous Quality Assurance/Quality Control program to ensure accuracy and validity of all data collected:

o Site

- wide Quality Assurance Project Plan;

o Water Monitoring, Air Monitoring, & Data Management Plans approved by EPA & T DEC;

o 55 Standard Operating Procedures for environmental data collection and management242

completed

- seven more in preparation.

• All site environmental staff trained on the Quality Assurance Project Plan and Standard Operating Procedures;

• Conducted two Quality Assurance Project Plan workshops for independent researchers conducting scientific investigations focused on ash spill area;

• Conducted 25 audits of contracted independent laboratories to ensure conformance with project requirements;

• Hi gh

- quality data being generated

--- 97% of results meet quality criteria for use.

Environmental Research

• Organized the 2009 Kingston Fly Ash Release Environmental Research Symposium for TVA and independent researchers to present results and exchange i nformation on studies being performed.

• Contracted with researchers at Brigham Young University, US Army Corps of Engineers

Engineering Research and Development Center (USACE

- ERDC), Virginia Tech, and Oak Ridge National Laboratory (ORNL) for investigati ons of fate and transport of ash and ash

- related

contaminants and ash effects on biota.

• Results of January

-- July 2009, ecological investigations were presented at the November 2009, annual meeting of the Society for Environmental Toxicology and Chemist ry (SETAC); initial analysis of fall 2009 and spring/summer 2010 results will be presented at the 2010 SETAC annual meeting.

Scientific Investigations

TVA began a comprehensive assessment of potential ecological effects of the Kingston ash spill

soon a fter the event. TVA began collecting information in January 2009, on many of the potential immediate effects and has funded a combination of in

- house investigations, independent federal research institutions, and several different universities to investiga te both immediate and potential long

- term effects. In addition to air, sediment, and water quality monitoring, these investigations include studies of fish, benthic invertebrates, birds, mammals, reptiles, amphibians, plants, and other organisms; toxicolog ical investigations; quantifying chemical kinetics and geochemical transformation rates; and numerically modeling deposition, mixing, and movement of ash and native sediments in the river system. The following paragraphs provide brief descriptions of the t ypes of investigations that comprise this comprehensive ecological assessment.

Fish and Benthic Invertebrates

• Fish and benthic invertebrate community structures and population densities. and fish health243

TVA periodically conducts sampling throughout t he Tennessee River system to evaluate changes in fish community structure and populations, and the sport fishery, and to evaluate the tax richness and densities of benthic invertebrates. In 2009, TVA added additional stations for these investigations in th e Clinch and Emory Rivers near the ash spill site that are being sampled annually or semi

- annually. The results are being compared to those of surveys conducted in the area prior to the spill and to other Tennessee Valley locations and evaluated to identif y any long

term trends potentially related to ash spill effects.

ORNL is evaluating additional measures of fish health using blood enzyme chemistry, tissue histopathology, and standardized fish condition indices.

• Reproductive competence

TVA and ORN L are collecting fish during the spring spawning season and ORNL is evaluating the condition of ovaries and eggs and other measures of reproductive competence. ORNL also is exposing adult female fish and recently

- hatched juveniles to coal ash in laboratory studies to determine whether there are any ash

- related effects on fish reproduction or larval fish. In addition, in spring 2010 TVA collected larval fish from the Clinch and Emory Rivers to evaluate reproductive success of native fishes and to document in cidence of deformities.

• Bioaccumulation

For years, TVA, TDEC, Tennessee Wildlife Resources Agency (TWRA), and ORNL have collaborated in investigations of contaminants in fish throughout the region. In the past, those investigations focused on contami nants in fillets as a measure of potential exposure by humans. Additional stations have been added in the vicinity of the ash spill that include analyses of contaminant levels in fillets, whole fish, livers, ovaries, and gut contents for use in conjunction with the fish health and reproductive competence investigations.

TVA and ORNL also are collaborating in investigations of bioaccumulation in mayfly larvae and adults, and in freshwater snails. In combination with investigations of bioaccumulation in oth er organisms described below, the fish and invertebrate bioaccumulation results will provide information on potential transfer of ash

- related contaminants through the food chain.

Birds, Reptiles, Amphibians, Mammals, and Vegetation

TVA, Virginia Polyte chnic Institute and State University (Virginia Tech), and the University of Tennessee, conducted preliminary investigations in 2009 and 2010 of bioaccumulation in various terrestrial and aquatic organisms at the Kingston ash spill site. Most of the focus t o date has been on bird eggs, turtles, and raccoons, but has also included bird hatchlings, amphibians (toads and frogs), muskrats, and vegetation. Results of the 2009 and 2010 efforts have identified tree swallows (eggs and hatchlings), musk turtles (bloo d, toenails, and shells), and raccoons as the primary target species for 2011

- 2013 investigations; with geese, heron, and osprey eggs, and amphibians as secondary targets. The tree swallow and turtle investigations will be expanded in

2011 to include measu res of reproductive competence (clutch size & viability, incidence of hatchling deformities, fledgling survival), and vegetation sampling is being expanded to include244

periphyton

- the algae that grow on rocks and bottom surfaces around the edges of water bo dies.

Sediments and Ash

• Chemical characterization, geochemistry, and toxicity

Within a week of the slide TVA began investigating the chemical constituents in the spilled ash, as well as in the ash remaining in the dredge cell. As concerns were expr essed about possible dissolution of arsenic and selenium during hydraulic dredging, TVA developed studies in consultation with regulators and natural resources agencies to evaluate the potential for arsenic

and selenium dissolution and chemical transformat ions to more toxic forms, and the toxicity of dredged ash to standard test organisms.

The USACE

- ERDC performed exhaustive (10

- day) extractions of ash under controlled conditions, examining rates of dissolution and chemical speciation, and testing the tox icity of the elutriates to larval and juvenile fish.

During the course of hydraulic dredging, TVA conducted numerous evaluations of potential for toxicity of whole ash to multiple species of standard test animals (18 tests five species of test animals), elutriates (24 tests

- three species), dredge plumes (more than 50 tests

- 2 species), and the stilling pond discharge (more than 50 tests

- 2 species).

The River EE/CA Sampling and Analysis Plan includes a comprehensive program of toxicity testing of ash remaining in the river following completion of hydraulic dredging.

TVA also has contracted with USACE

- ERDC for a multi

- year investigation of dissolution and chemical transformation rates of arsenic and selenium in aquatic environments, speciation of

arse nic in ash, photo

- oxidation of dissolved selenite, and long

- term stability of arsenic and selenium in residual fly ash in the river system.

• Nature and extent of ash deposition Within hours of the spill, TVA began evaluating the

downstream extent of the ash in the Emory River using commercial depth finders on survey boats. Researchers at Brigham

Young University and at USACE

- ERDC also were contracted to develop numerical models to evaluate ash transport and deposition by high flow events.

Bathymetric survey equipment was used on multiple occasions in January

- June 2009, to better define the extent of deposition and movement by high flow events and to map the progress of the pilot dredging operation. During the same time, various sediment samplers were being employed to determine ash depths and to collect samples for analysis. Because of the dense packing of the spherical ash particles, a VibeCoreTM sampler was the only device found to successfully penetrate the deposited ash to obtain core samples.

TVA also investigated using a Sub

- Bottom Profiler

- an instrument that uses high intensity acoustic waves to penetrate the sediments

- for mapping sediment depths. Through a combination245

of these procedures TVA developed a map of the nature and extent of ash dep osited throughout the river system near the Kingston ash spill and published it on the TVA

- Kingston website in August 2009.

As hydraulic dredging approached an end in the late spring of 201 0, TVA used multiple VibeCoreTM samplers to map the remaining ash deposits and guide the dredges to them, and to

confirm clean

- up in each area.

Results Through September 2010

Public health

• ORAUNanderbilt University Medical Center (VUMC) Medical Screening Results Report and the Tennessee Department of Health (TDH )/US Department of Health and Human Services Agency for Toxic Substances and Disease Registry (ATSDR) Public Health Assessment found no indications of adverse health effects related to the ash spill.

o ORAUNUMC: No evidence of physical health effects rel ated to components of ash; "no expected long

- term effects on physical health from current levels of exposure."

o TDH/ATSDR: based on exposure pathways, risk assessment, toxiCOlogy, and environmental test results, "... the Tennessee Department of Health d oes not expect harm to health from touching, eating, drinking, or breathing the metals in coal ash."

• Monitoring has demonstrated no effects on public or private water supplies.

Ecology

• Immediately following the ash spill, TVA and lWRA biologists searched for fish stranded on the shoreline, or in distress or floating in the water as a result of trauma from the spill. They reported seeing carcasses of about 300 fish stranded up to 20 feet above the normal water line by the tidal surge from the spill , but observed no dead or distressed fish in the Clinch or Emory

Rivers.

• In June 2009, TVA relocated to the Emory River almost 1,300 fish that had been stranded for

six months in a shallow 8

- acre cove in the Swan Pond embayment by ash blocking its mout h. The abundance of fish and size of the embayment made it impossible to relocate the entire population. The embayment was monitored for signs of fish in distress during the remainder of

the clean

- up operations in that area. There were indications of probl ems related to temperature and dissolved oxygen until the embayment was eventually reconnected to the Emory River backwaters. Twenty

- five species were observed, including numerous juvenile and young

- of

- year fish. All appeared to be in good condition even a fter six months of direct exposure to ash, indicating that fish die

- ofts due to ash

- related toxicity were unlikely to have occurred in the Clinch and Emory Rivers.

• 2009 and 2010 surveys indicate numbers, species, and conditions of fish are similar to w hat246

was observed prior to the spill; these findings are supported confirmed by record size and quantity catches in 2010 fishing rodeos and preliminary results from a study of larval fish, which indicates that successful reproduction is occurring, with larg e numbers of larval fish (e.g., largemouth bass, bluegill, and crappie) present in the area.

• 2009 fish data indicate no significant increases in metals concentrations from just after the spill through fall 2009; Spring 2010 results were received from t he laboratories in September and October 2010, and are being analyzed now; Fall 2010 fish collections were completed in mid

October.

• ORNL investigations have found no clear evidence of ash

- related effects on fish health or reproductive competence to da te.

• There also is no clear evidence to date of ash

- related effects on benthic macro invertebrate populations except for the original Emory River channel in the immediate area of the spill where habitat was most severely impacted by ash deposition and d redging operations.

• Slight to moderately higher concentrations of ash

- related contaminants have been observed in burrowing mayflies and snails downstream of the spill. However, a depuration study indicates that up to 75% of the contaminant concentratio ns were associated with undigested food, rather

than bioaccumulated in tissues.

Water and Air

• There have been no project

- related exceedances of ambient air quality standards.

• The greatest known impact and risk to human health or the environment h as been the physical impact of releasing 5.4 million cubic yards of mass rather than impacts from ash constituents.

• Except for a short

- duration increase in concentrations of some ash

- related contaminants in the Emory and Clinch Rivers in the days immed iately after the spill and during high flow events in January and February 2009, extensive water sampling (

- 3000 samples and

- 2.9 million direct, in

situ water quality measurements) has shown no significant continuing water quality impacts from the spill.

Sediments

• The 2009 USACE

- ERDC extended elutriate tests showed "no statistically significant adverse effects were observed for larval or juvenile fish" exposed to elutriates prepared with fly ash from the Emory River. While whole body burdens of metal s in tissues increased in a dose

- dependent manner, "this increase is likely due to metals present in the gut as ingested fly ash, not metals integrated into the tissue." These researchers concluded that "In a weight of evidence approach...

these results su ggest a limited potentialfortoxicity...giventheextremeconditions represented byoxidized elutriates in this study."

• TVA's extensive toxicity testing during hydraulic dredging showed no obvious ash related247

toxicity effects on the test organisms. Only fif teen of the total of more than 140 tests showed any observable adverse effects. Of the 15 with observable adverse effects, at least seven appeared to be due to intolerance of the test organism to particle size of the ash or to biological

contamination.

• Sediment transport modeling shows that removing 3.5 million cubic yards of ash from the Emory River has significantly decreased the potential for additional downstream transport dUring high flow events.

• Modeling to assess flood risk for the Emory and Clinch Rivers is underway; preliminary results indicate removing 3.5 million cubic yards of ash from the Emory River has reduced the risk of flooding to approximately pre

- spill levels. Completion of the modeling this fall will result in more precise flood risk estimates.

Response: The Agency appreciates TVA’s comprehensive and informative comment citing the battery of studies that have been conducted on a variety of issues in the wake of the 2008 TVA Kingston CCR slurry spill. However, some risks may not b e obvious in the short

- term. Studies conducted in the Emory River in 2010, within about 18 to 24 months following the TVA Kingston December 2008 spill, revealed several impacts: (i) selenium concentrations were

identified above criterion continuous concent ration (CCC) set by the U.S. EPA in all available water samples, and sediment samples were elevated up to 21 times background concentrations for arsenic following the spill; (ii) fish body burdens for arsenic and selenium were statistically

elevated in the months following the spill, particularly in redear sunfish; (iii) concentration of selenium in fish tissues were found above proposed biological effects concentrations, particularly in redear sunfish which had hepatic selenium concentrations at levels abo ve 20 mg/kg; and (iv) elevated levels of arsenic and mercury were found in reduced sediments of the Clinch and Emory

rivers down

- stream of the spill. The methylation potential of mercury from coal ash would increase because the coal ash also provides sulfa te, an essential nutrient that encourages microbial methylation, and the accumulation of arsenic

- rich fly ash in bottom sediment in the Emory River’s aquatic system could cause fish poisoning via both food chains and decrease of

benthic fauna that is a vit al food source. These findings suggest a viable potential for ecologic impact and a long

- term potential health risk to practitioners of sport fishing.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09536

- 3 

### Organization 1 

### : Tennessee Valley Authority


### Commenter 1 : Joh n W. Myers Commenter Type: Electric Utility Company

Classification: Substantive



### Comment Excerpt Text: A major reason EPA's approach greatly exaggerates the damages from an ash release is that EPA equates the ecological and socioeconomic damages of an oil spill covering a wide area of surface water and many miles of shoreline with the more localized impacts associated with ash deposited as sediment. Better and more direct comparisons are available and provide a better estimate of the damages from an ash release. One such comparison is the assessment of the ecological and human use service losses resulting fr om the contamination of sediments in Lower Watts Bar248

Reservoir from the Department of Energy's (DOE) Oak Ridge Reservation. Most of the estimated costs EPA attributes to Kingston appear to represent the types of costs typically

reflected in a natural resou rce damage assessment (NRDA) for ecological and human use service losses. The ecological damages are similar to NRDA ecological services losses, and many of the socioeconomic damages (boating, commercial and recreational fishing, etc.) are similar to

NRDA human use services losses.

A recently completed NRDA prepared by Industrial Economics, Incorporated for the Watts Bar Reservoir Trustee Council (Department of Energy, Department of Interior, State of Tennessee, and TVA) found the ecological and human use services provided by transfer of a conservation easement over 2,965.95 acres of forested upland, together with annual payments for management and operations having a present value of $730,000, was sufficient to compensate for the ecological and human use service losses caused by DOE

- related contamination in Lower Watts Bar Reservoir. Assuming the value of a conservation easement over such forested upland would be $10,000 per acre, which TVA believes is much higher than actual value, the total cost of

compe nsating for the ecological and human use services losses in Watts Bar Reservoir from the

30

- year DOE contamination event is about $30,000,000.

Since the DOE contamination occurred in the same reservoir and also involved sediment contamination, the NRDA f or the DOE contamination sets a reasonable upper bound for the ecological damage and socioeconomic damage costs of the Kingston ash release. The Kingston damages must be less for several reasons. The aquatic habitat affected by the DOE

contamination consis ted of 33,575 acres, while the aquatic habitat affected by the Kingston release is only about 1,768 acres. The natural resource exposure to contaminants of concern from the DOE operations and the corresponding injury likely has occurred since the 1940s and , since the contaminated DOE sediments were not removed, is expected to continue well into the future. The Kingston ash release occurred in December 2008, most of the ash has already been removed from the Emory River, and almost all of the released ash wil l be recovered by 2014. If the DOE sediments had been removed, the estimated cost of removal was $38 billion, whereas TVA's current estimate for Kingston response costs is $1.2 billion. Given these facts, it is not reasonable for EPA to estimate the Kingst on ecological and socioeconomic damage costs as 65 times greater than the ecological and human use services losses attributable to the DOE contamination [These numbers also provide additional evidence that EPA's oil spill model is not accurate where the

re sponse costs are primarily based on the costs of the hydraulic and mechanical removal and disposition of sediments. For example, applying EPA's 159% multiplier to the $38 billion estimate for removing the].

Response: for a response to this comment, see vo lume 16 of the Comment Summary and Response document.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09765

- 38 

### Organization 1 

### : Electric Power Research Institute (EPRI)


### Commenter 1 : Ken Ladwig Commenter Type: Trade Association

Classification: Substantive249

Comment Category:



### Comment Excerpt Text: Fugitive Dust Risk Assessment

The purpose of the Fugitive Dust RA was to examine the potential risks from fugitive emissions of PM from dry

- handling of CCRs at management sites. US EPA used SCREEN3, a screening

level air dispersion model that estimates maximum short

- term (1

- hr) air concentrations for point, area, or volume sources to estimate total suspended particulate (TSP) fugitive emissions from an open landfill (modeled as an area source). As the name implies, SCREEN3 is a screening level model that incorporates many simplifying assumptions.

Fly ash, like silt and many soils, is a fine

- grained material that can be air

- entrained if it is allowed to dry and is exposed to windy conditions; controlling wind blown ash is a n important operational consideration at CCR management sites. Routine measures taken to control dusting include water application, additives, and soil or bottom ash covers. The screening modeling done in the Fugitive Dust RA is relatively general and does not provide much new insight to potential dusting issues at CCR landfills, or methods of dust control.

SCREEN3 is designed as a single source model. To compensate for not including the other potential sources of windblown dust in the analysis, such as tr uck loading, transport, and unloading, US EPA assumed in the “worst case” scenario that the entire landfill would be exposed to wind until the end of its useful life. This scenario assumes a 67

- acre landfill [Footnote 5: Median landfill size estimated by U S EPA from multiple sources] fully open to the wind with no dust controls. This is a highly improbable scenario.

In addition, US EPA used a number of conservative modeling assumptions, including an assumed landfill height of 0 meters, rural setting, and w orst case default meteorological conditions in SCREEN3. Sensitivity analyses conducted by US EPA showed differences of up to an order of magnitude when different input parameters were used (e.g., urban vs. rural scenarios).

As might be expected, the worst

- case scenario together with the conservative assumptions produced very high TSP levels, with a maximum of 13,390 μg/m3. This concentration is on the same order of magnitude as particulate concentrations during the ash fall from the 1980 Mt. St.
Helen’s vo lcanic explosion (measured in the range of 30,000 μg/m3) that resulted in almost total darkness (Baxter et al., 1983), suggesting this is not a scenario typical of a CCR management site. In practice, CCR landfills typically have smaller operating cells in the overall landfill footprint, and they typically employ some type of dust controls such as those mentioned above.

To assess the potential risks from fugitive PM, US EPA compares the results of the screening modeling to the 24

- hr PM10 National Ambient Ai r Quality Standards (NAAQS) for particulate matter (PM10 and PM2.5). This is inappropriate for two reasons: SCREEN3 predicts TSP (total suspended particulate matter), while the NAAQS standard is for PM10 and PM 2.5; and

SCREEN3 estimates 1

- hr maximum conce ntrations, while the NAAQS are for 24

- hr and annual based concentrations. The SCREEN3 results would have to be adjusted by a scaling factor in250

order to be compared to the NAAQS. A better modeling approach may have been to use the US

EPA recommended air dis persion model, AERMOD.

Following the December 2008 dike breach at the TVA Kingston site, it was speculated by some

that air

- borne ash would be a significant health issue around the site due to the large surface area of exposed ash (Ruhl et al., 2009). As part of the clean

- up and monitoring efforts, several air monitoring stations are in place around the Kingston facility. Data from these monitors can be found on the TVA website (TVA, 2010). Results to date show that of the over 200,000 air samples analyzed since the spill occurred, none have exceeded US EPA NAAQS. Furthermore, US EPA has stated that “...there is no known threat to public health from an air pollution exposure associated with the clean

- up of the ash spill at the TVA Kingston Fossil Plant. Air

m onitoring at the Kingston ash spill site continues to confirm that the national ambient air quality standards for inhalable particulate (PM10) and respirable particulate (PM2.5) are being met,” (TVA, 2010). In addition, health monitoring has found no healt h issues related to the ash release among residents living in the area around the site (OARU, 2010; Tennessee Department of Health, 2010).

Response: For the modeling aspects addressed by the comment, see volume 13 of the Comment Summary and Response docum ent.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09765

- 42 

### Organization 1 

### : Electric Power Research Institute (EPRI)


### Commenter 1 : Ken Ladwig Commenter Type: Trade Association

Classification: Substantive



### Comment Excerpt Text: In the preamble, US EPA identified fou r additional damage case sites, three proven (Kingston, Martins Creek, and Gambrills), and one potential (Chesapeake). We have not collected any additional information on these sites that is not already available to US EPA. However, consistent with the pre viously described damage cases, all of these are unlined sites, and remediation is either completed or ongoing at the three proven damage case sites.

Response: The Agency concurs with the comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09889

- 5 

### Organization 1 

### : Texas Association of Business


### Commenter 1 : Stephen Minick Commenter Type: Trade Association

Classification: Substantive



### Comment Excerpt Text: The NRPM states clearly that much of the impetus for this proposed rulemaking is the well

publicize d failure in December 2008 of the containment structure at the Tennessee Valley Authority (TVA) Kingston Plant in Roane County, Tennessee. While there should be no251

understatement of the serious impact of the impoundment failure on downstream property

owner s and the environment, a realistic assessment of the incident as it relates to waste toxicity and waste characterization is appropriate. In the end, the serious effects of the impoundment failure had everything to do with the physical impact of the release of massive amounts of water and sediment and little to do with chemical toxicity of the CCR released. The study of the TVA release by the Tennessee Department of Health in conjunction with the Agency for Toxic Substances and Disease Registry following the incident reported that there was no reason to believe that the release caused harm to the community’s health, did not impact private water wells or springs or downstream municipal water supplies, did not limit contact water recreational opportunities exce pt in the immediate vicinity of the release, and did not increase particulate matter or metals concentrations in ambient air. While the TVA incident may be a text book example of the need to strengthen some state’s dam safety programs, it is not an

appropr iate basis for proposing to regulate a waste stream that is clearly a nonhazardous waste

under Subtitle C of RCRA. Response: This rule will regulate CCRs under RCRA subtitle D: for further details, see unit IV of the preamble to the final rule.



### Comment N umber: EPA

- HQ

- RCRA

- 2009

- 0640

- 09994

- 2 

### Organization 1 

### : Department of Water and Power the City of Los Angeles (LADWP)


### Commenter 1 : Eric J. Tharp and Mark J. Sedlacek Commenter Type: Electric Utility Company

Classification: Substantive



### Comment Excerpt Text:

Evaluation of Potential Risks

In the preamble to the proposed rules, the EPA stated that part of the decision to revisit its regulatory determination for CCRs under the Bevill amendment was driven by the failure of a surface impoundment at Tennessee Vall ey Authority (TVA) Kingston fossil plant in December 2009 and by the revision of risk assessment methodology based on new information. As a result of these revisions, the EPA co

- proposed regulations of the CCRs under RCRA Subtitles C and

D.

At the TVA Ki ngston plant, the release of 5.4 million cubic yards of coal ash, mixed with 327 million gallons of water covered about 300 acres of land surface and water bodies. Due to the potential harm to the environment, the utility, local and federal environmental a gencies immediately began sampling and analysis of the ash itself, surface water, groundwater, drinking water, and air. The Tennessee Department of Health reviewed all analytical results to make sure that public health was protected.

On September 7, 2010 , the Tennessee Department of Health released the Final Report of Public Health Assessment which was prepared under a cooperative agreement with the U.S. Department of Health and Human Services Agency for Toxic Substances and Disease Registry.

The report found minimal health risks from the coal ash spill at TVA's Kingston facility and noted that the significant risk is the safety risk of engulfment by the ash to people in the path of252

the ash release.

Potential risks from CCRs can be properly addressed b y federal non

- hazardous and equally protective Subtitle D regulations. Previously, EPA has agreed that hazardous waste regulation will result in unnecessary regulation. In its final Regulatory Determination issued on May 22, 2000, EPA concluded that hazard ous waste regulation was not warranted for coal ash. The Agency found that the inflexible nature of the federal hazardous waste program would result in excess costs and unduly burdensome regulations for coal ash. Most recently, EPA has found that

the coal ash being recovered from the Kingston release site can be safely disposed of in a RCRA

Subtitle D non

- hazardous waste facility. Rather than regulating coal ash under Subtitle C, Hazardous and Solid Waste Management System the EPA should work with other fed eral and state agencies by focusing on developing dam integrity programs to enhance surface impoundment safety.

Response: This rule will regulate CCRs under RCRA subtitle D: for further details, see unit IV of the preamble to the final rule.



### Comment Num ber: EPA

- HQ

- RCRA

- 2009

- 0640

- 11641_K

- 056

- 2 

### Organization 1 

### : Tennessee Valley Authority (TVA)


### Commenter 1 : Commenter Type: Electric Utility Company

Classification: Substantive



### Comment Excerpt Text: TVA is introducing this information as a written submittal to the public hearing to address the impacts and ongoing remediation efforts at Kingston, Tennessee, site of the December 22, 2008 ash spill. We are submitting written in lieu of verbal comments to allow the community members more time to voice their thoughts on the proper handling of CCRs and to give us the opportunity

to listen.

For today’s public hearing, TVA wishes to enter into the record a brief summary of:

- Actions TVA has taken in response to the Kingston ash slide of December 22, 2008

- Progress to date in the response and recovery effort;

- Scientific investigations TVA is sponsoring to evaluate potential human health and ecological impacts;

- Results to date of those studies.

As the following information demonstrates, TVA has acted aggressively a nd responsibly to address the impacts of the ash slide on the community, to evaluate both immediate and potential long

- term environmental effects, and to communicate its activities and results to local residents, regulators, and the scientific community. W e appreciate the opportunity to enter this statement

into the official record.

Initial and Intermediate

- term Response Actions (December 22, 2008 through June 2009)253

TVA implemented a wide

- ranging, pro

- active response to the ash slide. The following is a p artial list of actions taken to address its impacts on the community and the environment:

- Immediately responded to stabilize site and implement air and water monitoring;

- Provided temporary housing for affected residents;

- Contracted with an independe nt firm to establish a claims office and assess claims;

- Hired independent engineering firms to both evaluate structural integrity of all TVA ash ponds and dredge cells and to perform an independent Kingston root cause failure analysis;

- Quickly develope d a pilot dredging plan to begin removing ash from the Emory River;

- Contracted with Jacobs Engineering to manage clean

- up;

- Implemented the pilot dredging plan, made appropriate adjustments for accelerated dredging;

- Contracted with Sevenson, Inc. to p erform accelerated dredging under the revised plan;

- Self

- declared Kingston spill site as a CERCLA site;

- Committed to dry ash storage at all plants;

- Testified before Congressional committees on TVA’s response and commitments;

- Cleaned up a small emba yment adjacent to Swan Pond United Methodist Church (“church slough”) as an indication of TVA’s commitment to full restoration of all affected waters;

- Designed and implemented a program to collect “baseline” biological data;

- In cooperation with Oak Rid ge National Laboratory (ORNL) and others, TVA quickly began evaluating potential environmental impacts of the spill and recovery actions;

- Contracted with Vanderbilt University Medical Center through Oak Ridge Associated Universities (ORAU) to perform ind ependent medical screenings for any residents who chose to participate;

- Provided data to Tennessee Department of Health (TDH) and US Department of Health and Human Services’ Agency for Toxic Substances and Disease Registry (ATSDR) for use in an

official public health assessment.

Major Milestones Achieved (through September 2010)

Operations:

- Removed and shipped for final disposal 3.5 million cubic yards of ash;

- Re

- opened Emory River for recreational boating Memorial Day weekend, 2010;

- Obtained appr oval from EPA and Tennessee Department of Environment and Conservation of dredge cell/ash pond closure plan;

- Restored utility infrastructure that was damaged.

Communication/Community Outreach:

- Established local outreach office for citizens to visit fo r filing claims and obtaining current information on response and recovery efforts;

- Held public meetings with community and briefings with public officials, published bi

- weekly newspaper column, and sent weekly email updates to residents;

- Funded Commun ity Advisory Group and attended all meetings;

- Provided cenosphere and debris clean

- up on river;

- Purchased 171 properties in the immediate vicinity of the site to allow those residents to avoid living in the midst of a major construction/clean

- up effort ;

- Began educational initiative at Roane County high schools.254

Human Health Assessment:

- ORAU, Kingston Project Surveillance Program, Baseline Medical Screening Results, August 17, 2010. Conducted independently by ORAU personnel and the Vanderbilt Univer sity Medical Center (VUMC) physician medical toxicologists. (www.orau.org/kingstonproject)

- Tennessee Department of Health, Public Health Assessment, Tennessee Valley Authority (TVA) Kingston Fossil Plant Coal Ash Release, September 7,2010. Prepared under a Cooperative Agreement with U.S. Department of Health and Human Services Agency for Toxic Substances and Disease Registry. (http://health.state.tn.us/EnvironmentaI/PDFs/pha

- e

- TV A_Kingston_FossiLPlanCFinal.pdf)

Environmental Monitoring:

- Performed 3,14 7,012 direct, in

- river water quality measurements and collected a total of 9,215 environmental samples producing 258,038 individual results for metals and other water quality

constituents.

Breakdown: o 267,188 measurements of particles in the air (PM 10) throughout the community by mobile air monitors;

-- 2,879,824 individual Hydrolab water quality measurements;

-- 1460 fixed

- station air samples for PM 10, PM 2.5, and total suspended particulates (TSP), producing 3791 individual analytical results;

-- 2920 surface water samples from the Emory, Clinch, and Tennessee Rivers, producing 157,771 individual analytical results;

-- 1208 process water samples (embayment, stilling pond, plant effluent) producing 30,659 individual analytical results;

-- 116 groundwate r samples producing 5310 individual analytical results;

-- 356 ash, soil, and sediment samples producing 5425 individual analytical results;

-- 406 municipal water treatment plant samples producing 5876 individual analytical results;

-- 1731 biota samples (fish, mayflies, snails, birds & bird eggs, frogs, toads, turtles, mammals, and vegetation) producing 45,658 individual analytical results;

-- 347 radiological samples producing 1494 individual analytical results;

-- 671 samples of waste generated for disp osal during the cleanup process producing 5054 individual analytical results.

-- These evaluations continue

- Implementing Engineering Evaluation/Cost Assessment (River EE/CA) Sampling and Analysis Plan to evaluate potential long

- term effects of ash that may remain in the river system; Sampling and Analysis Plan prepared by Arcadis, Inc.; approved by EPA and TDEC following public comment period.

Data Quality Assurance:

- Implemented a rigorous Quality Assurance/Quality Control program to ensure accuracy a nd validity of all data collected:

-- Site

- wide Quality Assurance Project Plan ;255

-- Water Monitoring, Air Monitoring, & Data Management Plans approved by EPA & TDEC;

-- 55 Standard Operating Procedures for environmental data collection and management

comp leted

- seven more in preparation.

- All site environmental staff trained on the Quality Assurance Project Plan and Standard Operating Procedures;

- Conducted two Quality Assurance Project Plan workshops for independent researchers conducting scientific in vestigations focused on ash spill area;

- Conducted 25 audits of contracted independent laboratories to ensure conformance with project requirements;

- High

- quality data being generated

-- 97% of results meet quality criteria for use

Environmental Research :

- Organized the 2009 Kingston Fly Ash Release Environmental Research Symposium for TVA and independent researchers to present results and exchange information on studies being performed.

- Contracted through ORAU for independent investigations of potent ial long

- term effects by research teams at several universities (Duke, U of Kentucky, U of Colorado, U of Illinois, Old Dominion, NC State) and the US Geological Survey.

- Contracted with researchers at Brigham Young University, US Army Corps of Engineers Engineering Research and Development Center (USACE

- ERDC), Virginia Tech, and Oak Ridge National Laboratory (ORNL) for investigations of fate and transport of ash and ash

related contaminants and ash effects on biota.

- Results of January

-- July 2009, ecolo gical investigations were presented at the November 2009, annual meeting of the Society for Environmental Toxicology and Chemistry (SETAC); initial analysis of fall 2009 and spring/summer 2010 results will be presented at the 2010 SETAC annual meeting.

Sc ientific Investigations

TVA began a comprehensive assessment of potential ecological effects ofthe Kingston ash spill soon after the event. TVA began collecting information in January 2009, on many of the potential immediate effects and has funded a combi nation of in

- house investigations, independent federal research institutions, and several different universities to investigate both immediate and potential long

- term effects. In addition to air, sediment, and water quality monitoring, these include studie s of fish, benthic invertebrates, birds, mammals, reptiles, amphibians, plants, and other organisms; toxicological investigations; quantifying chemical kinetics and geochemical transformation rates; and numerically modeling deposition, mixing,

and movement of ash and native sediments in the river system. The following paragraphs provide brief descriptions of the types of investigations that comprise this comprehensive ecological assessment.256

Fish and Benthic Invertebrates

Fish and benthic invertebrate commu nity structures and population densities, and fish health: TVA periodically conducts sampling throughout the Tennessee River system to evaluate changes in fish community structure and populations, and evaluate the sport fishery, and to evaluate the

taxa ri chness and densities of benthic invertebrates. In 2009, TVA added additional stations for these investigations in the Clinch and Emory Rivers near the ash spill site that are being sampled annually or semi

- annually. The results are being compared to those of surveys conducted in the area prior to the spill and to other Tennessee Valley locations and evaluated to identify any long

term trends potentially related to ash spill effects.

ORNL is evaluating additional measures of fish health using blood enzyme c hemistry, tissue histopathology, and standardized fish condition indices.

Reproductive competence: TVA and ORNL are collecting fish during the spring spawning season and ORNL is evaluating the condition of ovaries and eggs and other measures of reproducti ve competence. ORNL also is exposing adult female fish and recently

- hatched juveniles to coal ash in laboratory studies to determine whether there are any ash

- related effects on fish reproduction or larval fish. In addition, in spring 2010, TVA collected l arval fish from the Clinch and Emory Rivers to evaluate reproductive success of native fishes and to document

incidence of deformities.

Bioaccumulation: For years, TVA, TDEC, TWRA, and ORNL have collaborated in investigations of contaminants in fish throu ghout the region. In the past, those investigations focused on contaminants in fillets as a measure of potential exposure by humans. Additional stations have been added in the vicinity of the ash spill that include analyses of contaminant

levels in fillets , whole fish, livers, ovaries, and gut contents for use in conjunction with the fish health and reproductive competence investigations.

TVA and ORNL also are collaborating in investigations of bioaccumulation in mayfly larvae and adults, and in freshwater snails. In combination with investigations of bioaccumulation in other organisms described below, the fish and invertebrate bioaccumulation results will provide information on potential transfer of ash

- related contaminants through the food chain.

Birds, Reptiles, Amphibians, Mamma/s, and Vegetation TVA, Virginia Polytechnic Institute and State University (Virginia Tech), and the University of Tennessee, conducted preliminary investigations in 2009 and 2010 of bioaccumulation in various terrestrial and aqu atic organisms at the Kingston ash spill site. Most of the focus to date has been on bird eggs, turtles, and raccoons, but has also included bird hatchlings, amphibians (toads and frogs), muskrats, and vegetation. Results of the 2009 and 2010 efforts have identified tree swallows (eggs and hatchlings), musk turtles (blood, toenails, and shells), and raccoons as the primary target species for 2011

- 2013 investigations; with geese, heron, and osprey eggs, and amphibians as secondary targets. The tree swallow a nd turtle investigations will be expanded in 2011 to include measures of reproductive competence (clutch size & viability, incidence of hatchling deformities, fledgling survival), and vegetation sampling is being expanded to include periphyton

- the algae th at grow on rocks and bottom surfaces around the edges of water bodies.257

Sediments and Ash Chemical characterization, geochemistry, and toxicity: Within a week of the slide TVA began investigating the chemical constituents in the spilled ash, as well as in the ash remaining in the dredge cell. As concerns were expressed about possible dissolution of arsenic and selenium during hydraulic dredging, in consultation with regulators and natural resources agencies, TVA developed studies to evaluate the potential f or arsenic and selenium dissolution and chemical transformations to more toxic forms, and to evaluate the toxicity of dredged ash to standard test organisms.

The USACE

- ERDC performed exhaustive (10

- day) extractions of ash under controlled conditions, exam ining rates of dissolution and chemical speciation, and testing the toxicity of the elutriates to larval and juvenile fish.

During the course of hydraulic dredging, TVA conducted numerous evaluations of potential for toxicity of whole ash to multiple spec ies of standard test animals (18 tests

- five species of test animals), elutriates (24 tests

- three species), dredge plumes (more than 50 tests

- 2 species), and the stilling pond discharge (more than 50 tests

- 2 species).

The River EE/CA Sampling and Analysis Plan includes a comprehensive program of toxicity testing of ash remaining in the river following completion of hydraulic dredging.

TVA also has contracted with USACE

- ERDC for a multi

- year investigation of dissolution and

chemical transformation rates of arsenic and selenium in aquatic environments, speciation of arsenic in ash, photo

- oxidation of dissolved selenite, and long

- term stability of arsenic and selenium in residual fly ash in the river system.

Nature & extent of ash deposition: Within hours of the spill, TVA began evaluating the downstream extent of the ash in the Emory River using commercial depth finders on survey boats. Researchers at Brigham Young University and at USACE

- ERDC also were contracted to develop numerical models to evaluate ash t ransport and deposition by high flow events.

Bathymetric survey equipment was used on multiple occasions in January

- June 2009, to better define the extent of deposition and movement by high flow events and to map the progress of the pilot dredging operati on. During the same time, various sediment samplers were being employed to determine ash depths and to collect samples for analysis. Because of the dense packing of the spherical ash particles, a VibeCore sampler was the only device found to successfully p enetrate the deposited ash to obtain core samples.

TVA also investigated using a Sub

- Bottom Profiler

- an instrument that uses high

- intensity acoustic waves to penetrate the sediments

- for mapping sediment depths. Through a combination of these procedures TV A developed a map ofthe nature and extent of ash deposited throughout the river system near the Kingston ash spill and published it on the TVA

- Kingston website in August 2009.

As hydraulic dredging approached an end in the late spring of 2010, TVA used mu ltiple258

VibeCore samplers to map the remaining ash deposits and guide the dredges to them, and to

confirm clean

- up in each area.

ORAU

- Managed research investigations TVA contracted with Oak Ridge Associated Universities (ORAU) to solicit proposals from

ind ependent third

- party researchers for investigations focused on beneficial re

- uses of ash and on environmental effects of fly ash in aquatic environments. ORAU also arranged for independent screening of the nearly 175 pre

- proposals received and full review of the nearly 70 full proposals. As a result of that solicitation through ORAU, TVA awarded six research grants totaling $2 million. Those investigations are just beginning. They are as follows:

- Increasing Use of Fly Ash in Concrete through Nano

- materi al Modification, Multi

- scale Characterization, and Improved Processing. (K. Wang, Iowa State University and S. Shah, Northwestern University);

- Geochemical and Isotope Characterization of TVA Coal Combustion Products: Identification

of contaminants and m odeling their fate in the environment. (A. Vengosh, H. Hsu

- Kim, Duke University, J. Hower, University of Kentucky, and T. Johnson, University of Illinois

- Urbana);

- The Effect of Dissolved Organic Matter and Mixing Energy on the Release of Trace Elements from Coal Ash in Natural Surface Waters. (J. Ryan, University of Colorado and G. Aiken, USGS, Boulder);

- A New Approach to Quantifying the Release of Bioactive Trace Elements from Coal Combustion Products to Natural Waters. (P. Sedwick and G. Cutter, Old Dominion University);

- Predicting Mobilization and Bioaccumulation of Trace Elements from Coal Fly Ash Using Speciation Analysis. (D. Hesterberg, D. Buchwalter, and O. Duckworth, NC State University);

- Selenium Biogeochemistry in Rivers Receiving Dire ct Coal Ash Inputs. (G. Cutter, Old Dominion University).

Results through September 2010

Public health

- ORAU/Vanderbilt University Medical Center (VUMC) Medical Screening Results Report and the Tennessee Department of Health (TDH)/US Department of Healt h and Human Services Agency for Toxic Substances and Disease Registry (ATSDR) Public Health Assessment found no indications of adverse health effects related to the ash spill.

-- ORAU/VUMC: No evidence of physical health effects related to components of a sh; “no expected long

- term effects on physical health from current levels of exposure.”

-- TDH/ATSDR: based on exposure pathways, risk assessment, toxicology, and environmental test results, “ ... the Tennessee Department of Health does not expect harm to health from touching, eating, drinking, or breathing the metals in coal ash.”259

- Monitoring has demonstrated no effects on public or private water supplies.

Ecology

- Immediately following the ash spill, TVA and Tennessee Wildlife Resources Agency biolog ists searched for fish stranded on the shoreline or in distress or floating in the water as a result of trauma from the spill. They reported seeing carcasses.of about 300 fish stranded up to 20 feet above the normal water line by the tidal surge from the s pill, but observed no dead or distressed fish in the Clinch or Emory Rivers.

- In June 2009, TVA relocated to the Emory River almost 1,300 fish that had been stranded for

six months in a shallow 8

- acre cove in the Swan Pond embayment by ash blocking its m outh. The abundance of fish and size of the embayment made it impossible to relocate the entire population. The embayment was monitored for signs of fish in distress during the remainder of

the clean

- up operations in that area. There were indications of pr oblems during that time, and the embayment was eventually re

- connected to the Emory River backwaters. Twenty

- five species were observed, including numerous juvenile and young

- of

- year fish. All appeared to be in good
condition even after six months’ direct exposure to ash, indicating that fish die

- offs due to ash

related toxicity were unlikely to have occurred in the Clinch and Emory Rivers.

- 2009 and 2010 surveys indicate numbers, species, and conditions of fish are similar to what was observed prior to t he spill; these findings are supported confirmed by record size and quantity catches in 2010 fishing rodeos and preliminary results from a study of larval fish, which indicates that successful reproduction is occurring, with large numbers of larval fish (e .g., largemouth bass, bluegill, and crappie) present in the area.

- 2009 fish data indicate no significant increases in metals concentrations from just after the spill through fall 2009; Spring 2010 results were received from the laboratories in September and October 2010, and are being analyzed now; Fall 2010 fish collections were completed in mid

October.

- ORNL investigations have found no clear evidence of ash

- related effects on fish health or reproductive competence to date.

- There also is no clear evidence to date of ash

- related effects on benthic macro invertebrate populations except for the original Emory River channel in the immediate area of the spill where habitat was most severely impacted by ash deposition and dredging operations.

- Slight to moderately higher concentrations of ash

- related contaminants have been observed in burrowing mayflies and snails downstream of the spill. However, a depuration study indicates that up to 75% of the contaminant concentrations were associated with undiges ted food, rather

than bio

- accumulated in tissues.

Water and Air

- There have been no project

- related exceedances of ambient air quality standards.260

- The greatest known impact and risk to human health or the environment has been the physical impact of rel easing 5.4 million cubic yards of mass rather than impacts from ash constituents.

- Except for a short

- duration increase in concentrations of some ash

- related contaminants in the Emory and Clinch Rivers in the days immediately after the spill and during h igh

- flow events in January and February 2009, extensive water sampling (~3000 samples and ~2.9 million direct,

in

- situ water quality measurements) has shown no significant continuing water quality impacts from the spill.

Sediments

- The 2009 USACE

- ERDC ex tended elutriate (DEFINE) tests showed “no statistically significant adverse effects were observed for larval or juvenile fish” exposed to elutriates prepared with fly ash from the Emory River. While whole body burdens of metals in tissues

increased in a d ose

- dependent manner, “this increase is likely due to metals present in the gut as ingested fly ash, not metals integrated into the tissue.” These researchers concluded that “In a weight of evidence approach ... these results suggest a limited potential fo r toxicity ... given the extreme conditions represented by oxidized elutriates in this study.”

- TVA’s extensive toxicity testing during hydraulic dredging showed no obvious ash

- related toxicity effects on the test organisms. Only fifteen of the total of more than 140 tests showed any observable adverse effects. Of the 15 with observable adverse effects, at least seven appeared to be due to intolerance of the test organism to particle size of the ash or to biological

contamination.

- Sediment transport mo deling shows that removing 3.5 million cubic yards of ash from the Emory River has significantly decreased the potential for additional downstream transport during high flow events.

- Modeling to assess flood risk for the Emory and Clinch Rivers is underw ay; preliminary results indicate removing 3.5 million cubic yards of ash from the Emory River has reduced the risk of flooding to approximately pre

- spill levels. Completion of the modeling this fall will result in more precise flood risk estimates.

TVA is committed to cleaning up the spill and restoring the area. While research on any potential long

- term effects continues, studies to date indicate that the greatest threat from the Kingston coal ash spill is the physical release of the material.

Response: See response to comment excerpt EPA

- HQ

- RCRA

- 2009

- 0640

- 09536

- 18.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 11736_K

- 162

- 5 

### Organization 1 

### : Environmental Intergrity Project (EIP)


### Commenter 1 : Abel Russ Commenter Type: Advocacy Group

Classification: Substantive



### Comment Excerpt Text:261

Tennessee Department of Health assessment of Kingston accident. There are no public risk assessments suggesting that coal ash is safe. The public health assessment for the Kingston Spill, [Footnote 16: Tennessee Department of Health, Public Health Assessment for the Tennessee Valley Authority (TVA) Kingston Fossil Plant (September 7, 2010).] even if it had been well

executed, is irrelevant to the question at hand. The Kingston spill was a massive structural failure resulting in direct, short

- term exposure to coal ash. There was also an intensive cleanup effort and a lot of monitoring. Most coal ash sites pose a very different kind of risk

- ongoing, frequently undetected and unmonitored contamination of drinking water and ecosystems. The only risk

assessment relevant to chronic coal ash risks is the EPA risk assessment.

That said, I think it is worth pointing out that the Kingston public health assessment had several important errors and weaknesses:

- Arsenic was mistakenly characterized as a threshold toxin. [Footnote 17: Id. at 17 (“Current understanding of arsenic’s toxicology suggests that at low

- level exposures, arsenic compounds are detoxified ... Arsenic, like some other chemicals, does not seem to cause adverse health

effects unti l a certain amount, or threshold, of the chemical has entered the body ... (ATSDR 2007)”). This statement is false, and despite the citation it has no support in the A TSDR toxicological profile for arsenic. Arsenic is a carcinogen, and like all carcinogen s it is treated by health agencies as having no threshold. The statement appears to be irrelevant to the risk assessment conducted in the public health assessment (no thresholds are used), and so the risk

minimizing bias reflected by the statement is troub ling.]

Risk assessment also failed to account for possible additive or synergistic noncancer risks. For example, as noted in the preamble, cobalt and antimony are both linked to heart and lung effects, and both were among the constituents of concern in th e final, full

- scale analysis. [Footnote 13: The preamble notes that “exposure to high levels of cobalt ... can result in lung and heart effects, the same endpoints as antimony. Thus, these two constituents could act additively or synergistically on both th e heart and lungs.” Proposed Rule, supra note 1, at 35173. Cobalt Hazard Quotients (HQs) for surface impoundments were 500 (unlined, 90th percentile), 200 (clay

- lined, 90th), 20 (unlined, 50th) and 6 (clay

- lined, 50th). US EPA, supra note 6 at ES

- 7 to

ES

- 8 . Antimony couldn’t be modeled because half of available monitoring results are below detection (id. at 4

- 50), but this doesn’t mean that there isn’t an antimony problem

- antimony had a 90th percentile HQ of 2 in the case of unlined landfills. Id. at ES

- l. ] There are also at least four neurotoxins present in coal ash, only two of which were modeled in the full

- scale analysis. [Footnote 14: Lead and aluminum were modeled in the full

- scale assessment. US EPA, supra note 6, at 3

- 12. Fluoride and manganese were both included in the screening analysis; when median risk attenuation factors were applied to the surface impoundment screening HQs for these chemicals, both had adjusted HQs of at least 2, suggesting that they should have been

included in the full

- scale analysis. Id. at 4

- 16.] Although the combined effect of these neurotoxins, for example on children’s developing brains, could be substantial, it was not

accounted for in the risk assessment.

- At the level of individual chemicals, not all routes of exposu re were accounted for. This means, for example, that total arsenic or selenium exposure was not captured.262

All of this means that many risks were not accounted for. I’m not saying that the risk assessment

is flawed

- it would be impossible to quantitatively estimate some of these risks given the limited

information that we have. But it would be a mistake to characterize this risk assessment as inherently health

- protective when the reality is that it may have significantly underestimated the

health risks of co al ash.

- Arsenic ingestion was evaluated with a health comparison value that ignores carcinogenicity

the appropriate comparison value would have been roughly 40 times lower and would have been exceeded by most soil and ash samples. [Footnote 18: The trea tment of ash ingestion uses the ATSDR Environmental Media Evaluation Guide (EMEG) as a health comparison value for arsenic. Id. at 7, 18, 20. This is problematic, as noted in our comments on the draft assessment, because it ignores carcinogenicity. In the Public Health Assessment Guidance Manual (2005 update), ATSDR warns: “You should ... recognize the limitations ofEMEGs: 1) exposures are occurring through contact to a single medium, 2) exposures are occurring to a single substance, and 3) only noncarcinog enic health effects will occur” (emphasis added). They go on to explain that “EMEGs are based on toxicity information (MRLs), which consider noncarcinogenic toxic effects of chemicals ... Because some substances have both noncarcinogenic and carcinogenic

e ffects, ATSDR has derived CREGs to consider potential carcinogenic effects of a substance.” CREGs are intended to be used as screening values, like EMEGs, and are derived in a similar way. A CREG for lifetime soil ingestion exposure is calculated as [(TR * BW) / (IR * CF * CSF)); where TR is a target risk (10

- 6 by default), BW is body weight (70 kg by default), IR is ingestion rate (100 mg/d by default), CF is a conversion factor (l0

- 6), and CSF is the relevant cancer slope factor. For arsenic the cancer sl ope factor is 1.5 per mg/kg

- d (from the EPA IRIS database) and the corresponding CREG would be 0.47 mg/kg. This is 40 times lower than the 20 mg/kg EMEG used in the public health assessment, and should have been used as the health comparison value. Compari ng ash and soil measurements reveals that most samples exceeded this value: The minimum TVA residential ash sample was 2.78 mg/kg (Table 2). The minimum EPA soil sample was 1.1 mg/kg (Table 3). The minimum EPA ash sample was 45 mg/kg, about

two orders of m agnitude higher than the suggested CREG (Table 4). The minimum TDEC ash sample was 56 mg/kg, more than two orders of magnitude higher than the suggested CREG (Table 6). The mean TDEC soil sample was 2 mg/kg (Table 5).]

- The public health assessment incor rectly states that metals in fly ash do not make the ash more toxic. [Footnote 19: Id. at 43 (“The metals content of the fly ash would not make the particulate matter more toxic.”) This assertion is irrational and also unfounded. It looks like the two cite d sources of authority for this assertion were comparing coal ash constituents to occupational standards for noncancer health endpoints. Finding no exceedances, the authors of those papers decided that coal ash dust could be treated as regular “nuisance” d ust. Saying that coal ash dust does not exceed occupational safety standards is not the same as saying, for example, that dust with arsenic is no more toxic than dust without arsenic. On p.57 TDH summarizes air monitoring data by saying: “Although some met als were detected in some samples, the overall results indicate that metals in airborne ash should not adversely affect public health. This reinforces the statements in the peer

- reviewed literature that indicate that coal fly ash is a nuisance dust.” Again , this statement is misleading and simply inaccurate. The limited amount of air monitoring does not support such a strong conclusion about health. Additionally, as stated above, there is no justification for saying that coal fly ash is a nuisance dust

- not in the very limited Kingston data263

and not in the literature. Three sources were cited to support this assertion. The first (Meij and te Winkle 2001) appears to be an unpublished (and therefore not peer

- reviewed) paper presented at a symposium. It is availa ble online at http://www.p2pays.org/ref/45/44699.pdf. The authors modeled contaminant concentrations in fly ash and found that their estimates did not exceed Dutch occupational guidelines. The authors did not make real measurements and did not discuss

arse nic. Occupational guidelines are typically less stringent than guidelines designed to protect the public. The fact that estimated concentrations of metals put coal ash in a category of ‘nuisance dust’ according to Dutch occupational standards should have n o relevance to this health assessment. The second (Meij 2000) was published, but as part of the proceedings of a conference, so again it is unlikely that this two

- page article was peer

- reviewed. It is not freely available, but is presumably related to the first source. Both this and the first source were produced by consultants to the energy industry, and the lack of peer

- review should undermine their credibility. The third (Smith et al. 2006) is the single published and peer

- reviewed source cited by TDH to support the above assertion. It describes inhalation experiments on rats and acute health effects. The authors conclude that for the acute endpoints studied, “[coal fly ash] particles are ... not highly potent compared to an equal mass ofPM2.5 [concentrat ed ambient particles].” This study has absolutely no bearing on chronic toxicity, including carcinogenicity.]

- Chromium toxicity was underestimated, apparently as the result of a clerical error. [Footnote
20: “The maximum concentration detected was 0.01 ug/m3, representing total chromium. Hexavalent chromium is much more toxic ... The coal ash at KIF contains approximately 13% hexavalent chromium. The maximum concentration of total chromium would be equivalent to a maximum concentration of 0.0003 ug/m3 of hexavalent chromium.” !d. at 57. This is an error. Thirteen percent of 0.01 is 0.0013, not 0.0003. The correct value, 0.0013 ug/m3, exceeds what would be the hexavalent chromium health comparison value of 0.00083 ug/m3 (Table I, p. 54). The 0.00083 ug/m3 number is based on a lifetime unit risk from the EPA IRIS database, and so a single exceedance does not necessarily mean that there is a health risk, but it does present a

reason for more in

- depth analysis.]

In summary, this study was not well

- executed an d fails to convince me that the Kingston spill was without impacts on the health and environment. It also has no bearing on chronic groundwater contamination risks.

Response: A revised version of the Risk Assessment is in the docket of the final rule.

Com menter’s concerns are also addressed in Units X and XI in the preamble of the final rule.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0267

- 1 

### Organization 1 

### : North Carolina Department of Environment and Natural Resources (NCDENR)


### Commenter 1 : Dexter Matthews Commenter Type: State Government
Classification: Substantive



### Comment Excerpt Text: NC Department of Environment and Natural Resources, Division of Waste Management (DWM)

Comments264

Comments on Alleged and Established Damage Cases in EPA’s Region 4, Based on Testimonies at the Proposed CCR Management Rule Public Hearings (Knoxville, TN; Arlington, VA; Charlotte, NC; and Louisville, KY), August

- October 2010

- Testimony 15 K 537 Rocky Mount, Edgecombe County, NC Citizens from Princeville, NC, evacuated in the wake of Hurricane Floyd flooding, were temporarily resettled (through FEMA, as well as the Edgecombe County and State agencies) in Rocky Mount, NC, w/o being informed that their trailers were located near a former coal ash

landfill.

The landfill beca me exposed after Hurricane Floyd

– community was concerned about the risks. FEMA, Edgecombe County, and NC state authorities declined to address the community’s

concerns

DWM Comments:

Testimony refers to the Fountain Industrial Park Structural Fill (CC B0019). The Fountain Industrial Park coal ash structural fill was properly closed with suitable soil cover between 1992 and 1993. However, coal ash has been exposed in some areas of the Fountain Trailer Park due to erosion and placement of temporary housin g. The Department of Health and Human Services (DHHS) responded to a request to perform a risk assessment by conducting soil sampling at eight locations on July 26, 2000. The results were compared to USEPA Region 9 Preliminary Remediation Goals (PRG). None of the eight soil samples exceeded the PRG levels. The areas of exposed coal ash were covered with new suitable soil by the NC Division of Emergency Management.

- Testimony 1C Duke Energy’s Dan River Steam Station, Stokes County, Eden, NC

Two unlined (High

- Hazard potential) coal ash ponds, as well as one unlined coal ash landfill.

Voluntary GW monitoring since 1993 has detected onsite levels of Cr, Fe, Pb, Mn, Ag and sulfate that exceed state GW standards and Federal maximum primary and secondary MCL s

DWM Comments:

Testimony erroneously refers to an unlined coal ash landfill at this site. An asbestos landfill is on

this site which closed in 2005. All active coal combustion residual landfills are lined facilities.

Site is in Rockingham County, no t Stokes County.

- Testimony 2C 20, 21, 136

- 137, 161, 190, 261 Duke Energy’s Belews Creek Power Station, Stokes County, NC

Going back to the 1970s, Se from coal ash ponds poisoned lake killing 16 of the 20 resident fish species in Belews Lake, a coolin g water reservoir and the recipient of ash pond discharge water.265

Several landfills leak and contaminate GW well above safe levels.

Cited in Coal Combustion Waste Damage Case Assessments (2007; #11) as a proven (ecologic) damage case. Fish advisory rescin ded in 2000, and Plant stopped wet handling.

New complaint addresses leaking from landfills.

DWM Comments:

Belews Creek has three permitted industrial (coal ash) landfills.

All three have separate groundwater, surface water and leachate monitoring systems.

All three are currently under detection monitoring, i.e. facility submits semi

- annual groundwater monitoring reports.

DWM is evaluating the groundwater issues and moving towards assessment monitoring for all

three landfills.

Letters requesti ng submittal of a groundwater assessment work plan were sent 11/9/11 to all

three landfills.

Landfill Details:

- Permit No. 85

- 03

– Pine Hall Road Ash Landfill

o Inactive closed December 2007

o Unlined o Original Permit to Construct (PTC) issued in December 1984, unlined o Approximately 120’ in height o Synthetic cap plus 24” (18 and 6) of soil and drainage layer o Approximately 1/2 mile from surface water o Phase 1 expansion permitted 2003, unlined w/ synthetic closure cap system

o Groundwater exceedances forced landfill to stop receiving ash o Synthetic cap system covering entire unlined landfill (original and Phase 1 expansion) completed in Dec 2008 o Monitoring System

- 13 groundwater wells

– MW

- 1, MW

- 1D, MW

- 2, MW

- 3, MW

- 4, MW

- 5, MW

- 6, MW

- 7 , MW2

- 7, MW2

- 9, OB

- 4, OB

- 5, OB

- 9

- 2 surface water locations

– SW

- 1, SW

- 2

- MW

- 3 and MW

- 1D background wells

o Exceedances

– arsenic, boron, iron, manganese, nitrate, selenium, sulfate o Facility under detection monitoring

– submit semi

- annual groundwat er monitoring reports o Letter requesting facility to submit a groundwater assessment work plan on 11/9/11

- Permit No. 85

- 04

– Craig Road Landfill

o Active266

o Started receiving waste February 12, 2008 o Lined landfill with leachate collection system o 3 Phases total gross volume 8,633,613 o Permitted to receive coal ash, wastewater treatment sludge by

- products and “off

- spec” gypsum o Overall height of the landfill is approximately 100 feet o Approximately 500’ from surface waters o Permit to opera te for Phase 1 issued November 2007

- Phase 1 consists of 31 acres, 1,921,420 cubic yards of gross volume, 1,276 tons per day and estimated life expectancy of 3 years (plus)

o Phases 2 and 3

– not yet permitted (no construction)

- Phases 2 and 3 will con sist of 6,712,193 cubic yards of gross volume

- 59.4 acres o Monitoring System

- 10 groundwater wells

– CRW

- 1, CRW

- 2, CRW

- 3, CRW

- 4, CRW

- 5, CRW

- 6,

CRW

- 7, CRW

- 8, CRW

- 9, CRW

- 10

- 5 surface water locations

– CRS

- 1, CRS

- 2, CRS

- 3, CRS

- 4, CRS

- 5

- CRW

- 10 bac kground well

- 2 leachate monitoring locations

o Exceedances

– iron and manganese o Facility under detection monitoring

– submit semi

- annual groundwater monitoring reports o Letter requesting facility to submit a groundwater assessment work plan on 11/9 /11

- Permit No. 85

- 05

– FGD Residual Landfill

o Active o Lined landfill with leachate collection system o Permitted to receive flue gas de

- sulfurization by products and wastewater treatment clarifier sludge generated by the Belews plant

o Landfill i s approximately 500’ from surface waters o Permit to operate for Phase 1 issued January 2008

- Phase 1 consists of 22.6 acres, 1,500,000 cubic yards of total gross volume, 1,600,000 tons, and estimated life expectancy of 5 years

- approximately 100’ in height o Monitoring System

- 12 groundwater wells

– BC

- 20, BC

- 21, BC

- 22, BC

- 23A, BC

- 25, BC

- 26, BC

- 27, BC

- 28, BC

29, BC

- 30, BC

- 31

- 1 surface water location

– SW

- 1

- BC

- 23A and BC

- 28 background wells

- 1 leachate monitoring location

o Exceedances

– ir on and manganese o Facility under detection monitoring

– submit semi

- annual groundwater monitoring reports o Letter requesting facility to submit a groundwater assessment work plan on 11/9/11.

Response: Thank you for the information regarding the status of the North Carolina CCR management units addressed in the course of the 2010 public hearings. This information was incorporated into the technical support documents on damage cases in the docket of the final

rule.267



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0267

- 5 

### Organization 1 

### : North Carolina Department of Environment and Natural Resources (NCDENR)


### Commenter 1 : Dexter Matthews Commenter Type: State Government
Classification: Substantive



### Comment Excerpt Text: NC Division of Water Quality (DWQ) Comments

Comments on Alleged and Established Damage Cases in EPA’s Region 4, Based on Testimonies at the Proposed CCR Management Rule Public Hearings (Knoxville, TN; Arlington, VA; Charlotte, NC; and Louisville, KY), August

- October 2010

3K French Broad River, Ard en Progress Energy Plant, NC

- Coal ash is polluting groundwater

For each facility listed in your state, was the state aware of the issue/problem that was raised by

the comment?

Yes, the North Carolina Division of Water Quality (DWQ) is aware of issu es related to groundwater standard exceedances associated with coal ash ponds at the Asheville facility.

The coal ash ponds at the Progress Energy Asheville Steam Electric Plant are regulated under NPDES permit NC0000396. Since 2007, this facility has be en submitting groundwater monitoring data associated with their coal ash ponds to the Division of Water Quality (DWQ), Aquifer Protection Section (APS). This data was submitted as a result of a utility

- wide voluntary groundwater monitoring program. In revi ewing this data, APS determined there were groundwater standard exceedances, but also noted that the standard exceedances were primarily from monitoring wells inside the Compliance Boundary [the Compliance Boundary, by State Rules, is required at a specifi ed horizontal distance from the outer perimeter of the ash pond at or beyond which groundwater standards must not be exceeded]. In addition, no adjustments were made for background or naturally occurring concentrations, which may be applicable to several

o f these exceedances.

Has the state taken any action to look into and/or verify facts of the complaint?

Although corrective action has not been required based on the voluntary monitoring data, in December 2009 DWQ sent a letter to the utility companies with ash pond facilities directing them to place wells at their Compliance Boundaries. This placement of wells would help the DWQ determine if any groundwater standard exceedances had occurred. In response to DWQ’s request, Progress Energy installed ground water monitoring wells at the Compliance Boundary in September 2010.268

Are there any on

- going activities or future planned actions that would address the issues of this complaint?

Currently DWQ has an approved groundwater monitoring plan for this facilit y that will be included in the permit upon renewal. Future planned actions include evaluating groundwater monitoring data that is being submitted for the new wells to determine compliance with the groundwater quality standards. Any additional action that m ay be required would be in accordance with State Rules 15A NCAC 2L .0106(d) that address corrective action.

4K Catawba River, Asheville plant, NC

- River contamination, GW pollution, and threat to the recreation and tourism industries due to Duke Energ y and Progress Energy plants’ effluents

For each facility listed in your state, was the state aware of the issue/problem that was raised by

the comment?

Yes, the North Carolina Division of Water Quality (DWQ) is aware of issues related to groundwater s tandard exceedances associated with coal ash ponds at the Asheville facility.

The coal ash ponds at the Progress Energy Asheville Steam Electric Plant are regulated under NPDES permit NC0000396. Since 2007, this facility has been submitting groundwater

m onitoring data associated with their coal ash ponds to the Division of Water Quality (DWQ), Aquifer Protection Section (APS). This data was submitted as a result of a utility

- wide voluntary groundwater monitoring program. In reviewing this data, APS determ ined there were groundwater standard exceedances, but also noted that the standard exceedances were primarily from monitoring wells inside the Compliance Boundary [the Compliance Boundary, by State Rules, is required at a specified horizontal distance from the outer perimeter of the ash pond at or beyond which groundwater standards must not be exceeded]. In addition, no adjustments were made for background or naturally occurring concentrations, which may be applicable to several

of these exceedances.

Has the state taken any action to look into and/or verify facts of the complaint?

Although corrective action has not been required based on the voluntary monitoring data, in December 2009 DWQ sent a letter to the utility companies with ash pond facilities di recting them to place wells at their Compliance Boundaries. This placement of wells would help the DWQ determine if any groundwater standard exceedances had occurred. In response to DWQ’s request, Progress Energy installed groundwater monitoring wells at t he Compliance Boundary in September 2010.

Are there any on

- going activities or future planned actions that would address the issues of this complaint?

Currently DWQ has an approved groundwater monitoring plan for this facility that will be

included in the permit upon renewal. Future planned actions include evaluating groundwater269

monitoring data that is being submitted for the new wells to determine compliance with the groundwater quality standards. Any additional action that may be required would be in accordance with State Rules 15A NCAC 2L .0106(d) that address corrective action.

1C Duke Energy’s Dan River Steam Station, Stokes County, Eden, NC

- Two unlined (High

- Hazard potential) coal ash ponds, as well as one unlined coal ash landfill.

- Volunt ary GW monitoring since 1993 has detected onsite levels of Cr, Fe, Pb, Mn, Ag and sulfate that exceed state GW standards and Federal maximum primary and secondary MCLs.

For each facility listed in your state, was the state aware of the issue/problem that was raised by

the comment?

Yes, the North Carolina Division of Water Quality (DWQ) is aware of issues related to groundwater standard exceedances associated with coal ash ponds at the Dan River facility.

The coal ash ponds at the Duke Energy Dan River Steam Station are regulated under NPDES permit NC0003468. This facility was required in their 1989 permit to install wells around the ash pond and implement a groundwater monitoring program. The monitoring program was approved in 1993. In addition, since 2006 this facility has submitted groundwater monitoring data as a result of a utility

- wide voluntary groundwater monitoring program. In reviewing all data for groundwater monitoring, APS determined there were groundwater standard exceedances, but

also note d that the standard exceedances were primarily from monitoring wells inside the Compliance Boundary [the Compliance Boundary, by State Rules, is required at a specified horizontal distance from the outer perimeter of the ash pond at or beyond which groundw ater standards must not be exceeded]. In addition, no adjustments were made for background or naturally occurring concentrations, which may be applicable to several of these exceedances.

Has the state taken any action to look into and/or verify facts of the complaint?

Although corrective action has not been required based on the voluntary monitoring data, in December 2009 DWQ sent a letter to the utility companies with ash pond facilities directing them to place wells at their Compliance Boundaries. Thi s placement of wells would help the DWQ determine if any groundwater standard exceedances had occurred. In response to DWQ’s request, Progress Energy installed groundwater monitoring wells at the Compliance Boundary in February 2011.

Are there any on

- goi ng activities or future planned actions that would address the issues of this complaint?

The DWQ has approved a 2011 groundwater monitoring plan for this facility that will be included in the permit upon renewal. Future planned actions include evaluating groundwater monitoring data that is being submitted for the new wells to determine compliance with the groundwater quality standards. Any additional action that may be required would be in accordance with State Rules 15A NCAC 2L .0106(d) that address corr ective action.270

2C Duke Energy’s Belews Creek Power Station, Stokes County, NC

- Going back to the 1970s, Se from coal ash ponds poisoned lake killing 16 of the 20 resident fish species in Belews Lake, a cooling water reservoir and the recipient of ash pond discharge

water

For each facility listed in your state, was the state aware of the issue/problem that was raised by

the comment?

Yes

Has the state taken any action to look into and/or verify facts of the complaint?

The last NPDES permit for th is facility, Duke Energy Belews Steam Station (NC0024406), became effective March 9, 2010.

After the facility completed a change to dry ash handling in the 90s, the Se concentration in Belews Lake significantly decreased and fish consumption advisories w ere removed in 2000. Since that date, the fisheries have recovered and the Belews Lake was removed from the 303 (d) list of impaired water bodies.

Are there any on

- going activities or future planned actions that would address the issues of this complaint ?

NA

4C Duke Energy’s Riverbend Steam Plant, Mt Holly, Mecklenburg County, NC

- Excessive amounts of arsenic are in the discharge from two, high

- hazard potential unlined ash ponds to the Mountain Island Lake. The ponds occupy 69 acres, are 70

- 80’ dee p, and go back to 1957. The Catawba River and the Lake are the drinking water source of 3/4 million people, including 80% of Charlotte’s water.

- Because the Lake is also used extensively for recreation, concerned about bioaccumulation of

metals in fish.

For each facility listed in your state, was the state aware of the issue/problem that was raised by

the comment?

Yes.

Has the state taken any action to look into and/or verify facts of the complaint?

The last NPDES permit for this facility, Duke En ergy Riverbend Steam Station (NC0004961), became effective on March 1, 2011. The permit requires Quarterly discharge monitoring for Se, and fish tissue sampling for Se (once every 5 years).271

During the period 2000 through 2008 between 32 and 39 samples we re collected at stations B and C and analyzed for parameters of concern. None of them exceeded water quality standards or EPA criteria at these two stations, and most of the values were below detection.

Selenium, arsenic, and mercury concentrations were measured in common carp, sunfish, and bass collected by electrofishing in July (2004

– 2008) at Locations A, B, C, and G. Trace element concentrations from this period remained well below values of regulatory concern.

The Reasonable Potential Analysis wa s conducted in 2010 and was based on the DMR data from 2005 through 2010. DMR data indicates that the maximum As value in the discharge is 130.3 μg/L This analysis indicates that the allowable As concentration is 3,045 μg/L. Due to the high

dilution in the receiving stream, concentration of As in the discharge is well within legally

allowable levels.

Are there any on

- going activities or future planned actions that would address the issues of this complaint?

The facility has an extensive surface water mo nitoring program in the Mountain Island Lake. Monitoring is conducted at 7 stations. The nearest stations are B (upstream) and C (downstream), which are located approximately 0.5 mile from the discharge. The parameters monitored are: Total alkalinity, TP, Al, K, Total Recoverable As, Se, Ba, sediment Se, Total recoverable Cd, Silica (as Si), Ca, Ag, Total Organic Nitrogen, Na, Cl, Total Solids, Total Recoverable Cr, TSS, Dissolved Cu, Sulfate, Total Recoverable Cu, Turbidity, Total Recoverable Fe, Zn, Total Recoverable Pb, Mg, Mn, Ammonia Nitrogen, Nitrate + Nitrate Nitrogen, Total Kjeldahl Nitrogen, Ni, Orthophosphate Phosphorus.

The facility is scheduled to be retired in 2015.

4C Duke Energy’s Riverbend Steam Plant, Mt Holly, Mecklenburg County, NC

- Duke’s own data documents groundwater contamination

For each facility listed in your state, was the state aware of the issue/problem that was raised by

the comment?

Yes, the North Carolina Division of Water Quality (DWQ) is aware of issues related to groundwater standard exceedances associated with coal ash ponds at the Riverbend facility.

The coal ash ponds at the Duke Energy Riverbend Steam Plant are regulated under NPDES permit NC0004961. Since 2008, this facility has been submitting groundwater m onitoring data associated with their coal ash ponds to the Division of Water Quality (DWQ), Aquifer Protection Section (APS). This data was submitted as a result of a utility

- wide voluntary groundwater monitoring program. In reviewing this data, APS determ ined there were groundwater standard exceedances, but also noted that the standard exceedances were primarily from monitoring wells inside the Compliance Boundary [the Compliance Boundary, by State Rules, is required at a specified horizontal distance from the outer perimeter of the ash pond at or beyond which272

groundwater standards must not be exceeded]. In addition, no adjustments were made for background or naturally occurring concentrations, which may be applicable to several of these

exceedances.

Has the state taken any action to look into and/or verify facts of the complaint?

Although corrective action has not been required based on the voluntary monitoring data, in December 2009 DWQ sent a letter to the utility companies with ash pond facilities di recting them to place wells at their Compliance Boundaries. This placement of wells would help the DWQ determine if any groundwater standard exceedances had occurred. In response to DWQ’s request, Progress Energy installed groundwater monitoring wells at t he Compliance Boundary in

November 2010.

Are there any on

- going activities or future planned actions that would address the issues of this complaint?

Currently DWQ has an approved groundwater monitoring plan for this facility that was included in the p ermit upon renewal March 1, 2011. Future planned actions include evaluating groundwater monitoring data that is being submitted for the new wells to determine compliance with the groundwater quality standards. Any additional action that may be required wou ld be in accordance with State Rules 15A NCAC 2L .0106(d) that address corrective action.

4C Duke Energy’s Riverbend Steam Plant, Mt Holly, Mecklenburg County, NC

- Three years ago Duke dredged out the ponds, generating much fugitive dust that impacted the Stonewater development. The ash was heaped in a large, unmonitored mound beside the Horseshoe Bend Beach Road, the only access to the peninsula. It is a source of fugitive dust (ash accumulating on cars, houses), and presumably

– of leaching to ground water, which potentially risks many of the peninsula residents’ drinking water wells.

For each facility listed in your state, was the state aware of the issue/problem that was raised by

the comment?

DWQ was not aware of the concern.

Has the state tak en any action to look into and/or verify facts of the complaint?

DWQ was not aware of the concern so no action was taken. DWQ is currently looking into the concern to see if any action is needed.

Are there any on

- going activities or future planned acti ons that would address the issues of this complaint?

DWQ is currently looking into the concern to see if any action is needed.

8C Progress Energy, Asheville (Arden), NC273

- Drinking water wells with 116 exceedances of state GW drinking water standards.

For each facility listed in your state, was the state aware of the issue/problem that was raised by

the comment?

North Carolina Division of Water Quality (DWQ) is aware of issues related to groundwater standard exceedances in monitoring wells associat ed with coal ash ponds at the Asheville facility but is not aware of any standard exceedances in drinking water wells.

The coal ash ponds at the Progress Energy Asheville Steam Electric Plant are regulated under NPDES permit NC0000396. Since 2007, this f acility has been submitting groundwater monitoring data associated with their coal ash ponds to the Division of Water Quality (DWQ), Aquifer Protection Section (APS). This data was submitted as a result of a utility

- wide voluntary groundwater monitoring pr ogram. In reviewing this data, APS determined there were groundwater standard exceedances, but also noted that the standard exceedances were primarily from monitoring wells inside the Compliance Boundary [the Compliance Boundary, by State Rules, is require d at a specified horizontal distance from the outer perimeter of the ash pond at or beyond which groundwater standards must not be exceeded]. In addition, no adjustments were made for background or naturally occurring concentrations, which may be applicabl e to several

of these exceedances.

Has the state taken any action to look into and/or verify facts of the complaint?

Although corrective action has not been required based on the voluntary monitoring data, in December 2009 DWQ sent a letter to the util ity companies with ash pond facilities directing them to place wells at their Compliance Boundaries. This placement of wells would help the DWQ determine if any groundwater standard exceedances had occurred. In response to DWQ’s request, Progress Energy in stalled groundwater monitoring wells at the Compliance Boundary in September 2010.

Are there any on

- going activities or future planned actions that would address the issues of this complaint?

Currently DWQ has an approved groundwater monitoring plan fo r this facility that will be included in the permit upon renewal. Future planned actions include evaluating groundwater monitoring data that is being submitted for the new wells to determine compliance with the groundwater quality standards. Any additional action that may be required would be in accordance with State Rules 15A NCAC 2L .0106(d) that address corrective action.

8C Progress Energy, Asheville (Arden), NC

- State permit to discharge SIs into the French Broad River results in arsenic in River water at discharge point x18 human health standards of NC; in sediments (258 ppm), x80 the natural soil background.274

- Fish in French Broad River have high levels of Se.

For each facility listed in your state, was the state aware of the issue/problem th at was raised by

the comment?

Yes

Has the state taken any action to look into and/or verify facts of the complaint?

The last NPDES permit for this facility, Progress Energy Asheville Steam Electric Plant (NC0000396), became effective on November 1, 2 007.

The facility has conducted monthly effluent sampling of As. The reasonable Potential Analysis was conducted in 2010 and was based on the DMR effluent data from 2007 through 2010. DMR data indicates that the maximum As value in the discharge is 233 μ g/L. This analysis indicates that the allowable As concentration is 3,571 μg/L. Due to the high dilution in the receiving stream, concentration of As in the discharge is well within legally allowable levels.

The permit requires annual fish tissue samplin g for Se. The last sampling was conducted in 2010. The latest report was submitted by the Progress Energy in 2010. According to the report:

- Fish were collected from three locations of the French Broad River. These locations were adjacent to the Ashevil le Plant discharge (Station DI), 6.2 kilometers upstream (Station UP) and 10.8 kilometers downstream of the discharge (Station DN).

- The target species were black bass (primarily smallmouth bass), sunfish (redbreast/bluegill) and

black redhorse. Occasio nally when smallmouth bass were not available, largemouth bass and/or rock bass were also collected (Stations UP and DI) as supplemental target species. As recommended by the U.S. Environmental Protection Agency (EPA) an attempt was made to limit

the small est fish to 75% of the largest fish total length by species depending on availability (U.S. EPA 1995).

- Most fish were considered to have low selenium tissue concentrations at all stations except for two redbreast sunfish (4.1 and 6.6 μg/g fresh weight) collected from Station DI. However, based on the majority of fish collected during 2010 and on historical sampling at this station, no significant trend of selenium accumulation was indicated in fish due to the power plant discharge.

- All fish collecte d were below the North Carolina human consumption advisory level of 10 μg/g (fresh weight) for selenium. No shifts in selenium concentrations in fish populations from pre

operation to post

- operation of the Asheville FGD system (December of 2005) have occur red.

Are there any on

- going activities or future planned actions that would address the issues of this complaint?

The facility will continue fish tissue monitoring.275

9C Progress Energy Sutton Steam Plant, NC

- Two unlined SIs next to the main branch of the Cape Fear River, with a combined capacity of 555 million gallon, leaking As, B, Mn and Fe to groundwater. Plume spread 500’ away from SIs.

For each facility listed in your state, was the state aware of the issue/problem that was raised by

the com ment?

Yes, the North Carolina Division of Water Quality (DWQ) is aware of issues related to groundwater standard exceedances associated with coal ash ponds at the Sutton facility.

The Progress Energy Sutton Steam Plant’s current NPDES permit NC0001422 (effective January 1, 2007) includes groundwater monitoring requirements. This facility has submitted permit

required groundwater monitoring data to DWQ since 1995. In addition to the permit

- required monitoring, this facility has been submitting groundwate r monitoring data for additional parameters as a result of a utility

- wide voluntary groundwater monitoring program since 2006. Due to groundwater standard exceedances found, in March 2009 the facility submitted to DWQ an initial (Phase I) groundwater quali ty assessment plan. Groundwater standard exceedances, including As, B, Mn, and Fe, were reported.

Has the state taken any action to look into and/or verify facts of the complaint?

DWQ approved a Phase I groundwater quality assessment plan in January 20 10. The initial assessment was completed and findings were submitted to DWQ in February 2011. DWQ approved a work plan for the second phase (Phase II) of the ash pond investigation in June 2011. The approved plan for the second phase includes the installat ion of 13 new monitoring wells. The new well installation is expected to be completed in September 2011 after which well sampling and other testing will begin.

Are there any on

- going activities or future planned actions that would address the issues of t his complaint?

Once the monitoring wells are sampled and other tests completed, findings will be submitted to DWQ along with a proposed plan for corrective action. Based on those findings, DWQ will approve a course of corrective action that will proceed in accordance with State Rules 15A NCAC 2L .0106(d).

Response: Thank you for the information regarding the status of the North Carolina CCR management units addressed in the course of the 2010 public hearings. This information was incorporated into the t echnical support documents on damage cases in the docket of the final

rule.



### Comment Number: TRANS

- CLT

- 0134

- 1 

### Organization 1 

### : Appalachian Voices


### Commenter 1 : Sandra Diaz276

Commenter Type: Advocacy Group

Classification: Substantive



### Comment Excerpt Text: I per sonally came to realize the massive destruction that coal and its waste by

- products can cause. I was actually one of the first people to commute into the massive coal ash spill in Harriman, Tennessee to assist with water testing in December of 2008. What I saw before me

was what once was a free

- flowing river that had become a toxic coal ash pit filled with dead fish. And the test results we collected from that sampling were not a surprise. We are still

-- very frightening to see. The presence of toxic heav y metals like arsenic, barium, cadmium, lead and selenium were at alarming levels. And the people's lives that lived there were forever impacted

-- the many adults and children experiencing health issues; many whose homes are now part of a

toxic site.

Re sponse: Thank you for your comment. The 2008 TVA Kingston CCR slurry spill and its aftermath are addressed in Unit XI of the preamble to this rule and also in the technical support documents on damage cases included in the docket of the final rule.

Sectio n 8.6.1

- Info supporting a proven damage case (i.e., meets EPA criteria to be proven)



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 03707

- 3 

### Organization 1 

### : Green Century Capital Management


### Commenter 1 : Kristina Curtis Commenter Type: Other Company

Classification: Substantive



### Comment Excerpt Text: Consistent, federally

- enforceable regulations would require utilities to use best practices for managing their coal ash, which would reduce environmental risk. The catastrophic coal ash spill at the Tennessee Valley Auth ority (TVA) pond in December2008 demonstrated that current regulations are not enough to mitigate environmental and financial risk for utilities and their shareholders. TVA was in compliance with state regulations before the ash pond failure but now

faces an estimated $1.2 billion in spill

- related costs, as well as expenses associated with over 50 lawsuits that have been subsequently filed. The TVA disaster, along with the 24 other cases of proven coal ash

- related environmental damage reported by EPA, makes it clear that stronger rules are needed to ensure that companies consistently use best practices to mitigate risk.

Response: The EPA decided to regulate the disposal of CCR under subtitle D of RCRA by issuing minimum national criteria. Similar to the su btitle C option, this option would require composite liners, groundwater monitoring, structural stability requirements, corrective action, and closure/post closure care. However, given available statutory authorities, EPA proposed this option to be a self

- implementing rule with no direct federal oversight, with an effective six months after publication in the Federal Register . The Agency is deferring its final Bevill Regulatory Determination with respect to CCRs that are disposed in CCR landfills and CCR

s urface impoundments until additional information is available on a number of key technical and policy questions, including the risks of CCR disposal based on its arsenic content, such as the277

appropriate safe daily dose for arsenic and the speciation of ars enic in the environment, and the potential impacts of recent Agency regulations on the chemical composition of CCR. In addition, the Agency needs additional information on state programs before it is in a position to make a final Bevill Regulatory Determi nation.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06260

- 123 

### Organization 1 

### : Kentucky Department for Environmental Protection


### Commenter 1 : R. Bruce Scott Commenter Type: State Government
Classification: Substantive



### Comment Excerpt Text: p. 35163: 4. Issues Associated With Unencapsulated Beneficial Uses However, because the Gambrills and Battlefield sites involved the unencapsulated placement of CCRs on the land, it raises questions regarding the beneficial use of unencapsulated uses of

C CRs; accordingly, in this section, the Agency presents information on the issues on which it is specifically soliciting comment.

In the example cited, the contractor did not build the golf course to specifications. If ASTM

International E2277

- 03 Standard Guide for Design and Construction of Coal Ash Structural Fills were followed, a Professional Engineer would have designed the course, specified soil and percent compaction necessary to protect surface and groundwater, and had construction inspectors on sit e to make sure that the final construction met specifications. Kentucky also recommends prior notice and review similar to a general permit or Registered Permit

- by

- Rule, and implementing regulations under Subtitle D of RCRA.

Response: This rule will regul ate CCRs under RCRA subtitle D: for detailed discussion for structural fill projects utilizing CCR, see Unit IV of the preamble of the final rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06313

- 1 

### Organization 1 

### : Earthjustice et al.


### Commenter 1 : Lisa Evans
Com menter Type: Advocacy Group

Classification: Substantive



### Comment Excerpt Text:

The discussion has been centered around selenium because that element was the contaminant of concern in the informative but previously unpublished case of PPL Martins Creek Ash Basin 1, but also because more is known about selenium in coal ash and its environmental impacts than almost any other element. Among the COPCs selenium is one of the most enriched in coal ash and CCRs. It is also the case that because selenium impacts egg

- laying species more heavily than mammals, and often ends in extermination of multiple species in an impacted ecosystem, there have been easily recognized definitive cases to investigate. Also, and largely in response to high profile selenium toxicity case s, the analytical capabilities for measuring selenium have matured considerably in recent years. All these mean there are simply more and better data, more278

thorough and well documented scientific investigations, and recognized cases of actual biological da mage due to selenium from improperly managed coal ash than due to other COPCs. Serious consideration must be given to the likelihood of similar damages due to other COPCs, e.g., arsenic, antimony, cadmium, that, like selenium, are already being released in to the environment, but, unlike selenium, are not yet recognized or quantified due to subtlety of toxic effects, inadequacies of monitoring and available analytical technologies, and the consequently more limited and less effective investigations. The huma n health threats posed by environmental releases of other COPCs, especially arsenic and antimony, in coal ash and CCRs generally have not yet been recognized on a wide scale in field situations. It seems seriously ill

- advised to defer protection against su ch threats until human health impacts become as recognizable as the cases

of wildlife extermination due to selenium contamination. Selenium is the focus in these comments because it provides the most thorough information available toward understanding the broader toxic threats coal ash appears to present. Documented and investigated coal ash selenium cases provide an immediate opportunity to begin to grasp the fundamental causes of environmental impacts of ineffective coal ash management, and, consequently, how to better manage CCRs. A report now in press by Ruhl et al clearly shows that under field conditions the principles and conclusions from the investigation of the PPL Martins Creek ground water selenium case apply to arsenic in river water and sediment s impacted by ash from the TVA Kingston ash spill.

Response: The role played by CCR

- derived selenium as a risk to human and ecological health is addressed in Units X and XI in the preamble of this rule. It is also discussed in the revised Risk

Assessment in the docket to this rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06313

- 13 

### Organization 1 

### : Earthjustice et al.


### Commenter 1 : Lisa Evans Commenter Type: Advocacy Group

Classification: Substantive



### Comment Excerpt Text: The initiation of emergency ash pumping into Basin 1 caused rapid increases in ground water selenium at the North End (MW 1

- 8 and 1

- 9) and the South End (MW 1

- 6) monitoring wells, but had minimal effects at intervening monitoring well, MW 1

- 7, that lies between the North and South End wells. Compared to the first selenium rise maxima of 60 to 76 μg/L at the North and South End wells, the maximum selenium measured in MW 1

- 7 was 13.7 μg/mL on 9 Sep 2005 and decreased rapidly to < 4 μg/mL by 23 Sep 2005. Previous soil studies had generated an understanding of the coarse and fine scale structur es of the ash in the basin. That structure was clearly the result of the same processes that govern natural geological sediment deposition and a product of the construction and operational history of the basin. The structure explained the rapid

subsurface transmission of slurry water through the body of ash in the basin from the North to the South End largely bypassing the area monitored by MW 1

- 7. Those long, rapid, subsurface flows occurred through large veins of bottom ash that course from the far North to the far South End, veins that formed in channels left by an old dike breaching that predated construction of the dike that now separates the North and South Ends, and subsequent construction of other, now

buried, contiguous channels in the same areas. O utside the veins the ash fill is a stratified27 9

complex of distinct layers of bottom ash and fly ash. Those bottom ash veins and layers are capable of transmitting rapid water flow. In contrast, the fly ash layers do not allow rapid water movement, unless th e fly ash itself moves with the water. In fact, years of field sampling in Basin 1 had shown almost all the fly ash in the basin that overlies bottom ash or the sand/gravel soil is perennially saturated to heights (depths) of several inches to several feet , regardless of how dry or wet the coarser material (bottom ash or sand/gravel) is.

Response: Thank you for providing EPA with your opinion on the causes leading to the groundwater impact in the wake of the Martins Creek, Pennsylvania, 2005 slurry spill i nto the Delaware River. EPA has incorporated this information into the Technical Support Document on damage cases that is located in the docket to the final rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06313

- 15 

### Organization 1 

### : Earthjustice et al.


### Commenter 1 : Lisa Evans Commenter Type: Advocacy Group

Classification: Substantive



### Comment Excerpt Text: The old fly ash in Basin 1 was the sustained source of selenium impacting ground water.

The second rise in ground water selenium in the South End of the basin (MW 1

- 6) began sometime after 12 October 2005, over a month after all pumping into the North End had stopped. By late September 2005 all surface water had drained away. Based on the estimated 1.8 million gallons per day drainage rate, depth of ash, and as h water holding capacity, it should have taken no more than 4 more days for the ash to have drained to field moisture capacity, leaving no water in the basin capable of flowing to the South End. Further, the highest selenium concentrations

observed in MW 1

- 8 and MW 1

- 9, by far the wells closest to the influent of ash slurry, were 60

- 70 μg/L. The second rise in the South End went to a maximum of 126 μg/L, and lasted more than a year. The second selenium rise simply could not have been due to a delayed flow o f ash slurry water from the North End (Figures 1 and 2). Instead, it had to be due to selenium released from the ash in the basin, specifically the fly ash in the basin, which is predominantly located in the South End. The fact that water samples from a pi ezometer (PZ 1

- 17) near the center of the basin, but still in an area predominated by fly ash, also showed a delayed peak in selenium, much larger and later than the one in the South End well, supported this conclusion (Figures 1 and 2). The 2005 emergency ash slurry pumping into Basin 1 had triggered a substantive, delayed release of selenium from the old fly ash in the basin.

Response: See response to comment excerpt EPA

- HQ

- RCRA

- 2009

- 0640

- 06313

- 13.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06313

- 16 

### Organization 1 

### : Earthjustice et al.


### Commenter 1 : Lisa Evans Commenter Type: Advocacy Group

Classification: Substantive280



### Comment Excerpt Text: Meaningful historical data on total selenium content of coal and coal ash were also never

collected.

Given the old fly ash was the selenium source it was appropriate to attempt to estimate what the maximum selenium release from the ash in the basin might be. The most direct approach to drawing an upper bound on the maximum selenium the basin could release was to gathe r any historical data available on ash composition, especially total selenium. Attempts to ascertain the historical selenium contents of coal fuel and ash at the Martins Creek plant were not productive. Selenium was not among routine analytes until the 199 0s, and even then usually only as a default analyte for a single sample taken once or twice a year with analytical method detection limits of typically 4.5 ppm or higher. Methods with such high detection limits provide effectively no

information for most c oal ashes, which likely average around 2.5 ppm total selenium (see Table 6 in the EPA proposed rule document). There was no coal or ash data in the records from which an estimate of the likely total selenium content of Basin 1 could be directly developed.

Response: Thank you for your comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06313

- 17 

### Organization 1 

### : Earthjustice et. al.


### Commenter 1 : Lisa Evans Commenter Type: Advocacy Group

Classification: Substantive



### Comment Excerpt Text: During scientific environmental investigations, the development of science based, environmental regulations, and effective application of such regulations, it is critical to discern knowledge that has some kind of a scientific foundation from that which is merely a stipulat ed or technology based belief. Discerning the difference among these types of knowledge is much more difficult than is generally appreciated. It often requires asking questions that seem unimportant or irrelevant, or that some actually do not want to have answered, as became particularly apparent in the PPL Martins Creek Basin 1 selenium investigation.

Response: Thank you for your comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06313

- 19 

### Organization 1 

### : Earthjustice et. al.


### Commenter 1 : Lisa Evans

Commenter Type: Advocacy Group

Classification: Substantive



### Comment Excerpt Text: Coal fly ash is almost entirely comprised of fine, spherical particles of a synthetic aluminosilicate glass mineral, similar to but less stable than analogous natural materials.281

Natural minerals undergo a geochemical process known as weathering during which the mineral dissolves and the dissolved elements precipitate to form more thermodynamically stable mineral forms. During mineral weathering, elements such as selenium, arsenic, boron, antimony, etc. are also released from the mineral and move into more thermodynamically stable forms in which they may remain in solution, precipitate into an insoluble form, or be sorbed onto other minerals or particles. Like natural minerals fly a sh glass weathers, but does so far more rapidly than natural minerals. Observations during previous soil studies in Martins Creek Basin 1 (Payne,

1999

- 2006) indicated substantial amounts secondary mineral gels, presumably of aluminum/silicon oxyhydroxides, were forming at an unusually rapid rate on the fly ash particles in the basin. Zevenberg et al (1999) reported that coal ash weathers at a rate more than 25 times faster than its nearest natural analog material, volcanic ash. Zevenberg et al (1999) point out that glass composition, pH and temperature affect coal ash weathering rates, and suggest that the high weathering rate of coal ash is due to high initial alkalinity (high alkalinity promotes dissolution of the ash glass). They do not discuss, however, that many ashes are not initially highly alkaline or that temperatures are elevated in many ash impoundments. It is important to be aware that coal ash, just like natural minerals, weathers in all environments from well drained, well aerated environments, to shallow or deeply buried submerged sediment environments. Further, the settled ash in impoundments usually entered the basin as hot slurry, and due to the massiveness and insulating properties of the ash deposits, the basin contents remain warm for a co nsiderable time, years, even after delivery of ash slurry into the basin has stopped. This was observed to be the case in Basin 1 at PPL Martins Creek. There are, therefore, multiple factors predisposing coal ash to weather much more rapidly, and consequen tly release toxic elements much more rapidly than would be expected for analogous natural minerals.

Response: Thank you for your comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06313

- 25 

### Organization 1 

### : Earthjustice et al.


### Commenter 1 : Lisa Evans

Commenter Type: Advocacy Group

Classification: Substantive Comment Category:



### Comment Excerpt Text: The changes in manganese and selenium in Martins Creek Basin 1 clearly demonstrated this relationship. At near neutral pH, when exposed to ORP above 225 to 280 milli volts (depending on the actual effective pH) selenite reacts to become selenate. This is why selenium in coal ash impoundments and landfills is present usually as selenite, but as selenate in well aerated soils or in surface, well drained, aged ash deposit s. The adsorptive affinity of the oxyhydroxide minerals forming in weathering coal ash is 10 times weaker for selenate than for selenite. If pH

- ORP is in the selenite range, then selenium weathering out of the ash will be adsorbed by the oxyhydroxides with a strong affinity, and will load up their considerable adsorbent capacity. If pH

- ORP then shifts into the selenate range, then the sorbed selenite will react to form selenate and the previously selenite

- laden ash will begin to unload its selenium burden r eleasing it into the surrounding environment. This appears to be what caused the increases and slow declines in ground water selenium levels at Martins Creek Basin 1. Turner et al (1982) describe similar282

observations and causative phenomena in relation to (oxidation

- reduction) speciation and spatial distribution of arsenic in other impoundments. Ruhl et al (in press) report data and findings that show arsenic and selenium responding in similar opposite directions due to redox conditions in the TVA Kingston spilled ash in the Emory River. In that case dissolved selenium levels were low while arsenic, and manganese, levels were high in an ORP

- pH environment probably more reduced than that which resulted in low arsenic (and manganese) but high selenium in Marti ns Creek Basin 1. Interestingly similar maximum levels were observed in both cases,  ̃2000 μg/L

selenium at Martins Creek PZ 1

- 17 and arsenic in TVA Kingston ash sediment pore water. Related processes are also apparent in the data presented by Ladwig 2006.

The solubility of other toxic metals, i.e., cadmium, lead, nickel, and zinc, tend to be more closely related to pH than ORP, and that solubility is affected by pH changes within the range of common environmental conditions (see again Ruhl et al <in press> ). Typically CCRs contain moderate to heavy concentrations of some or all of these toxic elements. Consequently, when both pH and ORP and the toxic element combinations likely in CCRs are considered, it becomes apparent that once weathering has released th e toxic elements from the original ash glass it is unlikely that there will be ORP

- pH windows in which none of the toxic elements will be present primarily in soluble forms in environmentally substantial amounts. The Martins Creek and Ruhl et al TVA Kingst on data clearly show that when dissolved selenium levels increase arsenic (and manganese) levels decrease, and vice

- versa. Review of ORP

- pH data and diagrams indicate this can be expected for other COPCs as well (Takeno 2005)

To summarize several previous points, when wet ash handling and impoundments are used all

the water

- soluble toxic elements in fresh coal ash are removed and discharged to the environment in ash pond effluent, infiltrates or leakage. All the initially water insoluble toxic

elements are then left in the ash in the impoundment to be released by weathering of the ash into chemical forms such that at least one of the elements will almost always be present at elevated concentrations in impoundment waters under common environmental ORP

- pH con ditions. Restating, if coal ash contains substantial levels of water

- insoluble toxic elements, weathering and opportunities for contamination of the environment are worst for surface impoundments, both while they are active and post

- closure. This should no t be understood to imply that the discussed redox chemistry and related conclusions are not applicable to dry handled ash disposed in landfills, but that impoundments assure there will be toxic releases immediately upon initial use and high risks of releas es long after active use has ended, and the amounts at risk of release will likely increase continuously for long periods of time well into the foreseeable future.

These same principles probably explain, at least in part, the sharp contrasts encountered i n pore water concentrations at different depths within the ash in a given impoundment (again, page 38 and other places in the Proposed Rule). All that is needed for a substantial change in the ambient (pore water) concentration of any ORP

- sensitive element adsorbed in substantial amounts or present in insoluble form is a sufficient shift in pH

- ORP conditions. Even a minor pH

- ORP shift

can be sufficient.

Consider, in this regard, the data from PZ 1

- 17 in PPL Martins Creek Basin 1 (attached poster, Payne 200 9, Figure 5). Initially high dissolved manganese levels [Footnote 2: Figure 5 indicates initial dissolved manganese was around 160 μg/L. It is likely they were much higher when the283

piezometer was constructed 3 months before the initial sampling. Based on t he data available for the piezometer waters it is reasonable to presume that oxidation of ash and soil and the manganese it contained begun during the construction of the piezometer.] dropped to non

detectable levels. Selenium did not begin to rise until t he dissolved manganese began to approach zero. Manganese and selenium undergo redox transitions under similar conditions, but the effect on effective solubility is opposite. At ORP lower than the relevant transition (phase boundary) manganese exists as dis solved manganese (2+) ion, above the transition ORP manganese precipitates as the solid manganese oxide and disappears from solution. At a slightly higher ORP ( ̃.06 volt higher) the strongly sorbed selenite converts to the more weakly sorbed selenate, and dissolved selenium levels begin to rise. Ruhl et al (in press) data and findings indicate the complimentary situation for arsenic and manganese when ORP

- pH conditions

become more reduced instead of more oxidized.

Response: Thank you for your comment. The Agency concurs with the central premise of the comment that wet disposal results in a larger solute load of many of the CCR metals as compared to dry disposal. The adverse consequences of this effect were demonstrated in the revised Risk

Assessment in the docket of the final rule. They are also summarized in Unit X of the preamble

to this rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06313

- 26 

### Organization 1 

### : Earthjustice et. al.


### Commenter 1 : Lisa Evans Commenter Type: Advocacy Group

Classification: Substantive



### Comment Excerpt Text: It is also interesting to note that Steevens et al (2009) reported no detectable oxidation of selenium during a 10

- day elutriation of spilled TVA Kingston ash under oxidizing conditions. Those authors did not notice, how ever, that the supply of reduced manganese in their elutriation run was dropping but was not exhausted during the 10

- day run. The Martins Creek case, and theoretical considerations, suggest that selenium will not oxidize or release into the water until

the reduced manganese supply has been effectively exhausted. Further, Steevens et al (2009) seem reluctant to draw conclusions regarding the selenium associated with the ash that entered the Emory River except that a substantial portion had apparently gone in to a reduced organic form, implying that net reduction would lead to lowered risk of selenium impacts. No such consolation should be taken from this conversion to organic forms as the organo

- selenium is likely to enter the food chain where the toxic effect s of selenium are actually realized (Besser et al 1993). Indeed, the levels of organo

- selenium encountered by Steevens et al (2009) might indicate that a substantial portion of the selenium had already been biologically processed into

the food chain at the time of sampling, May 2009, nearly 6 months after the ash spilled into the Emory River. This would be cause for concern.

Response: Thank you for your comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06313

- 3 

### Organization 1 

### : Earthjustice et al.284



### Commenter 1 : Lisa Evans Commenter Type: Advocacy Group

Classification: Substantive



### Comment Excerpt Text: The PPL Martins Creek case exemplifies the serious lack of monitoring of toxic elements at operating surface ash impoundments.

Lack of monitoring data effectivel y blinds regulatory agencies and makes diagnosis of an environmental emergency and development of effective responses a much more difficult and time consuming task, further raising the risks of even more extensive and prolonged damage.

Response: The Agency concurs with the commenter: the final rule would correct this deficiency by mandating a groundwater monitoring system to be place around all CCR management units.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06313

- 4 

### Organization 1 

### : Earthjustice et al

. 

### Commenter 1 : Lisa Evans Commenter Type: Advocacy Group

Classification: Substantive



### Comment Excerpt Text: That is, even though there was no direct measurement, the investigation uncovered other data clearly indicating that for something near half the over 5 decades of operation of the PPL Martins Creek plant it is likely the levels of selenium, and probably other toxic elements, in the ash slurry water and ash impoundment effluent, and related plant NPDES discharges and infiltrates and leaks to ground wate r probably exceeded acceptable levels.

Response: Thank you for your comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06313

- 5 

### Organization 1 

### : Earthjustice et. al.


### Commenter 1 : Lisa Evans Commenter Type: Advocacy Group

Classification: Substantive



### Comment Excerpt Text: The lack of data on the PPL Martins Creek pollutant discharges was just a small part of a much broader and threatening monitoring problem.

The initial rapid rise in selenium in ground water below the North End of the basin (monitored in

MW 1

- 8 and 1

- 9) was due to rapid penetration of ash slurry water to depth, not selenium release from the older ash already in the basin. Using the limited available data, basin surface water samples with 60 ppb selenium, long term average estimated selenium i n ash basin effluent of 50 ppb, and estimated basin water infiltration rates (see 3. below), it followed that over the285

approximately 25 days the basin contained ash slurry water (24 August to around 20 September 2005) roughly 18 pounds (0.7 lb/day) of sele nium were released to ground water. This was converted to an estimate of selenium discharges during normal plant operations. The actual emergency ash pumping period was from 24 August to 8 September, 16 days of ash production. Consequently, under normal op erations 16 days ash production would not have been spread over  ̃25 days. Correcting for this extended time for the ash slurry water infiltration in Basin 1, the average daily Basin 1 emergency selenium load to ground water of 0.7 lb/day (with water in the basin) becomes a normal operational selenium load of

(0.7 lb Se/day of infiltration) x

((25 days of infiltration)/(16 normal operating days)) =

1.1 lb Se/normal operating day.

Interestingly, applying rough estimates to the Martins Creek NPDES discharg e flow to the Delaware River, and using the single available selenium concentration for that flow, generates a selenium discharge of 0.8 lb/day. Given the paucity of data, and coarseness of estimates, this is good agreement with the preceding estimate, and indicates an environmentally substantial selenium load to the Delaware River during normal operations. Given the flow rate of the Delaware River (mean flow  ̃6100 cu.ft./sec.), this amount of selenium would not present a direct toxic threat, but it would l ikely accumulate in the river food chain, especially in the outfall plume. However, if other selenium sources were also impacting the river, the load imposed by PPL Martins Creek effluent could have been a significant part of a pernicious, subtle, potentia lly substantial environmental problem. There were no actual data for selenium (or other toxic elements) concentrations in that PPL Martins Creek plant effluent, a NPDES regulated discharge, as there were none for the TVA Kingston plant NPDES discharges to the Emory and Clinch Rivers prior to the December 2008 spill in Tennessee, or the UGI Development Company’s Hunlock Power Station NPDES discharges to the Susquehanna River, as assuredly there still are not for many others.

At these and all the other plant s managing ash through surface impoundments, it is environmentally essential to know with reliable accuracy the quantity of contaminants discharged to local waters, the flow rate or residence time of those waters, and all other

contaminant sources that aff ect those waters. Without such contaminant level reporting requirements in NPDES permits, discharging parties were not, presumably still are not, required to report, or even know, how much contaminants they are loading into local waters. Despite the applic ation of the NPDES permitting process, the environmental security of waters receiving coal power plant effluents has ended up being little more than a game of chance. If a reasonably sized plant were placed along a large enough river, then the river might survive relatively unharmed. If, on the other hand, a similarly sized or larger plant were placed on a smaller river or reservoir, then that water body was doomed, the outcome not being a question of if, but when contaminant impacts would begin to take the ir toll. Selenium has become a thoroughly studied contaminant from coal fired power plants that has destroyed fisheries and depleted economies at

numerous sites.286

Response: EPA agrees with the main premise of the comment regarding the lack or deficiency o f groundwater and surface water monitoring: the final would correct the former deficiency by mandating a groundwater monitoring system to be place around all CCR management units. EPA anticipates that the final steam industry ELG rule would address the lat ter concern.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06315

- 59 

### Organization 1 

### : Earthjustice et. al.


### Commenter 1 : Lisa Evans Commenter Type: Advocacy Group

Classification: Substantive



### Comment Excerpt Text: Thus without attempting to independently verify claims of contamination or inspect any sites, the Agency’s 2007 identification of damage sites [Footnote 309: Id. ] rejected sites like the Cardinal Fly Ash Reservoirs in Ohio; of that site EPA said that: "[t ]he State has ground water monitoring data for the site, but the representatives could not confirm the presence of any suspected impacts. The data do not show any exceedences of primary or secondary MCLs. Furthermore, according to the State’s hydrogeologis ts, interpretation of the data is occluded by mining impacts in the area. There are no exceedences of primary or secondary MCLs at this site. Therefore, this site is categorized as a case without documented evidence of proven or potential damage to human h ealth or the environment." [Footnote 310: Id. at 59.]

Yet American Electric Power (AEP) first reported exceedances of MCLs in the groundwater surrounding these large ash ponds to the Ohio Environmental Protection Agency (OH EPA) in 1993 and reported stati stically significant increases of CCR constituents in groundwater monitoring wells to OH EPA in early 1999 and 2000. [Footnote 311 (corrected per #10492 with

deletions in strikeout and additions in bold ): Id. In Harms Way , at 120

- 124. ] Indeed, OH EPA

had co nfirmed that groundwater monitoring at the site indicated that “fly ash related constituents” had entered the groundwater surrounding the two ponds with statistically significant increases of arsenic and a number of other parameters in 2004. [Footnote 312: Id. ] In fact, an OH EPA report concluded that the ash ponds were in direct contact with the underlying groundwater in 2006, and AEP itself admitted in 2007 that continued inundation of the aquifer by water from one of the ponds would, in the short term, h ave “a significant influence on groundwater quality from ash pond recharge.” [Footnote 313: Id. ] Samples from ash pore water in the pond contained arsenic at more than 46 times the MCL, molybdenum at 37 times EPA’s Lifetime Health Advisory, and boron at 4 times EPA’s Child Health Advisory. Not surprisingly, monitoring of groundwater leaving the pond area showed that arsenic had been measured at 0.10 mg/L, 10 times the MCL, while molybdenum and boron had been measured 10 times and nearly

2 times their Health Advisory standards, respectively (there are no MCLs for molybdenum or boron). The Tidd

- Dale subdivision 2,000 feet downstream from these ponds relies on private drinking water wells that are directly in the path of this contamination. [Footnote 314 (corre cted per #10492 with deletions in strikeout and additions in bold): In Harm’s Way , at 120

– 24. Id

. ]

EPA similarly relied on the word of OH EPA to reject contamination alleged at the AEP Gavin Plant’s ash ponds and landfill in its 2007 EPA Damage Case Assess ment :287

"The representatives could not confirm the presence of any suspected impacts and the State has not undertaken any regulatory action at the site. There is no evidence of damage at this site. Therefore, this site is categorized as a case without docume nted evidence of proven or potential damage to human health or the environment." [Footnote 315: 2007 EPA Damage Case

Assessment , at 61.]

In contrast, the examination of this site in the second EIP Report found the underlying groundwater to be contaminated with arsenic up to 0.057 mg/L (5.7 times the MCL), barium up to 13.8 mg/L (6.9 times the MCL), lead up to 0.051 mg/L (3.4 times the MCL) and cadmium exceeding the MCL. [Footnote 316 (corrected per #10492 with deletions in strikeout and additions in bold) : In Harm’s Way , at 124

– 31. 125

- 132. ]Widespread, major exceedances have also been occurring for alpha radioactivity, with readings as high as 1,497 pCi/L (99.8 times the MCL). Molybdenum has been measured at 0.409 mg/L (more than 10 times the federal Lifetim e Health Advisory Level). All of these parameters except cadmium have been exceeding MCLs (or the LTHA for molybdenum) since the mid

- 1990s. The contamination appears to be spreading as the number of wells contaminated with alpha activity above the MCL has doubled from 1994 to 2009 and has reached a monitoring well 700 feet south of the landfill and in the direction of contaminant flow. NPDES permit violations for the landfill and the closed fly ash/bottom ash pond have also occurred for copper, boron, and s ulfate. Acute toxicity to aquatic life has been documented in whole effluent toxicity tests by AEP in Stingy Run and Kyger Creek immediately downstream of the permit discharges. While OH EPA has not taken any enforcement actions, it has required AEP to per form assessment monitoring at four wells. [Footnote 317 ( corrected per

#10492 with deletions in strikeout ): Id

. at 125

– 32. ]

EPA similarly rejected the Muskingum fly ash pond in Ohio as a damage site, claiming that OH EPA representatives had maintained that there were no exceedances of primary or secondary MCLs at the site. [Footnote 318: 2007 EPA Damage Case Assessment , at 62.] Monitoring data establish, however, that concentrations of alpha activity have been up to 8.5 times the MCL in shallow groundwater exiting the site, and sulfate, iron and TDS have been exceeding their respective MCLs. Arsenic and mercury in seepage from t he ash pond’s dam were also more than 3 times their respective MCLs. Ohio Department of Natural Resources’ (DNR) records indicate that there are 70 private wells within 2 miles of the Muskingum ash pond and 63 wells within 1.5

miles of the Gavin landfill a nd ash ponds. In both cases many of these wells are in the direction of contaminant flow. [Footnote 319: In Harm’s Way , at 128

– 29, 145

– 49.]

EPA has also rejected cases that even more clearly meet the criteria for proven damage cases. For example, a catast rophic release of caustic ash slurry from the collapse of an ash pond dike in June 1967 at the Clinch River Plant in Virginia killed an estimated 217,000 fish for 90 miles downstream of the spill, wiped out mussels and other aquatic life, and left the rive r ecosystem damaged for more than a decade. Yet even though EPA acknowledged this spill as a damage case in its 1993 Regulatory Determination, it now rejects the Clinch River spill as a damage case because “there was no evidence of comanagement (of CCR) at this site.” [Footnote 320: 2007 EPA Damage Case Assessment , at 60.] There is no logical explanation for the Agency’s decision

on this case.288

Response: EPA has reassessed, among others, the four damage cases cited by the commenter.

Based on this assessment the Agency concluded that all these sites qualify as damage cases: the Cardinal Fly Ash Reservoirs, AEP Gavin Plant’s ash ponds, and Muskingum fly ash pond, all located in Ohio, are now designated as potential damage cases; the June 1967 Clinch River CCR spill in Virginia is designated as a proven damage case.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06315

- 62 

### Organization 1 

### : Earthjustice et al.


### Commenter 1 : Lisa Evans Commenter Type: Advocacy Group

Classification: Substantive



### Comment Excerpt Text:

3. Concentrations of Toxic Contaminants Routinely Exceed Health Standards at CCR Damage Cases

The toxicity found at these damage sites is very high and persistent. Exceedances of MCLs have been measured in shallow groundwater downgradient of the waste for ev ery one of EPA’s appendix VIII parameters at these sites. [Footnote 326 5 ( renumbered per #10492 ): See 40 C.F.R. Pt. 261, Appendix VIII.] These include antimony, arsenic, barium, beryllium, cadmium, chromium, lead, mercury, nickel, selenium, silver, and tha llium, all of which are highly toxic and persistent in the contaminated environments at ash sites. [Footnote 32 7 6 ( renumbered and

c orrected per #10492, with deletions in strikeout and additions in bold ): See Appendix F for

additional information Appendix F _4, Table 2 and Appendix F_5 for data on exceedances of Appendix VIII metals and other constituents at CCR damage sites. ]

MCL exceedances have been documented most frequently for highly toxic trace elements such as arsenic, cadmium, chromium, lead and sel enium. [Footnote 328 7 ( renumbered and corrected per #10492, with deletions in strikeout and additions in bold ): Id. All measurements quoted below are contained in the Appendix. Measurements quoted for specific sites are contained in Appendix F_5. ] The MCL for total chromium has been exceeded at 20 of the damage cases identified by EPA and environmental groups (hereinafter EPA/EIP damage cases). The MCL for arsenic has been exceeded at 66 sites, almost half of the damage cases, with a maximum value

342 times the MCL. Measured arsenic concentrations have exceeded the MCL by more than 10 times at 26 sites, and have been equal to or greater than 100 times the MCL in downgradient groundwater at 6 sites. These include Michigan City ash ponds and Yard 520 landfill in Indiana, Hatsfield’s Ferry landfill and UGI Hunlock ash pond in Pennsylvania, Karns and Weadock landfill in Michigan, and Indian River Burton Island landfill in Delaware. The MCL for lead has been exceeded at 30 sites, one

- fifth of all damage cases to d ate, with a maximum value 179 times the MCL. Lead has exceeded the MCL by more than 10 times at 6 sites. The MCL for selenium has been exceeded at 26 sites with the highest concentration 37 times the MCL. The MCL for cadmium has been exceeded at 28 sites, with a maximum concentration 170 times the MCL, and

10 sites have exceeded exceed ( sentence corrected per #10492 technical corrections, with

deletions in strikeout and additions in bold ) the cadmium MCL by more than 10 times.

Other highly toxic but less f requently monitored appendix VIII parameters have exceeded their289

MCLs by multiple times in groundwater contaminated by CCR. Mercury has exceeding the MCL at four sites by as much as 450 times, antimony has exceeded the MCL at three sites by as much

as 52 t imes, beryllium has exceeded the MCL at four sites by as much as 30 times, thallium has exceeded its MCL at five sites by as much as 8 times, and barium has exceeded the MCL at seven sites by as much as 7 times. Nickel has exceeded its former MCL and curre nt lifetime health advisory (LTHA) of 0.1 mg/L at seven sites by as much as 30 times. The LTHA for silver, another infrequently measured parameter, has been exceeded at two sites.

There are many other contaminants in CCR that leach into the groundwater a nd surface waters at CCR sites at harmful levels, causing significant damage that has not been sufficiently appreciated due to EPA’s focus on exceedances of primary MCLs. [Footnote 329 8 ( renumbered and corrected per #10492, with deletions in strikeout and additions in bold ): See Appendix F Appendix F_1, at 3

- 6 and Table 2 in Appendix F_4 , for additional information and data on exceedances for non

- Appendix VIII parameters at CCR damage sites.] Harmful concentrations

of boron are a common occurrence at CCR da mage sites. Some 33 sites, nearly one

- quarter of recognized damage cases, have boron concentrations in groundwater exceeding EPA’s Child Health Advisory of 3.0 mg/L. Boron concentrations have exceeded this standard by more than 10

times at 5 sites with the highest concentration, 520 mg/L, exceeding the standard by 173 times. Many more damage sites are exceeding state groundwater standards for boron with values as high as 0.315 mg/L in North Carolina, 0.90 mg/L in Wisconsin, 1.0 mg/L in Minnesota, 1.4 mg/L i n Florida and Nevada, and 2 mg/L in Illinois.

Molybdenum has exceeded EPA’s LTHA at nine damage sites with six of those exceeding the standard by more then 10 times and the highest concentration, 22 mg/L, exceeding the standard by 550 times. More sites wo uld likely be exceeding this standard if more states required monitoring for this parameter. Other metals exceeding their LTHAs include strontium and zinc each at four sites and copper exceeding EPA’s Action Level at one site.

High sodium levels are comm only found in CCR leachate. The EPA’s health

- based Drinking Water Advisory (DWA) for sodium of 20 mg/L, set to protect people on salt restricted diets, has been exceeded in contaminated groundwater at seven sites with concentrations more than 10

times this standard at every site and a maximum recorded value of 40,000 mg/L, which is 2,000 times the standard. Sodium would also likely be found at many more sites if monitoring was routinely required for this metal.

Very few states require monitoring for radioa ctivity at CCR sites despite elevated radioactivity commonly found around sites where large volumes of CCR are deposited. Of the three sites in Ohio where alpha particles were monitored, this parameter exceeded the MCL of 15 pCi/L at all three, with the ma ximum concentration, 1,497 pCi/L, exceeding the standard by almost 100

times.

Although no federal standards have been set for cobalt and vanadium and most sites are not monitored for these metals, these constituents have exceeded groundwater standards set by

several states at CCR

- contaminated sites. Health

- based standards established by Florida and Minnesota for vanadium have been exceeded at four sites, and the residential Protective Concentration Level (PCL) for cobalt in Texas has been exceeded at one s ite in that state.290

Sites with high manganese and sulfates are only identified by EPA as exceeding non health

based Secondary Maximum Contaminant Levels (SMCL) when, in actuality, the groundwater may have been contaminated by CCR with concentrations of th ese parameters that render it toxic for human or livestock consumption and that far exceed human health

- based standards. The LTHA for manganese, 0.3 mg/L, has been exceeded at 31 sites examined by EIP. These exceedances are often significant. Manganese exc eeded the LTHA by more than 10 times in at least 11 of those sites, with a maximum concentration 333 times the LTHA. The maximum concentration of sulfate, 56,000 mg/L, exceeds EPA’s health

- based DWA of 0.5 mg/L by 112

times. EIP found this standard exceede d at 31 damage sites with at least three sites exceeding the DWA by more than 10 times. If EPA’s assessments would divulge the concentrations of sulfate and manganese measured, the numbers of damage sites exceeding these health

- based standards

would be not ably higher.

Response: EPA reassessed all the established damage cases identified in EPA’s July 2007 Coal Combustion Waste Damage Case Assessment report; the Agency also assessed against EPA’s

test

- of

- proof criteria all the alleged damage cases submitted to the Agency by environmental advocacy groups in 2010, the findings of the electrical utilities in their 2010/2011 assessment reports, as well as comments to the proposed rule and the October 2011 NODA submitted by all stakeholders. The test of proof criteria, defined in EPA’s 2007 damage case assessments report, take into consideration all exceedances, be it MCLs, SMCLs, HALs, or LTHAs, as a crite rion for confirming or rejecting the validity of damage cases. For additional discussion, see Unit XI in the preamble to the final rule and the technical support documents on damage cases included in

the docket of the final rule.

4. The Migration of Conta minants from CCR Sites Pose Grave Threats to Drinking Water

and Surface Water Sources.

The contamination from many CCR sites is moving, posing far greater threats to human health and the environment than federal decision makers may have appreciated. Rathe r than merely contaminating underlying groundwater, the contamination from many of these sites is traveling offsite and moving farther away from the disposal area than EPA’s assessment of damage cases indicates. EPA has identified only two sites where migr ation of contaminants moved a significant distance in groundwater from the waste boundary, traveling 250 feet from the landfill at the Port Washington Plant in Wisconsin and 400 feet from the waste boundary of the Miamiview Landfill in Ohio. In contrast, p ublic interest groups have identified 22 coal ash sites where contamination has traveled from 200 feet to 1 mile in groundwater beyond the waste boundary. Due to the rarity of off

- site monitoring at coal ash disposal sites as well as the vulnerable geologi c settings (e.g, karst geology) at many sites, there are undoubtedly many more sites where dangerous migration of contamination remains undetected.

Examples of off

- site migration documented by EIP include: [Footnote 330 29 ( renumbered per

#10492 ): See Out of Control; In Harm’s Way ]

- At the Flint Creek CCW landfill in Arkansas, a 2009 groundwater assessment found selenium at 3 times the MCL, sulfate at 8 times the SMCL and 4 times EPA’s health

- based Drinking Water Advisory (DWA), and TDS at 5 times the SMCL in a monitoring well 360 feet291

downgradient from the landfill. A leachate seep discharges beyond the landfill into a stream that drains into unmonitored ash ponds which discharge off

- site to a recreational reservoir without limits or monitoring of ash meta ls. Selenium was up to 8.4 times the MCL, chromium up to 3.4 times the MCL, boron up to 4 times EPA’s Child Health Advisory, sulfate up to 4.5 times the DWA and TDS up to 7.4 times the SMCL in samples of this seep collected from 2007 to 2010.

- At the Veni ce Plant in Illinois, a contaminant plume with measured concentrations of arsenic
up to 3.8 38 ( corrected per #10492 technical corrections, with deletions in strikeout and

additions in bold ) times the MCL extends off

- site some 400 feet beyond the boundary o f closed ash ponds.

- At the Sheldon Plant in Nebraska, two wells 400 feet downgradient of a closed, clay

- lined coal ash landfill at the property line have measured steadily rising selenium and sulfate concentrations up to 1.5 times the MCL for selenium an d 1.4 times the SMCL for sulfate as of 2008.

- At the Gavin Plant in Ohio underlying groundwater is contaminated with alpha activity, arsenic, barium, cadmium, and lead, all exceeding MCLs, and molybdenum has also been measured exceeding the EPA’s Lifetime Health Advisory (LTHA) by 2.5 times in an off

- site groundwater monitoring well 700 feet south of the waste boundary. ( sentence deleted per #10492 technical corrections, corrrected with two sentences per #10492 as follows in bold ) At the

Gavin Plant in Ohi o underlying groundwater is contaminated with alpha activity, arsenic, barium, cadmium, and lead all exceeding MCLs by several to as much as 99 times for alpha activity and molybdenum exceeding the EPA’s Lifetime Health Advisory (LTHA) by more

than 10 time s. Molybdenum has been measured exceeding the LTHA by 2.5 times, manganese and chloride nearly twice the SMCL, and TDS 3 times the SMCL in a downgradient groundwater monitoring well 700 feet south of the waste boundary.

- At the Spurlock Plant in Kentucky, arsenic levels have consistently exceeded the MCL since 2005, reaching as high as16 times the MCL in 2009 in samples from a monitoring well some 750 feet downgradient of the CCW landfill.

- At the Northeastern Plant in Oklahoma, a contaminant plume moving rapidly offsite from a coal ash landfill exceeds the arsenic MCL by more than 3 times 900 feet south of the landfill. Selenium has been measured at up to 1.85 mg/L, 37 times the MCL in this plume. Lead, thallium and average chromium concentrations also ex ceeded the MCL. Vanadium concentrations in the plume have been measured at more than 9 times over state health standards set by Minnesota and Florida, and all concentrations were measured 900 feet beyond the solid waste boundary in sampling from 2005 to th e present day. ( sentences deleted per #10492 technical corrections, corrrected with sentences per #10492 as follows in bold ) At the Northeastern Plant in Oklahoma, a contaminant plume moving rapidly offsite from a coal ash landfill exceeds the

MCLs for ars enic and lead by more than 9 times and chromium by more than two times 900 feet beyond the boundary of the landfill. Closer to the landfill, selenium has been measured at up to 1.85 mg/L, 37 times the MCL and nearly twice the toxicity characteristic, bariu m measured at more than 4 times the MCL, thallium exceeding the MCL and average vanadium concentrations 5 to 8 times over state health standards set by Minnesota and Florida. All concentrations were measured in sampling from 2005 to the present day.

- At t he Boardman Plant in Oregon, vanadium has been rising since the 1990s in wells monitoring a coal ash fill, reaching 0.126 mg/L, 2.5 times state health standards, in 2006 in a well 1,500 feet downgradient of the fill.

- At the Hatfield’s Ferry Plant coal as h landfill in Pennsylvania, total arsenic has been measured292

at 342 times the MCL, and boron and molybdenum have been measured at 5 times and 33 times their LTHAs, respectively, in contaminated groundwater 1,500 feet downgradient of the landfill.

- At the D olet Hills Plant in Louisiana, TDS and sulfate concentrations have reached levels more than four times higher than their SMCLs and more than twice the health based DWA for sulfate in a contaminant plume one half mile (2,640 feet) downgradient of bottom ash ponds. Metals have not been normally sampled at the plant’s CCW sites which have operated since at least 1986, but 2009 sampling found arsenic and lead exceeding their MCLs and selenium exceeding its MCL by more than 3 times in wells closer to the waste u nits.

- At the Seminole Plant in Florida, groundwater at the property line, one mile (5,280 feet) downgradient of an unlined FGD sludge landfill, had a chloride concentration of 590 mg/L (twice the SMCL), a sulfate concentration of 780 mg/L (3.1 times the SMCL and more than 1.5

times the health

- based DWA), a TDS concentration of 3,100 mg/L (6.2 times the SMCL), a boron concentration of 4 mg/L (exceeding the EPA Child Health Advisory and 2.9 times the Florida standard), and 12 mg/L of iron (40 times the SMCL ). The source of this plume was unmistakably the FGD landfill, where the shallow underlying groundwater in the same round of sampling had a chloride concentration of 21,000 mg/L, a sulfate concentration of 1,100 mg/L, a TDS concentration of 59,000 mg/L, a boron concentration of 344 mg/L, and an iron concentration of 29 mg/L.

EIP has documented contamination that has traveled beyond at least 1,000 feet if not substantially further ( corrected per #10492 technical corrections, with deletions in strikeout

and a dditions in bold ) from the waste boundary at eight sites. These include the Boardman Plant ash disposal area in Oregon, Hatsfield’s Ferry Ash Landfill and the Bruce Mansfield Little Blue Impoundment in Pennsylvania, the Industrial Excess Landfill in Ohio, the Lincoln Quarry Ash Landfill in Illinois, the Dolet Hills Ash Ponds in Louisiana, Seminole Flue Gas Desulfurization Landfill in Florida, and the Colstrip Ash Ponds in Montana.

Response: With one exception, EPA concurs with the damage cases cited in the comment. The exception pertains to the Boardman Plant in Oregon, where the Agency’s assessment has concluded that “Groundwater exceedances of primary and secondary EPA MCLs have been found onsite but at distance and upgradient from CCR materials. There is inadequate information

to determine whether exceedances are site

- related, from offsite sources, or from on

- site but non

CCR sources. There has not been any assessment of groundwater or surface water offsite and there are no other impact or damage claims.”

______________________________________________________________________________ 

### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06315

- 63 

### Organization 1 

### : Earthjustice et al.


### Commenter 1 : Lisa Evans Commenter Type: Advocacy Group

Classification: Substantive



### Comment Excerpt Text: 5. State Regulatory Responses Have Been Inadequate.

State regulatory agencies have done little to respond to contamination from CCR disposal sites. Repeated evidence of contamination at monitoring points rarely results in any action beyond293

a ssessment monitoring to address the problem. For example, of 35 sites that contaminated groundwater in the In Harms Way Report, [Footnote 331 0 ( renumbered and corrrected per #10492, with additions in bold ): In Harm’s Way Executive Summary ] monitoring data clearly indicate the contamination was moving offsite at 29 of the sites. In other words, the farthest downgradient well before the property line was found to be contaminated over baseline

concentrations and relevant standards at these 29 sites. States had required assessment monitoring in onsite wells in response to increases in contamination at 18 of the sites. Off

- site monitoring had only occurred at 8 sites (and this was not required in most of these instances, but done voluntarily by the utilities). Ef forts to investigate the source or determine the extent of contamination have only occurred at four sites. At no site has the contamination been halted or

remediated.

Even when people are likely to be in harms way, state agencies routinely fail to take ac tion to halt or clean up contamination from CCR disposal sites. At 15 of the 35 sites referred to above, state and county well records indicate at least five private residential (drinking water) wells are within two miles of the site. At 13 of those sites, wells are located in the direction that contamination is moving. These include the Joliet #9 site in Illinois, the Cardinal, Gavin, Muskingum and Uniontown (a.k.a., Industrial Excess Landfill) ( corrected per #10492 technical corrections, with additions in bold ) sites in Ohio, the Northeastern site in Oklahoma, the Fayette site in Texas, the Flint Creek site in Arkansas, the Lansing site in Iowa, the Big Stone site in South Dakota, the Bruce Mansfield and Hatfield’s Ferry sites in Pennsylvania, and the

Rode macher site in Louisiana. All of these sites except for Muskingum and Uniontown ( corrected per #10492 technical corrections, with additions in bold ) are also within five miles of at least one downgradient public water supply well with a much higher pumping capacity. Among these cases, state agencies have sampled off

- site drinking water wells only at the

Uniontown and Bruce Mansfield sites. Contamination of numerous wells has been documented

at both of them.

Even after contamination is found in off

- site dri nking water wells, the following examples illustrate that regulators have taken decades to act and done little to halt the contamination or stop further human exposure until its it is ( corrected per #10492 technical corrections, with

deletions in strikeout and additions in bold ) too late:

- At the Industrial Excess Landfill in Uniontown, dozens of residential wells were contaminated by the use of at least one million tons of industrial coal ash in a sand and gravel quarry where

solvents and other industrial wastes were disposed in the 1960s and 70s before the site was closed and eventually became a Superfund NPL site in 1986. Court documents establish that coal ash was the only metal

- laden waste dumped at this site that could be the source of antimony at 52

t imes the MCL, beryllium at 30 times the MCL, cadmium at 53 times the MCL, lead at 46 times the MCL, chromium at 17 times the MCL, arsenic at 13 times the MCL, thallium at 6.5 times the

MCL and nickel at 22 times its former MCL in residential wells and moni toring wells. In 1987 USEPA required 100 homes west of the site to be provided with free public water. Yet despite the OH EPA’s assertion that metal concentrations were rising in contaminant plumes from the site in the mid 1990s, USEPA determined that this cleanup remedy was complete in 2005 without remediating contamination flowing from the landfill to the north and south into neighborhoods. Wells as much as 1,000 feet offsite to the north have had exceedances of MCLs for cadmium, chromium, lead, selenium, and thallium in samples collected from 1997 to 2001.294

Yet 19 monitoring wells were decommissioned in 2004, including 8 where exceedances have occurred in residential areas not provided with public water. In fact, analysis for metals was stopped at all rema ining monitoring wells in 2004. Residents in these areas who cannot afford a

hook

- up fee continue to use private wells and face potentially daily exposure to high levels of toxic metals. Since the early 1990s, high cancer incidence has been reported in nei ghborhoods immediately to the southwest, west and northeast of the landfill. [Footnote 332 1 ( renumbered per #10492 ): In Harm’s Way, at 133

– 43.]

- At the Bruce Mansfield’s massive unlined Little Blue Surface Impoundment, multiple drinking

water wells have b een contaminated with cadmium up to 170 times the MCL, lead 120 times the MCL, barium 3 times the MCL, arsenic up to 2.5 times the MCL, and other constituents such as boron, chloride, fluoride, sulfate, manganese, and aluminum exceeding secondary MCLs and Health Advisories. Pennsylvania Department of Environmental Protection (PADEP) and First Energy entered into a settlement agreement in 1994 to address groundwater contamination. Since then, PADEP has issued two Notices of Violations (NOVs) for fugitive dus t and required resampling of 10 wells with elevated arsenic. In addition, PADEP permitted an increase in the height of the dam for the impoundment in 2006 to accommodate more fly ash and scrubber sludge from the Bruce Mansfield Plant. The resulting increas e in ash water height has increased head (downward) pressure, pushing the groundwater contamination farther offsite and resulting in levels of arsenic, antimony, hexavalent chromium, lead, boron, cadmium, thallium, selenium,

and other constituents in off

- s ite springs and seeps in excess of Pennsylvania’s water quality standards. At least 22 private wells have now been contaminated above MCLs, SMCLs, and health advisories, and many of the affected homes have been purchased by First Energy. To date,

PADEP has not required a remediation plan or assessed penalties. [Footnote 333 2 ( renumbered per #10492 ): Id . at 161

– 73.]

- Since 1962, Midwest Generation has dumped bottom ash and boiler slag from its Joliet 9 and Joliet 29 Power Plants into an unlined ash landfill in the Lincoln Quarry in Joliet, Illinois. Despite the existence of 94 wells within a mile of the Landfill in a setting described by Illinois Environmental Protection Agency (IEPA) as “an area with very high geologic vulnerability and a high potential for potable well contamination,” in 1996 IEPA exempted the landfill from complying with Illinois Class 1 Groundwate r Protection Standards as long as it maintained a pumping operation to keep groundwater from leaving the landfill. The exemption applied relaxed standards for cadmium, boron, selenium, and molybdenum in groundwater onsite that allowed cadmium levels up to 52 times the MCL in this groundwater. The landfill failed to maintain the inward gradient, however. Contaminated groundwater began flowing north, west and south out of the Main Quarry as noted in the summer of 2002 by IEPA staff and admitted by Midwest

Gen eration in October of 2005. In April 2006, Midwest Energy sampled wells to the south of the landfill for boron only and found them contaminated with boron up to 1.5 mg/L, which is far above natural levels but does not exceed the Illinois groundwater standa rd of 2.0 mg/L. The results indicated contamination had spread as much as 1,000 feet to the south of the Landfill and led Midwest to buy out or drill deeper wells for 18 residences. Monitoring data had documented levels of arsenic up to 10 times the MCL, b oron up to five times the state standard and more than 3 times EPA’s Child Health Advisory, molybdenum up to 70 times the LTHA, and dozens of additional exceedances of IL groundwater quality standards (AGQS) for copper, barium, sulfate TDS, pH, ammonia, ch loride, nitrate, sodium and fluoride in monitoring wells on the perimeter of the landfill from 2007 to 2009. IEPA finally prepared a draft NOV in August 2009 for some 50 of the exceedances of AGQS, but never sent the NOV to Midwest Energy. The state has295

co nducted very little, if any, off

- site sampling, leaving this task to the discretion of the utility. Thus, IEPA has taken no enforcement actions or other significant steps to address the substantive contamination that has been flowing offsite in violation o f this CCW landfill’s operating permit for many years. [Footnote 334 3 ( renumbered per #10492 ): Id . at 41

– 47.]

- Twelve Wells in the hamlet of East Mount Carmel, Indiana that supply drinking water to a bait shop, a church and ten trailer homes have been con taminated with boron up to twice the USEPA Child HA, manganese 34 times the SMCL and 6 times the LTHA, iron 23 times the SMCL, and sulfate and TDS nearly twice their SMCLs. The contamination is from unlined ash ponds 500

- 600 feet away on property of Duke E nergy’s 3,000 megawatt Gibson Power Plant. Sodium levels in the wells have been as high as 347 mg/L in the semipublic well of the church, used by many residents. This is 17 times higher than EPA’s health

- based Drinking Water Advisory for ingestion of sodiu m by individuals on a salt

- restricted diet. Regularly monitored groundwater nearer the ponds on the plant property has arsenic levels up to 7 times higher than the MCL and selenium levels exceeding the MCL. Discharges from the ash ponds have also contamina ted Gibson’s 3,400 acre cooling lake with selenium up to 0.013 mg/L, nearly three times the federal surface water quality standard or Criterion Continuous Concentration, forcing a ban on fishing in this once popular fishing lake. In turn, discharges from t he cooling water lake to the Cane Ridge Wildlife Area, a unit of the Patoka River National Wildlife Refuge, contaminated the water, soil and biota with selenium levels that posed a high hazard to wildlife. This forced the US Fish and

Wildlife Service to dr ain and remediate the contamination through discing of a wetland nesting area used by the federally endangered Least Tern. Fish whole body selenium levels in the

wetland were 9

- 30 ug/g. [Footnote 335 4 ( renumbered and corrected per #10492, with deletions

in strikeout and additions in bold ): USFWS, 2008

. Briefing Statement: Duke Energy's Gibson

Selenium Contamination

- Ramifications for Cane Ridge and Interior Least Terns (May 28, 2008). ] The safe dietary level of selenium for wildlife is 3.0 ug/g. [Footnote 336

5 ( renumbered and corrected per #10492, with deletions in strikeout and additions in bold ): See Appendix I. "Lemly, A.D. 1993. Guidelines for Evaluating Selenium Data from Aquatic Monitoring and Assessment Studies, Environmental Monitoring and Assessmen t (28): 83

- 100. ] Least Tern eggs gathered at the site in 1996 and 2004 contained 3.53

- 5.48 ug/g of selenium with levels rising over time and hatchling mortality was high. [Footnote 337 6 ( renumbered and corrected per #10492, with deletions in strikeout and additions in bold ): USFWS, 2008. Briefing Statement: Duke Energy's Gibson Lake Selenium Contamination

- Ramifications for Cane Ridge and Interior Least Terns (May 28, 2008). ] In 2010, Duke provided a public water line

to residents in East Mt. Carmel and as sisted the USFWS in restoring the selenium damaged wetland in 2008. Yet Duke has refused to provide water to residents who live near East Mt. Carmel north of the ponds who are complaining about the taste and smell of their water. The Indiana Department of Environmental Management has declined to take any enforcement action, conduct any sampling or otherwise require any remedial steps to address the contamination of private wells near the site or the selenium contamination in the Cane Ridge Wildlife Area. Th ere have been at least two residents with kidney illnesses and complaints of other ailments from residents of the ten trailers in East Mt. Carmel who are also blanketed regularly with coal ash dust blowing from the near full ash ponds in the summer. [Footn ote 338 7 ( renumbered per

#10492 ): Out of Control, at 19

– 22; and 2010 discussions of EIP staff with East Mt. Carmel residents.]

- In Colstrip, Montana, a groundwater contaminant plume from two evaporation ponds (the closed Stage I and still active Stage II Ponds) of the Colstrip Power Plant contaminated private296

wells in a subdivision. It also contaminated the well for a local Moose Lodge 1,000 feet away. This well had concentrations of boron at 20 mg/L, more than six times the EPA Child HA, sulfate at 6,000 mg/L, twelve times the EPA health

- based DWA, and TDS at 9,500 mg/L, nineteen times the SMCL. Owners of the plant knew that they were contaminating peoples’ wells in the 1980s, but did not make this information publicly available until they were forced to

r eplace the Moose Lodge Well in 1998. Residents, a number of whom who were made ill from drinking water from the Moose Lodge well, filed a lawsuit against the Power Plant in 2003. In 2008 the owners of the Plant (PPL Montana) settled with 57 Colstrip reside nts for $25 million in damages. Another contaminant plume from the Effluent Holding Pond (EHP) for Plant Units 3 and 4 has now traveled a mile to the south contaminating private property that has since been purchased by PPL Montana and also migrated far to the west. Ranchers who own these lands filed a suit in 2007 over the damages from the contamination. In February 2010, 22 years after the contamination of drinking water wells by CCW had become had become a demoralizing public health issue in Colstrip, th e Montana Department of Environmental Quality (MDEQ) proposed an Administrative Order on Consent (AOC) with PPL Montana to address the problem. The AOC will remediate CCW contamination at the main plant site, the Stage I and II ponds, the

Units 3 and 4 EHP and any leaks or spills in the attendant pipelines between these units. However, with compliance boundaries and timeframes for compliance with remediation objectives unclear, citizens fear the AOC could allow Colstrip’s operators to continue to discharge from all three sites indefinitely instead of fixing the ponds and complying with the “closed loop” permit originally approved for the plant. In the meantime, the Montana Legislature enacted a law in 2007/2008 that prevents the MDEQ from enacting any regula tions setting standards for CCW from any new coal plants that might be built in Montana. [Footnote 339

8 ( renumbered per #10492 ): Id . at 31

– 36.]

Despite the substantial and well

- documented offsite damage to communities at these five sites, it is notable that not one of them is identified as a proven or potential damage case by EPA. [Footnote 340 39 ( renumbered per #10492 ): See 75 Fed. Reg. 35,128, 3 5,234

– 35,239 (June 21, 2010).] Based on past experience, state agencies are not able to protect public health and the environment with respect to CCR disposal. Strong federal regulations are critical to keep CCR out of drinking water and surface waters, an d ensure the safe disposal of CCR. Response: After having vetted all the sites cited by the commenter, EPA concluded that with the exception of the Industrial Excess Landfill Superfund Site in Ohio, all the other sites qualify as damage cases. The Industr ial Excess Landfill Superfund Site was rejected as a CCR damage case

because (i) CCR originated in industrial, not

- utility boilers, which is out of scope of the final CCR rule; and (ii) CCR was co

- managed in a mixed

- waste landfill, including a large variet y of other (including Hazardous) waste types, as demonstrated by the predominance of organic contaminants. For additional information on all the sites, see the technical support documents on damage cases in the docket of the final rule.



### Comment Number: E PA

- HQ

- RCRA

- 2009

- 0640

- 06316

- 2 

### Organization 1 

### : Earthjustice et al.


### Commenter 1 : Lisa Evans Commenter Type: Advocacy Group

Classification: Substantive297



### Comment Excerpt Text: [Copy of pre

- publication draft of "The Environmental Impacts of the Coal Ash Spill in Kingston, Tennessee: An Eighteen

- Month Survey" prepared for publication in Environmental Science and Technology]

Response: Thank you for the attached publication by Ruhl et al. The Agency has incorporated the findings of this study into Unit XI of the pre amble of the final rule. EPA has also cited the key findings of the study in the entry on the TVA Kingston CCR spill, which is included in the technical support documents on damage cases in the docket of the final rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06416

- 84 

### Organization 1 

### : Wisconsin Department of Natural Resources (WI DNR) and Public Service Commission of Wisconsin (WI PSC)


### Commenter 1 : Matthew Frank (WI DNR) and Eric Callisto (WI PSC) Commenter Type: State Government
Classificati on: Substantive



### Comment Excerpt Text: This discussion provides EPA with additional information on Wisconsin’s potential and confirmed damage cases from the disposal coal combustion residuals (CCR). EPA has requested additional information on potential and confirmed damage cases from the disposal of CCR. While it is impractical to compile a complete summary of all the 22 licensed CCR disposal sites (closed and active) known to exist in Wisconsin to provide comments on the proposed rule, we are including a c opy of a report prepared in 2004 for the National Research Council’s study of managing coal combustion residues in mines titled “Groundwater Impacts From Coal Combustion Ash Disposal Sites in Wisconsin” (Section D of this appendix). The report includes

a b rief summary of some of the groundwater quality data available in our files for CCR disposal

sites as well as an in

- depth summary of two well

- known damage cases.

Response: EPA appreciates the enclosed 2004 study titled Groundwater Impacts from Coal

Combu stion Ash Disposal Sites in Wisconsin by Michael Zillmer and Philip Fauble. The Agency has made an extensive use of the information included in this study in the course of vetting Wisconsin’s CCR damage cases, EPA has also cited data from the study pertaining to the

WEPCO Cedar

- Sauk Landfill a nd the WEPCO Highway 59 Landfill in the technical support documents on damage cases, which is included in the docket of the final rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06416

- 85 

### Organization 1 

### : Wisconsin Department of Natural Resources (WI DNR) and P ublic Service Commission of Wisconsin (WI PSC)


### Commenter 1 : Matthew Frank (WI DNR) and Eric Callisto (WI PSC) Commenter Type: State Government
Classification: Substantive



### Comment Excerpt Text: From WDNR review of the environmental data from these disposal sites we readily acknowledge298

that improper management of CCR wastes can result in adverse environmental impacts especially to vulnerable groundwater resources. Our review of environmental performance data also indicates the following:

• From the standpoi nt of groundwater impacts, the worse offenders were the historic, closed coal ash sluicing disposal sites. There are many possible reasons for this, but most importantly is the fact that all these sites were unlined, many were sited in old sand / gravel pi ts or quarries, wet disposal resulting in a natural hydraulic head that can drive the contaminants into the underlying aquifer, and the use of high

- sulfur eastern and Illinois Basin coals. Wisconsin utilities all converted to dry handling systems in the mi d

- 1980’s along with a switch to burning mostly low

sulfur coal from the Powder River Basin.

• There are groundwater standard exceedances present in all Wisconsin CCR landfills, both active and closed, but the exceedances in the older, unlined landfills a re, generally, an order of magnitude greater than at active, engineered disposal sites.

• The best indicators of groundwater impacts from CCR disposal were boron, sulfate, arsenic and selenium. Please note that the number presented in Table 2 of the repo rt are the most conservative numbers available and represent the highest detects from the most contaminated well at each site, many times a well completed within the waste mass.

Response: The Agency concurs with the commenter’s observations that characterize the legacy of Wisconsin’s CCR disposal sites in unlined sand and gravel pits.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06416

- 99 

### Organization 1 

### : Wisconsin Department of Natural Resources (WI DNR) and Public Service Commission of Wisconsin (WI PSC)


### Commenter 1 : Matthew Frank (WI DNR) and Eric Callisto (WI PSC) Commenter Type: State Government
Classification: Substantive



### Comment Excerpt Text: Appendix

– Section D

GROUNDWATER IMPACTS FROM C OAL COMBUSTION ASH

DISPOSAL SITES IN WISCONSIN

Written by Michael Zillmer [FOOTNOTE 1: Wisconsin Department of Natural Resources, Milwaukee Service Center] and Philip Fauble [FOOTNOTE 2: Wisconsin Department of Natural Resources, Madison]

Introduction

The State of Wisconsin’s Department of Natural Resources (WDNR) regulates both coal

powered electric generating plants and the corresponding ash disposal sites. These sites range299

from active, engineered landfills to closed, unlined disposal sites locate d in abandoned bedrock quarries, wetlands, and sand & gravel pits. The disposal of coal combustion by

- products (CCB) in unlined sites was only an accepted practice in Wisconsin prior to the promulgation of administrative codes and the establishment of proc edures for siting and constructing waste disposal facilities. Chapter NR180, Wisconsin Administrative Code for Solid Waste Management was promulgated in 1988. Solid waste disposal, environmental monitoring, and beneficial reuse are currently regulated unde r administrative code chapters referred to as the NR500 series (NR500 NR590).

Groundwater quality standards for regulating solid and hazardous waste facilities are specified under Chapter NR140, Wis. Adm. Code. Groundwater quality is measured against the enforcement standard (ES) and the preventive action limit (PAL) for substances that are of public health concern. The enforcement standards are roughly equivalent to the federal maximum contaminant levels (MCLs). The preventive action limit is generally 1 0% of the ES for all substances that have carcinogenic, mutagenic, teratogenic properties or interactive effects and 20% of the ES for other compounds. Enforcement standards and preventive action limits for boron became effective on January 1, 1999. Sample s from potable drinking water wells generally are not filtered, and represent total values for compounds and are regulated under Safe Drinking Water Standards in Chapter 809.

The primary purpose of this paper is to analyze groundwater quality data from a wide variety of Wisconsin CCB disposal sites and to compare and contrast these results with water quality data from the two detailed study sites: WE Energies Highway 59 and Cedar Sauk landfills. The data was also examined to determine possible trends or s imilarities between different sites and among various disposal site categories.

Wisconsin Groundwater Quality Data

To evaluate of the impact of CCB disposal sites on groundwater quality, it became necessary to identify both active and closed CCB monofi lls in Wisconsin that have active groundwater monitoring. All groundwater quality data for solid waste facilities that is reported to the WDNR is recorded in the Groundwater and Environmental Monitoring System (GEMS) database. The

GEMS database is one of t he largest in the nation, containing over 10,994,294 analytical results from 18,467 active and 4,259 inactive monitoring points.

From the 22 identified CCB monofill landfills in GEMS, 12 sites (6 active and 6 closed) were chosen based on size, known grou ndwater impacts, and the completeness of their data sets. A Monitoring Data Summary by Parameter report was reviewed for each of these 12 sites to determine the most impacted monitoring wells at each site. Four compounds were identified as

the most commonl y detected at levels that exceeded the State of Wisconsin's groundwater protection standards. These compounds include boron, sulfate, arsenic and selenium. Elevated levels of manganese were detected at about half the sites and there were sporadic exceedanc es of lead, chromium and mercury at several sites. Typically, 3 or 4 downgradient monitoring wells would account for the majority of the exceedances at each site. From there, a Summary Exceedance Report detailing all parameters and results was generated fo r the most impacted well at each site. The report listed the lowest and highest reported sample results and calculated the300

mean of all samples collected. A summary of these findings is listed in Table 2.

[See original attachment, at end of Appendix

-- Se ction D for Table 2]

It must be acknowledged that this analysis is intended as a broad attempt to categorize groundwater quality data that is strongly influenced by a large number of variables, most of which are not easily quantified and not addressed in this study. The type and concentrations of contaminants available for release into a groundwater system are directly related to the coal source, the combustion method employed by the generating plant, and environmental conditions of the disposal site. This information is often difficult to obtain or unavailable, especially for older, long closed sites.

In addition, the groundwater monitoring data presented are the mean value of all available data for the most impacted well at the facility. Some of the wel ls represented are no longer in service. The location of the well can strongly influence the results and some of the monitoring points were actually screened through or just below the waste mass. Especially with regards to the older, closed sites, the mean can be skewed higher by older data that recorded values that have since declined, in some cases dramatically. Even given these constraints, some interesting results can be discerned from the groundwater quality data.

Measurable quantities of boron were recorded in at least one downgradient monitoring well at all the sites reviewed, including active sites that were constructed with clay liners. However, the boron concentrations tended to be rather low at active lined sites, with 2 sites recording mean

val ues at concentrations below the Wisconsin groundwater standard (0.960 mg/l) for boron. That

is in stark contrast to several closed sites that have mean concentrations of boron over 10 times the mean concentration of even the highest value at an active site

.

The highest mean boron concentration among all sites was recorded at the Cedar Sauk Landfill (mean 101 mg/l). This value is well above the next highest mean concentrations (69 mg/l and 30.7 mg/l, respectively) for either active or closed sites. The GEM S database documents that the highest recorded boron concentration in groundwater monitoring wells (as high as 186 mg/l)

were recorded at wells W

- 3 and W

- 3A at the Cedar Sauk Landfill. These elevated boron concentrations were most likely influenced by the boron concentrations in the original coal source and the transmissivity of the disposal environment. Data from EPRI database (January 2004) on the boron content of various coals from different regions of the country indicates that the range of boron conten t can vary considerably.

[See original attachment Appendix

-- Section D for Table 1: Boron Concentrations in Coal, by USGS Region; Coal analyses are for "as

- fired" or "as

- received" coals and are presented on a dry weight basis.]

As with boron, sulfate w as detected in measurable quantities at downgradient wells at all the sites studied. Unlike boron, however, elevated sulfate levels were common among most sites including the active, engineered landfills. The mean sulfate value was above the Wisconsin

enfo rcement standard (ES) of 250 mg/l at 10 of the 12 sites studied. Only one site, the NSP

Woodfield Landfill, had a downgradient well that never recorded a value above the ES. Two301

active landfills had mean values at (or above) the mean values for most of the closed sites.

Most active sites had mean arsenic values just below the Wisconsin enforcement standard of 10 ug/l. The one active site that had a mean arsenic value above 10 ug/l was the Highway 32 Landfill (30 ug/l). However, the mean was calculated fro m only 2 data points, so they may not be representative of the actual arsenic concentrations near the landfill. The arsenic levels at other monitoring wells downgradient of the Highway 32 Landfill were significantly lower.

The results that most stand out are the extremely elevated mean arsenic values at three of the closed sites, Edgewater 1

- 4 (364 ug/l), Nelson Dewey (197 ug/l), and Alliant

- Columbia (40 ug/l). The one thing that all these sites have in common is that CCB waste was sluiced to the site

bef ore they closed. None of the other parameters studied has such a close correlation with the waste disposal method. In addition, at least one study site, the Highway 59 Landfill, had very low values of arsenic (mean of 3.04 ug/l) in spite of having a docume nted significant release into a transmissive subsurface environment. All this suggests that the elevated arsenic levels are more related to the coal source or combustion process rather than hydrogeologic conditions.

Selenium rarely exceeds concentrations of 1 ug/l in natural surface or groundwater (Hem, 1992), so it is useful in determining potential releases from CCB disposal sites. Low levels of selenium were detected at all the study sites, with the lowest mean concentrations occurring in the active

si tes. However, only two sites, the Cedar Sauk Landfill (77 ug/l) and the Nelson Dewey Landfill (78.8 ug/l), had mean selenium values that exceeded the Wisconsin enforcement standard of 50 ug/l. While they had similar mean values, the Cedar Sauk Landfill had some of the highest selenium values (up to 730 ug/l) of any landfill in the study. Other than their elevated selenium levels, the two sites have little in common. This suggests that the coal source may be the dominant factor in determining whether or not excessive selenium contamination will be a problem at any given site.

Site Specific Studies

To further illustrate the nature of groundwater contamination from CCB disposal sites, two landfills, the Cedar Sauk Ash Landfill and Highway 59 Ash Landfill, w ere examined in detail. WE Energies, formerly the Wisconsin Electric Power Company (WEPCO), operated both landfills. Both sites were located in old nonmetallic mine sites, neither was constructed with a liner, and both were closed by 1980. These sites were chosen based on their identification by the US Environmental Protection Agency (US EPA) as examples of sites where there was proven or potential damage involving the placement of coal combustion wastes in sand and gravel pits or mines (US EPA, 2000). A th ird Wisconsin site not included in this study, the Lemberger Landfill in the Town of Franklin, was also identified by the US EPA. The Lemberger Landfill accepted both municipal/industrial waste and power plant ash during its life. Due to the nature of the disposal methods, it was determined that groundwater impacts from contaminants in the municipal and industrial waste could not be separated from potential impacts from coal ash. Given these uncertainties, this site was determined to be unsuitable for any s tudy attempting to quantify the impacts of CCB disposal on groundwater and was therefore not included in this
report.302

Cedar Sauk Ash Landfill

Background

The Cedar Sauk Ash Landfill (WDNR License # 603) located in the Town of Cedarburg, Ozaukee County , was operated as a disposal site from 1969 through 1979. The fly and bottom ash was generated by the Port Washington Power Plant (WEPCO, 1985). During this time approximately 650,000 cubic yards of ash was disposed of on 25 acres of a 42 acre site. Prior to its development as a landfill, the parcel was used as a sand and gravel pit. The landfill was sited before Wisconsin's solid waste disposal laws were enacted so the site was not constructed with either a liner or a leachate collection system.

In respo nse to approval conditions from the WDNR, WEPCO installed and began monitoring a series of monitoring wells in late 1978. The initial results indicated elevated levels of boron, sulfate and selenium in wells downgradient of the landfill. Follow

- up inspecti ons of the closed landfill in 1980 and 1981 revealed vegetative stress characteristic of boron toxicity in the wetland vegetation downgradient of the landfill. Analysis of plant tissue collected from the visibly impacted plants showed boron concentrations from between 300 and 1,600 mg/l. Healthy plant tissue sampled in the area had boron levels between 7 and 61 mg/l (WEPCO, 1982). WEPCO concluded that precipitation percolating through the waste mass and a water table near

the base of the landfill were likel y the cause of these impacts and they proposed some remedial

actions.

In 1983, WEPCO proposed a groundwater mitigation plan to the WDNR consisting of 3 groundwater extraction wells to be placed downgradient of the fill area. The water was to be pumped in to Mole's Creek after flowing over rock

- filled trench. The WDNR approved the action and the system began operating on September 7, 1984.

During the first 5 years of its operation, the extraction well system seemed to operating well and

the contaminant le vels in the downgradient monitoring wells dropped. However, by 1990 the levels of all contaminants began to rise again in spite of the extraction system (WEPCO, 1995). Based on groundwater modeling of the system, WEPCO concluded that the capture zone of th e 3 extraction wells was inadequate to capture all groundwater contamination migrating from the landfill. To address this problem, WEPCO installed an engineered cap over the landfill in the summer of 1997 consisting of recompacted clay, 30

- mil PVC geomembr ane and a rooting layer with 2 feet of general fill and 6 inches of topsoil. The cap work was completed on October 3, 1997 and the groundwater extraction system was permanently abandoned.

Geology and Hydrogeology

The Cedar Sauk Landfill is located in a n area of hummocky end moraine and glacial outwash deposits from the last of the glacial advances of the Lake Michigan Lobe some 13,000 to 14,000 years before present. The underlying unconsolidated glacial sediments generally consist of poorly to moderatel y well sorted sand and gravel deposited on and beneath glacial ice by meltwater streams near the ice margin (WGNHS, 1997). These deposits and underlying tills are assigned to the Oak Creek Formation. Underlying the Wisconsonian

- aged glacial deposits is a303

r elatively thick deposit of Silurian dolostone of the Niagaran Series. This massive dolomitic limestone has a highly irregular erosional surface and contains numerous fractures and solution

features. Cross

- sections based on borings near and beneath the land fill area show that the landfill was sited on a bedrock knob of Niagaran dolostone. The sand and gravel mining operation removed the unconsolidated material over the bedrock allowing waste to be placed directly on

the fractured rock. North and east of the bedrock high, towards Mole's Creek, the sand and gravel outwash deposits thicken from absent to 25 feet thick beneath the landfill to over 50 feet thick

near the creek.

There are two major aquifers present at the site: the upper sand and gravel outwash d eposits and the lower, Niagaran dolostone (WEPCO, 1995). The sand and gravel aquifer is generally unconfined and forms the water table. To the east of the landfill, near Mole's Creek, the sand and gravel unit is underlain by silty clay to clayey silt glaci al till unit. Beneath the landfill this unit is either absent due to mining or directly underlain by bedrock.

Groundwater flow in the Niagaran dolostone is primarily through an extensive network of fractures and solution features (including paleokarst) i n the bedrock. This aquifer is considered a regional aquifer and is used by private water supply wells in the Town. However, beneath the landfill and elsewhere along the bedrock knob, it is in contact with the upper sand and gravel aquifer and the water ta ble can occur within both units. Groundwater within both the sand and gravel aquifer and the Niagaran bedrock flows from the west to the east and southeast. Mole's Creek is considered a groundwater discharge point for shallow groundwater that flows from th e landfill area. Groundwater table elevations within the shallow, unconfined sand and gravel aquifer range from 808 feet above mean sea level (MSL) at the southwest corner of the fill area to 779 feet above MSL along Mole's Creek. There are no strong verti cal gradients at any of the nested monitoring wells, although wells west and within the fill area tend to have slight downward gradients and wells to the east trend to have slightly upward vertical gradients.

Groundwater Quality

The Cedar Sauk Landfill has had an extensive groundwater monitoring system in place since 1978. As might be expected, most of the contamination is concentrated in the sand and gravel aquifer that discharges into Mole's Creek. The most common elevated parameters include boron,

su lfate and selenium.

The highest levels of both dissolved boron and sulfate were recorded at monitoring wells W

- 3

and W

- 3A. These nested wells were located within the waste mass and both wells were screened

in ash. The data from these two wells is of limi ted usefulness because they were only sampled from August of 1979 until June of 1983, while the site was closed but inadequately capped. During this limited period, boron levels ranged from 11 to 186 mg/l in well W

- 3A and sulfate ranged from 520 to 1923 mg /l in well W

- 3. Both these levels are well above the Wisconsin enforcement standard (ES) of 0.96 mg/l for boron and 250 mg/l for sulfate. While consistently elevated, the levels could vary considerably even from one month to the next. There were even

some distinct seasonal trends over the four years of sampling. This pattern suggests that mobilization of both sulfate and boron were related to periodic inputs of precipitation infiltrating through the ash (WEPCO, 1995).304

A detailed review of all groundwater quality data from the site indicated that monitoring well W

4 was the best candidate to represent groundwater impacts from the landfill. W

- 4 is an active well that has groundwater quality data stretching from August of 1979 to the present. It is located

on the eastern edge of the fill area and is screened in the shallow sand and gravel unit. The data indicates that is has been significantly impacted by disposal practices. In fact, the highest levels of selenium, up to 730 ug/l, recorded at the site were fro m well W

- 4. The groundwater quality trends from this well are also very similar to general water quality trends found in other downgradient wells.

The pH values from well W

- 4 were very consistent and only varied between pH 6.7 to 7.6, with

a mean value o f pH 7.07, essentially neutral. This is in contrast to the leachate results from wells

W

- 3 and W

- 3A, where the results were slightly alkaline with pH values between 6.8 and 8.7 with a mean of pH 7.8. These results mirror the results of the larger study pre sented in this paper, again suggesting that the buffering capacity of even sandy soils at the site were adequate to

neutralize the low

- level alkalinity in the leachate.

Boron concentrations were consistently elevated at well W

- 4 with levels between 6 and 140 mg/l, well above the ES of 0.96 mg/l. What is most remarkable about these concentrations is the way they responded to site activity. The boron levels steadily climbed as the site was being filled up to its final grades, going as high as 112 mg/l. Howe ver, when the site was finally closed and the relief well system was activated in 1984, the boron levels dropped dramatically from 52 mg/l to 6.8 mg/l in the space of 3 months. The levels fluctuated, but stayed relatively low until they began creeping back up starting in 1993. The exact cause of this upward trend in spite of the continued operation of the relief well extraction system was evaluated (WEPCO, 1995), but an exact cause was not determined. It was suggested that the well system was no longer effe ctively capturing most of the contamination coming from the landfill.

The boron concentrations reached their peak in August of 1997, when the relief well system was shut down and the new geomembrane cap was being installed. However, after 1997, the boron levels dropped rapidly and dramatically, from a high of 140 mg/l to a low of 14 mg/l in 2003. This drop was mirrored by the sulfate levels, which decreased from 1070 mg/l in 1997 to 262 mg/l in 2003. Clearly, reducing infiltration through the waste mass b y installing a geomembrane cover has effectively reduced contaminant concentrations downgradient of the landfill.

While the boron and sulfate at well W

- 4 reacted in similar ways to the remedial measures at the landfill, selenium levels reacted a bit diff erently. While selenium levels in W

- 4 were generally elevated, with levels as high as 980 ug/l, before the site was closed, the selenium concentrations dropped sharply after the site was closed and the relief well system was operational in 1984.

Within 3 m onths (September, 1984 to December, 1984, the same period mentioned with the boron and sulfate results), the selenium levels dropped from 240 ug/l to 12 ug/l and they never recovered. These results suggest that selenium does not stay in solution as readily than either

sulfate or boron.

Highway 59 Ash Landfill305

Background

The Highway 59 Ash Landfill (License # 918) is located southeast of intersection of State Trunk Highways 59 (Arcadian Avenue) and 164 in the Town of Waukesha, in Waukesha County. The

l andfill was sited in a former sand and gravel quarry, which had ceased operation in 1940. The quarry had a pond that was approximately ten feet deep and covered 1.5 acres. Coal ash disposal occurred at the site from 1969 to 1978. The facility was originall y licensed in 1970, and covered approximately 30 acres. The CCB wastes were derived from eastern bituminous coal fly ash and bottom ash from their Valley Power Plant. Approximately 500,000 cubic yards of solid waste (Class F ash) were deposited in this lan dfill. The ash has pozzolanic properties but was not self

cementitious (Ladwig, 1989). Waste thickness ranged from less than 10 ft in the southern one

half of the site to more than 40 ft in the northern one

- half. Approximately 8,000 cubic yards of

ash was deposited below the water table in the northern portion of the site, and 30,000 yards in the southern portion of the site behind an earthen dike.

Numerous active private water supply wells are located around the landfill with the exception of

the souther n side where railroad & utility corridors and low marshy terrain limited construction. Most private wells in the area serve family residences, but there are a few two

- family buildings and businesses with wells. Immediately west of the ash landfill is an ol d, unlicensed municipal waste dump operated by the City of Waukesha in the 1950’s and 1960’s. An old abandoned foundry waste disposal site lies directly south of the City waste site.

Geology & Hydrogeology

The geological setting of this site is general ly similar to the Cedar Sauk site. There are unconsolidated glacial deposits below the site that range from 90

- 150 feet in thickness. These deposits were subdivided into four units: an upper sand and gravel unit (suitable as an aquifer), a sandy glacial

- ti ll (diamicton) unit, a silty clay unit, and a lower sand and gravel unit (also suitable as an aquifer). The lower sand & gravel unit is in direct contact with the weathered bedrock north of the site. The underlying bedrock is Silurian Dolomite, which serve s as the primary aquifer for the City of Waukesha and many Town of Waukesha residents. A thorough evaluation of the limits of fill and the careful placement of monitoring wells between the ash landfill and the other nearby sites made the task of evaluating the water quality impacts complex, but possible.

Groundwater monitoring around the landfill was initiated 1970’s. WEPCO initiated a hydrological investigation in 1988, which included the installation of 13 additional monitoring wells and piezometers and the sampling of four private water supply wells adjacent to the site. A report to the Department in 1989 indicated elevated concentrations of sulfate and boron in private water supply wells to the west of the site. There were no NR140 water quality standa rds for boron at the time of the investigation in 1989. Subsequent groundwater monitoring consisted of sampling 20 monitoring wells and private water supply wells on a regular basis.

Groundwater Evaluation

The time vs. concentration (TvC) plots for var ious monitoring wells and private drinking water306

supply wells show a variety of interesting trends. There is a decrease in sulfate levels for shallow wells near the landfill, but boron levels are increasing. This appears to document the continued migration of high mobility boron ions. The data for this site showed a close correlation between the occurrence of boron and high levels of sulfate. Molybdenum occurred in the CCB leachate in the low ug/l range. Although it does not have a NR140 standard, it served as a marker for leachate contamination from this site. This distinction was essential for discriminating between leachate contamination from CCB materials, and background levels of sulfate and/or the potential commingling of leachate plumes from the other two waste sites.

The highest levels of both boron and sulfate in monitoring wells were recorded in monitoring

well nest W

- 8, which was located in native materials downgradient and in close proximity to the ash disposed of in the former quarry pond. The sulfate levels are usually three orders of magnitude higher than the boron, but some plots show sulfate concentrations levels decreasing

while the boron levels have climbed.

The monitoring wells and shallow piezometers are screened in the sand and gravel units. The sand & gravel units southeast, southwest, west, and northwest of the ash site show contamination above enforcement standards for sulfate and boron. Nine piezometers were completed in the bedrock in order to evaluate deeper groundwater impacts. The migration of CCB contaminates into the deep aquifer may have been hastened by a private water supply well (WJAC) near the western edge of the ash fill. The business operating the well may have been pumping it on a regular basis to wash the numerous car s on their sales lot. This well was the first impacted private well near the landfill. The concentration of sulfates made the water undrinkable and bottled water was supplied up until the time the well was abandoned and the facility placed on city water.

Elevated concentrations of sulfate and boron have been detected in deeper bedrock piezometers primarily northwest of the site. This information confirms that there is northwestern component to the contamination plume, which was not identified in the early stages of the off

- site investigation. This component of flow may have been influenced by the installation of a higher capacity water supply well for a large retail store north

- northwest of the landfill. This bedrock

well has since been abandoned and the b uilding connected to municipal water.

Remediation

WEPCO retained Natural Resources Technology, Inc. and Science & Technology Management, Inc. to evaluate various remedial action alternatives. Between 1995 and 1998, WEPCO submitted a series of reports a ssessing the degree and extent of the contamination from the landfill. On May 5, 1999, WEPCO submitted a remediation plan that included removal of the saturated ash from the northern portion of the site and replacement of ash above the seasonal high ground water elevation. Several samples of water from liquid in contact with the exhumed ash showed molybdenum values two orders of magnitude higher than other samples.

The majority of landfill area was recapped with a synthetic geomembrane and waste fill areas that were not on the site property were covered with asphalt. Although ash fill covers about 26 acres, only 19 acres were recapped due to presence of buildings and other structures. The cover307

design consists of 3

- inches of existing cover fill, a 4

- inch sa nd bedding layer, a 30

- mil PVC geomembrane, a geocomposite drainage layer (consisting of geotextile and geonet), 2

- feet of general fill, and 6

- inches of topsoil.

Long

- term environmental sampling of the monitoring network consists of wells and piezometers as well as numerous private water supply wells. WE Energies made a case for not excavating the 30,000 cubic yards of saturated ash along the southern portion of this landfill. WDNR recommended the removal of these materials since they seemed to represent an additional source of leachate generation. The WDNR included additional environmental sampling of private water supply wells as a condition of approving the remedial action plan. The monitoring frequency for downgradient water wells is currently being in creased in response to plume movement.

Conclusions

As mentioned earlier, this study was a simplified attempt to extract some meaningful conclusions out of a very large amount of groundwater monitoring data. The results can be considered fairly

conserva tive because the means were calculated based on the most contaminated well at the site using all historical data without regard to the well's placement (including those located in the waste mass itself) or status. While much of the analysis was inconclusiv e, several general trends

can be discerned.

First of all, it appears that the engineered, recompacted clay liners at the active sites evaluated are effective at limiting groundwater contaminate releases. They are by no means perfect and

there were measur able groundwater impacts in at least one monitoring well downgradient of each landfill. However, the contaminant levels were, in most cases, an order of magnitude lower when compared with the results from the closed, unlined landfills. This is especially t rue with regards to arsenic and boron concentrations.

A review of groundwater quality data at both active and closed disposal sites in Wisconsin indicates that boron, sulfate, arsenic and selenium are generally the best indicators of water quality impact s from CCB disposal. Manganese was also indicative of groundwater impacts, but there weren't enough sample results to adequately characterize the connection. Of all the parameters studied, boron seemed to the best indicator of groundwater impacts. Arsenic was only useful at sites that sluiced their waste or used certain coals that were high in arsenic. Arsenic was also only found in appreciable amounts at wells that were screened within the waste or fairly close to the waste fill limits and may be documenti ng an ion halo effect. Further out, arsenic likely undergoes a geochemical interaction with the groundwater, complexes with iron hydroxides or organics and is therefore no longer chemically available to go into solution (Hem, 1992).

The data certainly su ggests a strong connection between the practice of sluicing CCB waste and strongly elevated levels of certain compounds, including heavy metals and arsenic, in the leachate and groundwater. This problem is confined to older, closed sites, as sluicing CCB w aste has not been practiced in Wisconsin since the mid

- 1980's.

In fact, the volumes of CCB waste disposed in Wisconsin has dropped dramatically as the power308

utilities have switched to dry handling and have aggressively pursued beneficial reuse options fo r their CCB wastes. In fact, as of 2003, WE Energies now reuses more CCB waste than they produce. This is due to a WE Energies project at their Pleasant Prairie Landfill where they are mining an old site, reburning the ash, and beneficially reusing the sub sequent ash. Most ash is beneficially reused in concrete as an additive or as fill in construction projects.

As for the site specific studies, it should be noted that the results at Cedar Sauk and Highway 59 Ash Landfills were the result of a very specif ic set of circumstances that should not be extrapolated to any specific site or use except in a very general sense. Each disposal site was unique with respect to the geologic environment and the type and nature of the CCB waste. All

of these factors combin ed to determine the degree and extent of contamination at each site, including the type of contaminant found.

Another factor that should be considered, especially at the Cedar Sauk Landfill, was that the most contaminated monitoring wells were located an d screened in waste. In effect, they were measuring leachate quality, not groundwater. This is hardly unique to Cedar Sauk, as the statewide study revealed several other old sites where the highest contamination was from wells

that were constructed within the waste mass as recommended by the US EPA at the time of the installation of the wells. It is also significant that some of the highest contamination levels were detected before the sites were closed and capped. These early results certainly can skew the mean values higher.

The documented impacts to groundwater quality at both sites were also exacerbated by the geology of the disposal sites, which included fractured bedrock and highly transmissive outwash sands and gravels with little attenuation capaci ty. Inadequate capping of the waste masses until recently also allowed precipitation to infiltrate through the waste mass and pick up contaminants that was then transmitted to the groundwater.

However, it is important to note that, under current rules, t he siting and facility design of either of these landfills would not be acceptable if they were still operating. The State of Wisconsin has very vigorous design and monitoring standards for the very reason that many areas of the State contain high

- quality shallow groundwater that is used and valued by its citizens.

It should also be noted that the remedial measures installed by WE Energies at both these sites have been effective at dramatically reducing groundwater impacts. The Cedar Sauk Landfill

remedia tion project shows that proper capping of a CCB landfill is highly effective at reducing negative impacts to groundwater quality. Water quality at the Highway 59 site has improved, but several plumes are still migrating through both the sand & gravel and b edrock aquifers. The size

and extent of the contamination makes off

- site groundwater extraction difficult when balanced against the decreasingly available water resources for the City of Waukesha.

Acknowledgments

The authors wish to acknowledge WE Ener gies and EPRI for data on boron values for coal ash analyses.309

References

U.S. Environmental Protection Agency. 2000. Regulatory Determination on Wastes from the

Combustion of Fossil Fuels. 65 FR 32214.

Wisconsin Electric Power Company (WEPCO). 1995. Cedar Sauk Ash Landfill License #603: Groundwater Mitigation Biennial Report (1993

- 1995). March 24, 1995. 20 p.

WEPCO, 1985. First Annual Report, Cedar Sauk Ash Landfill Site. 18 p.

WEPCO, 1999. Remedial Design Report Highway 59 Ash Landfill.

Kammere r, P.A., Jr. 1995. Ground

- Water Flow and Quality in Wisconsin's Shallow Aquifer System. USGS Water

- Resources Investigations Report 90

- 4171. 42 p.

Hem, J. D., 1992, Study and Interpretation of the Chemical Characteristics of Natural Water.

USGS Water

- Supp ly Paper 2254. 263 p.

Gotkowitz, M. B., Simo, J. A., and Schreiber, M., 2003, Geologic and geochemical controls on arsenic in groundwater in northeastern Wisconsin: Final report.

Eaton, T. T., Bradbury, K. R., 1998, Evaluation of the confining properti es of the Maquoketa Formation in the SEWRPC region of Southeastern Wisconsin. ii + 34 p.

Muldoon, M., 1999, Data from slug tests in the Silurian dolomite using a short

- interval straddle

packer assemblage, 23 p. + 1 CD

- ROM.

Eaton, T.T., Bradbury, K. R., and Evans, T.J., 1999, Characterization of the hydrostratigraphy of the deep sandstone aquifer in southeastern Wisconsin. 30 p. + 15 color p. + 1 CD

- ROM.

Muldoon, M. A., Stocks, D. L., Simo, J. A., 1999, Stratigraphic controls on distribution of hydraul ic conductivity in carbonate aquifers. iv + 61 p. 12

Gotkowitz, M., 2002, Report on the Preliminary Investigation of Arsenic in Groundwater near Lake Geneva, Wisconsin. 19 p + 5 color pages.

Eaton, T.T., Bradbury, K. R., Wang, H. F., 2001, Verification and Characterization of a Fracture Network within the Maquoketa Shale Confining Unit, Southeastern Wisconsin. 35 p.

Feinstein, D. T., Eaton, T.T., Krohelski, J. T., Hart, D.J., and Bradbury, K. R., 2004, Simulation of regional groundwater flow in southe astern Wisconsin.

Cherry, D.S., Curry, R.J., Soucek, D.J., 2000, Review of the Global Adverse Environmental Impacts to Ground Water and Aquatic Ecosystems from Coal Combustion Wastes. 55 p.

Cherkauer, D.S., 1980, The Effect of Flyash Disposal on a Shal low Ground

- water System. 7 p.,310

Ground Water, Vol. 18, No. 6, November

- December.

Evangelou, V. P., 2000, Coal Ash Properties and Potential Impact on Water Quality, 17 p.

Mickelson, D., and Syverson, K., 1997. Quaternary Geology of Ozaukee and Washington Counties, Wisconsin. WGNHS Bulletin 91. 56 p.

Ladwig, K., 1989, Report on Groundwater Conditions at Wisconsin Electric Highway 59 Landfill, Facility 918, Waukesha, Wisconsin. 47 p. (plus appendix)

Spencer, L., Drake, L., 1987, Hydrogeology of Alkaline Fly Ash Landfill in Eastern Iowa. Ground Water Journal, Vol. 25, No. 5 Sept.

- Oct. 1987, 8 p. 13.

Response: EPA appreciates the enclosed 2004 study titled Groundwater Impacts from Coal Combustion Ash Disposal Sites in Wisconsin by Michael Zillmer and Phil ip Fauble. The Agency made an extensive use of the information included in this study while vetting Wisconsin’s CCR damage cases, and has incorporated data from the study pertaining to the WEPCO Cedar

- Sauk

Landfill and the WEPCO Highway 59 Landfill into the technical support documents on damage

cases that are included in docket to the final rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06815

- 39 

### Organization 1 

### : Michigan Department of Natural Resources and Environment (DNRE)


### Commenter 1 : Liane J. Shekte r Smith Commenter Type: State Government
Classification: Substantive



### Comment Excerpt Text:
[ATTACHMENT 7: See attachment of original comment for MI DNRE Attachment 5: table of Michigan's proven damage cases]

Response: EPA appreciates the enclosed list of State

- endorsed CCR damage cases in Michigan (Table 5). The Agency cited data from Table 5 when reassessing these damage cases against

EPA’s test

- of

- proof criteria. For six of the sites (Marquette Board of Light & Power Pine Hill Landfill, We Energies Pres que Isle Power Plant, Muskegon County Type III Landfill, John Warden Ash Site at L’Anse, Consumers Energy BC Cobb, and Consumers Energy J.H. Campbell, West Olive), EPA used the basic information in the Table combined with a variety of electronically availa ble records as a basis for preparing comprehensive write ups. The compiled information facilitated EPA’s designation of these six sites as potential damage cases, as

described in the technical support documents on damage cases that are included in the dock et to
the final rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 07000

- 1 

### Organization 1 

### : Earthjustice et al.


### Commenter 1 : Lisa Evans Commenter Type: Advocacy Group311

Classification: Substantive



### Comment Excerpt Text:
[see attachment for

-- Appendix H, The Environmental Impacts of the Coal Ash Spill in Kingston, Tennessee: An Eighteen

- Month Survey]

Response: EPA appreciates the enclosed publication pre

- print: The Environmental Impacts of the Coal Ash Spill in Kingston, Tennessee: An Eighteen

- Month Survey by Ruhl et al. The Agency has cited some of the findings of this study in Unit XI of the preamble to the final rule, as well as

in the technical support documents on damage cases that are included in the docket to the final

rule.



### Comment Number: EPA

- HQ

- RCR A

- 2009

- 0640

- 07002

- 7 

### Organization 1 

### : Alabama Environmental Council


### Commenter 1 : Michael J. Churchman Commenter Type: Advocacy Group

Classification: Substantive



### Comment Excerpt Text: What was released during the Coal Ashe Spill?

The same substances that are listed above were released during the coal ash spill. These substances are normal waste products of CCR. It is very true that most of these substances naturally occur in our environment and we are exposed to them every day. Pol lutants do not have to be toxic in and of themselves; it is how the substance mixes with other naturally or artificially occurring substances in the environment. Furthermore, the concentration of the substances and how much exposure humans are subject to s hould be considered.

Tennessee Valley Authority (TVA) has taken the position that there are no major heath effects of the residents near the plant. What may not have been taken into consideration is the latent affects of exposure to these materials. Ther e may be no acute systems but long

- term effects should be considered. TVA has admitted that it would be impossible to remove all of the pollutants that were disbursed into the river. Thus, the real question is what are the long

- term effects of the

incident and when these illnesses will emerge.

In the IG report, there were several mentions of TVA not following procedure, and there was no one monitoring TVA’s actions or compliance. Because of the spill, TVA is closely monitored, but once they have cleaned up the area, if allowed to be classified under subtitle D waste, there would be less monitoring and no regulatory requirement to establish safer storage and disposal practices. Not having regulatory enforcement is what prompted the TVA Kingston incident.

The re was limited monitoring and limited means of enforcements.

Response: EPA concurs with the commenter that while TVA has taken the position that apparently there were no major health effects to residents near the Kingston Plant in the wake of

the December 2008 CCR spill, TVA failed to address the likely latent, long

- term, effects of human exposure to some of the toxic metals. The final CCR rule contains requirements for312

periodic inspections of those impoundment dams that exceed certain thresholds of height and disposal capacity, and the results of these inspections are to be reported to the Director of the State’s regulatory agency and posted on the utility’s website. This accessibility to data would facilitate oversight by both the State and citizens, and compel the utility to pursue preventative and/or remedial steps, as necessary.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 07002

- 9 

### Organization 1 

### : Alabama Environmental Council


### Commenter 1 : Michael J. Churchman Commenter Type: Advocacy Group

Classification: Subs tantive



### Comment Excerpt Text: Anything that potentially has a profound and potentially volatile affect on a community should be closely monitored. Toxic Pollutants are not necessarily hazardous in and of themselves but

their reaction with other materials in the environment is what can cause a potentially harmful

reaction.

Coal ash has too many toxic substances known to be human carcinogens to continue to be unregulated and monitored. The minimal monitoring afforded by classifying coal ash under

subtitle C waste in what contributed to the catastrophic incident involving the Kingston plant in Tennessee. In a statement given by Richard W. Moore Inspector General, Tennessee Valley Authority before the Subcommittee on Water Resources and Environment of the Committee on Transportation and In frastructure United States House of Representatives:

“The Kingston spill was caused by regulatory neglect, a lack of government oversight, and ‘irresponsible coal ash practices.’” Our

OIG report that we make public today supports your statement. TVA mana gement knew, for example, that: (1) Consultants hired by TVA had urged them to perform a much needed analysis and to take specific corrective actions; (2) TVA failed to follow the engineers’ recommendations and failed to perform the analysis or take the co rrective action; (3) TVA had a history of poor maintenance of its ash ponds and had experienced seeps or breeches in the past; and (4) there were no policies or procedures at TVA for the management of coal ash. Documents supporting this have been made publ ic by TVA and these facts are widely

- known.

This statement helps to drive home the importance of regulating coal ash waste. The substances in CCRs can be harmful to the human population near CCRs and can be harmful to many

localities down

- stream or down

- w ind of a facility. We have seen the catastrophic events of what not regulating a CCR facility can produce [Footnote 26: Another TVA coal ash spill (Widows Creel Fossil Plant, Stevenson Alabama) weeks after the Kingston plant spill released approximately 10 ,000 gallons of toxic gypsum material which some spilled into Widows Creek and the Tennessee river. Bruce Nilles, Coal Waste Spills by the dozen? Daily Kos, January 9, 2009.]. Regulation, management and monitoring is essential to maintaining the health of nearby communities [Footnote 27: Many CCR facilities are near low income communities. This causes more of a problem because these communities are less likely to have access to adequate medical313

care; therefore, they are even more less likely to get the need ed monitoring or care when symptoms manifest from constant long

- term exposure to CCR’s or other toxic substances.]. Therefore, regulating coal ash under subtitle C is the best option because it requires the development of state or federal permit programs, which would facilitate better enforcement of the CCR’s. Additionally, storage, transportation and disposal management would be covered by regulating it under subtitle C. Subtitle C has mechanisms in place to encourage corrective actions and financial respo nsibility and is the better option in preventing more catastrophic coals ash spills.

Response: EPA decided to regulate the disposal of CCR under subtitle D of RCRA by issuing minimum national criteria. Similar to the subtitle C option, this option would require composite liners, groundwater monitoring, structural stability requirements, corrective action, and closure/post closure care. However, given available statutory authorities, EPA proposed this option to be a self

- implementing rule with no direct f ederal oversight, with an effective six months after publication in the Federal Register . The Agency is deferring its final Bevill Regulatory Determination with respect to CCRs that are disposed in CCR landfills and CCR surface impoundments until additiona l information is available on a number of key technical and policy questions, including the risks of CCR disposal based on its arsenic content, such as the appropriate safe daily dose for arsenic and the speciation of arsenic in the environment, and the

po tential impacts of recent Agency regulations on the chemical composition of CCR. In addition, the Agency needs additional information on state programs before it is in a position to make a final Bevill Regulatory Determination.



### Comment Number: EPA

- HQ

- RC RA

- 2009

- 0640

- 07785

- 1 

### Organization 1 

### : Nicholas School of the Environment, Duke University


### Commenter 1 : Avner Vengosh Commenter Type: Academia

Classification: Substantive



### Comment Excerpt Text: An eighteen

- month survey of the water quality in the Emory and Clinch Rivers in the vicinity of the 2008 Tennessee Valley Authority (TVA) coal ash spill in Kingston, TN combined with laboratory experiments on TVA coal ash have revealed elevated levels of contaminants associated with coal combustion residuals (CCRs) in cluding arsenic, selenium, boron, strontium, barium in surface water with restricted water exchange and in pore water extracted from the bottom river sediments downstream from the spill. The levels of these contaminants in the downstream Emory and Clinch r ivers were low and below the Maximum Contaminant Level (MCL) for drinking water and the Criterion Continuous Concentration (CCC) for aquatic life but above the background levels in the upstream rivers. Our research has shown particularly high

concentration s of arsenic (up to 2000 ppb) and other contaminants in the pore water that was extracted from downstream river sediments. These high concentrations reflect high ash/water ratios and apparent reducing conditions that enhance the mobilization of the non

- cha rged arsenic species from the ash. The arsenic levels exceed the MCL (10 ppb) and CCC (150 ppb) threshold values. We performed also laboratory

- leaching experiments on coal ash from TVA. The results are consistent with previous leaching experiments and conf irm the high mobility of contaminants upon interaction of CCRs with water.314

The impact of CCRs on water resources however is not restricted to a single accidental release, as over five hundred power plants nationwide generate approximately 130 million tons of CCR each year, in which more than half is stored in landfills and surface impoundments. In each of these sites CCRs effluents contain significant levels of contaminants that could pose severe ecological hazards to the local aquatic systems. In North Ca rolina, nine coal fired plants discharge a total of 1059.4 million gallon per day (MGD) of effluents from holding ash ponds and 4815.7 MGD of cooling water. For comparison, The District of Columbia DC provided 108 MGD in 2009; New York City supplies 1100 M GD to eight million residents. This massive effluent discharge has a significant impact on the hydrological balance of the water resources associated with these outflow sites and, moreover, on their water quality.

A preliminary investigation of the water quality of Hyco Lake in NC, which receives about 1000 MGD of CCRs effluents, has revealed high levels of boron (up to 1200 ppb) in the lake water. This indicates a significant impact on the lake water quality. Similar high values of different

contaminants have been found in Lake Mayo and Mountain Island Lake in NC that are also associated with effluents discharge from coal ash holding ponds. Our preliminary results indicate that the highest levels of contaminants occur in pore water extracted from the lake sediments. In some lakes we found arsenic concentration up to 270 ppb in pore water from the lake bottom sediments. Following the mechanism proposed in the Raul et al. (2010) paper (see attached), we

relate the arsenic enrichment in the lakes to the reduci ng conditions in the bottom lake sediments and changes in arsenic speciation. Consequently, water resources and ecological systems could be significantly affected by discharge of coal ash effluents due to long

- term accumulation of

contaminants in the lake/ river sediments.

The notion that CCR generates a direct threat to the aquatic systems through holding ponds, landfills, or even “beneficial use” in sites where CCRs could be exposed and interact with the ambient environment should become the principal dec ision

- making criteria for this EPA committee. Water resources that are associated with and could be impacted by CCRs (effluents from treatment facilities and holding ponds and groundwater in landfill sites) should be mandatorily regulated by the state and/ or EPA with adequate monitoring parameters that are relevant for CCRs (e.g., combined arsenic, selenium, boron, strontium, barium).

Response: EPA appreciates the information included in your comment, as well as the information in the cited publications authored by Ruhl et al. ( The Environmental Impacts of the Coal Ash Spill in Kingston, Tennessee: An Eighteen

- Month Survey and The Impact of Coal Combustion Residue Effluent on Water Resources: A North Carolina Example. ) The Agency has incorporated the key findings of these studies into Unit XI of the preamble to the final rule, and

also into the technical support documents on damage cases that are included in the docket to the

final rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 07785

- 2 

### Organization 1 

### : Nicholas School of the Environment, Duke University


### Commenter 1 : Avner Vengosh Commenter Type: Academia

Classification: Substantive315



### Comment Excerpt Text: Referenced papers: [attached]

[ATTACHMENT: See Docket Reading Room, found on EPA's DVD#1 and 7785.2 was loaded

into CommentWorks

-- Ruhl, L., Vengosh. A., Dwyer, G.S., Hsu

- Kim, H., Deonarine, A., Bergin, M., Kravchenko, J. (2009). Survey of the pote ntial environmental and health impacts in the immediate aftermath of the coal ash spill in Kingston, Tennessee. Environmental Science and Technology

, 43, 6326

– 6333.]

[ATTACHMENT: See Docket Reading Room, found on EPA's DVD#1 and 7785.3 was loaded

into Com mentWorks

-- Ruhl, L., Vengosh. A., Dwyer, G.S., Hsu

- Kim, H., Deonarine, (2010). The Environmental Impacts of the Coal Ash Spill in Kingston, Tennessee: An Eighteen

- Month Survey. Environmental Science and Technology (in press).]

Response: See response to comment excerpt EPA

- HQ

- RCRA

- 2009

- 0640

- 07785

- 1.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08218

- 29 

### Organization 1 

### : Maryland Department of the Environment (MDE)


### Commenter 1 : Shari T. Wilson Commenter Type: State Government
Classification: Substantive



### Comment Excerpt Text: The Department affirms that the BBSS site in Anne Arundel County, Maryland, which was cited by EPA as a site where confirmed impact due to CCRs occurred, is in fact such a case. However, some other commentors have used this and other damage c ases to support the position that the States have not effectively addressed coal combustion residuals, and that therefore the only alternative is to regulate these materials as hazardous wastes. EPA’s discussion of this case in the

Preamble makes reference to a Consent Order that included a very significant penalty as well as remedial, closure, and post closure uses that address this site effectively allowing it to be used after closure in a safe and protective manner. Also, Maryland has promulgated new reg ulations for the disposal, storage, transportation, and use in mine reclamation that include permitting, design, monitoring and closure requirements that are very similar to and in some areas more protective than the proposed federal regulations. This, as well as the success of the 40 CFR 258 regulations governing municipal waste landfills, makes the case that designation as a hazardous waste is not the only way to insure that the public is protected from the potential adverse effects

of coal combustion res iduals.

Response: This rule will regulate CCRs under RCRA subtitle D: for further details, see unit IV of the preamble to the final rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08218

- 81 

### Organization 1 

### : Maryland Department of the Environment (MDE)


### Commenter 1 : Shari T. Wilson316

Commenter Type: State Government

Classification: Substantive



### Comment Excerpt Text: The Department affirms that the BBSS site in Anne Arundel County, Maryland, which was cited by EPA as a site with confirmed impact due to CCRs, is in fact such a case. However, commenters have used this example to support the position that the States have not effectively addressed coal combustion residuals, and that the only alternative is to regulate these materials as

hazardous wastes.

The Dep artment points out that EPA’s discussion of this case in the Preamble makes reference to a Consent Order that included a significant penalty as well as remedial, closure, and post closure uses that require cleanup and closure that is protective pf public h ealth and the environment.

While this site does show that Maryland’s previous regulatory requirements needed to be improved, it did not show that that CCR needed to be regulated as a hazardous waste. At the time of that enforcement action, Maryland had a lready initiated a process to promulgate new regulations for the disposal, storage, transportation, and use in mine reclamation that include permitting, design, monitoring and closure requirements that are very similar to and in some areas more protective than the proposed federal regulations. This approach, as well as the success of the 40 CFR 258 regulations governing municipal waste landfills, demonstrates that designation as a hazardous waste is not the only mechanism available to ensure that public hea lth and the environment are protected from the potential adverse effects of coal combustion

residuals.

Response: This rule will regulate CCRs under RCRA subtitle D: for further details, see unit IV of the preamble to the final rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08251

- 2 

### Organization 1 

### : Massachusetts Department of Environmental Protection


### Commenter 1 : James C. Colman Commenter Type: State Government
Classification: Substantive



### Comment Excerpt Text: Coal Ash Management in Massachusetts

In the Fed eral Register notice, EPA requested information regarding how coal ash is managed in the states and how coal ash management has changed over time.

Massachusetts has four coal

- fired power plants (Mt. Tom, Brayton Point, Somerset and Salem Station) that ge nerated approximately 440,500 tons of coal ash in 2008 [Footnote 1: Data based on a telephone survey and emails with each facility conducted in 2008] (bottom ash and fly ash) [Footnote 2: In 2008 Salem Station generated only about one

- half its normal annua l capacity. The Somerset plant has since closed and removed its coal pile. In addition, the Brayton Point facility has the potential to generate a maximum of approximately 50,000 tons per year offlue317

gas desulfurization (FGD) waste from a dry scrubber and the Mt. Tom facility has the potential to generate a maximum of approximately 36,000 tons per year of FGD waste, also from a dry scrubber.] Approximately 8%, or 35,000 tons, was disposed in landfills in 2008. All ash disposed was placed in lined municipal waste combustor ash landfills in Massachusetts and Connecticut. The remaining 92%, or 405,500 tons, was beneficially used, primarily in cement products and flowable fill, with much smaller amounts used as daily cover and grading and shaping material at

an old, unlined landfill undergoing closure. In addition, 600 tons were used for sludge stabilization and other uses. In addition to the fly ash and bottom ash, FGD waste has been used as an ingredient in grading and shaping material being used to close an ol d, unlined municipal landfill as a demonstration project or disposed in lined landfills.

In contrast, in 1998, [Footnote 3: Data from 8/3/2001 MassDEP Coal Ash Paper and supporting material.] the four coal

- fired power plants generated 535,100 tons of bot tom ash and fly ash of which 45%, or 243,500 tons, were beneficially used and 55%, or 292,000 tons, were disposed, all

or most of that in unlined landfills or as "fill" material at unlined sites.

By statute, coal ash is exempt from being regulated as a s olid waste unless it is being disposed (Solid Waste Statute, C.1l1, s.150A, see Appendix A for the language). This exemption, specifically for coal ash, states, in part, that coal ash used "... as a raw material for concrete block manufacture, aggregate, f ill, base for road construction, or other commercial or industrial purpose, or stored for such use" is exempt from regulation. As a result of the exemption for "fill", ash was, in effect, disposed of in what amounted to landfills in several locations in

Ma ssachusetts without liners or leachate collection systems. Two such locations (Salem Acres and Vitale Fly Ash Pit) are noted in the Table of EPA's Damage Cases, where groundwater contamination has been documented for antimony, arsenic, manganese, aluminum, iron and

selenium. Undocumented use of much smaller amounts of ash as a fill material has also occurred

at numerous sites.

In spite of the statutory exemption identified above, ash management in Massachusetts has changed significantly over the past 10 y ears: moving away from disposal in unlined landfills and

use as an un

- encapsulated fill material and moving toward increased beneficial use, primarily in encapsulated cement products or disposal in lined landfills with composite or double

- composite

liner s ystems. In part, this movement toward recycling and away from unlined landfilling resulted from increased scrutiny of industry ash management practices that occurred due to the cleanup of ash at the Vitale Fly Ash Pit.

Response: EPA has reviewed informat ion on three of the sites cited by the commenter: (i) New England Power, Brayton Point Power Station, Somerset, (ii) Salem Acres Site, Salem, and (iii)

the Vitale Fly Ash Pit, Beverly. Although groundwater contamination has been documented in all these sites for several metal constituents, EPA rejected all three sites as CCR damage cases because the waste management units at these sites recieved, in addition to CCR, also significant

amounts of ot her waste types such as oil combustion waste and hazardous waste. Such instances

of co

- mingled waste are outside the scope of this rule. For additional information about the scope of this rule, see Units III and XI of the preamble to the final rule.318



### Com ment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09533

- 1 

### Organization 1 

### : Commenter 1 : Mary A. Fox, Ph.D, MPH Commenter Type: Private Citizen

Classification: Substantive



### Comment Excerpt Text: Thank you for the opportunity to comment on the coal ash residual’s rule, Docket ID# EPA

- HQ

RCRA

- 2009

- 0640. I am Dr. Mary Fox, Assistant Professor in the Department of Health Policy and Management at the Johns Hopkins University Bloomberg School of Public Health. I am a risk assessor with doctoral training in toxicology, epidemiology and environmental health policy. I have been working in the field of environmental public health for 20 years. These comments are my own and do not represent the position of Johns Hopkins University.

I would like to highlight two topics:
• Coal ash cont ains multiple toxic contaminants that can appear as mixtures in the environment
• Risk assessments have underestimated health risks

These points are clearly illustrated by the Gambrills, Maryland damages case where coal combustion residuals (CCR) were u sed to reclaim former quarry pits. The disposal of CCR began in 1995 and within 12 years CCR constituents were detected in the drinking water wells of nearby residents. In 2007 a total of 34 residential wells were found to have concentrations of aluminum, arsenic, beryllium, cadmium, lead, manganese, and thallium above primary and secondary drinking water standards. Further, the proposed rule summarizes the Gambrills case but does not mention that several of the wells were contaminated with multiple CCR

con stituents.

The facts of the Gambrills case point to two limitations of EPA’s 2010 risk assessment. First, the CCR constituents reached drinking water wells in only 12 years not the hundreds or thousands of year timeframes modeled in the risk assessment. Second, health effects of exposure to multiple CCR constituent mixtures were not evaluated, consequently the public health impacts of the disposal methods studied were not fully characterized. The importance of assessing exposure to

CCR mixtures arises fro m our understanding of the toxic effects of CCR constituents, briefly summarized in Table 1. [see original comment for Table 1: Health Effects of Coal Combustion Residual (CCR) Constitutents] Several CCR constituents contribute to common target organs or

s ystems, for example, barium, cadmium and mercury are kidney toxins, and lead, manganese and aluminum are neurotoxins. Exposure to combinations or mixtures of these CCR constituents

increases risks to health.

Cancer risks from arsenic exposure have also b een underestimated. To date cancer risk assessments of arsenic exposure have been based on studies of skin cancer. Epidemiological evidence on arsenic ingestion now shows greater risk of several internal organ cancers (e.g., bladder and lung) so risk estim ates using the skin cancer data will underestimate total cancer risks from arsenic ingestion [Footnote 1: Chiou, H

- Y; Chiou, S

- T; Hsu, Y

- H; et al. (2001) Incidence of transitional cell carcinoma and arsenic in drinking

water: a follow

- up study of 8,102 re sidents in an arseniasis

- endemic area in northeastern Taiwan.319

Am J Epidemiol

153:411

– 418.]; [Footnote 2: Ferreccio, C; González, C; Milosavjlevic; et al. (2000) Lung cancer and arsenic concentrations in drinking water in Chile. Epidem 1:673

– 679.]

Coal co mbustion waste is complex mixture. Risk assessments to date have underestimated

cancer and non

- cancer health risks. Absent a complete understanding of health risks, public health will be better protected through regulation under Subtitle C.

[See original comment for TABLE 1: HEALTH EFFECTS OF COAL COMBUSTION RESIDUAL (CCR) CONSTITUENTS]

Response: EPA decided to regulate the disposal of CCR under subtitle D of RCRA by issuing minimum national criteria. Similar to the subtitle C option, this option would r equire composite liners, groundwater monitoring, structural stability requirements, corrective action, and closure/post closure care. However, given available statutory authorities, EPA proposed this option to be a self

- implementing rule with no direct fe deral oversight, with an effective six months after publication in the Federal Register . The Agency is deferring its final Bevill Regulatory Determination with respect to CCRs that are disposed in CCR landfills and CCR surface impoundments until additional information is available on a number of key technical and policy questions, including the risks of CCR disposal based on its arsenic content, such as the appropriate safe daily dose for arsenic and the speciation of arsenic in the environment, and the
pot ential impacts of recent Agency regulations on the chemical composition of CCR. In addition, the Agency needs additional information on state programs before it is in a position to make a final Bevill Regulatory Determination.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09770

- 2 

### Organization 1 

### : Upper Cumberland Group of the Sierra Club, et al.


### Commenter 1 : Mary M. Mastin and Brian Paddock Commenter Type: Advocacy Group

Classification: Substantive



### Comment Excerpt Text: After we brought Dr. Dennis Lemly, a leading expert on the effects of selenium in aquatic life, to testify at a Tennessee House Conservation Committee meeting on a bill [Footnote 3: At the behest of coal mining industry the chairmen of the state House and Senate committees on the

environme nt had introduced bills to define the acute and chronic levels of selenium in the states Water Quality Standards at levels far higher than the levels currently specified in the EPA national guidance. Never before has the legislature considered itself to ha ve the scientific expertise to define a Water Quality Standard and intrude on the science based process used by EPA and TDEC to arrive at the Water Quality Standards embodied in state regulations and subject to triennial review.], we sat in on an interview by top TDEC officials with Dr. Lemly. We have had numerous conversations with TDEC officials regarding the effects of selenium and other metals released to our waters from both wet and dry coal ash impoundments.

We are concerned that TDEC officials do no t take seriously the long

- term effects of selenium discharges on fish and aquatic life (including fish reproductive capabilities) downstream of the320

Kingston coal ash disaster. We know that selenium’s threat is from bioaccumulation in fish and

in the food c hain for wildlife.

TDEC has continually downplayed the significance of impacts to aquatic life from selenium discharges related to coal and coal ash in water. Until recently, TDEC did not require selenium limits in NPDES coal mining permits. TDEC has rece ntly proposed a new water quality standard for selenium which we have contested as inadequate. From our observations, TDEC has downplayed the results of fish studies taken downstream of the Kingston disaster by scientists employed by organizations such as Appalachian State University, Watauga Riverkeepers and the Tennessee Aquarium.

Fish tissue studies at the Kingston site from June 2009, seven months after the “spill” were recently complied by Dr. Shea Tuberty of Appalachian State University. These show l evels of 6.82 mg/kg and and 7.72 mg/kg in ovaries of redear sunfish and large

- mouthed bass, which we understand is in the toxic range for reproductive failure A copy of Dr. Tuberty’s chart and a summary of his recent presentation of the results follow as e ndnote one. [Endnote 1: See Table 1 and subsequent discussion] Response: EPA’s records support the commenter’s concerns about TDEC’s lax approach to the discharge of metal loaded

- effluents into Tennessee’s waterways:

TVA Bull Run Steam Plant (BRF): In May 2012, citizens’ groups petitioned the Tennessee Water Quality Control Board, contending that the State of Tennessee NPDES Permit, which authorizes BRF to discharge 19 million gallon/day of CCR effluents from its settling pond directly into

Melton Hill Reservoir on the Clinch River, violates the CWA, where a toxicity study indicated potential for ecologic damage to introduced species; TDEC, however, assume dilution by the Clinch River and therefore has not enforced any remedial action.

John Sevier Fossi l Plant (JSF)

– TVA : Chronic and Acute EPA Water Quality Criteria (WQC) levels for freshwater aquatic life were reported for cadmium; and Chronic WQC levels

– for arsenic, selenium, hexavalent chromium, aluminum, and manganese. On May 27, 2011, a

consortiu m of citizens groups submitted a petition for statutory appeal to the Tennessee Water Quality Control Board concerning the intent of TDEC’s Division of Water Pollution Control to
renew TVA JSF’s NPDES Permit TN 0005436.

Cumberland Steam Plant

– TVA : WQC f or Fish and Aquatic Life and DWS were exceeded for

selenium.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09770

- 4 

### Organization 1 

### : Upper Cumberland Group of the Sierra Club, et al.


### Commenter 1 : Mary M. Mastin and Brian Paddock Commenter Type: Advocacy Group

Classi fication: Substantive



### Comment Excerpt Text: [See original comment for Table 1. Mean Fish body burdens for Selenium (mg/kg dry wt basis) from July 2009 determined by ICP

- AES.]321

December 22nd, 2008 the sixty

- foot earthen dike securing a retention pond at th e Tennessee Valley Authority’s Kingston Fossil Plant holding coal fly ash gave way. Most of an estimated 4.1 million cubic meters of saturated coal fly ash fluidized and flowed catastrophically from the pond covering a total land and aquatic area of 300 ac res. The sheer volume of the spill and the fact that it has impacted both lentic and lotic systems makes this situation unique. ICP

- OES analyses of water, sediments, and fish tissues (?5 tissues sampled from channel catfish, redear sunfish, and largemouth bass) collected in Jan ’09, March ’09, July ’09, and Jan ‘10 from 5 river sites over the first 12 months following the dike failure have shown the following: 1) dissolved and/or total available toxic metals in water have not exceeded protective aquatic lif e criteria levels since the weeks immediately following the spill, even during extensive dredging operations beginning in March of 2009; 2) fish gills collected in March ‘09 from ash impacted sites showed several adverse histological alterations indicative of heavy metal exposure; 3) initially, fish body burdens of selenium (Se) were determined to be above published regional background levels; 4) specifically for redear sunfish at CRM 3.3, muscle burdens of arsenic (As

– 0.824 ppm in Jan ’09 to 3.356ppm in Jan ‘10), cadmium (Cd

– 0.032ppm in Jan’09 to 0.138 ppm in Jan ’10) and Se (5.177ppm in Jan ‘09 to a high of 8.427ppm in July ’09) have slowly and steadily increased; 5) a marked increase in popeye fish at TRM 567 and CRM 3.3 has been noted over this perio d; and 6) sediment concentrations of toxic elements at the spill site have diminished while concurrently increasing at the site furthest downstream (TRM 567). Initial mercury analyses (Jan vs July ’09) have shown a 1.6x increase (yet statistically insignif icant) in fish body burdens in the impacted zone (sunfish increased from 0.29 to 0.46 ppm dry wt and bass increased from 0.49 to 0.8ppm dry wt)

– further analyses are underway. Se, As, and Cd body burdens in fish may continue to increase more (Sept ‘10 col lections are currently being processed) as the elements are released into the aquatic system, and in the case of Se, bioaccumulated in the food web. Quarterly sediment and fish sampling will continue over the next year following the halt in intensive dredg ing to determine any further changes in body burden levels of fish toxic element body burdens over time.

Sakamachi, Y., Jackson, D., George, A., Lisenby, D., Hsu

- Kim H., Babyak, C., Tuberty, S. 2010. Change in fish toxic element body burdens over the year following a catastrophic release of coal fly ash. Abstracts of the Society of Environmental Toxicology and Chemistry North America 31st Annual Meeting Oregon Convention Center, Portland, Oregon. 7

– 11 November 2010. MP084, Pages 216

- 217.

MP084 Change in f

ish toxic element body burdens over the year following a catastrophic release of coal fly ash Y. Sakamachi, D. Jackson, Appalachian State University / Biology; A. George, Tennessee Aquarium Conservation Institute; D. Lisenby, Upper Watauga Riverkeeper/Appa lachian Voices; H. Hsu

- Kim, Duke University / Civil and Environmental Engineering; C. Babyak, Appalachian State University /Chemistry; S. Tuberty, Appalachian State University / Biology.

Response: Thank you for the data submitted with this comment, which are based on scientific sampling and studies of fish populations in the Emory River in the wake of the December 2008 TVA Kingston CCR spill. Key findings from these studies were incorporated into t he technical support documents to damage cases included in the docket of the final rule.322



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 10631_DC

- 046

- 1 

### Organization 1 

### : Sierra Club


### Commenter 1 : Lyndsay Moseley Commenter Type: Advocacy Group

Classification: Substantive



### Comment Excerpt Text: I am also here today speaking as an individual who was born and raised in a lakeside community outside Knoxville, Tennessee

- not too far from the TVA Kingston site. I happened to be visiting my parents in December 2008 when we heard the news about the TVA

- owned earthen dam that failed, releasing decades' worth of coal ash from a large surface impoundment into the Clinch and Emory Rivers and nearby communities. As soon as I could, I drove to Swan Pond Circle to

evaluate t he scope and scale of this disaster for myself. I witnessed coal "ash bergs" filling the river, homes moved off their foundations, ashy sludge covering yards and gardens. I witnessed clean up workers in hazmat suits while the authorities told residents the y were not in danger. And I spoke with many confused, angry and frightened residents, already mourning the loss of their property and peaceful way of life and unsure what they should be doing to protect themselves. I saw this first hand, but millions of Am ericans became acquainted with the risks of poorly managed coal ash disposal through the widespread news media coverage of the disaster at the TVA Kingston site. It was the beginning of a new conversation about the prevalence of dangerous and irresponsible coal ash disposal practices

- not just in Tennessee but around the
country.

Response: Thank you for your comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 10676_DC

- 063

- 2 

### Organization 1 

### : Commenter 1 : Bryce Payne Commenter Type: Private Citizen

Classification: Substantive



### Comment Excerpt Text: Let me now attempt to disabuse any who will listen of some coal ash science, engineering and regulatory myths and misconceptions illustrated by these two cases.

1. Both the failed ponds, PPL and TVA, were designed by and operated with assistance of professional engineering staffs.

2. When the TVA dike failed at an ash stack height ~65' above grade, TVA and consulting professional engineers were attempting to get approval for a final height of over 300', and already ha d state approval to go over 100'.

3. Half

- hearted science has led to fundamental misconceptions about and disregard for ash and its properties. Those misconceptions, relied upon by TVA engineers and managers, consultants323

and state regulators, caused the d ike failure, and, produced a fundamentally flawed root cause analysis. If the misconceptions and disregard are not corrected, the foreseeable and far

- reaching harmful consequences at other ash facilities may become overwhelming and irreversible.

4. The TC LP failed to detect probable Se releases from ash in the PPL and TVA cases. Multi

- pH tests will not fare better, because they, too, ignore· fundamentals of the chemistry, physics, biology and behavior of coal ash.

5. NPDES permits at PPL and TVA ash spil l sites, like most power plants, did not require monitoring of Se or As or other coal ash derived toxics in effluents.

Response: Thank you for your comment. The final CCR rule contains requirements for periodic inspections of impoundment dams to prevent s imilar cases from reoccurring, as well as requirements to ensure proper design and appropriate siting of surface impoundments. EPA anticipates that the issue of inadequate NPDES monitoring requirements of parameters in CCR effluents would be addressed by t he upcoming steam industry ELG rule in 2015.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 10718_DEN

- 030

- 1 

### Organization 1 

### : Rocker Six Cattle Company


### Commenter 1 : Clint McRae Commenter Type: Other Company

Classification: Substantive



### Comment Excerpt Text: My name i s Clint McRae. My family and I ranch along Rosebud Creek south of Colstrip, Montana. We live in the shadows of two coal mines, and 4 coal fired power plants. These plants
were constructed in the mid ‘70’s and 80’s.

When we learned that the method of ash d isposal was going to be ash settling ponds, many ranchers in the area publicly voiced concerns about the possibility of leaks. Since the most valuable resource we have in the ranching industry is water, both quality and quantity, we

wanted to be assured th at the ranching community would not be impacted. We were assured by the head of the Montana Department of Health, (now the Department of Environmental Quality) Dr. Will Clark, said that the ash ponds would not leak, that they were to be “Completely Sealed. ”When asked at the unlikely possibility that they would leak, Clark replied that “The power plants will be shut down.”

We were lied to.

For 30 years, the ash ponds in the Armells Creek watershed that serve the first two plants built, (units 1 and 2) hav e leaked since their construction. They were to be lined, but the pit was not constructed properly, and when water was added, the liner ripped down the center. The liner company from Texas refused to be liable for the breach, and Montana Power Company used the pond anyway. Since that time, another ash pond was constructed, and that pond leaks also. In the last few years, these ponds have contaminated several domestic house wells and the well at the Moose Club in the vicinity of the ash ponds. Pennsylvania P ower and Light (PP&L) now owns324

the plants, and settled with 60 homeowners for $25 million.

The second 2 plants, units 3 and 4, slurry wet ash to the Effluent Holding Pond (EHP) in the Cow Creek drainage south of town. Cow Creek is a tributary to Rosebud C reek where our ranch is located. This pond is nearly 400 acres in size, and is 80 feet deep. A cousin and neighbor, while checking water a year ago, noticed a reservoir that was full of water, strange for this time of year. He observed a deer walk from the timber and wade out to her chest nosing the water as she went. He also noticed that although it was hot, and she was obviously thirsty, she did not drink. He tested the water and the adjacent windmill used for watering cattle, and was startled to

find tha t the water contained toxic levels of sulfates. The source of the toxic water in the reservoir was coming from the nearby ash pond that was supposed to be “completely sealed.” After some research, we found that the ash pond was not “completely sealed,” but was leaking badly. Monitoring wells stationed around the ash pond were now being used as pump back wells, and the plume had expanded nearly a mile radius around the ash pond. It had also impacted

another rancher that owned land down

- stream. PP&L continues to call this a “seep.” This is no seep; this is a leak, a full blown pond failure, and needs to be treated as such. Incidently, the well and reservoir were on leased railroad land, and the land has been purchased by PP&L. The leak is currently polluting a nother downstream ranch.

Montana Power, now PP&L, knew that these ponds had failed, but chose to do nothing. The reservoir and windmill were fenced to keep cattle from drinking the water. PP&L offered to replace the impacted well, but this creates another issue.

Montana water law is based on first in time, first in right. If a well was drilled in 1935, the priority date would be 1935. If another entity impacts that well, a call can be made to the Montana Department of Natural Resources and Conservation (M TDNRC) The Department will contact the offending party responsible, and demand they stop impacting the well. What is happening with coal ash, is the state is allowing, through their unwillingness to enforce the law, a

multi

- billion dollar corporation to im pact our water rights. If a well is drilled at the expense of the company (PP&L) the new well would be drilled into another aquifer, and the 1935 water right DOES NOT transfer to the new well. The landowner has lost his 1935 water right and now

has a 2010 water right. The end result is the state is not upholding their public trust responsibilities. This is morally, ethically, and legally wrong. The only recourse we as ranchers

have is to sue.

The Montana Department of Environmental Quality (MTDEQ) has know n for years that these ponds leak. At a public meeting last winter in Colstrip, a DEQ attorney talked for 45 minutes, not of how they were going to stop the leak, but went over the finer points of a 2 page flow chart of the process. We were incensed. The l east the DEQ could do was to have an engineer explain to us how the problem was going to be corrected. We saw the handwriting on the wall. Agriculture was going to absorb the cost of electrical production. The DEQ is overworked, under staffed, and

is not m otivated to enforce Montana water law. Under proposed Subtitle 0, this management

scheme would continue.

The concerns we have as ranchers are elements in the water. These are electrical conductivity, sulfates, boron, selenium, arsenic, and mercury, all of which are components of the ash. As an325

example, a sulfate level of 500 mg/l is detrimental to livestock. The level of sulfates tested in the pond below the leak in the 3 and 4 EHP was 8,170mg/l, 16 times the accepted threshold. If a cow

would drink this t oxic water, she would die. There is absolutely no argument that water this toxic

is not hazardous.

The state of Montana has had every opportunity to right this wrong, and has failed in every way. We trusted our state and federal agencies to represent our best interests, and keep us from damage. That has not happened.

Response: Thank you for your comment. The PP&L Colstrip is, according to EPA’s records, a proven damage case. The Agency has documented the extensive instances of groundwater

contamination an d citizen lawsuits filed against PP&L, PP&L’s effort to address groundwater impact by switching to high density slurry conveyance of coal ash to the impoundments, introducing liners to the leaking ponds, and installing hundreds of pump back wells. EPA is a lso aware of MTDEQ’s delayed response to the environmental damages associated with the operation of the Colstrip plant.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 10718_DEN

- 030

- 2 

### Organization 1 

### : Rocker Six Cattle Company


### Commenter 1 : Clint McRae
Commenter Type: Other Company

Classification: Substantive



### Comment Excerpt Text: Subtitle C is wholly insufficient to stop groundwater impacts from the PP&L power plants. Such requirements have been in place for decades in Montana, and the state has done nothing to stem
the contamination in our livestock wells.

PP&L’s $25 million settlement to 60 homeowners in Colstrip is an admission that ash pond

effluent is hazardous. This leak creates a human health issue. The 3 and 4 EHP leaks water that is

16 times the toxic l evel to cause death in cattle. This is an agricultural herd health issue. This is not benign, it is hazardous, and as a rancher who lives down gradient of a leaking ash pond, I ask you to please designate coal ash as hazardous.

Response: EPA decided to re gulate the disposal of CCR under subtitle D of RCRA by issuing minimum national criteria. Similar to the subtitle C option, this option would require composite liners, groundwater monitoring, structural stability requirements, corrective action, and

closu re/post closure care. However, given available statutory authorities, EPA proposed this option to be a self

- implementing rule with no direct federal oversight, with an effective six months after publication in the Federal Register . The Agency is deferring its final Bevill Regulatory Determination with respect to CCRs that are disposed in CCR landfills and CCR surface impoundments until additional information is available on a number of key technical and policy questions, including the risks of CCR disposal based on its arsenic content, such as the appropriate safe daily dose for arsenic and the speciation of arsenic in the environment, and the potential impacts of recent Agency regulations on the chemical composition of CCR. In addition,326

the Agency needs ad ditional information on state programs before it is in a position to make a final Bevill Regulatory Determination.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 10983_CHA

- 018

- 2 

### Organization 1 

### : Appalachian Voices


### Commenter 1 : Eric Chance Commenter Type: Advocacy Group

Classification: Substantive



### Comment Excerpt Text: Appalachian Voices has also partnered in research in the wake of the Kingston, Tennessee coal ash spill. Research has been ongoing since the spill, and has shown levels of arsenic, barium, cadmium, lead, and selenium in the Emory River exceeded protective drinking water and/or aquatic life criteria levels. Although water quality has returned to a more normal state, ash and

ash

- laden river sediments with high levels of arsenic have washed far downstream from the spill

site. Also selenium levels in fish downstream from the site continue to rise and have exceeded threshold levels for reproduction and growth.

Response: See response to comment excerpt EPA

- HQ

- RCRA

- 2009

- 0640

- 06298

- 16.



### Comment Num ber: EPA

- HQ

- RCRA

- 2009

- 0640

- 11000_CHA

- 035

- 1 

### Organization 1 

### : Commenter 1 : Steve Scarborough Commenter Type: Private Citizen

Classification: Substantive



### Comment Excerpt Text: Roane County Tennessee is my home. It is a beautiful part of America that I hope you all get to visit. It is also the site of the Kingston TVA coal ash disaster, the largest in American history, where millions of cubic yards of improperly handled and stored coal ash waste destroyed a way of life during the night on December 22, 2008. Had t his disaster not happened at midnight in winter we would have had a body count to go with this disaster of geological proportions. I count myself lucky compared to those whose homes were there. I have two lake lots on the Emory

Hiver that were on the marke t then that I now cannot sell except for pennies on the dollar. Having real estate that you cannot sell is far better than having a life that cannot be made whole.

This disaster was caused by incompetency and willful negligence at multiple levels but mai nly in the financial decisions of a corporate bureaucracy focusing on short sighted cost savings and a complicit state agency that allowed it to operate a massive coal storage facility without adequate oversight. For a savings of less than 20 million dolla rs a large coal fired generating facility now faces over a billion dollars in fixing things that in reality cannot ever be completely fixed. Somewhere between 500,000 and 1.5 million cubic yards of coal ash, depending on who you choose to believe, will nev er be removed from Watts Bar lake ... It would cost too much.

Entire communities are gone now. Hundreds of Dream homes on the banks of the Emory and327

Clinch Rivers now belong to the Tennessee Valley Authority and the people moved away... The lucky ones on ly lost a couple of years out of their lives, others whose homes TVA refuses to purchase wait for the lawsuits to wind their way through the courts. For those left in the community, TVA promises things better than ever in five more years out of their lives

.

This disaster was a textbook example of a coal fired power producer refusing to pay the true cost of coal by cutting costs in coal ash disposal and storage. Instead that cost is put upon the lives of good people in Roane County Tennessee, who pay the t rue cost of coal ash in the upheaval of their lives, the loss of precious years of security and peace and constant emotional torture wondering if they and their families are truly safe.

Response: Thank you for your comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 11080_CHA

- 115

- 1 

### Organization 1 

### : Appalachian Voices


### Commenter 1 : Willa Mays Commenter Type: Advocacy Group

Classification: Substantive



### Comment Excerpt Text: In December of 2008, our staff was among the first responders to take water samples from the Emory River in the wake of the Kingston Coal Ash Pond failure in Harriman, Tennessee. We assembled a team of researchers from Appalachian State University and the Tennessee Aquarium Conservation Institute who, for the past two years expanded our initial t esting to include water, sediment and fish in the Emory, Clinch and Tennessee Rivers. We issued reports on January 1, 2009 and May 18, 2009 that detailed our findings. Our research team found:

1) arsenic, barium, cadmium, lead, and selenium in the Emory R iver exceeded protective drinking water and/or aquatic life criteria levels;

2) ash and ash

- laden river sediments had arsenic levels that exceeded the EPA removal limits

3) selenium levels increased dramatically downstream of the spill with selenium leve ls in fish beyond the thresholds of toxicity for reproduction and growth;

Response: Thank you for your comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 11180_CHI

- 011

- 1 

### Organization 1 

### : People In Need of Environmental Safety (PINES)


### Commenter 1 : Larry Jensen Commenter Type: Advocacy Group

Classification: Substantive



### Comment Excerpt Text: I am a member of the group People In Need of Environmental Safety (PINES) in Pines, Indiana.328

Substantial groundwater and drinking water contamination has resulted in the Town of Pines due to negligent disposal of coal ash at a nearby landfill. This contamination has led to a CERCLA response action.

A neglected aspect of this problem is the radioactive contamination associated with coal ash used as roadfill and, possibly, land fill. The attached map from the Remedial Investigation report shows where coal ash has been verified as having been disposed of in the town. The area contaminated is very extensive.

By way of validation of my credentials, I have considerable expertise on contamination by naturally occurring radioactive materials. I retired from the U.S. Environmental Protection Agency Region 5 (USEPA5) as both the Superfund Radiation Expert and the Radiation Risk Assessor. Throughout my entire 21 year career at USEPA5 I wa s involved in cleanup of a town contaminated by naturally occurring radioactive industrial waste (West Chicago, Illinois). Work on this project led to 2 bronze medals and a gold medal.

On behalf of PINES, I conducted a gamma

- ray count rate survey in Octob er, 2009. Along many roadways, where a black, glittery material was present, count rates were statistically distinct from background (greater than twice background). With an average background of 4722 counts per minute, the peak reading was 13,540 counts p er minute. It is believe that this black glittery

material is bottom ash.

USEPA5 was provided this report with recommendations for

- Confirmation of the PINES data

- Determination of the component(s) that led to the elevated gamma

- ray count rates

- Deter mination of the gamma

- ray emitters by isotope

- Determination of the isotopic concentration of the gamma

- ray emitters

- Determination if radionuclides covered by the Drinking Water Act are also contaminating Pines

wells.

With no follow

- up by USEPA5, data for these critical aspects of coal ash are lacking in the Remedial Investigation report.

In addition, with the limited field data from landfill measurements collected for the Remedial Investigation, I performed a risk assessment for gamma

- ray exposure onl y (not ingestion nor inhalation) using USEPA guidance and coefficients. It was assumed that the roadway depositions in the Town of Pines were consistent with the coal ash components in the landfill. This risk assessment, assuming only 16 hours per week exp osure for 30 years from the three natural decay series (Uranium, Thorium, Actinium), led to a morbidity risk of 7 E

- 4, a mortality risk of 5 E

- 4

and a total risk of 1 E

- 3. This can be compared to the upper limit of acceptable risk from the National Conting ency Plan of 1 E

- 4. Thus the radiation risk from just this one pathway is on the order of 10 times the upper limit of acceptable risk for CERCLA.

Moreover, the soil data from the landfill exceeded the soil concentrations commonly used by USEPA5, and USEPA nationally, for cleanups of naturally occurring radioactive materials. This329

criterion comes from Title 40, Part 192 of the Code of Federal Regulations for cleanup of uranium and thorium sites. Cleanup should occur when the combined radium

- 226 and radium

2 28 concentration exceeds 5 picocuries per gram (pCi/g) plus background. For Pines, this cleanup criterion would be 5.6 pCi/g. Soil in the PINES landfill had a concentration estimated to be 23.8 picocuries per gram.

Response: See response to comment excerpt EPA

- HQ

- RCRA

- 2011

- 0392

- 0225

- 2.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 11180_CHI

- 011

- 2 

### Organization 1 

### : People In Need of Environmental Safety (PINES)


### Commenter 1 : Larry Jensen Commenter Type: Advocacy Group

Classification: Substantive



### Comment Excerp t Text:

Conclusions

I do not believe Pines is unique in having health hazards associated with uncontrolled use of coal ash as roadfill and landfill. For Pines the contamination was extensive, the risk was substantial from just external exposure alone, and the concentration was clearly above USEPA's commonly used cleanup criterion for naturally occurring radioactive materials.

Therefore, I believe it is imperative to remove the exclusion for coal ash from RCRA Section 3001(b)(3)(A)(i) and regulate this mat erial tightly because of its demonstrated hazards.

Response: EPA decided to regulate the disposal of CCR under subtitle D of RCRA by issuing minimum national criteria. Similar to the subtitle C option, this option would require composite liners, groundwa ter monitoring, structural stability requirements, corrective action, and closure/post closure care. However, given available statutory authorities, EPA proposed this option to be a self

- implementing rule with no direct federal oversight, with an effectiv e six months after publication in the Federal Register . The Agency is deferring its final Bevill Regulatory Determination with respect to CCRs that are disposed in CCR landfills and CCR surface impoundments until additional information is available on a nu mber of key technical and policy questions, including the risks of CCR disposal based on its arsenic content, such as the appropriate safe daily dose for arsenic and the speciation of arsenic in the environment, and the potential impacts of recent Agency r egulations on the chemical composition of CCR. In addition, the Agency needs additional information on state programs before it is in a position to make a final Bevill Regulatory Determination.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 11180_CHI

- 011

- 3 

### Organization 1 

### : People In Need of Environmental Safety (PINES)


### Commenter 1 : Larry Jensen Commenter Type: Advocacy Group

Classification: Substantive330



### Comment Excerpt Text: [See original comment for Figure 3

- 18: Locations of Field Verified Suspected CCBs Pines Area of Investigation Porter County, Indiana]

Response: See response to comment excerpt EPA

- HQ

- RCRA

- 2011

- 0392

- 0225

- 2.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 11186_CHI

- 017

- 2 

### Organization 1 

### : PINES Group


### Commenter 1 : Paul Kysel Commenter Type: Advocacy Group

Classification: Substantive



### Comment Excerpt Text: The TAP Agreement under which our group has been funded and under which our group can participate in the Superfund Process was drafted by the Potentially Responsible Parties without any inp ut by our Group and without comporting with USEPA guidelines for Traditional Superfund Sites and associated TAG Grants and is therefore illegal in our opinion and in the opinion of our attorney. But that's a discussion or legal action reserved for another day.

The historic ineffectiveness of RCRA Subtitle D has been clearly illustrated in the Town of Pines. The drinking water wells of the entire Town of Pines

- an EPA "proven damage case"

- were poisoned by ash generated by the Michigan City coal fired pow er plant owned and operated by Northern Indiana Public Service Company (NIPSCO). Levels of boron, molybdenum, and arsenic (as well as a host of other heavy metals and contaminants including radiation), well above health based standards, migrated from a nea rby inadequately lined landfill owned and operated by Brown Inc (located just south of IN Highway 520 and U.S. Highway 20) and from

its use as "structural fill" over much of the town as a so

- called "beneficial use" of this ash

material.

Only after a Fede ral lawsuit was filed against NIPSCO

- the only recourse available to citizens under Subtitle D of RCRA, did the company provide safe drinking water to some of the town (there are a number of residents still dependent upon bottled drinking water)

- through E PA

involvement.

Response: EPA decided to regulate the disposal of CCR under subtitle D of RCRA by issuing minimum national criteria. Similar to the subtitle C option, this option would require composite liners, groundwater monitoring, structural stabili ty requirements, corrective action, and closure/post closure care. However, given available statutory authorities, EPA proposed this option to be a self

- implementing rule with no direct federal oversight, with an effective six months after publication in the Federal Register . The Agency is deferring its final Bevill Regulatory Determination with respect to CCRs that are disposed in CCR landfills and CCR surface impoundments until additional information is available on a number of key technical and policy questions, including the risks of CCR disposal based on its arsenic content, such as the appropriate safe daily dose for arsenic and the speciation of arsenic in the environment, and the potential impacts of recent Agency regulations on the chemical composition of CCR. In331

add ition, the Agency needs additional information on state programs before it is in a position to make a final Bevill Regulatory Determination.



### Comment Number: TRANS

- ARL

- 0084

- 2 

### Organization 1 

### : Commenter 1 : Bryce Payne Commenter Type: Private Citizen

Classific ation: Substantive



### Comment Excerpt Text: For 12 years I investigated coal ash as a consulting scientist under contract for coal power plants. For those 12 years, industry supported just enough science to ease regulatory compliance but never enough to conf

irm safety. Then I investigated selenium impacts in groundwater related to the 2005 ash spill in Pennsylvania. That experience confirmed for me that industry prefers ignorance over information and some subservient science over scientific integrity and rigo r. Based on my conclusions regarding selenium and coal ash in Pennsylvania, I attempted to warn TVA, TDEC and EPA of risks in the planned spill response to the TVA 2008 ash spill. I was joined by colleagues and we were ignored.

New data will soon be relea sed that show fish in the impacted river system have gone from initial tissue selenium levels of 3 to 5 parts per million to now lethal levels over 20 parts per million of arsenic and selenium each. Humans and wildlife are almost certainly eating those fis h. This is what coal ash can do and conventional coal ash thinking cannot see it coming. Let me now attempt to disabuse you and anyone else who will listen, of some coal ash science, engineering, regulatory myths and misconceptions illustrated by these tw o cases. One, both the failed ponds, PPL and TVA, were designed by and operated with the assistance of professional engineering staffs. Two, when the TVA dike failed at an ash stack height of 65 feet above grade, TVA and consulting professional engineers w ere attempting to get approval for a final height of over 300 feet and already had state approval to go over 100 feet. Three, halfhearted science has led to fundamental misconceptions about and disregard for ash and its properties. Those misconceptions rel ied upon by engineers, managers, consultants and regulators caused the dike failure and produce a fundamentally flawed root cause analysis. The TCLP failed to detect probably selenium releases from ash in the PPL and TVA cases. The new multi

- pH tests will not fare much better because they too ignore fundamentals of the chemistry, physics, biology and behavior of coal ash. NPDES permits at the PPL and TVA ash spill sites, like at most power plants, did not require monitoring of selenium, arsenic or other ash

- derived toxics and therefore provide no protection. Extending from these points, I would ask that EPA consider the following questions. How is it that an open pit mine is functionally different from a sand pit or quarry? Given the history of

liners cover s only 30 to 40 years, why would one presume for risk analysis that they remain intact for centuries or millennia? May our descendants forgive us when these time capsules in the future open, and they will. I'd like to expand on these and other points but I 'm sure I'm out of

time.

Response: Thank you for your comment. The final CCR rule contains requirements for periodic inspections of impoundment dams to prevent similar cases from reoccurring, as well as requirements to ensure proper design and appropriate siting of surface impoundments. EP A332

anticipates that the issue of inadequate NPDES monitoring requirements of parameters in CCR effluents would be addressed by the upcoming steam industry ELG rule.



### Comment Number: TRANS

- CHI

- 0026

- 1 

### Organization 1 

### : PINES Group


### Commenter 1 : Paul Kysel
Comment er Type: Advocacy Group

Classification: Substantive



### Comment Excerpt Text: I'm here today to voice strong support for the classification of coal combustion waste as

hazardous under RCRA Subtitle C.

The historic ineffectiveness of RCRA Subtitle D has been clearly illustrated in the Town of Pines. The drinking water wells of the entire Town of Pines, an EPA "proven damage case", were poisoned by ash generated by the Michigan City coal

- fired power plant owned and operated by Northern Indiana Public Service Co mpany known as NIPSCO. Levels of boron, molybdenum, arsenic as well as a whole host of other heavy metals as well as contaminants including radiation well above health

- based standards migrated from a nearby, inadequately lined landfill owned and operated b y another entity, Brown, Incorporated, just south of Indiana Highway 520 and US Highway 20 in the Town of Pines, and from its use as "structural fill" over

much of the town as a so

- called "beneficial use" of this ash material. Only after a federal lawsui t was filed against NIPSCO, the only recourse available to citizens under Subtitle D of RCRA, did the company provide safe drinking water to some of the town (there still are a significant number of residents who are still dependent upon bottled drinking

w ater) through the EPA's involvement. In April 2000, residents of the town began noticing that their well

- sourced drinking water tasted unusual. So, they reported it to the state, Indiana Department of Environmental Management. Incredibly, IDEM knew for ne arly 30 years that Yard 520 was leaking arsenic and other contaminants to a nearby creek. In addition to contaminating the groundwater of the Town of Pines, the landfill also threatens protected streams in the Indiana National Dunes Lakeshore area.

Contami nated groundwater from Yard 520 flows into Brown Ditch, a creek that flows along the edge of the landfill and eventually into the National Park before discharging into Lake Michigan, two miles from the municipal water source that brings the water back to t he town of the people where they lost their ability to drink safely from their wells. Downstream from the landfill, the creek carries high levels of boron and molybdenum. Indiana National Lakeshore is an especially important feeding and resting area for m igrating land and water fowl. Fish, birds, mammals, all harmed. Our town's experience has clearly demonstrated a need for strict regulation of coal combustion waste as hazardous. We live in a time when large corporations often view environmental regulatio ns as obstacles to greater profits and regulatory fines as the cost of doing business. Few

can be trusted. We need federal action on this now.

Response: EPA decided to regulate the disposal of CCR under subtitle D of RCRA by issuing

minimum national crite ria. Similar to the subtitle C option, this option would require composite liners, groundwater monitoring, structural stability requirements, corrective action, and closure/post closure care. However, given available statutory authorities, EPA proposed thi s333

option to be a self

- implementing rule with no direct federal oversight, with an effective six months after publication in the Federal Register . The Agency is deferring its final Bevill Regulatory Determination with respect to CCRs that are disposed in CC R landfills and CCR surface impoundments until additional information is available on a number of key technical and policy questions, including the risks of CCR disposal based on its arsenic content, such as the appropriate safe daily dose for arsenic and the speciation of arsenic in the environment, and the potential impacts of recent Agency regulations on the chemical composition of CCR. In addition, the Agency needs additional information on state programs before it is in a position to

make a final Bevi ll Regulatory Determination.



### Comment Number: TRANS

- CLT

- 0076

- 1 

### Organization 1 

### : Duke University


### Commenter 1 : Avner Vengosh Commenter Type: Academia

Classification: Substantive



### Comment Excerpt Text: My name is Avner Vengosh, and I'm professor of chemistry and water quality at Duke University and my testimony today is based on the scientific research that my group had been conducted since January 2009, a week after the spill of the TVA ash in Kingston, Tennessee. Research that we've been conducted since the spill was funded only by Duke University and

NSF.

An 18

- month survey of the water quality in the Emory and Clinch River in the vicinity of the 2008 TVA (inaudible) in Kingston has revealed elevated levels of contaminants associated with CCRs including arsenic, selenium, boron, strontium, and barium in surface water, with restrictive (inaudible) and also in coal water that extracted from bottom sediments in the river. Our study has shown that high co ncentration of arsenic, up to 2000 ppb, exceeded that we found in the coal water, and this high concentration significantly exceed the MCL of 10 ppb and (inaudible) which is the ecological threshold of 150 ppb. So we're talking about 2000 ppb level

of arse nic. So we also performed a leaching experiment on the TVA ash and we found, as the literature showed very extensively, similar results showing the high mobility of contaminants if the (inaudible) interaction with CCR with water. The impact of CCR on wat er resources, however, is not restricted to a single accidental, as over 500 power plants nationwide generate approximately 130 million tons of CCR each year. Only in North Carolina, about 1 billion gallons of effluent coming from holding ponds is discharg ed into the environment. This is equivalent to the amount of drinking water in New York city of eight million people every day. We already started to investigate the water quality in (inaudible) and we found alarming evidence for the discharge of affectin g the water quality. The notion that CCR generate a direct threat to the aquatic system through holding ponds, landfill, and even beneficial use (inaudible) what CCR could be (inaudible) interact with ambient environment should become the principal

decisio n

- making criteria for EPA, and this committee in particular. Water resources that are associate could be impacted by CCR should be mandatory regulated by the state and/or EPA with adequate (inaudible) such as are relevant to the CCR, including metals

and metal (inaudible), like arsenic, selenium, boron, and many others.334

Response: See response to comment excerpt EPA

- HQ

- RCRA

- 2009

- 0640

- 07785

- 1.

Section 8.6.2

- Info indicating a damage case does not meet EPA criteria to be proven



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 05751

- 2 

### Organization 1 

### : Savannah River Nuclear Solutions, LLC (SRNS)


### Commenter 1 : Hal W. Morris Commenter Type: Other Company

Classification: Substantive



### Comment Excerpt Text:

Comment Number 2 is on a case in the Table of EPA's Proven Damage Cases on page 35238 of the June 21, 2010 Federal Register. In column one on that page the damage case is listed as "U.S . Department of Energy Savannah River Project." The correct name of the facility is the U. S. Department of Energy Savannah River Site. The brief description includes the sentences "A

coal

- fired plant sluices fly ash to a series of open settling basins . A continuous flow of sluice water exits the basins, overflows, and enters a swamp that in tam discharges to Beaver Dam

Creek. Bull frog tadpoles inhabiting the site have oral deformities . . ." And the basis for consideration as a proven damage case is "Scientific

- Evidence of impacts on several species in a nearby wetland caused by releases from the ash settling ponds." A literature search found that there were several scientific research projects conducted at this site within SRS by the Savannah River Ecology Laboratory over the years. It is difficult to determine if all of the papers written on this subject at this site have been l ocated. It would be helpful and more informative if the EPA would reference scientific papers by title, author and date ; this would allow interested persons the opportunity to review the scientific studies in depth.

The scientific paper that seems to cor relate most closely to the description at FR 35238 is Elevated Trace Element Concentrations in Southern Toads, Bufo terrestris, Exposed to Coal Combustion Waste (1998) W. A. Hopkins, M. T. Mendonca, C. L. Rowe, J. D. Congdon. This study compares "total bod y concentrations of 20 trace elements in adult southern toads inhabiting coal ash settling basins with toads that were not exposed to the combustion wastes (reference)." Also, the study documents "the accumulation of trace elements in toads transplanted fr om reference sites to field enclosures in an ash settling basin." While this study and other similar studies indicate elevated trace elements in organisms exposed to an ash contaminated site, this case does not seem to meet the criteria for a damage case g iven at FR 35146, where it is stated

"Under the Bevill Amendment for the `special waste' categories of RCRA, EPA was statutorily required to examine `documented cases in which danger to human health or the environment

from surface runoff or leachate has b een proved' from the disposal of coal combustion wastes [RCRA Section 8002(n)] ." It is perhaps a fine point, but the ash settling basins at SRS where the referenced studies were conducted are not a coal ash disposal site, and did not involve surface

runof f or leachate . These settling ponds are operated under a National Pollutant Discharge Elimination System (NPDES) permit issued by the State of South Carolina (SCDHEC). All permit limits (to protect the environment) imposed by the state on the discharge fr om this pond system are met consistently . The toads and tadpoles in the referenced studies were developing335

and living within a wastewater treatment system, not a disposal site, nor in surface runoff or leachate . The ash is periodically removed from the s ettling basins and transferred to a permitted landfill . The landfill is monitored by wells located according to the permit issued by SCDHEC for the landfill. The ponds in the area of this ash management system hold abundant wildlife, including various bir ds, frogs, snakes, fish and alligators, as well as a variety of mammals. It is misleading to list this area as a case of proven damage, as it does not meet the criteria established in the preamble discussion of these proposed rules. We respectfully request that it be removed from the table of proven damage cases, or at least, properly reference the applicable scientific papers to allow the documented information concerning study conditions and conclusions to be read by interested persons.

Response: See res ponse to comment excerpt EPA

- HQ

- RCRA

- 2009

- 0640

- 05751

- 2.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06202

- 127 

### Organizatio n 1 

### : American Coal Ash Association (ACAA)


### Commenter 1 : Thomas H. Adams Commenter Type: Trade Association

Classification: Substantive



### Comment Excerpt Text: l. Damage Cases: Health Officials And EPA Have Repeatedly Reported “No Adverse Impact To

Human Health”; Due To Accidental Exposure To Ash Accordingly It Appears That The Alleged CCR “Proven Damage” Cases Cited By EPA Do Not Provide A Sufficient Or Scientific Basis To Propose Ash As Hazardous.

EPA’s supposed motivation to propose federal ash manage ment rules appears to be based on what EPA has termed “proven damage cases”. EPA specifically cites two wet ash impoundment breach/accidents at Kingston, TN (TVA) and Martins Creek, PA and an ash placement project at a golf course, Battlefield, Chesapeake, VA as a few of the largest proven damage cases.

However:

• In March of 2009 PADEP published comments that “a thorough study of the Martins Creek accident found no adverse impacts to the river, wildlife or human health”

• In December 2009 the Tennessee Dept of Health found that at no time did the surrounding water contain metals above primary drinking water standards and there were no significant human health impacts due to the Kingston accident...Oak Ridge Associated Universities also recently confirmed “ no adverse health effects” (NOTE: EPA approved clean

- up disposal of the ash spilled at the Kingston accident site to a Subtitle D landfill)

• April 22, 2010 EPA reported that “Residential wells near the Battlefield Golf Club in Chesapeake, Va. have not be en impacted by the fly ash used to contour the golf course” and...”no adverse health effects are expected from exposure to surface water or sediments on the

site”.336

These findings combined with the fact that hundreds of millions of tons of CCP have been

bene ficially and safely managed at thousands of sites clearly indicate that EPA’s true motivation to propose ash as a hazardous waste is based on political and media appeasement versus

scientific fact.

The two most recent cases identified

-- the Martins Creek a nd TVA Kingston dam failures

-- involved sluicing and/or slurring CCRs into a holding facility. The failures and the resultant environmental impacts were likely due to inadequate construction, inspection, or maintenance of the facilities, including performa nce of ongoing structural analyses and making needed repairs to meet recommended dam safety requirements

EPA has also identified other sites as being potential or proven damage cases. The damage cases cited by EPA including those above are not indicative of CCP beneficial management practices. A careful scrutiny of these damage cases, based on the information provided, indicates that these sites had more than just CCRs placed in them. One case included less than 1% CCPs. It simply

cannot be assumed that th e mere presence of CCRs was the primary environmental risk associated with these sites. Rather, it appears that these sites were like many other sites at which municipal, industrial and hazardous wastes were co

- placed causing environmental problems. Conseq uently, it is disingenuous to cite them as CCR damage cases.

Joe Pizarchik, Director of OSM, recently commented on the proposed rule as follows:

“The risk assessment references a significant number of “mine” sites as datacollection sites, but

fails to cl arify if they are coal mines under the jurisdiction of SMCRA. We are concerned that this lack of information could add confusion to the promulgation of a regulatory program under SMCRA and hamper the beneficial use of CCRs at coal mining sites as envisione d in EPA’s proposal”.

None of these examples are even remotely analogous to the CCR

- CCP management practices adhered to by ACAA member facilities. There have been approximately 4.5 billion tons of CCRs properly managed over the past few decades. The extre mely small number of sites with environmental/structural problems is not indicative of any risk associated with the beneficial use

of CCPs.

Beneficial placement of coal ash at mines in non

- impoundment settings is subject to state and/or federal regulation . Leach tests are required as part of the SMCRA permit application and groundwater monitoring is also necessary to comply with existing state and federal water quality laws. Groundwater monitoring is specifically required by OSM regulation and must be subm itted to the state at least once every three months (see 30 C.F.R. § 816.41(c)). SMCRA regulations require all surface mining activity, including placement of CCPs, to be conducted so as to minimize disturbance of the hydrologic balance in the permit and a djacent area and to prevent material damage to the hydrologic balance outside the permit area (see 30 C.F.R. § 816.41(a)). The Clean Water Act provides additional protection of surface waters through federal and state water quality laws and requires mine o perators to meet strict water quality standards. State water quality programs, along with the Federal Safe Drinking Water Act, offer further groundwater337

protection (see 30 C.F.R. 816.42; 40 C.F.R. Part 434).

The unfortunate TVA ash impoundment accident w as due to a breach or failure of a retention dam/pond wall which caused significant damage to 40 homes, the Emory River, a nearby recreational lake, community roadways, a gas pipeline, and a railroad. However even an accident of this magnitude which may se rve as a true field test of the toxicity of coal ash found “no

adverse health effects”.

Just as it would be illogical to declare water or soil to be hazardous based on the destruction and loss of life caused by dam/reservoir breaches or mudslides...it is un scientific and illogical to declare ash something that it is not...hazardous...based on structural accidents.

True proven damage cases involving citizens shattering bones, becoming paralyzed or sick or even dying can be attributed to mine lands containing dan gerous voids, high walls and abandoned mine streams polluted with acid mine drainage, yet EPA fails to recognize that the beneficial reuse of ash placed in mines, quarries and pits in a regulated manner can and has

eliminated hundreds of these historical t rue “proven damage cases”.

It is unreasonable to make any comparison between the unfortunate TVA ash storage accident to dry CFB ash residue managed in a highly regulated, time tested (safely utilized for over 20 years) environmentally beneficial manner. A regulated effort backed by a vast amount of unbiased scientific data and reports/cases indicating that CCPs are indeed safe and can be a beneficially used by

- product to reclaim previously mine voids and damaged lands and streams.

Response: This rule wil l regulate CCRs under RCRA subtitle D, and the Bevil exemption would be retained for most applications of beneficial use. For further details, see Unit IV of the preamble to this rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06260

- 107 

### Organization 1 

### : Kentuc ky Department for Environmental Protection


### Commenter 1 : R. Bruce Scott Commenter Type: State Government
Classification: Substantive



### Comment Excerpt Text: Specific comments on the three cases are provided.

LG&E Mill Creek, Louisville : Looking at the map on page 60, the shallow groundwater flow is from the surface impoundment to the river. Since LG&E owns the property between the pond and the river, there are no households between the pond and the river and no residents drinking the groundwater. The samples exceeding the MCL for arsenic are from on

- site wells, so any effect on off

- site wells is conjecture without sampling and long

- term trend analyses.

In regard to the statement on Page 61 of "In Harm's Way", related to the lack of KDWM's338

requirement for off

- site sampling, off

- site drinking water well investigations, or on

- site corrective actions. Kentucky has discretion under 401 KAR 45:160, Section 1 to require or not require groundwater corrective action. The rule states: "The requirements of this administr ative regulation apply to owners and operators of ... facilities at which the cabinet determines groundwater and surface water monitoring shall be required, and special waste sites or facilities required to perform corrective action as a result of document ed groundwater contamination." The pond is a permit

- by

- rule under 401 KAR 45:060, that is, the pond has a permit as long as its KPDES (NPDES) permit is current. The owner or operator is currently not required to monitor groundwater. The data quoted in the report is from the landfill permit. The purpose of this proposed rule is to make such corrective action necessary for surface impoundments as well as

landfills.

Most of the wells shown within a two mile radius of the plant are most probably inconsequentia l. The predominant direction of flow is to the river, so only the wells next to the Ohio River downgradient from the plant may be of some interest and those are most likely industrial wells.

Households in the Louisville

- Jefferson County Metro neighborhood are connected to municipal drinking water lines.

Tennessee Valley Authority

- Shawnee Fossil Plant, Paducah : The map on page 66 shows most wells to be upgradient from the disposal area. There are 3

- 6 side gradient or downgradient, at most. The metadata in the GIS database may not be reliable and most of these wells are likely monitoring wells.

The plant is downgradient from U.S. DOE Paducah, a heavily contaminated site involved in

extensive state and federal clean

- up efforts and domestic use of groundwate r is highly unlikely. For more info, see http://www.epa.gov/region4/waste/npl/nplky/paducaky.htm

As with the first case, the exact nature of each of the six down or side gradient wells must be investigated before any final conclusions may be reached. Most of the shallow groundwater impact appears to be to the Ohio River.

Eastern Kentucky Power Cooperative

- Spurlock Station, Maysville : There only appears to be one residential well downgradient from the landfill within the two mile

radius. This well needs to be investigated for its actual use, as it appears it may be on plant property. The data from the sidegradient well is not presented. Use of a side gradient well is scientifically defensible when no accessible areas exist for an upgradient well.

Respons e: Some of the information included in the comment, as well as EPA’s damage case records suggest that KDEP’s regulatory requirements and/or their enforcement are lacking. Examples include unlined CCR management units, no groundwater monitoring requirements

, and Kentucky’s permitted groundwater standard for arsenic, 0.050 ppm, which is five times less stringent than the national standard of 0.010 ppm. Specifically:

Mill Creek Station

– Louisville Gas &Electric : The comment states that “The samples exceeding

the MCL for arsenic are from on

- site wells, so any effect on off

- site wells is conjecture without sampling and long

- term trend analyses,” then proceeds to say that “The owner or operator is339

currently not required to monitor groundwater.” In addition, the fact that assessment monitoring for sulfate is currently required, and KDEP is currently evaluating the information on Chloride exceedance suggest that presently the design and/or operation of the site’s CCR management

units are deficient.

TVA Shawnee Fos sil Plant, Paducah : There are allegations about MCL exceedances at the site of arsenic, selenium, and beryllium, of a HAL for boron, and of SMCLs for cobalt, nickel, molybdenum, vanadium, sulfate, manganese, TDS, and pH. Groundwater assessment was performe d at the site in the 1980s, but no KDWM enforcement action has taken place since. In 2007, KDWM permitted the expansion of the site’s CCR landfills without a liner (as “special waste landfills”), over old, unlined ash ponds.

Eastern Kentucky Power Coopera tive

- Spurlock Station : Eastern Kentucky Power Cooperative (EKPC) has been directed by the KDWM to conduct an assessment in monitoring wells MW

- 2A

& MW

- 3A, to determine the cause for the detection of arsenic in MW

- 3 at a concentration exceeding the permit limit. KDWM did require a Remedial Action Plan (RAP) under its regulations; the plan has been approved and EKPC has implemented it. The RAP concluded that the migration of arsenic is impeded by natural attenuation; however, out of abundant caution, the

RA P proposed as a remedy the collection of leachate from the site’s active CCR landfill.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06298

- 49 

### Organization 1 

### : Tennessee Department of Environment and Conservation (TDEC)


### Commenter 1 : Paul L. Sloan Commenter Type: State Government
Classification: Substantive



### Comment Excerpt Text: Recent publications by environmental groups present alleged cases of groundwater damage caused by CCR impoundments and landfills. These reports include six sites in Tennessee. Five of

Ten nessee's sites are TVA Fossil Plants that are located on major rivers. The department requires groundwater monitoring at these sites. Instances of groundwater contamination related to the management of CCRs have been identified at the sites. However, no im pact to groundwater on adjacent property has been identified at any of these sites. The direction of groundwater flow at each site has been determined and does not present danger to private property adjacent to the sites. Given the concentrations of ground water contaminants and the rates of groundwater flow, the department 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.

Response: EPA’s records reveal only three Kentucky coal

- fuel power plants associated with damage cases

that can be tracked to In Harm’s Way , the August 2010 report by the Environmental Integrity Project, Earthjustice, and Sierra Club. EPA’s concerns about KDEP’s regulatory oversight of these sites are laid out in the response to comment excerpt EPA

- HQ

- RCRA

- 2009

- 0640

- 06260

- 107.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06360

- 80 

### Organization 1 

### : ARIPPA


### Commenter 1 : Jeff A. McNelly340

Commenter Type: Trade Association

Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: However, in March of 2009 PADEP published comments that “a thorough study of the Martins Creek accident found no adverse impacts to the river, wildlife or human health.” Similarly, in December 2009, the Tennessee Department of Health and Environment found that at no time did the surrounding water contain metals above primary drinking water standards and there were no significant human health impacts due to the Kingston ac cident. Oak Ridge Associated Universities also recently confirmed “no adverse health effects from the Kingston impoundment failure. (Further, EPA approved disposal of the ash spilled at Kingston to a Subtitle D landfill) On April 22, 2010, EPA reported tha t “Residential wells near the Battlefield Golf Club in Chesapeake, Va. have not been impacted by the fly ash used to contour the golf course” and...”no adverse health effects are expected from exposure to surface water or sediments on the

site”.

Response: S ee response to comment excerpt EPA

- HQ

- RCRA

- 2009

- 0640

- 06298

- 16.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06526

- 4 

### Organization 1 

### : Utility Solid Waste Activities Group (USWAG)


### Commenter 1 : Jim Roewer Commenter Type: Trade Association

Classification: Substantive



### Comment Excerpt Text: [USWAG Appendix 24: Commonwealth of Pennsylvania, Department of Environmental Protection, Southwest Region, October 13, 2010 Report: "Review of the Environmental Integrity Project and Earthjustice Report: “Out of Control: Mounting D amages From Coal Ash Waste Sites,” for the sites:

Mitchell Power Station Seward Generating Station Phillips Power Station/Landfill Fern Valley Disposal Site]

Response: For a rebuttal to PADEP’s review of the February 2010 Out of Control, addressing the

Mi tchell Power Station site, Seward Generating Station site, Phillips Power Station/Landfill, and the Fern Valley Disposal Site, see discussion of the cited sites in the technical support document on damage cases in the docket to the final rule.



### Comment Nu mber: EPA

- HQ

- RCRA

- 2009

- 0640

- 06851

- 17 

### Organization 1 

### : American Electric Power (AEP)


### Commenter 1 : John M. McManus Commenter Type: Electric Utility Company341

Classification: Substantive



### Comment Excerpt Text: AEP's two "Proven" damage cases and one "Potential" damage case should be removed from USEPA's July 9, 2007 list of 27 Proven and 40 Potential damage cases.

Since CCRs do not meet any of the four characteristics of hazardous waste ignitability,

corrosivi ty, reactivity, AEP has two cases on the list of USEPA's "proven" damage cases

- Welsh reservoir and Brandy Branch reservoir

- and one case on the "potential" damage case list

- the Conesville Fixed FGD Sludge landfill in Ohio. None of these three cases sh ould be included on USEPA's damage case list

The Welsh reservoir serves the Welsh electric generating plant and is a 1,465 acre cooling pond constructed in 1976.. The pond originally received effluent from ash impoundments prior to

2000.. The ash handlin g procedures were then modified to eliminate the discharge of decant water to the cooling reservoir. A consumption advisory for fish caught in the cooling pond was issued in 1992 stating that selenium concentrations in fish tissue exceeded a level of 2 mg/ kg which was used, at that time, as the "standard" The derivation of this "standard" was questionable.. A more scientific risk study prepared by the Texas Department of Health (TDH) entitled "Quantitative Risk Characterization, Welsh Reservoir, Titus Count y, Texas" dated September 29, 2003 established a health

- based assessment comparison (HAC) for fish tissue residue concentration (TRC) of 6 mg selenium/kg of fish tissue. For all samples collected over 17 years, the mean selenium fish tissue concentration w as 3..6 mg/kg with only one sample exceeding the 6 mg/kg TRC Based on these data, the TDH concluded that the amount of selenium ingested from expected meal quantities is equivalent to unlimited consumption of fish

from this reservoir. The selenium fish con sumption advisory subsequently was lifted by the TDH on October 14, 2003. Based on the above discussion, this case should have never been listed as a proven damage case and should be removed from USEPA's list

A situation virtually identical to that of th e Welsh reservoir is the Brandy Branch reservoir.. This reservoir was built in 1983 and is a 1,257 acre cooling pond serving the Pirkey electric generating plant Initially, coal pile runoff was discharged into the reservoir but was subsequently

diverted to the flue gas desulfurization system. A fish consumption advisory was issued for the Brandy Branch reservoir in 1992 in conjunction with the advisory issued for the Welsh reservoir. Like Welsh, the advisory was based on the questionable "standard" of 2 mg/ kg of fish tissue and, like Welsh, a more scientific risk study prepared by the Texas Department of Health (TDH) entitled "Quantitative Risk Characterization, Brandy Branch Reservoir, Harrison County, Texas" dated September 29, 2003 established a health

- ba sed assessment comparison (HAC) for fish tissue residue concentration (TRC) of 6 mg selenium/kg of fish tissue.. The mean selenium concentration for fish tissue in samples collected from the Brandy Branch reservoir over 17 years was 2.23 mg/kg. The highest mean never exceeded the TRC.. The TDH again concluded that the amount of selenium ingested from expected meal quantities is equivalent to unlimited consumption of fish from the Brandy Branch reservoir.. The 1992 fish consumption advisory was lifted by TDH on October 14, 2003 based on the more accurate and scientific risk characterization described above.. Based on the above facts, this case should have never been listed as a proven damage case and it too should be removed from USEPA's damage case list342

Th e Conesville Fixed FGD Sludge landfill was constructed in 1976 and covered about 50 acres. It was closed, capped, and seeded in 1988, almost 23 years ago.. Groundwater monitoring data from 34 groundwater monitoring wells around this facility when it was ac tive had been analyzed by USEPA pursuant to the 1988 Report to Congress.. From analyzing two sets of groundwater data, USEPA identified exceedances of Primary Drinking Water Standards (PDWS) for arsenic, cadmium, selenium, and chromium USEPA stated that th e selenium exceedances were due to upgradient sources. Arsenic and cadmium were present in on

- site wells only.. Lead and chromium were the only metals that exceeded the PDWS in off

- site wells. Shortly thereafter, the filtrate from the FGD sludge stabilizat ion process, believed to be a possible source of cadmium, was routed to the thickener tanks. Subsequently, groundwater monitoring was performed for an additional six years. Results indicated that only one of 482 samples for arsenic exceeded the PDWS.. Only six of 520 samples exceeded the PDWS for chromium, and five of the six exceedances occurred on one of the 25 sampling events. Seventeen of 582 samples exceeded the PDWS for lead, and all of those exceedances occurred on three of the 25 sampling events. No samples exceeded the cadmium PDWS.. Based on the above data, along with USEPA's statement that there is limited potential for off

- site migration of contaminants (and the fact that this landfill has been closed and capped for almost 23 years) this site sho uld be removed from USEPA's list of potential damage cases.

Response: EPA’s records on the three sites cited by the commenter are summarized below.

Welsh Reservoir: The Welsh reservoir still had depressed f ish populations in 2007, despite changes in ang ler harvest regulations and artificial stocking to enhance standing crop and diversity of species. 1 Whereas in September 2003 the Texas Department of Health set a whole

body selenium threshold of 6

- μg/g for fish and as a result the state of Texas has resci nded the reservoir’s fish advisory, the documented Tissue Residue Concentration selenium levels in fish at the Welsh Reservoir have exceeded the recommended allowable levels (4

- μg/g for fish) established by two of the leading fish biologists in the U.S. 2 Therefore, the EPA still considers this site as a proven damage case.

Brandy Branch Reservoir: From 1986 to 1989, the Texas Parks and Wildlife Department reported that average selenium concentrations in fish from the Brandy Branch Reservoir

increased fro m 0.81 to 2.29mg/kg. However, these selenium data are challenged by Dennis Lemly, a prominent fish biologist: <Texas Parks and Wildlife determined that during 1986

- 2003, Texas Department of Health reviewed all data from fish monitoring over an 18

- year peri od (1986

- 2003) and determined that the average concentration was 8.92 ppm dw. The levels found (8

- 11 ppm) are within the range associated with impaired blood chemistry and health indicators, teratogenic deformities, and reproductive failure in the same spe cies naturally exposed to coal

1 D ennis Lemly, Comment to the docket: EPA

- HQ

- RCRA

- 2009

- 0640

- 6313, Appendix I. Lemly (2010)

estimated the monetized damage value of the Welsh Lake fish consumption advisory at over $161 million.

2 Both Lemly (1993) and Hamilton (2003) agree tha t studies continue to support the dietary selenium threshold of 3

- μg/g and the whole

- body selenium threshold of 4

- μg/g for fish. While EPA proposed (in 2004 ) a final chronic value

for selenium of 7.91

- μg/g dry weight whole body tissue concentration, this rule has not been finalized.343

ash discharges at other locations.> Lemly estimated the monetized value of damage at over $108

million. Whereas in September 2003 the Texas Department of Health set a whole

- body selenium

threshold of 6

- μg/g for fish and as a result it rescinded the 1992

- issued reservoir’s fish advisory,

the documented Tissue Residue Concentration selenium levels in fish at the Welsh Reservoir have exceeded the recommended allowable levels (4

- μg/g for fish) established by two of the leading fis h biologists in the U.S. Therefore, the EPA still considers this site as a proven damage

case.

Conesville Fixed FGD Sludge landfill, Ohio: The commenter cites information indicating MCL exceedances in
onsite and offsite monitoring wells. A detailed 1984 E PRI study documented the circumstances leading to
groundwater impact as follows: t he emergency FGD sludge pond, operated since January 1977 in
conjunction with the sludge management system, received filtrate water produced during vacuum
filtration of the r aw thickened FGD sludge. This filtrate is believed to be the principal source of cadmium
concentrations in local groundwater which exceeded the respective PDWS limit. After 20

- months of
operating while unlined, the emergency FGD sludge pond was lined with fixed sludge. However, the liner
was disrupted whenever unfixed sludge which had collected in the pond was excavated using a front

- end
loader, and the damage was not always repaired before the pond was reused. The fact that the site has
been capped for ove r 25 years does not change the record that cadmium exceedances have taken place
due to a poorly designed CCR management unit.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06865

- 16 

### Organization 1 

### : Constellation Energy


### Commenter 1 : Charlene Zaruba on behalf of Paul Allen Commenter Type: Electric Utility Company

Classification: Substantive



### Comment Excerpt Text: IV. The BBS Sand and Gravel Quarry Asserted Damage Case

- Evidence that Subtitle C Regulation of CCRs Is Not Needed Further illustrating two key points, that Subtitle C regulation is not needed and that states are capable of fulfilling an enforcement role, EPA should correct the record with respect to one of the newly asserted damage cases, BBSS Quarry in Gambrills, Maryland (“BBSS Quarry"). The

Bevill Ame ndment requires EPA to examine cases of "proven danger" to human health or the environment from the disposal of coal combustion waste. Because EPA relies upon damage cases to support its assertion that the proposed CCR rulemaking is needed, accuracy is imp ortant. Determination of a 'proven danger" must not be made lightly. Instead, EPA's policy and the law require the agency to use valid facts and sound science when assessing damage cases. Without the application of science, an asserted damage case cannot l egally support any reversal of the

Bevill determination for CCRs under Subtitle C of RCRA. The localized environmental issues associated with the BBSS Quarry did not cause harm to human health and are being corrected without the need for EPA action; there fore the BBSS Quarry facts do not support any need for Subtitle C regulation. EPA relied on misleading information and inaccuracies, and failed to apply any scientific analysis when it re

- designated the BBSS Quarry as a damage case, a change from that site 's previous designation as

·indeterminate." The record shows that EPA based its re

- designation of the BBSS Quarry largely344

on a one·page summary from 2007 (2007 fact sheet), without any scrutiny of the data or evaluation that the conditions were capable of posing actual danger. As a result, EPA has published a misleading summary of the BBSS Quarry conditions that severely overstates the environmental conditions associated with CCRs. The data do not show a "proven danger," and no state or local agency made th e required explicit finding of specific damage. Therefore EPA satisfied neither the scientific nor administrative criterion for damage cases. EPA's decision in the BBSS Quarry re

- designation was "just in time" for use to support EPA's new regulatory propo sals. In fact, EPA's determination on the BBSS Quarry site was rolled into the CCR proposal text. EPA should reverse this last

- minute damage case re

- designation because EPA neither followed its own procedures nor conducted a sufficient investigation to mee t its burden of proof. Although the 2007 fact sheet suggests the presence of contamination in "approximately one

- half of the wells," this fact sheet does not offer a conclusion with respect to CCRs or find proven damage. Instead, the fact sheet explains t hat "[t]he actual number of wells affected by fly ash is undetermined since some of the sample results may reflect natural minerals in the area." Some data are explicitly explained as reflecting sources unrelated to the ash (such as lead from pipes).

The fact sheet mentions the "presence" of arsenic in four wells near the coal ash placement, but does not allege that the levels exceeded regulatory standards. The same fact sheet explains that the "trace metals' beryllium, cadmium and nickel have not been sho wn to increase cancer risk through drinking water. In short, the 2007 fact sheet does not support any conclusion that half of the wells sampled by the county, or that some other high number of wells, were impacted in any way by CCRs. When

all of the innue ndo or misinterpretation is peeled away, the relevant data set is composed of four wells located just beyond the boundary of one of the BBSS pits. These wells did show one or more marginal exceedances of primary drinking water standards; however, the data was variable and the extent to which background or the mining conditions contributed to these concentrations is scientifically unconfirmed. Importantly, EPA should consider the degree to which an MCL was exceeded, as well as the short duration of any poten tial exposure, both of which helped to prevent actual damage. Regardless of whether or not this particular site meets EPA's criteria for a damage case, the BBSS Quarry facts do not support the need for federal regulation under Subtitle C of RCRA. Instead, the BBSS Quarry serves as an example of a controlled and regulated activity. At this site, the operators were required to obtain permits, monitor the groundwater, make corrections, and protect human health and the environment. Although the record does not evidence any damage to human health, the record does show that: 1) groundwater was monitored to prevent any harm; and 2) state authorities had ample regulatory authority to address any environmental issues. Under the three areas of analysis that EPA appli es to damage cases, including an assessment of the extent of damage, extent of risk, and the adequacy of state programs, the evidence does not support any need for the extraordinary measure of subjecting CCRs management to Subtitle C regulation.

Attachmen t A to these comments includes a more complete discussion and analysis of the BBSS Quarry issues, including information regarding: 1) the site; 2) how EPA's damage case evaluation process was inadequate; 3) analysis of why the damage case criteria (both sc ientific and administrative) were not proven; and 4) how application of EPA's three criteria for assessing damage cases show that the BBSS Quarry facts do not support selection of Subtitle C regulation

of CCRs.345

Response: This rule will regulate CCRs under RCRA subtitle D: for further details, see unit IV of the preamble to the final rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06865

- 17 

### Organization 1 

### : Constellation Energy


### Commenter 1 : Charlene Zaruba on behalf of Paul Allen Commenter Type: Electric Utility Company

Classification: Substantive



### Comment Excerpt Text:
THE BBSS SAND AND GRAVEL QUARRY ASSERTED DAMAGE CASE EVIDENCES

THAT SUBTITLE C REGULATION OF CCRS IS NOT NEEDED.

A. Introduction EPA should correct the record with respect to on e of the newly asserted damage cases, BBSS Quarry in Gambrills, Maryland ("BBSS Quarry"). The Bevill Amendment requires EPA to examine cases of "proven danger" to human health or the environment from the disposal of coal

combustion waste. 2 Because EPA reli es upon damage cases to support its assertion that the proposed CCR rulemaking is needed, accuracy is important. Determination of a ·proven danger" should not be taken lightly. Instead, EPA's policy and the law requires the agency to use valid

facts and so und science when assessing damage cases. Without the application of science, an asserted damage case cannot legally support any reversal of the Bevill determination for CCRs

under Subtitle C of RCRA.

The localized environmental issues associated with the BBSS Quarry did not cause harm to human health and are being corrected without the need for EPA action; therefore the BBSS Quarry facts do not support any need for Subtitle C regulation. EPA relied on misleading information and inaccuracies, and failed to apply any scientific analysis, when it re

- designated the BBSS Quarry as a damage case, a change from that site's previous designation as

"indeterminate." A re

- designation should be based upon further investigation, to provide a basis for EPA's change in po sition. However, the record shows that EPA based its re

- designation of the BBSS Quarry largely on a one

- page summary from 2007 (2007 fact sheet), without any scrutiny of the data or whether the conditions were capable of posing actual danger. As a result, EPA has published a misleading summary of the BBSS Quarry conditions that severely over

states the environmental conditions associated with CCRs. The data does not show a 'proven danger," and no state or local agency made the required explicit finding of s pecific damage. Therefore, EPA satisfied neither the scientific nor administrative criterion for damage cases. EPA's decision in the BBSS Quarry re

- designation was "just in time" for use to support EPA's new regulatory proposals. In fact, EPA's determinat ion on the BBSS Quarry site was rolled into the proposal text. EPA should reverse this last

- minute damage case re

- designation because EPA has not followed its own procedures or conducted a sufficient investigation to meet its burden of proof. Regardless o f whether or not this particular site meets EPA's criteria for a damage case, the BBSS Quarry facts do not support the need for federal regulation under Subtitle C of RCRA instead, the BBSS Quarry serves as an example of a controlled and regulated activity . At this site, the operators were required to obtain permits, monitor the groundwater, make corrections, and protect human health and the environment. Although the record does not evidence any346

damage to human health, the record does show that: 1) groundwa ter was monitored to prevent any harm; and 2) state au1horities had ample regulatory authority to address any environmental issues. Under the three areas of analysis that EPA applies to damage cases, including an assessment of the extent of damage, extent of risk, and the adequacy of state programs, the evidence does not support any need for the extraordinary measure of subjecting CCR management to Subtitle C regulation. The evidence does not support any need for the extraordinary measure of subjecting CCR management to Subtitle C regulation.

Response: This rule will regulate CCRs under RCRA subtitle D: for further details, see unit IV of the preamble to the final rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06883

- 25 

### Organization 1 

### : Headwaters Resources, In c. 

### Commenter 1 : William H. Gehrmann Commenter Type: Beneficial User

Classification: Substantive



### Comment Excerpt Text: EPA's proposal to exclude large scale fill projects from exempt beneficial use, and to consider the Battlefield Golf Course project to be a "damage case" instead of legitimate beneficial use is not supported by EPA Region 3's study of the Battlefield Golf Course and its conclusion that the use of fly ash there is not the source of groundwater and surface water contamination.

In the proposed rule, EPA refers to the use of fly ash as fill in the building and contouring of the Battlefield Golf Course in Chesapeake, Virginia. EPA says that it is including this golf course project as one of the "potential damage cases" which support its view that large scale structural fill operations should be regulated as disposed fly ash instead of being exempt from regulation as beneficial use. See 75 Fed. Reg. at 35231 (June 2 1, 20 10). This position is directly at odds with EPA Region 3's study of the Battl efield Golf Club site. Region 3, through its contractor Tetra Tech, conducted an extensive site inspection of the Battlefield Golf Club site, and issued a 285 page report on April 16, 20 10 that can be found at the following link: http://www.epa.gov/reg3hs cd/Currentissues/finalr

- battlefield_golf_club_site/11

- 9

- 10_redacted_DTN_0978_Final_Battlefield_SI_Report.pdf. This "EPA Report" demonstrates that there is no documented damage from the use of the amended fly ash in the construction of the

Battlefield Golf Course.

EPA's contractor investigated the golf course site and surrounding areas, including potential impacts at residential wells and surface exposure areas. Wells were tested before and after construction of the golf course. The EPA Report concluded:

• "The residential well data reviewed as part of this S1 [site inspection] indicates that metals are not migrating from the fly ash to residential wells." (EPA Report, at 39)

• "Metal concentrations were not significantly above background, MCLs or action levels in the deeper groundwater monitoring wells, so based on the data it does not appear the metals are migrating vertically at this time." (Id.)347

• "Metal contaminants were below MCLs and Safe Drinking Water Act (SDWA) action levels in

all residential w ells that EPA tested, except for lead... but the lead does not appear to be from the fly ash.” (Id. at 40)

• "There are no adverse health effects for humans expected from human exposure to surface

water or sediments on the Battlefield Golf Course site as the metal concentrations were below the ATSDR standards for drinking water and soil. Additionally, the sediments samples in the ponds were below EPA BTAG [freshwater] screening levels and are not expected to pose a threat to ecological receptors." (Id.)

I n that regard, it is important to note that the Battlefield Golf Course was constructed with amended fly ash and not simply 100% fly ash. The amendment process further inhibits the already low leaching potential of fly ash.

Response: assessed against EPA’ s test

- of

- proof criteria, the Battlefield Golf Course site is a potential damage case because there were exceedances of SMCLs in both on

- site and offsite groundwater (in nine residential wells). Subsequently, Dominion Virginia Power funded the hookup of th e neighboring residential division to the water supply system of the City of Chesapeake.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06917

- 24 

### Organization 1 

### : Texas Commission on Environmental Quality (TCEQ)


### Commenter 1 : Tangela Niemann on behalf of Mark R. Vickery Commenter Type: State Government

Classification: Substantive



### Comment Excerpt Text: With regard to the extent of existing damage cases and risks posed by the mismanagement of CCRs, Texas has had releases from coal ash ponds. In the late 70s and ear ly 80s surface releases of selenium from coal ash ponds impacted fish populations. The proposal identifies surface releases of selenium from three Texas facilities: Texas Utilities Electric Martin Lake Reservoir, Brandy Branch Reservoir, and Southwestern E lectric Power Company Welsh Reservoir. These incidents resulted in placement of a fish advisory by the Texas Department of State Health Services (TDSHS) on these reservoirs in 1992. The TDSHS, Texas Parks and Wildlife Department (TPWD) and the utilities wo rked cooperatively to monitor selenium levels in fish tissue. The TDSHS rescinded the fish advisory at all three locations on October 6, 2003.

Response: EPA’s response to comment excerpt EPA

- HQ

- RCRA

- 2009

- 0640

- 06851

- 17 addresses the Brandy Branch and Welsh Reservoirs. In Martin Lake Reservoir, u npermitted discharges from two fly ash settling ponds between September 1978 and May 1979 resulted in elevated levels of selenium in the lake’s water (an average of 2.6μg/L, a range of 1 to 34μg/L) and fish (in 1979, selenium concentrations in bass ranged from 7.1 to 8.3 mg/kg.) Within two years, the biomass of plankton

- fed fish declined by over 90 percent. Whereas in September 2003 the Texas Department of Health set a whole

- body selenium threshold of 6

- μg/g for fish and as a result the fish advisory was rescinded for all the three sites, the documented Tissue Residue Concentration348

selenium levels in fish at these three reservoirs have exceeded the recommended allowable levels (4

- μg/g for fish) established by two of th e leading fish biologists in the U.S. 3 Therefore, the EPA still considers these sites as proven damage cases.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06990

- 1 

### Organization 1 

### : Miltech Energy Services, Inc.


### Commenter 1 : Brian F. Miller Commenter Type: Other Company

Classification: Substantive



### Comment Excerpt Text: I am a professional engineer in the states of PA, WV and OH. I have been involved with CFB waste coal projects in PA, WV and Utah for the past 20 years. I have permitted those sites for

bene ficial use of coal ash and I have excavated the coal refuse and replaced the coal refuse with CFB ash. No doubt, we have made some mistakes in our laboratory analysis of water samples (that were later used to support the contention that CFB ash is hazardou s). Notwithstanding those laboratory analysis mistakes, my experience is that the environment after placement of CFB ash is orders of magnitude better than before removal of the coal refuse and placement of the ash. There is no more clear example of this t han at the Revloc, PA site. Brian F. Miller, P.E.

Response: Thank you for your comment. As explained in Unit III of the preamble to the final rule, the Revloc site coal ash placement in an Acid Mine Drainage abatement project is outside the scope of the f

inal rule because it involved minefilling.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06991

- 14 

### Organization 1 

### : East Kentucky Power Cooperative (EKPC)


### Commenter 1 : Jerry Purvis Commenter Type: Electric Utility Company

Classification: Substantive



### Comment Excerpt Text: Rebuttal: In Harm's Way

EKPC would also like to take this opportunity to correct several inaccuracies contained in the document "In Harm's Way: Lack Of Federal Coal Ash Regulations Endangers Americans And Their Environment" dated August 26, 2010 produced by the Environmental Integrity Project, Earthjustice and the Sierra Club, Jeff Stant, Project Director, Editor and Contributing Author.

These inaccuracies include:

3 Both Lemly (1993) and Hamilton (2003) agree that studies continue to support the dietary selenium threshold of 3

- μg/g and the whole

- body selenium threshold of 4

- μg/g for fish. While EPA proposed (in 2004) a final chron ic value

for selenium of 7.91

- μg/g dry weight whole body tissue concentration, this rule has not been finalized.349

 The aerial map (p. 69) does not show the correct location of the monitoring w ells for the Spurlock landfill. MW

- l is shown in the location of MW

- 2, MW

- 2 is shown in the

location ofMW

- 3, and MW

- 3 is shown in the location of MW

- l.

 The reference well, MW

- I, is located side

- gradient to the fill Areas in a location that is

unaffected by landfill operations, as required by Kentucky regulations.

 MW

- 2 and MW

- 3 are located down

- gradient of Areas A and B, respectively, within the permit boundary.

 Area C will be located down

- gradient of Areas A and B. When Area C is constructed,

MW

- 2 and M W

- 3 will be removed and replaced by MW

- 2A and MW

- 3A, which will be

down

- gradient from Areas A, B and C in the direction of documented groundwater flow.

 The permitted groundwater standard for arsenic is 0.050 ppm, not 0.010 ppm.

 The results of groundwater sampling do not indicate the presence of contamination in

MW

- I, MW

- 2 or MW

- A

 EKPC has been directed by the Kentucky Division of Waste Management to conduct an

assessment to determine the cause of the detection of arsenic in MW

- 3 at a concentration

exceed ing the permit limit. The assessment is expected to be completed by the end of the

year.

 Although MW

- 2A and MW

- 3A have not been fully developed, preliminary sampling of

MW

- 2A does not indicate the presence of contamination.

 There is no demonstrated impact to groundwater beyond the permit boundary.

 The map (p. 73) shows a drinking water well within the plant boundary. No drinking water well exists on the site. The groundwater at the site is not used as a drinking water

source

.

 The total permitted area is 389 acres of which 177 acres are designated for fill. The horizontal expansion of Area C as permitted in 2005 is 54.48 acres.

OTHER PERTINENT INFORMATION:

 The landfill and the groundwater monitoring system are permitted by t he Kentucky Division of Waste Management pursuant to the requirements of 401 KAR Chapter 45.

 The area of groundwater flow on the map provided in the document (p. 73) is away from the depicted drinking water wells.

 EKPC has followed all design requirement s in force at the time of development of each phase of the landfill.

 There are no drinking water wells within one mile of the permit boundary as required by the permit conditions.

 EKPC conducts surface water monitoring as required by its permit, and the sample results do not indicate any contamination of surface water.

Response: Thank you for your comment. The East Kentucky Power Cooperative’s (EKPC) Spurlock site is addressed in the technical support document on damage cases that is included

in the dock et of the final rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08225

- 13 

### Organization 1 

### : Minnesota Power (ALLETE)


### Commenter 1 : Michael G. Cashin Commenter Type: Electric Utility Company

Classification: Substantive350



### Comment Excerpt Text: Also, in the proposed CCR Rule, EPA has cited concerns about the December 22, 2008, TVA Kingston facility coal ash spill impacts on health and the environment. The accidental spill involved release of about 1.1 billion gallons of coal ash slurry to about 3 00 acres of land, including the Emory and Clinch Rivers. It is noteworthy that in April 2010, that the Tennessee Department of Health (TDH), Agency for Toxic Substances and Disease Registry conducted a thorough study of this incident and released a stateme nt that found, based on sampling results from all agencies, the TDH is confident that:

 No harm to health should have occurred from touching the coal ash.

 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.

 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.

 Municipal drink ing water from the Kingston and Rockwood water treatment plants has not shown any contamination from the coal ash release since sampling began on December 23, 2008 (the day after the coal ash spill).

 Private well and spring water within 4 miles of the coa l ash release have not shown any

contamination from the coal ash.

 Concentrations of PM10 and PM2.5 have consistently been below EPA regulatory limits since air sampling began on December 31, 2008. Metals in air have consistently been within background lev els 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 harm people’s health.

 Concentrations of radionuclides are below the regu latory limits for concentrations of radionuclides in air and water that are protective of public health. Since the Kingston facility coal ash spill, EPA has also performed inspections of electric generating unit coal ash impoundments across the country, including those in Minnesota at MP’s electric generating facilities (May and September of 2010) and found t hat the integrity of impoundments (dikes) is in good order.

Response: See response to comment excerpt EPA

- HQ

- RCRA

- 2009

- 0640

- 06298

- 16.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08227

- 55 

### Organization 1 

### : Gypsum Association


### Commenter 1 : Michael Gardner
Commenter Type: Trade Association

Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:

Other Sections: 8.1 

### Comment Excerpt Text: 1. The Damage Cases Are Unrelated to FGD Gypsum351

EPA references 27 cases of proven damages to gro undwater and surface water and 40 cases of potential damage to support the proposed changes to the RCRA regulations. 75 Fed. Reg. at 35143. All of the damage cases involve disposal sites where CCRs have been placed in different types of waste management fa cilities. Yet, none of the referenced damage cases involve FGD gypsum. The only damage case that even mentions FGD material is Case Study #63: Conesville Fixed FGD Sludge Landfill, Ohio. See Coal Combustion Waste Damage Case Assessments, U.S.

Environmental Protection Agency, 54 (July 2007), Docket No. EPA

- HQRCRA

- 2006

- 0796

- 0015. At the Conesville site, FGD sludge was used in an attempt to stabilize fly ash. Originally, EPA did not include this site as a potential damage case because there was inconclusive e vidence documenting a potential threat to the environment from the impoundment. Id. at 54

- 55. After further review, EPA added the site due to the environmental concerns arising from the facility's continued disposal of fly ash, not FGD sludge or gypsum, in the landfill. Id. Groundwater monitoring wells up and down gradient were used to evaluate potential environmental impacts. Id: However, since selenium was found in both up gradient and down gradient wells, selenium levels were attributed to background con centrations. Id. EPA does not present any information about the impact of individual CCR sources within the landfill and provides no indication or suggestion that FGD gypsum is of any potential concern.

It is noteworthy that the plethora of potential dama ge cases giving rise to EPA's concern that CCR environmental risks merit regulation is bereft of any evidence suggesting FGD gypsum presents an environmental problem. In light of the substantial and detailed review by EPA spanning many years of intensive a nalysis, the total absence of any data connecting FGD gypsum to any damage cases is revealing and striking and serves to further support and bolster the Gypsum Association's position that FGD gypsum should not be regulated under RCRA. Response: This rule w ill regulate CCRs under RCRA subtitle D, and the Bevil exemption is retained for most applications of beneficial use, FGD gypsum included. For further details, see Unit IV of the preamble to this rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08244

- 16 

### Organ ization 1 

### : Edison Mission Energy, LLC


### Commenter 1 : Basil G. Constantelos Commenter Type: Electric Utility Company

Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: a. Neither The TVA Spill Nor EPA’s Response Demonstrates That CCRs Themselves Pose A

Hazard To Human Health Or The Environment EPA relies almost exclusively on the TVA spill to argue that CCR waste management units pose significant risks to human health and the environment [Footnote 1 62: Id. at 35,173.]. However, the Agency’s own conduct in handling the cleanup effort at the TVA facility in Kingston undermines its assertion that coal ash ought to be regulated as a hazardous waste under RCRA Subtitle C. In July 2009, EPA approved TVA’s plan to transfer an initial three million cubic yards of CCRs from the site of the spill to the Arrowhead Landfill in Perry County, Alabama [Footnote 163: News Release, U.S. EPA Region 4, EPA Approves Plan for Disposal of Coal Ash352

from TVA Kingston Site at the Arrowhead Landfill in Perry County, Alabama, (July 2, 2009).]. The Arrowhead Landfill is a Subtitle D landfill used primarily for MSW. Furthermore, EPA’s Administrative Order on Consent (“AOC”) with TVA requires only that coal ash be disposed of

in ac cordance with the most stringent protective disposal standards for MSW landfills [Footnote 164: Administrative Order and Agreement on Consent at 18, In re TVA Kingston Fossil Fuel Plant Release Site, No. CERCLA

- 04

- 2009

- 3766 (U.S. EPA Region 4 2009), availa ble at http://www.epa.gov/region4/kingston/May8TVAKingstonFinal106Order.pdf.]. Neither EPA’s specific disposal plans for disposing of the first three million cubic yards of coal ash nor its general AOC signals that the Agency considers CCRs to be a hazardo us waste appropriate for regulation under RCRA Subtitle C. Had EPA genuinely believed that the coal ash itself was a hazardous substance, it would have directed TVA to dispose of it in a manner consistent with the hazardous waste provisions of Subtitle C. At the very least, EPA would not have sent the material to a Subtitle D facility designed to handle MSW. The Agency’s actions thus contradict its principal assertion that the risks inherent in the disposal of CCRs warrant heightened standards for its dispo sal

– other than those available to it and the states under Subtitle D. Further confirmation of the Agency’s belief can be found in EPA’s treatment of the remaining 2.4 million cubic yards of coal ash. In May 2010, as EPA was preparing to propose Subtitle C regulation of CCRs under RCRA, purportedly in response to the catastrophic releases of coal ash at the Kingston, Tennessee facility, the Agency approved a plan requiring TVA to store permanently and on

- site all of the remaining ash from the spill, agreei ng with the Tennessee Department of Environment and Conservation (“TNDEC”) that the selected cleanup plan provided “the best option to protect public health and the environment.”[Footnote 165: News Release, U.S. EPA Region 4, EPA Approves Cleanup Plan for Remaining Coal Ash at TVA Kingston Site, (May 18, 2010).] Under the plan, the remaining 2.4 million cubic yards are to be

consolidated on

- site in a reengineered coal ash disposal area [Footnote 166: Non

- Time

- Critical Removal Action Embayment/Dredge Cell Ac tion Memorandum at 6

- 7, No. EPA

- AO

- 024 (U.S. EPA Region 4 May 18, 2010), available at http://www.epakingstontva.com/NonTime%20Critical%20Removal%20Documents/Approved%

20Action%20Memorandum%20for%20Non%20Time%20Critical%20Removal%20Action%20 Dredge%20Cell%20a nd%20Embayment_051810.pdf.]. This reengineering is to involve the placing of coal ash atop a base layer of sand, gravel and geo

- fabric, as well as the construction of a new dike around the entire perimeter of the CCR disposal area to keep ash from entering the Swan Pond Embayment in the future [Footnote 167: Id.]. Once the ash is put in place, TVA is to close the disposal area by placing two feet of clay and one foot of top soil on top of it [Footnote 168: Id. at 8.]. In essence, at the same time that EPA w as issuing the Proposed Rule and using the TVA spill to support is claim that CCRs should be regulated as Subtitle C wastes, it was approving what amounts to a Subtitle D approach to deal with the materials released from the Kingston facility, in direct co ntradiction of EPA’s discussion in the preamble. That the Agency relies on the TVA spill as its primary justification for promulgating heightened CCR regulations under Subtitle C is clearly inappropriate, if not arbitrary and capricious, since

EPA did not dispose of the coal ash from the spill in a manner consistent with a Subtitle C listing and instead undertook a Subtitle D approach to managing those wastes. Had the Agency genuinely believed it was dealing with a hazardous waste, it would have evaluated t he most stringent federal and state standards as part of the applicable or relevant and appropriate requirements (“ARAR”) approach to remediating hazardous waste releases [Footnote 169: 42 U.S.C. § 9621.]. The ARARs for handling hazardous substances would certainly have dictated a353

different outcome under CERCLA § 121(d)(2)(A) than disposing of the CCRs in an ordinary Subtitle D landfill. EME notes that while EPA’s actions do not technically constitute a violation

of federal or state ARARs

— since CCRs are not currently listed as hazardous wastes

—had the Agency genuinely believed that CCRs pose a legitimate hazard (i.e., are eligible for regulation under Subtitle C) then the ARAR analysis would have obligated them to act differently. Not only do the Agency’s cl eanup efforts at the TVA facility weaken its case for the Proposed Rule, so too do post

- spill reports which demonstrate a complete lack of evidence tying either the cause or resultant harm from the TVA spill to the type of waste involved (i.e., to CCRs) or any constituents it may contain. The damages caused by the TVA spill were driven by the large volumes of CCRs (not their unique physical or chemical characteristics), and they are the same risks that would be associated with the failure of a dam holding a ny large volume of material. These are not the risks that Subtitle C was intended to mitigate, as Subtitle C is concerned with potential exposures to hazardous constituents in the waste itself.

For example, in January 2009, EPA commissioned an independen t geotechnical engineering firm, AECOM, to study the structural failures that led to the release of coal ash from the TVA surface impoundment. This Root Cause Analysis, the result of six months of collaboration between AECOM, the TNDEC and TVA’s Office of Inspector General, identified four factors likely to have contributed to the failure scenario: 1) the presence of an unusually weak foundation of ash and silt, 2) the construction of sloping dikes over the wet ash, 3) the increased load on the retaining wa lls due to higher fill, and 4) the high water content of the wet ash [Footnote 170: AECOM, Executive Summary for Root Cause Analysis of TVA Kingston Dredge Pond Failure on December 22, 2008, at 5 (June 25, 2009), available at http://www.tva.gov/kingston/rc a/FINAL

- 062609_Executive_Summary

- REV3.pdf.]In other words, the report found that the TVA Kingston site was not even “typical or frequent” for surface impoundments. Moreover, none of these four factors demonstrates that the coal ash played a unique role in the failure of the surface impoundment. Instead, AECOM identified abnormalities specific to the Kingston facility, concluding that the failure at the site “was sudden and complex in nature due to its geographic setting and [its] being built within the Wat ts Bar Reservoir after the lake was formed”[Footnote 171: Id.] and that the “subsurface conditions at the dredge cells were unusual and rarely found.”[Footnote 172: Id.] Prior to the construction of Dike C in 1958, TVA discharged its coal ash stream direct ly into the Watts Bar reservoir, which

allowed the coal ash to mix with eroded dike soil and re

- deposited river sediment. This method of disposal had the ultimate effect of creating a thin, laminated structure (a “slime”) that settled beneath the Dredge Ce ll wall that failed [Footnote 173

- Id. at 3.]. That the wastes combined with native materials to create an unstable foundation is undeniable. However, that fact does not demonstrate that the discharged CCRs are hazardous. The slime that formed was a functi on of the disposal process and not the composition of the CCRs. Furthermore, the risks created by the slime are more readily and appropriately addressed under Subtitle D. Consequently, the Root Cause Analysis does not support EPA’s conclusion that the fail ure of TVA’s surface impoundment calls for stricter regulation of CCRs under RCRA Subtitle C. At most, it highlights the need for Subtitle D standards for the construction and maintenance of waste disposal facilities; standards that EPA initially proposed to issue in 2000 but never got around to, prompting states to act to fill the void [Footnote 174

- 65 Fed. Reg. at 32,215.]. Moreover, not one of the reports related to the TVA spill demonstrates that CCRs, because of354

their characteristics or composition, c aused unique harms at or around the Kingston facility. As explained above, the damage was caused by the sheer volume of the material that spilled from the surface impoundment. For example, the release from the TVA facility knocked one house off

of its foun dation and rendered two others uninhabitable. It also ruptured a gas line and disrupted power, causing the evacuation of 22 residents and derailing a train that came into contact with it. While the release did kill a significant number of fish in the nearb y waterways, a similar fish kill would have resulted from the release of a large volume of mud. And the release did not lead to any human injuries or deaths [Footnote 175: TENN. DEP’T OF HEALTH, PUBLIC HEALTH ASSESSMENT FINAL RELEASE, TENNESSEE VALLEY AUTH ORITY (TVA) KINGSTON FOSSIL PLANT COAL ASH RELEASE, at xvii (September 7, 2010), available at http://health.state.tn.us/Environmental/PDFs/pha

- e

- TVA_Kingston_Fossil_Plant_Final.pdf.

PUBLIC VER. DOES NOT CONTAIN CBI DC \ 1388695.1]. In fact, the release had n o effect on human health or the environment that any other large

- volume releases would not have had. The Tennessee Department of Health, acting under a Cooperative Agreement with the U.S. Department of Health and Human Services and the federal Agency for T oxic Substance and Disease Registry (“ATSDR”) Division of Health Assessment and Consultation, found no evidence that supports treating CCRs as hazardous wastes [Footnote 176: Id.]. While the Department of Health believes that any person in the path of the ash might have been harmed by the “magnitude and suddenness” of the release, it doubts that anyone would likely have been hurt by the ash itself [Footnote 177: Id. at 79.]. The Department also concludes that “no harm to the community’s health is expected f rom touching the coal ash,” including children who might touch it while playing, and that “longer term contact would be necessary to cause any significant local skin irritation.”[Footnote 178: Id. at 80.]. As the Department noted, the concentrations of met als in the coal ash are below levels known to cause harm even if eaten [Footnote 179: Id. at 81 (“The concentrations of metals in the coal ash, except arsenic, are below levels known to cause harm if eaten. Because exposure to the coal ash was brief and th e arsenic in the coal ash is not completely available for absorption, no harm to health is expected even if the coal ash were accidentally eaten.”).]. As a result, the Department of Health anticipates that no harm to human

health will result from accidenta lly ingesting a small amount of CCR [Footnote 180: Id. at 80.]. It also concludes that using municipal drinking water and springs/wells within a four

- mile radius of the release will not harm human health, because the raw and finished water has continuously met drinking water standards and no evidence of groundwater contamination has been found since the spill [Footnote 181: Id. at 82.]. Moreover, the Department of Health noted that there would be no harm to human health from inhaling coal ash on occasion,[F ootnote 182 Id. at 84.] and concluded that the small amount of radiation from coal ash is not likely to harm human health, since any exposure “would be too small to give a radiation dose to people that would be substantially greater than the normal, everyd ay background radiation dose to which all people are exposed.”[Footnote 183: Id. at 86.] Finally, use of the river has been shown to cause harm to residents or trespassers only due to the physical hazards associated with the cleanup effort (e.g., the prese nce of large and heavy machinery) [Footnote 184: Id. at 81.]. The reports also concluded that recreational use of the Emory, Clinch and Tennessee Rivers would not result in harm to human health [Footnote 185: Id. at 83.]. EME notes that while fish advisori es exist for certain fish in those rivers, those advisories are not due to the TVA release, but rather other pollutants (i.e., polychlorinated biphenyls and mercury) “from historical activities not related” to the TVA [Footnote 186: Id.]. The foregoing ana lysis of the effects on human health and the environment in the reports355

prepared in connection with the TVA spill is not consistent with what one would expect from the release of a hazardous waste. The findings of the Tennessee Department of Health and the

ATSDR demonstrate that CCRs do not exhibit the characteristics of hazardous wastes and that the risks posed by the disposal of CCRs do not justify their listing under RCRA Subtitle C. Therefore, EPA’s extensive reliance on the TVA damage case to support i ts Subtitle C approach plainly mischaracterizes the risks associated with CCR disposal. Response: This rule will regulate CCRs under RCRA subtitle D: see Unit IV of the final rule’s preamble.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08244

- 17 

### Organization 1 

### : E dison Mission Energy, LLC


### Commenter 1 : Basil G. Constantelos Commenter Type: Electric Utility Company

Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: b. The Gambrills Damage Case Demonstrate s Site

- Specific Concerns, Not General Risks Associated With The Disposal of CCRs In Fill Operations In addition to the Martin’s Creek and TVA spills, which involved the structural failure of CCR surface impoundments, EPA identifies a third proven damage ca se associated with the disposal of coal ash in large

- scale fill operations. According to EPA, the BBBS Sand and Gravel Quarries in Gambrills, Maryland began receiving and depositing fly ash and bottom ash in its sand and gravel quarries in 1995. Since that time, groundwater samples from residential drinking wells near the site have revealed heavy metals and sulfates in quantities at or above groundwater quality standards [Footnote 187: 75 Fed. Reg. at 35,147.]. In its regulatory impact analysis (“RIA”), EPA cites the Gambrills damage case and three new research studies from the Agency’s Office of Research and Development for the proposition that “landfills may leach toxic metals much faster than originally believed.”[Footnote 188: The three new EPA studies i nclude: U.S. EPA, Characterization of Mercury

- Enriched Coal Combustion Residues from Electric Utilities Using Enhanced Sorbents for Mercury Control, EPA 600/R

- 06/008 (January 2006); U.S. EPA, Characterization of Coal Combustion Residues from Electric Utili ties Using Wet

Scrubbers for Multi

- Pollutant Control, EPA/600/R

- 08/077 (July 2008); Dec. 2009 CCR Characterization.] While it may be true as a technical matter that landfills can leach metals at

faster rates under certain site

- specific conditions, EPA fail s to demonstrate that the Gambrills quarry is representative of the universe of CCR disposal sites to be regulated under the Proposed Rule. For example, EPA does not acknowledge, let alone account for the fact, that the Gambrills

site is located near the e astern shore known to have porous soils and highly acidic groundwater conditions. These same conditions are highly unlikely to be found further inland and in the

Midwest where much of the coal

- fired generation is located. Again, EPA has relied on an atypic al example to overstate the risks to human health and the environment posed by CCR disposal. EPA’s interpretation also is troubling given its own acknowledgement that CCRs can leach “significantly more aggressively” under certain circumstances, with the ra te at which leaching occurs depending almost entirely on site

- specific conditions unique to the disposal unit, like the356

pH of the surrounding soil [Footnote 189: U.S. EPA, Characterization of Coal Combustion Residues from Electric Utilities Using Wet Scrub bers for Multi

- Pollutant Control, EPA/600/R

08/077 (July 2008).]. In other words, faster leaching has more to do with the characteristics of the site of the disposal unit than the CCRs disposed there. EME concedes that CCRs may leach

metal constituents fas ter in highly acidic or alkaline soil conditions than in areas with a more neutral pH. EPA’s findings at the Gambrills quarry are consistent with that fact. What EME wishes to emphasize is that the risks illustrated by the Gambrills case are not indicative of those posed by the disposal of CCRs generally, since soil conditions vary markedly from state

- to

- state. Furthermore, the site

- specific concerns EPA flags in discussing this damage case can be addressed adequately under Subtitle D. Where soil conditions are known to be highly acidic or alkaline, EPA (and states) can rely on their Subtitle D authority to prohibit the siting of new CCR disposal facilities in such locations

— or to require liners, as is typically the case for new disposal sites in any event. Alternatively, EPA can require existing facilities that operate in highly acidic or alkaline regions to undertake measures to mitigate the risks their sitespecific conditions may impose. Either way, EPA’s reliance on the Gambrills damage case does not supp ort its push to characterize CCRs as hazardous wastes to be regulated under Subtitle C [Footnote 190: As explained in Section III.G, EPA’s existing authority under RCRA § 7003 would have provided it withample ability address the damage that occurred in the Gambrills case.].

Response: This rule will regulate CCRs under RCRA subtitle D: see Unit IV of the final rule’s preamble.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08244

- 18 

### Organization 1 

### : Edison Mission Energy, LLC


### Commenter 1 : Basil G. Constantelos Commenter Type: Electric Utility Company

Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: c. EPA’s Potential And Unproven Damage Cases Fail To Demonstrate That CCRs Pose A

General Threat To Human Health Or The Environment In addition to the cases above, the Proposed Rule, and associated risk assessment, rely on, but only briefly address, other instances of large

- scale CCR placement as structural fill to justify its

conclusions about CCR risks . As above, reliance on these examples is misplaced. For example, EPA points to groundwater monitoring from the Battlefield Golf Course in Chesapeake, Virginia, which used 1.5 million yards of fly ash as fill for contouring its course. EPA conducted

a stud y in April 2010 in support of the Proposed Rule to determine what effect, if any, the CCR fill had on surface and ground water in the area surrounding the Battlefield course. The study noted groundwater contamination above drinking water levels at the edge s and corners of the course, but did not detect any contamination offsite in neighboring residential wells {Footnote 191: 75 Fed. Reg. at 35,147.]. The Agency therefore concluded that residential wells near the site were not impacted by the fly ash and, as a result, elected not to characterize Battlefield as a “proven” damage case [Footnote 192 Id.]. Instead, due to the groundwater contamination on site, EPA characterized it as a case with merely the potential to cause damage (i.e., a potential357

damage case) . However, the Agency offered no evidence that the contamination it observed was migrating, whether observed levels were still increasing, or what receptors might be impacted by the observed contamination. The Battlefield Golf Course provides another examp le of site

specific conditions resulting in elevated leaching. However, those conditions cannot be extrapolated to all disposal sites (i.e., not all golf courses are like the Battlefield site, and therefore one would not expect the same results at another location where soil/groundwater conditions would be different). Nor do they demonstrate that the CCRs themselves are eligible for Subtitle C listing. As noted above, addressing site

- specific conditions exclusively is outside the scope of Subtitle C and sho uld be handled under Subtitle D standards, which is confirmed by EPA’s reluctance to declare the Battlefield site a “proven” damage case given that the CCRs disposed there have not impacted the drinking water near the course. Similarly, EPA also points to the failure of a discharge pipe at TVA’s Widows Creek plant in Stevenson, Alabama, which resulted in a 6.1 million gallon release from an FGD pond. Again, this damage case does not prove the point EPA is trying to make; despite the high volume of the

relea se, samples taken by EPA at relevant points of potential exposure did not exceed applicable water quality standards. As a result, EPA elected not to classify the failure as a damage case. Like the Gambrills and Battlefield damage cases, the Widows Creek sc enario reflects another instance where the issue flagged by EPA is driven by impacts and/or site

- specific concerns that are unrelated to the inherent characteristics of the CCR materials themselves, and therefore do not justify listing CCRs as hazardous wa stes under Subtitle C. Response: This rule will regulate CCRs under RCRA subtitle D: see Unit IV of the final rule’s preamble.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08252

- 1 

### Organization 1 

### : Allegheny Energy


### Commenter 1 : Randy Cain Commenter Type: Electric Ut ility Company

Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: [See original comment for the attachment: October 13, 2010 review by Commonwealth of Pennsylvania Department of Environmental Protection Southwest Region of information on three sites (Mitchell Power Station, Seward Generating Station, Phillips Power Station Landfill Fern Valley Disposal Site) from Environmental Integrity Project and Earthjustice Report: Out of Control: Mounting Damages From Coal Ash Waste Sites; Thirty

- one New Damage Cases of Contamination From Improperly Disposed Coal Combustion Waste Sites.]

Response: EPA has assessed the four Pennsylvania CCR management sites (the Mitchell Power Station site, the Seward Gener ating Station site, the Phillips Power Station/Landfill, and the Fern Valley Disposal Site) discussed in the February 2010 report titled Out of Control by comparing them against its own test of proof criteria. Based on the assessment, the Mitchell Power St ation site, the Seward Generating Station site, and the Phillips Power Station/Landfill site were designated as potential damage cases, whereas the Fern Valley Disposal Site was designated as a proven damage case. For a summary of all stakeholder arguments addressing the four sites and358

the rationale for their damage case designations by the Agency, see the technical support documents on damage cases in the docket of the final rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08255

- 9 

### Organization 1 

### : LG&E and KU En ergy LLC


### Commenter 1 : Robert J. Ehrler on behalf of Dorothy E. O'Brien Commenter Type: Electric Utility Company

Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:

Other Sections: 8.9 

### Comment Excerpt Text:

VII.The Au gust 26, 2010 Report By Environmental Integrity Project and Earth Justice Fails to Demonstrate That LG&E’s Mill Creek Plant Is a “Damage Case.”

The Environmental Integrity Project and Earth Justice submitted a report dated August 26, 2010
entitled “In Har m’s Way” alleging that various coal

- fired power plants including LG&E’s Mill Creek plant constitute “damage cases” that should be considered by EPA. In response to EPA’s reference to the “report of additional damage cases,” we provide the following with re spect to the Mill Creek site. Groundwater monitoring conducted by LG&E at Mill Creek has not identified an exceedance of a primary MCL at any off

- site location. Furthermore, there is no significant potential for adverse impacts on local water supplies. Gro undwater flow for the location is in the direction of the river and there are no residential wells (or non

- company owned properties) between the plant and the river. All local households are connected to public water supplies. The report cites arsenic valu es from on

- site wells which are not indicative of any off

- site impacts and which, in any event, would be indiscernible in terms of effect on the adjacent Ohio River (which is a large river with high flow volumes).

The Kentucky Department for Environmenta l Protection has reviewed the available groundwater data and concluded that it does not indicate that CCR management at the Mill Creek plant poses any significant risk to public health or the environment. See Kentucky Comments, p. 30. Indeed, the Departmen t characterizes the report’s assessment of off

- site impacts as “conjecture without sampling and long term trend analysis.” Kentucky Comments, p. 30. In short, available information including the results of groundwater monitoring conducted at the site since 1982 simply does not support the allegation that LG&E’s Mill Creek plant constitutes a “damage case” representing environmental damage resulting from improper management of CCRs. Response: For a discussion of LG&E’s Mill Creek plant site and the rationale for designating it as a potential damage case, see the technical support document to damage cases in the docket to

the final rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08930

- 6 

### Organization 1 

### : Citizens for Recycling First


### Commenter 1 : John N. Ward Commenter Type: Advocacy Group

Classification: Substantive Comment Category:359

Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: Minimal Damage Has Been Seen at EPA's Own "Damage Cases"

Environmental activist groups frequently refer to c oal ash as a "known threat to our health and environment." But what do public health experts find when they actually study the material? Answer: Quite a different story.

Here's the kind of rhetoric activist group Earthjustice used to urge people to conta ct the president and demand hazardous waste regulations for coal ash: "Coal ash contains dangerous pollution...that can cause cancer and lung disease, damage internal organs and nervous systems, and cause developmental problems in babies and young children ." "This waste...poses a significant threat to our health and environment." "A coal ash pond in Tennessee...poisoned rivers and water supplies."

The failure of that Tennessee pond was by far the largest spill of coal ash in history. So how bad

were the h ealth impacts? The Tennessee Department of Health, under cooperative agreement with the U.S. Department of Health and Human Services Agency for Toxic Substances and Disease Registry, has produced a 240

- page Public Health Assessment of the incident. Here is a summary of the health impacts in the experts' own words:

"No harm to the community's health is expected from touching the coal ash. Even though touching the coal ash could cause local skin irritation, the metals in the ash are not likely to get into p eople?s bodies from merely touching the coal ash." "Using municipal drinking water from the Kingston and Rockwood water treatment plants will not harm people?s health because the raw and finished water have continuously met drinking water standards. Also, using well or spring water within four miles of the coal ash release will not harm people's health from exposure to coal ash or metals in the coal ash because no evidence has been found for groundwater contamination by coal ash." "Using the Emory River at the site of the coal ash release (near Emory River mile 2) could result in harm to residents or trespassers from physical hazards associated with cleanup efforts and from the volume of ash present, if residents or trespassers entered the area. No harm to p eople's health should result from recreational use of the Emory, Clinch and Tennessee Rivers outside the area of the lower Emory River down to the confluence of the Emory and Clinch Rivers, as specified in the recreational advisory and river

closure. As th e advisory indicates, people are advised to avoid areas where they see ash, however, even if it is outside the area of immediate impact. Previous fish advisories should be followed." "Breathing ambient air near the coal ash release is not expected to harm people's health as long as adequate dust suppression measures are in place. No harm to people's health is expected from occasionally breathing coal ash if it should become airborne for short periods of time. If dust suppression measures should fail and par ticulate matter is present in concentrations greater than National Ambient Air Quality Standards due to the coal ash becoming airborne for periods longer than one day, the department concludes that particulate matter from airborne coal ash could harm peopl e's health, especially for those persons with pre

- existing respiratory or heart

conditions."360

The Public Health Assessment was reviewed by universities and several government agencies, including the U.S. Environmental Protection Agency.

Another expert m edical study of 214 people who live near the Kingston, Tennessee, coal ash spill concluded they have suffered no serious health effects from the incident and are not expected to develop health problems in the future.

The study was led by epidemiologist D onna Cragle, vice president of Occupational Exposure and Worker Health for Oak Ridge Associated Universities. Physician medical toxicologists from Vanderbilt University Medical Center also assisted in the study. Study participants received

extensive medica l testing that included health history, physical examination, spirometry (breathing test), chest x

- ray, routine urinalysis, complete blood count, blood chemistries, and biological monitoring tests. The biological monitoring tests were chosen to examine for evidence of effects on the body related to exposure to fly ash and included testing for aluminum, arsenic, barium, beryllium, chromium, cobalt, copper, nickel, selenium, thallium, and vanadium. "Analysis of the available data from this baseline medical ex amination suggests no expected long

- term effects on physical health from current levels of exposure," the report concluded.

In another report published in June 2010, researchers from Oak Ridge National Laboratory

announced that fish downstream of the coa l ash spill appear healthy based on the first year of testing.

The U.S. Environmental Protection Agency also issued a Final Site Inspection Report for the

Battlefield Golf Club Site

- another cited "damage case"

- showing "..there is no significant

threa t to public health or the environment from site related contaminants..."

Battlefield Golf Club attracted national attention in October 2009 when the television news program 60 Minutes profiled the site as part of a report CBS said was an ?investigation i nto a substance that contains the toxic metals mercury, arsenic and lead but has yet to be regulated by the EPA..." Coal ash was used in the construction of the golf course and 60 Minutes prominently

featured interviews with local residents who claimed the ir health was being threatened. (60 Minutes also interviewed the attorney who is representing the residents in a lawsuit seeking money from entities involved in the golf course's construction.)

EPA's report dated April 16, 2010, paints a very different p icture. The 285

- page report details the results of an extensive scientific investigation of the site. It concludes that drinking water wells in the area are safe, that metals present in the coal ash used at the golf course are not migrating

into the drinki ng water wells, and that no adverse health or environmental effects are expected from the use of the golf course itself. In the report?s own words: "Metal contaminants were below MCLs and Safe Drinking Water Act (SDWA) action levels in

all residential wel ls that EPA tested, except for lead. Lead has been detected during EPA sampling events above the action level of 15 ?g/L in six residential wells, but the lead does not appear to be from the fly ash. EPA has offered to test the water of the residences with elevated lead on a quarterly basis. The residential well data reviewed as part of this SI indicates that metals are not migrating from the fly ash to residential wells. There are no adverse health effects expected from human exposure to surface water or s ediments on the Battlefield Golf Course site361

as the metal concentrations were below the ATSDR standards for drinking water and soil. Additionally, the sediments samples in the ponds were below EPA BTAG screening levels and are not expected to pose a threat to ecological receptors."

Response: Concerning health impacts of the 2008 TVA Kingston spill, see response to comment excerpt EPA

- HQ

- RCRA

- 2009

- 0640

- 06298

- 16.

Concerning the Battlefield Golf Course site, see response to comment excerpt EPA

- HQ

- RCRA

2009

- 0640

- 06883

- 25.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09284

- 67 

### Organization 1 

### : Virginia Department of Environmental Quality


### Commenter 1 : Jeffery A. Steers Commenter Type: State Government
Classification: Substantive



### Comment Excerpt Text:

The beneficial reuse of CCRs as fill material for construction of the Battlefield Golf Club was identified by EPA as a concern in many sections of its proposal. Virginia DEQ does not consider EPA’s discussion to be a fair representation of this issue and requests that EP A refer to its own update on this site (see April 2010 Battlefield Golf Club Community Update). The results stated in this update are:

· EPA's review of the data indicates that metals are not migrating from the fly ash on the golf

course to the residentia l drinking water wells.

· Metals contaminants were below EPA drinking water standards in all residential wells that EPA tested, except for lead. Lead has been detected above the drinking water standard in several residential wells, but the lead does not a ppear to be from the fly ash.

· EPA concludes that people can use the golf course without concern. The metal concentrations in the surface water and sediments on the golf course are below standards set for drinking water

and soil.

· Based on the data EPA reviewed, there is no current evidence that there is a threat to the public or the environment from the fly ash at the golf course. At this time EPA has no further plan to pursue listing this site on the NPL.

As EPA's own conclusions do not indicate harm from this site, Virginia DEQ respectfully disagrees with EPA's presentation of this issue in the proposal and requests that the situation of the Battlefield Golf Club not be used to mistakenly assume problems with Virginia's CCR management program when in fact EPA's own data and conclusions do not support that assumption. Virginia DEQ is very proud of the success of its beneficial use program for CCRs and other solid wastes, and has worked diligently to ensure that success while protecting human

health and the environment.362

Response: See response to comment excerpt EPA

- HQ

- RCRA

- 2009

- 0640

- 06883

- 25.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09337

- 4 

### Organization 1 

### : Arizona Department of Environmental Quality (ADEQ)


### Commenter 1 : Benjamin H. Grumbles
Commenter Type: State Government
Classification: Substantive



### Comment Excerpt Text: None of the damages cases listed in the proposed rule occurred in the arid southwest. The sole Arizona facility EPA determined as a potential groundwater damage case currently operat es under an Aquifer Protection Permit (APP) as required for all surface impoundments and landfills. APP's require discharge monitoring as well as groundwater quality monitoring, contingency actions if violations of permit conditions occur, operational moni toring, and demonstration and maintenance of financial assurance to cover the costs of closure and post

- closure activities. The APP issued for this facility also requires installation of additional wells to further characterize groundwater quality. Groundw ater data collected to date shows no violations of Arizona water quality standards as a result of the CCR disposal at this facility.

Response: EPA’s damage case records indicate that Arizona Public Service Co. Cholla Steam Electric Generating Station has two unlined surface impoundments, both of which are associated with groundwater impact (exceedance of SMCLs for sulfate, chloride, fluoride, and TDS). In addition, a 1989

- 1990 study of Cholla Lake’s water, sediments and whole

- body fish for levels of
poten tially toxic inorganic constituents (Shomo, 1991, referenced below)* revealed a deterioration of the ecologic conditions in the Lake, which serves as the power plant’s cooling reservoir and as a recipient of the plant’s effluents. As a result of increased water temperatures and turbidity since 1976, catfsh and bluegill have increased their dominance of the fish population, and the frequency of occurrence of benthic invertebrates has decreased. Selenium and other inorganic constituent levels in fish tissue e xceed national averages and are above levels found in a the Clear Creek Reservoir, located some 20

- miles west of Cholla Lake.

* Shomo (1991): Biotic and Physico

- Chemical Conditions in a Cooling Reservoir of a Coal

Fired Power Plant, Shomo, Laurie Suzanne, Master Thesis, The University of Arizona, 1991. http://arizona.openrepository.com/arizona/bitstream/10150/277958/1/azu_td_1345438_sip1_m.p

df

Shom o and Maughan (1991): Cooling Reservoir of a Coal

- Fired Power Plant as a Warmwater Fishery, Laurie S. Shomo and O. Eugene Maughan, pp. 229

- 237 in Warmwater Fisheries, Symposium I (June 4

- 8, 1991), edited by James L. Cooper, R. H. Hamre, Scottsdale, Arizon a, USDA Forest Service, Fort Collins, Colorado, General Technical Report RM

- 207, 1991. http://books.google.com/books?id=oAPy_2xYf_YC&pg=PA229&lpg=PA229&dq=Arizona+Pu

blic+Service+Co.+Cholla+lake&source=bl& ots=Qybb9yqwlO&sig=ePdyL

xIH7Sl5y2wsU9ICi39GD8&hl=en&sa=X&ei=IwzYUuSQOrXMsQSFpYHgDg&ved=0CC4Q6 AEwAQ#v=onepage&q=Arizona%20Public%20Service%20Co.%20Cholla%20lake&f=false

.363



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09951

- 13 

### Organization 1 

### : Full Circle Solutions, Incorporated


### Commenter 1 : Robert J. Waldrop Commenter Type: Beneficial User

Classification: Substantive



### Comment Excerpt Text: We also note with interest that the only structural fill listed as a damage case, or more accurately, potential damage case, is t he Battlefield Golf Course in Virginia. Even though this project has caused no harm to surrounding properties, EPA refers to it repeatedly as its only proof case to support its proposed ban on large scale fill operations (75 FR 35147, 35155 and 35163) . Ye t the preamble to this regulatory proposal clearly states that this project has not caused harm.

In April 2010 EPA issued a Final Site Inspection Report which concluded that (i) metals contaminants were below MCLs and Safe Drinking Water Act action levels in all residential wells that EPA tested ; (2) the residential well data indicate that metals are not migrating from the fly ash to residential wells; and (iii) there are no adverse health effects expected from human exposure to surface water or sediments on the Battlefield Golf Course site as the metal concentrations were below the ATSDR standards for drinking water and soil. Additionally, the sediments samples in the ponds were below EPA Biological Technical Assistance Group screening levels and are not expected to pose a threat to ecological receptors. (75 FR 35155) .

We believe EPA needs to carefully consider all of the facts related to the Battlefield Golf Course. EPA commissioned a study of this project which found some localized contamination of

gro undwater. No off

- site users of groundwater have been affected. However, the study did not seek to find the answers to many important questions. The study relied on groundwater samples taken by others at an earlier date. The turbidity of these samples indic ated improper sampling. This was never considered by EPA. It is not mentioned in their report. The golf course was sold to new owners who modified the layout including pond locations. Did the new configuration place surface water in contact with the CCPs c ausing localized contamination? This is not mentioned in EPA's report. The course was built in a coastal plain area where it very difficult to achieve and maintain adequate groundwater separation. Did groundwater get into the CCP fill? Again EPA's report d oes not mention this. We don’t know the answers to these very important questions.

The Battlefield Golf Course may or may not have been built in accordance with Virginia's regulations for coal combustion product structural fills.

This is important becaus e we have proven that the use of CCPs in large volume structural fills constructed in accordance with Virginia's regulations is safe for both groundwater and surface waters. Our Peter's Pointe Business Park in Petersburg, Virginia was constructed using 970 ,000 tons of CCPs. The project was constructed in compliance with regulatory requirements such as separation from groundwater and surface waters. Operational requirements such as run

- on and

run

- off controls were among the many other regulatory requirements that provided additional protections.364

For the past six years, we have regularly monitored the quality of both the ground water and surface water at this project. It is clean. It is safe for the environment. We have proven that properly engineered, proper ly constructed, large volume structural fills are safe for the environment. Hundreds if not thousands of similar structural fill projects have been constructed in the United States with no threat to the environment. EPA's proposal to prohibit such fills ba sed on one "potential" damage case is not valid science and therefore is inappropriate .

As we have stated earlier, state programs with proper Subtitle D regulation will provide the best combination of environmental protection along with the incentive to recycle.

Response: This rule will regulate CCRs under RCRA subtitle D: for further details, see unit IV of the preamble to the final rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09971

- 5 

### Organization 1 

### : PPL Services Corporation


### Commenter 1 : Craig S. Shamory Commenter Type: Electric Utility Company

Classification: Substantive



### Comment Excerpt Text: IV. Comments on EPA misrepresentation regarding the Martins Creek 2005 ash release as a damage case.

EPA cites the 2005 ash release from the Martins Creek Ash Ba sin #4 as part of its justification for strict Subtitle C regulation of CCRs. Although this ash release did occur from a fly ash impoundment, the explanations of the incident in the preamble to the proposed regulations are

inaccurate.

First, and foremost , the characterization of this release as being similar to the TVA Kingston ash release is incorrect. What occurred on August 23rd, 2005 was a sudden failure of a single stop log associated with the discharge structure of the Martins Creek Ash Basin #4. Th is is documented in the attached response to the September 6, 2005 Notice of Violation from the PA DEP. As indicated in the response to the NOV, the number 2 stop log (2nd from the bottom) of the discharge structure failed due to improper manufacture of th e log. The release had nothing to do with the integrity of the impoundment dikes, nor did it have anything to do with seepage from

the dikes. This is a state

- permitted, single lined impoundment built in 1988, with 6 ground water wells monitored quarterly s ince prior to the use of the impoundment. We have never had any adverse ground water quality impacts associated with this basin, even though the basin is located on karst geology.

PPL PA Generation also takes exception with the description of the ground water and surface water impacts related to this release which are noted on page 35232 of the July 21, 2010 Federal Register. The specific citation is:

Martins Creek Power Plant

— Martins Creek, Pennsylvania365

In August 2005, a dam confining a 40 acre CCR s urface impoundment in eastern Pennsylvania failed. The dam failure, a violation of the State’s solid waste disposal permit, resulted in the discharge of 0.5 million cubic yards of coal

- ash and contaminated water into the Oughoughton

Creek and the Delaware River. Ground

- water monitoring results from approximately 20 on

- site monitoring wells found selenium concentrations exceeding Pennsylvania’s Statewide Health Standards and Federal primary drinking water standards. There was also one exceedance of the prima ry MCL for chromium and two exceedances of the secondary MCL for iron. Surface water samples were also taken from a number of locations along the Delaware River upstream and downstream of the spill. Sampling began soon after the spill in August 2005 and co ntinued through November 2005. Several samples exceeded the Federal Water Quality Criteria (WQC) for aluminum, copper, iron, manganese, and silver (see http://www.epa.gov/waterscience/criteria/wqctable/index.html). Four samples also exceeded the WQC for ar senic

— three of which were taken near the outfall to the river. Lead, nickel and zinc were also detected above the WQC in samples taken near the outfall to the river. Sampling results are available from the Pennsylvania Department of Environmental Protectio n (PADEP) at http://www.depweb.state.pa.us/northeastro/cwp/ view.asp?a=1226&q

=478264&northeastroNav=..

As a result of the exceedances of primary and secondary MCLs in on

- site ground water, and exceedances of federal water quality criteria in off

- site su rface water, in addition to a PADEP consent order for clean up, the Agency considers this site to be a proven damage case.

Specifically, as discussed above, we have never observed any basin/CCR related impacts in any of the six ground water monitoring we lls associated with Basin #4. Furthermore, we conducted an additional ground water study in the area of the site where the ash release occurred from manholes associated with the discharge line from the basin and where the ash release ran across the ground surface. PPL conducted two studies immediately following the release (available upon request); 1) groundwater assessment and 2) sinkhole study. Both studies were submitted to PA DEP in December 2006 and indicated no adverse impacts to the ground water from the release. The only impact to ground water that was observed during the cleanup of the ash release was associated with the temporary use of the unlined Ash Basin #1. The impact was related to the temporary exceedance of the MCL for selenium in one monit oring well, MW 1

- 6. The plant initiated a detailed ground water assessment subsequent to the detection of that selenium exceedance and conducted further studies over the next two years. (Studies available upon request.) The studies were submitted to PA DEP in April 2006, February 2007, and February 2008 and indicated no other MCL exceedance or secondary MCL exceedances associated with the temporary operation of Ash Basin #1 in any other monitoring wells. This included the MW

1

- 12S that was installed directl y downgradient of MW 1

- 6. MW 1

- 12S is located only 250 feet downgradient from MW 1

- 6 and is located between MW 1

- 6 and the Delaware River, which is located downgradient of Basin #1. MW 1

- 12S was installed as the point of compliance well for the basin per P A DEP Residual Waste Regulations. Based on PA DEP regulations and the lack of an exceedance at the point of compliance wells, the plant was not required to take any abatement actions to respond to this temporary excursion of the selenium MCL in this one

mo nitoring well. Selenium levels in MW 1

- 6 returned to levels below the MCL by the first quarter 2007. A spike was observed in the second quarter 2008 due to a high precipitation event; however, by the next quarter the selenium level immediately returned to below the MCL and has366

remained below the MCL.

In addition, EPA’s claim that we have exceedances of the primary MCL for chromium or the secondary MCL for iron is not correct. As noted in the attached charts, the well results around

Basins #1 and #4 show n o exceedances of these standards since the 2005 ash release. In fact, the highest chromium level is barely detectable at

0.005 mg/l, which is 20 times lower than the 0.1 mg/l MCL.

Therefore, PPL PA Generation recommends that EPA remove the statement th at its listing of this 2005 ash release as a damage case is related to ground water quality impacts.

Regarding the surface water data quality claims, the plant conducted extensive surface water sampling during and after the release ended on August 26, 20 05. The results of this sampling are documented in the Phase IV report that was submitted to PA DEP in June 2006, which documents all the remedial and assessment work completed in response to the release. Section 4 of the Phase IV report describes the resu lts of surface water sampling that was conducted at various locations along the Delaware River between August 25 and December 21, 2005. Approximately 2,200 surface water samples from 16 locations were collected during this period.

The conclusions in Sect ion 4.3 of the Phase IV report state: More than 2,200 surface water samples were collected from the Delaware River from August 25 to December 21, 2005. The samples were collected to characterize water quality during and after the fly ash release. The data from the surface water investigation indicate the following:

• During and immediately following the release, significant quantities of fly ash solids were suspended and transported in the water column, temporarily increasing concentrations of several

met als thought to be related to fly ash, including aluminum, arsenic, barium, chromium, copper, iron, lead, manganese, nickel, strontium, vanadium and zinc.

• Metals concentrations gradually decreased in the month following the release with time and

downstr eam distance. Water column concentrations of fly ash

- related metals remained elevated compared to background conditions during this time.

• During the first high

- flow event starting (October 8, 2005) after the release, concentrations of

metals increased. Elevated concentrations of arsenic were detectable as far downstream as Trenton. The elevated concentrations during the high flow period were likely caused by the resuspension of fly ash deposited in the river bed.

• Strong geochemical evidence exists t hat the first high

- flow event exhausted the vast majority of deposited fly ash. After the first event, arsenic was detected in less than one percent of the 500+ water column samples. For most metals, including those with the greatest association to fly ash

, downstream concentrations were indistinguishable from background after the October 2005 high flows. Several metals not related to fly ash had episodic increases during specific periods (October 25 to November 3, 2005 and December 8 to 16, 2005).367

• All analytes, excluding arsenic, were below the PADEP human health criteria. Arsenic only exceeded the PADEP human health criteria in four samples during the release and only at the sample station within 50 yards of the release point.

• With regard to the US EPA AWQC, a limited number of arsenic, copper, lead, nickel, and zinc samples exceeded the CCC standard. Some of these were also exceeded in the background samples (5 of 310 for copper, 1 of 310 for nickel, and 3 of 310 for zinc). A relatively large

number of aluminum samples also exceeded the CCC standard; however, many of these exceedances also occurred in background samples and increased as the natural turbidity increased. Furthermore, PADEP does not have an established water quality CCC for aluminum.

• The 11 samples with nickel exceedances frequently occurred with high concentrations of cobalt, copper, vanadium, and/or zinc. Based on elemental ratios, these joint copper, nickel, and zinc exceedances are not related to either fly ash or natural sedimen ts. Turbidity was not elevated during these times, either.

While there were some limited water quality criteria exceedances resulting from the release, they primarily occurred during the release and within a short distance downstream (50 yards) of the

on going release or related to the resuspension during the first high flow event following the release. Some of the noted exceedances were also not related to the ash release, as noted above. Regarding a related item in the proposal which indicates that PA DE P issued a consent order to cleanup the 2005 ash release, it should also be noted that EPA also did a Preliminary Assessment of the response actions in late 2005 and early 2006 and concluded: ”EPA's evaluation of current analytical results of samples colle cted downstream of the release indicate that no further federal action at the site is warranted at this time. EPA's evaluation of the groundwater analytical results from residential wells indicate that the fly ash release has not affected groundwater quali ty downgradient of the site.” (April 2006 EPA Cover Letter to Preliminary Assessment Report

- attached)

For the above noted reasons, PPL PA Generation believes that EPA’s statements regarding the impacts to ground water are either inaccurate or unrelated to the ash release and the statements regarding impacts to surface water from this release are exaggerated. Furthermore, even the EPA concluded that the release was not affecting ground water quality. As clearly noted above, this

incident should not be de scribed as an incident similar to the TVA Kingston ash release. Finally, and most importantly, the PA DEP’s and the plant’s prompt and complete response to this release is an indication that state regulations under a Subtitle D program do work to address a sh releases that unfortunately may occur.

Response: This rule will regulate CCRs under RCRA subtitle D: for further details, see unit IV of the preamble to the final rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09996

- 3 

### Organization 1 

### : Midwest Coal Ash Ass ociation (MCAA)


### Commenter 1 : Gary P. Haney Commenter Type: Trade Association

Classification: Substantive368



### Comment Excerpt Text: I. TVA Kingston, TN Impoundment Failure

According to the Background section of the Preamble to this proposed rulemaking, EPA is revisiting its previous regulatory determination for the management of CCRs under the Bevill Amendment, in part because of"... the failure of a surface impoundment retaining wall ... " at the Tennesee Valley Authority Fossil Plant in Kingston, TN.

This su rface impoundment was used by TVA as a coal ash holding pond. The failure caused a massive wave of water, soil and coal ash to spill into a branch of the Emory River, two Emory River inlets, and the main channel of the Emory River. The release covered appr oximately 300 acres outside of the TVA facility, caused an evacuation of a number of local residences, disrupted power, ruptured a gas line and damaged three homes beyond repair. The failure is considered by some to be one of the largest environmental disa sters in the history of our country.

This accident was unfortunate to say the least. But in reality, this was not necessarily an "environmental disaster". The sudden failure of this ash disposal impoundment was caused by operational and structural conditi ons. It was not caused by the toxicity or potential impact to human health and the environment of the material being impounded. According to the Executive Summary of a June 26,2009 report by AECOM titled Root Cause Analysis of Kingston Dredge Cell Failure, the TVA failure occurred because of: 1) unusually weak "slime" seam under the foundation, 2) the fill geometry and setbacks, 3) hydraulically placed wet ash, and 4) increased loads due to higher fill. AECOM concluded that no one factor caused the failure, but a combination of conditions and occurances. Nowhere in the AECOM report does it mention the toxicity of the fill material as having any influence on the dike. The same "damage" caused by the Kingston failure could have happened, and would have been ex pected to happen, had the impoundment been holding back only water or any other liquid material for that matter. MCAA does not believe that the solution for avoidance of similar failures at other CCR impoundments is

their reclassification as hazardous wast e, any more than similarly classifying water a hazardous waste would prevent failure of an impoundment holding only water.

Further support of our belief can be found in the September 7, 2010, report, Final Release, Public Health Assessment, Tennessee Vall ey Authority (TVA) Kingston Fossil Plant, which was prepared by the Tennessee Department of Health(TDH) under a Cooperative Agreement with the U.S. Department of Health and Human Services. The report concludes that "Based on TDH's review of data, the coal ash at the site of the KIF coal ash release should not have caused harm to the community's health." Some specific conclusions in the report are:

Conclusion 1

- "When the coal ash was released ... people in the path of the ash could have been harmed by the magnitude and suddenness of the ash release."

Conclusion 2

- "... it is unlikely that harm occurred to people from touching the coal ash ... "

Conclusion 3

- "... no harm to the community's health is expected from touching the coal ash.

This includes ch ildren who might touch the ash while playing."369

Conclusion 4

- "... no harm to people's health is expected from accidentally eating a small

amount of coal ash."

Conclusion 5

- "... using the Emory River at the site of the coal ash release ... could result in harm to residents or trespassers from physical hazards associated with cleanup efforts and from the volume of ash present, if residents or trespassers entered the area."

Conclusion 6

- "... using municipal drinking water from Kingston and Rockwood wat er treatment plants will not harm people's health ... "

Conclusion 7

- "... using well or spring water within four miles of the coal ash release will not harm people's health from exposure to coal ash or metals in the coal ash because no evidence has

been found for groundwater contamination by coal ash."

Conclusion 10a

- "... breathing ambient air near the coal ash release is not expected to harm people's health as long as adequate dust suppression measures are in place."

Conclusion 10b

- "... no harm to people's health is expected from occasionally breathing coal ash if it should become airborn for short periods of time."

Conclusion 10c

- "If dust suppression measures should fail and particulate matter is present in concentrations greater than National Ambient Air Quality Standards due to coal ash becoming airborn for periods longer than one day... particulate matter from airborn coal ash could harm people's health, especially for those persons with pre

- existing respiratory or heart conditions.

Such harm could include upper airway irritation and aggravation of pre

- existing conditions... "

Nowhere in the report conclusions did the TDH indicate that there existed a hazardous condition to the people's health from the toxicity of the coal ash. Indeed, the co nclusions are exactly the same as what the members of MCAA would have predicted. The members would have suggested taking precautions to keep the coal ash from becoming airborn, using common industry management practices. The members would have also suggest ed some access controls over the

clean

- up area, to protect the residents and to minimize the likelihood of trespassers getting into harms way from the concentrations of heavy, earthmoving type equipment that was needed for

the clean

- up operation. We would have suggested the same access controls to protect people, and

the clean

- up workers as well, not from the toxicity of the coal ash, but from the large volume of uncontained coal ash. Damage from the original release showed the potential for damage and

unsa fe conditions that existed with the unconfined liquified coal ash material.

Response: This rule will regulate CCRs under RCRA subtitle D: for further details, see unit IV of the preamble to the final rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 10166

- 19 

### Organization 1 

### : Consumers Energy Company


### Commenter 1 : Gary A. Dawson Commenter Type: Electric Utility Company370

Classification: Substantive



### Comment Excerpt Text: In connection with this rulemaking, certain groups have alleged that there has been damage to

the environment from several electric power plants owned by this Company.

First, there were allegations of damage to the Saginaw Bay caused by effluent from the D .E. Karn Plant and the J .C. Weadock Plant, both in Essexville, Michigan. This was based upon a misunderstanding. The State of Michigan had incorrectly calculated the allowable discharges of certain substances, considering the mixing zone. With the corrected calculations, the plants are in compliance with applicable requirements. The regulatory com pliance point for the landfills is the point at which the water enters the surface water (the groundwater/surface water interface, or "GSI"). The Michigan Department of Natural Resources and the Environment has acknowledged that " . . .we do not currently know of any parameter or location where exceedences are suspected or known to occur at the GSI ." Letter from Terry L. Walkington, August 26, 2009.

The alleged damage case at the D.E. Karn and J.C. Weadock plants is also addressed in the

comments of the Electric Power Research Institute (EPRI). EPRI notes that these plants are located in the large (1,143 square mile) Saginaw Bay "Area of Concern (AOC)", that there are industries upriver that have been identified as sources of metal contamination, and that no reference to the Karn and Weadock plants was cited in the AOC literature they reviewed.

Second, allegations have been made with respect to the J .H . Whiting Plant, in Erie, Michigan . These allegations were previously investigated by the EPA, which f ound that the claim was not supported by the facts.

Response: According to EPA’s records, in August 2009, Michigan DEQ

revised/corrected the Groundwater/Surface water Interface (GSI) criteria for the quality of

groundwater that can vent to the Saginaw River and Bay while still protecting for human health

and the env ironment. In September 2009, MDEQ issued a Consent Decree requiring slurry walls

to be built to stop leakage also at the Karn, a low

- remaining capacity landfill. At a later stage, the

requirement for having a slurry wall installed at the Karn impoundment w as scrapped due to

concerns about the site’s slope instability.

Michigan DEQ concedes that whereas as of late in 2009 there were no known violations at the D.E. Karn and J.C. Weadock plants, there was also a lack of a certain proof of compliance for

some parameters. Therefore, confirmation monitoring is taking place that would proceed for 30 years after the landfills are closed.371



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 10591_DC

- 005

- 2 

### Organization 1 

### : American Coal Ash Association (ACAA)


### Commenter 1 : Thomas H. Adams Commenter Type: Trade Association

Classification: Substantive



### Comment Excerpt Text: EPA has cited damage cases as a primary basis for creating hazardous waste disposal regulations. None of the damage cases are connected to beneficial uses of coal co mbustion products. Not one case. In fact, two of the specific cases cited by the EPA have shown no effects on human health and the environment. The EPA's own report on the Battlefield Golf Course states there is no effect on groundwater in the property sur rounding the golf course. Two reports on the Kingston, TN impoundment failure indicate no short or long term health effects related to the spill. The US Department of Health and Human Services along with the Tennessee Department of Health issued a report l ast December stating that there was no long term health effects indicated from the spill. Within the last 3 weeks, additional testing on 200 individuals residing in close proximity to the Kingston plant showed no material health effects related to the spil l. Both of EPA's prime examples to justify the need for hazardous regulations show no damage to human health. So we must ask the question, is there no damage because there is no damage or is it that we just have not done enough research? If it is the latte r, how much research is enough?

Response: This rule will regulate CCRs under RCRA subtitle D: for further details, see unit IV of the preamble to the final rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 10663_DC

- 056

- 1 

### Organization 1 

### : ARIPPA


### Commenter 1 : Jeff A. McNelly Commenter Type: Trade Association

Classification: Substantive



### Comment Excerpt Text: EPA's motivation to propose these rules appears to be based on what EPA has termed "proven damage cases" siting two ash impoundment accidents at Kingston, TN a nd Martins Creek, PA. This is in spite of the fact that a thorough study of the Martins Creek accident found no adverse impacts to the river, wildlife or human health and that the Tennessee Dept of Health found no significant human health impacts due to th e Kingston accident. These findings combined with the safe management of the vast majority of ash sites and beneficial uses clearly indicate that EPA is acting in a capricious manner.

Response: This rule will regulate CCRs under RCRA subtitle D: for furth er details, see unit IV of the preamble to the final rule.372



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 11042_CHA

- 077

- 2 

### Organization 1 

### : Utility Solid Waste Activities Group (USWAG)


### Commenter 1 : Caroline Choi Commenter Type: Trade Association

Classification: Substantive



### Comment Excerpt Text: Moreover, while we agree that steps must be taken to prevent accidents like that which occurred at TVA's Kingston facility from happening again, even EPA has found that the coal ash being

recovered from that site can be safely disposed of in a RCRA Subtitle D non

- hazardous waste facility under the federal Superfund program. In other words, the coal ash from the accident that was the impetus for this rulemaking proceeding is, with EPA's explicit approval, being safely disp osed of in a Subtitle D non

- hazardous waste facility. And, just last week, the Tennessee Department of Health, in conjunction with the federal Agency for Disease Registry and Toxic Substances issued a final Public Health Assessment [Footnote 2: Public Heal th Assessment, Tennessee Valley Authority (TVA) Kingston Fossil Plant, Prepared by the Tennessee Department of Health, under a Cooperative Agreement with the U.S. Department of Health and Human Services, Agency for Toxic Substances and Disease Registry, Se ptember 7, 2010.] concluding that the coal ash from accident did not result in groundwater contamination nor result

in ambient releases of ash above levels of concern.

Response: This rule will regulate CCRs under RCRA subtitle D: for further details, see unit IV of the preamble to the final rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 11319_P

- 029

- 1 

### Organization 1 

### : Ebensburg Power Company


### Commenter 1 : Gary Anderson Commenter Type: Electric Utility Company

Classification: Substantive



### Comment Excerpt Text: EPA's motivation to propose these rules appears to be based on what EPA has termed "proven damage cases" siting two ash impoundment accidents at Kingston, TN and Martins Creek, PA. This is in spite of the fact that a thorough study of the Martins Creek acc ident found no adverse impacts to the river, wildlife or human health and that the Tennessee Dept of Health found no significant human health impacts due to the Kingston accident. These findings combined with the safe management of the vast majority of ash sites and beneficial uses clearly indicate that EPA is acting in a capricious manner.

While EPA sites the NRC

- NAS Study concerning ash in its preamble it ignores its scientifically based factual findings ... which include:

1. Enforceable federal standar ds should be established to ensure that STATES have specific authority and implement adequate safeguards.373

2. Primary regulatory mechanisms that should be used to develop enforceable standards are:

• SMCRA, Joint OSM

- EPA rules; or RCRA

- D rules.

Response: This rule will regulate CCRs under RCRA subtitle D, and the Bevil exemption would be retained for most applications of beneficial use. For further details, see Unit IV of the preamble to this rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 11357_P

- 071

- 2 

### Org anization 1 

### : Sunbury Generation LP


### Commenter 1 : Teresa Copenhaver Commenter Type: Electric Utility Facility

Classification: Substantive



### Comment Excerpt Text: As one of its motives in proposing that coal ash be deemed a hazardous waste, the EPA claims "prove n damage cases" citing two ash impoundment accidents at Kingston, TN and Martins Creek, PA. This is in spite of the fact that thorough studies of both accidents found no adverse impacts to the river, wildlife or human health.

These findings combined with the history of safe management of the vast majority of ash sites and the record of successful beneficial use seem to indicate that the EPA is not basing its findings upon scientific fact and at the same time seems to ignore proven beneficial use.

The EP A's proposals for change to any rules should be based on scientific fact and not on political, media or anti

- fossil fuel groups' appeasement. An ash accident may be a legitimate reason for EPA to propose regulatory improvements pertaining to wet ash dispos al impoundments; however, it is unreasonable to propose rules that declare all ash hazardous and drastically limit its many current beneficial uses.

Response: See response to comment excerpt EPA

- HQ

- RCRA

- 2009

- 0640

- 11319_P

- 029

- 1.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 11422_P

- 153

- 3 

### Organization 1 

### : Allegheny Energy, Inc.


### Commenter 1 : David C. Cannon, Jr. Commenter Type: Electric Utility Company

Classification: Substantive



### Comment Excerpt Text: Damage Cases

Two Allegheny sites are referred to in rece ntly issued NGO reports as alleged "damage cases" purportedly warranting treatment of CCR as a Subtitle C waste. They are long

- permitted landfills at our Mitchell and Hatfield's Ferry power stations in Pennsylvania. In both cases the discussions

distort th e facts about disposal operations and effects on drinking water supplies. They seemingly374

abjure state and federal water laws and regulations and incorrectly invoke drinking water standards where they have no state or federal applicability. They further ign ore the extensive existing regulatory requirements and standards to which Allegheny and other operators are held accountable by EPA, Pennsylvania and West Virginia.

The February 24, 2010 report misconstrues the hydrology of the Mitchell site and contains errors regarding the station operation of wastewater treatment lagoons and the permitted and engineered coal combustion residuals landfill. Likewise, the alleged Hatfield's Ferry damage case, noted in the more recently published report, also misinterprets the hydrology, applies the wrong standards, misidentifies drinking water well locations, ignores existing monitoring wells and incorrectly describes station disposal practices.

Any EPA reliance on these Allegheny site reports would fail to meet the most b asic principles of administrative law and technical support to which EPA is subject. Contrary to these third party allegations, the Pennsylvania regulations have been effective at protecting human health and the environment. Both of these sites have been p ermitted, inspected and monitored by Pennsylvania

under its own rules for decades.

If the other alleged damage cases claimed by the reports are as flawed as those relating to Allegheny and populated by the same factual errors and invalid correlations, EPA must dismiss them as failing to support Subtitle C regulation.

Response: See response to comment excerpt EPA

- HQ

- RCRA

- 2009

- 0640

- 11319_P

- 029

- 1.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0254

- 4 

### Organization 1 

### : Dominion Resources Services, Inc.


### Commenter 1 : Pamela Faggert Commenter Type: Electric Utility Company

Classification: Substantive



### Comment Excerpt Text: III. Reports regarding alleged damage cases from the management of CCRs

EPA states in the NODA that it is noticing several reports received as comme nts to the 2010 proposed rule relating to CCR damage cases. Dominion offers comments on three of these
reports:

1. EPRI Evaluation of Coal Combustion Product Damage Cases: Volume I:Data Summary and Conclusions (EPA

- HQ

- RCRA

- 2011

- 0392

- 007)

2. EPRI Evaluati on of Coal Combustion Product Damage Cases: Volume 2: Case Summaries (EPA

- HQ

- RCRA

- 2011

- 0392

- 008); and

3. Remainder of Comments of Earthjustice, Environmental Integrity Project, Sierra Club, Natural Resources Defense Council, Southern Alliance for Clean En ergy, Southern Environmental Law Center, Physicians for Social Responsibility (EPA

- HQ

- RCRA

- 2011

- 0392

- 0132)375

EPRI Reports

The two EPRI reports referenced above provide a technical assessment and interpretation of the July 9, 2007 EPA report "Coal Combustio n Waste Damage Case Assessments" ("2007 EPA report"). In its reports, EPRI challenges the conclusions of the 2007 EPA report concluding that EPA overextends its definition and inclusion of both "proven" and "potential" damage cases. Dominion agrees with EP RI's general conclusions and expands upon the reports' data summaries below by providing clarifying details on the sites referenced in the report for which we have

information.

The 2007 EPA report documents both "Proven" and "Potential" damage cases. The EPA identifies proven damage cases as those with:

1. Documented exceedances of a primary MCL or other health

- based standard measured in groundwater at sufficient distance from the waste management unit to indicate that the hazardous constituents have migr ated to the extent that they could cause human health concerns;

2. Where a scientific study demonstrates there is documented evidence of another type of damage to human health or the environment; and/or

3. Where there has been an administrative ruling or court decision with an explicit finding of specific damage to human health or the environment.

The 2007 EPA report identifies two sites connected to Dominion as "proven" damage cases, one facility as a "potential" damage case, and one contracted landfill as a "potential" damage case.

"Proven" Damage Cases

The Chisman Creek Superfund site in Yorktown, Virginia has been used as an example of a damage case that justifies regulation of CCRs under Subtitle C of RCRA. In this case, the material placed on the site from 1954

- 1974 was a combination of coal ash, oil ash, and petroleum coke ash and should not be used to represent potential impacts from CCRs. Placement of the material on the site did result in impacts to groundwater. However, the site was not intend ed or designed for impoundment, landfill or beneficial use of CCRs under today's existing requirements in Virginia and is not representative of such uses.

Dominion's Possum Point Power Station, located in Dumfries, Virginia, is an existing facility

that c onverted from coal to natural gas in 2003. The facility formerly co

- managed its oil ash, pyrites, cleaning wastes, coal fly ash, and coal bottom ash in an unlined 40

- acre pond. In 1987, the facility entered into an administrative agreement with the Commonw ealth of Virginia to mitigate onsite groundwater MCL exceedances for cadmium and nickel. This action included removing the deposited materials from the unlined pond and transferring them to a lined pond. The resultant groundwater data demonstrated an absen ce of nickel and cadmium below water quality standards. The Virginia Department of Environmental Quality (DEQ) lists this pond as closed. The EPA subsequently identified the likely source of this contamination to be oil ash and376

other low volume wastes and not coal fly or bottom ash. As the Possum Point findings are a result of oil ash contamination rather than coal ash, this case is not relevant to the scope of the

NODA.

"Potential" Damage Cases

The 2007 EPA report identifies the Brayton Point Power Stati on, located in Somerset, MA, as a "potential" damage case. The report does not provide many specifics regarding the facility, but rather states that it is "one of nine sites managing oil combustion wastes that have groundwater contamination." In the report 's basis for consideration as a potential damage case, the EPA

concludes that there is an exceedance of one or more MCL standards from the site's unlined wastewater treatment basins that does not impact drinking water wells offsite. The site did manage oil ash settling ponds identified above from approximately 1969 to 1975 and unlined wastewater treatment basins until late 2000. However, the EPA's statement regarding the source of contamination is inconclusive. In 1996, the owner of the site, New England Po wer, notified the Massachusetts Department of Environmental Protection (MassDEP) of a detection of

elevated metals from on

- site landfill monitoring wells per Solid Waste Regulations and Massachusetts Contingency Plan (MCP) procedures. Through the MCP site investigation process and subsequent RCRA 2020 corrective action process, the on

- site and off

- site risks to human health and the environment associated with past oil ash and wastewater practices have been mitigated and approved by MassDEP. All current on

- s ite management of oil ash, coal ash, and wastewater is conducted in lined basins and aboveground tanks and silos unless it is beneficially reused. Finally, as mentioned above, the Brayton Point findings are a result of oil ash

contamination rather than coa l ash, and therefore, are not relevant to the scope of this NODA.

The 2007 EPA report identifies the former K.R. Rezendes Landfill in Freetown, MA as a potential damage case due to a detection of selenium above the MCL from an on

- site landfill monitoring well located within the boundary of the landfill. The self

- reporting of this result was in conformance with MassDEP solid waste regulation requirements. The Rezendes Landfill was a state permitted mono fill of a former sand and gravel quarry that utilized coal ash from Brayton Point and Salem Harbor Power Stations as structural fill to bring the quarry to natural grade. The site is now being prospectively redeveloped as Paynes Crossing Shopping Center. The single on

site MCL exceedance does not qualify thi s site as a damage case.

Response: The following response is based on EPA’s records:

Possum Point Power Station, Dumfries, Virginia: EPA agrees with the commenter that Dominion’s (originally: VEPCO) Possum Point site does not qualify as a CCR damage case. EPA designated this site as a rejected damage case due to co

- mingling of CCR wastes with other waste types, without clear implicatio n of CCR wastes in damages.

Similarly, EPA rejects New England’s Power Brayton Point Plant, Somerset, Massachusetts as a damage case: this site is one of nine sites managing oil combustion wastes that are associated with largest coal

- and oil

- powered gene rating station in New England. Oil

- fueled plants are outside the scope of this rule.377

Concerning K.R. Rezendes Landfill in Freetown, Massachusetts, EPA agrees with the commenter’s description of the site’s history, but disagrees with his concluding stateme nt that “The single on

- site MCL exceedance does not qualify this site as a damage case.” Based on

EPA’s test

- of

- proof criteria, this sites qualifies as a potential damage case.

The commenter agrees with EPA’s records that at the Chisman Creek Superfund si te, Yorktown, Virginia, placement of CCR, oil ash, and petroleum coke ash on the site did result in impacts to groundwater (exceedance of MCLs of nickel, vanadium, and selenium in nearby residential wells; and exceedance of SMCL of sulfate). However, EPA d isagrees with the commenter’s conclusion that “the site was not intended or designed for impoundment, landfill or beneficial use of CCRs under today's existing requirements in Virginia” and therefore does not qualify as a damage case. EPA’s disagreement re flects the fact that all CCR damage cases result from the mismanagement of CCRs, regardless of whether they conform to management practices prevailing at the present day or not.



### Comment Number: TRANS

- ARL

- 0053

- 2 

### Organization 1 

### : American Coal Ash Associati on 

### Commenter 1 : Thomas Adams Commenter Type: Trade Association

Classification: Substantive



### Comment Excerpt Text: The EPA has cited damaged cases as a primary basis for creating its hazardous waste disposal regulations. None of the cases, the damaged cases, are connected to beneficial use of coal combustion products, not one single case. In fact, two of the specific c ases cited by EPA have shown no effects on human health and the environment. The EPA's own Region 3 report on the Battlefield Golf Course states there is no effect on groundwater in the property surrounding the golf course. Two reports on the Kingston, Ten nessee impoundment failure indicate no short

- term or long

- term health effects related to the spill. The U.S. Department of Health and Human Services, along with Tennessee Department of Health, issued a report last December stating that there were no long

- t erm health effects indicated from the spill. Within the last 3 weeks, an additional report was issued on testing of 200 individuals residing in close proximity to the Kingston plant which showed no material health effects related to the spill.

Both of the se are EPA prime examples to justify the need for hazardous waste regulations which show no damage to human health. So we must ask the question, is there no damage because there is no damage, or is it that we just have not done enough research? And if it t he latter, how much research is enough?

Response: This rule will regulate CCRs under RCRA subtitle D, and the Bevil exemption is retained for most applications of beneficial use. For further details, see Unit IV of the preamble

to this rule.



### Comment Num ber: TRANS

- ARL

- 0074

- 1 

### Organization 1 

### : ARIPPA


### Commenter 1 : Jeff A. McNelly Commenter Type: Trade Association378

Classification: Substantive



### Comment Excerpt Text: EPA's motivation to propose these rules appears to be based on what EPA has termed proven damage ca ses, citing two ash impoundment accidents at Kingston, Tennessee, and Martins Creek, Pennsylvania. This is in spite of the fact that a thorough study of the Martins Creek accident found no adverse impacts to the river, wildlife or human health, and that th e Tennessee Department of Health found no significant human health impacts due to the Kingston accident. These findings combined with safe management of the vast majority of ash sites and the beneficial uses clearly indicates that EPA is acting in a capric ious manner. EPA's true motivation to propose these rules appears to be based on political media appeasement versus scientific fact. Response: This rule will regulate CCRs under RCRA subtitle D, and the Bevil exemption is retained for most applications of beneficial use. For further details, see Unit IV of the preamble

to this rule.

Section 8.7

- New reports of potential CCR damage cases (not a lready reported to EPA)



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 00378

- 1 

### Organization 1 

### : Commenter 1 : John Austin Commenter Type: Private Citizen

Classification: Substantive



### Comment Excerpt Text: For the record, recent FOIA data has found significant ground water contamination at monitoring wells down gradient of the NGR Indian River Power Plant, Millsboro, DE 19966.

Contamination needing corrective actions was here before not reported. Attached is the raw data

recived via FOIA from DNREC.

The Phase I & II landfills have a groundwater monitoring program. Well cluster 326 is on the bank of Island Creek adjacent to the landfill. Well B is screened from 15' to 25'. Well 326C is screened from 30' to 40'. It detected 2 ug/L arsenic 4/24/97 and 7 ug/L arsenic 10/2 2/97. Well 326D was dug 10/26/98 and screened at 40' to 50'. No Arsenic contamination was again detected

at this well cluster until 2009.

[See original comment 0378 attachment for tables of well number, depth, and sample results for

arsenic levels taken i n February, April, and October, 2009.]

[ATTACHMENT: See original comment for 0378.1

-- tables with results from the Indian River Power Plant Ash Disposal Area Groundwater Monitoring Program including nutrient concentrations.]

Response: Thank you for your comment. EPA cited data from your comment (raw data received via FOIA from DNREC on some recent groundwater contamination at monitoring wells down379

gradient of the NGR Indian River Power Plant in Delaware) in the technical support document on damage cases that is included in the docket of the final rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 02401

- 3 

### Organization 1 

### : Sierra Club Oklahoma


### Commenter 1 : Jody Harlan Commenter Type: Advocacy Group

Classification: Substantive



### Comment Excerpt Text: State regulation and enforcement are notoriously weak or non

- existent and subject to influence by unscrupulous, profit

- motivated corporations with local connections. The Oklahoma Department of Environmental Quality, Water Resources Board and the Oklahoma Department of

Min es each insist the other is responsible for regulation of coal ash in our state

– even in public meetings when we show the video “Bokoshe: The Air We Breathe,” which you can see at http://vimeo.com/12533060.

This video, which was funded by Sierra Club Okl ahoma, is about what is happening to 450 citizens who live near a coal ash dump in the small town of Bokoshe (“Bo

- ko

- she) in southeastern Oklahoma. The coal ash company initially known as Making Money, Having Fun (now more tactfully renamed Clean Hydro Rec lamation) has ruined their property and their lives by dumping coal ash in Bokoshe from the coal

- fired AES Shady Point power plant in nearby Panama, Oklahoma.

Oklahoma law prohibits locating a coal ash dump any closer than three miles from an incorporate d city, so when MMHF went to the Oklahoma Corporation Commission for a permit, they just left the 100

- year old, incorporated town of Bokoshe off their maps. They got away with
it. Bokoshe citizens didn’t know until it was too late.

This is supposed to be reclamation project that would fill up an abandoned lead mine. Instead, the owners of Making Money, Having Fun are building a toxic wall at least 50 feet high and growing. They have their own turquoise lake. The coal ash flies out of the trucks as “fugiti ve dust” on many 18

- mile trips to Bokoshe every day. Sometimes school busses drive through it. The coal ash then leaks mercury, arsenic and other toxins into the groundwater that supplies drinking water and then runs down the 50 foot hill onto the neighbor s’ property. The kids have

asthma. The calves are stillborn. And 13 of 14 families who live within a half

- mile of this toxic dump have cancer right now, including a toddler with leukemia, an 8th grade boy with breast

cancer and a 35

- year

- old teacher who ha s had cancer twice. Several of her same

- age exercise

buddies are dead from cancer.

Response: Thank you for your comment. EPA has incorporated data from your comment as well as other information provided to us about the Bokoshe site in Oklahoma into the te chnical support document on impacts associated with CCR fugitive dust, which is included in the docket to the final rule. Additionally, EPA cited the Bokoshe case in Unit VI of the preamble to the final rule, in the section dealing with operational require ments for controlling fugitive dust (Air Quality).380



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 04041

- 8 

### Organization 1 

### : Environment Maryland Research & Policy Center


### Commenter 1 : Brad Heavner Commenter Type: Advocacy Group

Classification: Substantive



### Comment Excerpt Text: Third, there are documented incidents of harm to the environment as illustrated most recently by the Tennessee spill, and, locally, by the contamination of groundwater and drinking water wells near a mine reclamation site in Gambrills, Maryla nd, using fly ash and bottom ash as fill, off

- site drinking water contamination traced to a golf course in Centreville, Virginia which was built on a base of fly ash, and the Brandywine CCR landfill in Prince George’s County, Maryland. An analysis of the v olume of CCRs disposed at the Gambrill’s mine reclamation site illustrates the

extent of the hazardous waste conditions. Before off

- site contamination was revealed, Constellation Energy and B.B.S.S., Inc. deposited approximately 3 million tons of coal ash in the former mine site. This included the following amounts of hazardous metals: arsenic

– 120,260 lbs.; barium

– 841,825 lbs.; beryllium

– 15,032 lbs.; cadmium

– 3,006 lbs.; chromium

– 186,404 lbs.; lead

– 138,299 lbs.; thallium

– 30,065 lbs.; and zinc

– 156,338 lbs. Despite state and industry projections for no off

- site contamination, Gambrills residents soon discovered their drinking water wells contaminated by metals and other contaminants from the fly ash, making the water hazardous for human consumpt ion. In Gambrills, the unmistakable consequence of inadequate regulation, poor management practices and a deficient site analysis was environmental degradation and contamination of groundwater. Ultimately, Constellation was forced to install a new public d rinking water system for the impacted community, mitigate site drainage and grading, establish groundwater monitoring wells, remediate groundwater contamination and suspend mine reclamation activities pending the installation of a clay liner, a

leachate co llection system and thick clay cap. Constellation also paid millions of dollars in costs and penalties, including $9 million directly to the affected residents, an amount that certainly negated any savings previously realized by not properly protecting in the first instance the environment and the health of the nearby communities, and a cost that outweighs any regulatory cost currently under consideration related to the handling and disposal of coal ash as special

waste under Subtitle C of RCRA.

Similarly , in an earlier incident in Brandon Woods, Anne Arundel County, Maryland, Baltimore Gas & Electric requested permission of the local authorities to deposit two million tons of coal ash, in addition to four million tons previously disposed on the site, an a ccumulation of hazardous metals of the following magnitude: 192,000 lbs. of arsenic, 1,232,000 lbs of barium and 220,000 lbs of chromium, 192,000 lbs. of lead and 1,760 lbs. of mercury. How can these situations be classified in any manner other than as haz ardous waste sites?

Response: EPA decided to regulate the disposal of CCR under subtitle D of RCRA by issuing minimum national criteria. Similar to the subtitle C option, this option would require composite liners, groundwater monitoring, structural sta bility requirements, corrective action, and closure/post closure care. However, given available statutory authorities, EPA proposed this option to be a self

- implementing rule with no direct federal oversight, with an effective six381

months after publication in the Federal Register . The Agency is deferring its final Bevill Regulatory Determination with respect to CCRs that are disposed in CCR landfills and CCR surface impoundments until additional information is available on a number of key technical and poli cy questions, including the risks of CCR disposal based on its arsenic content, such as the appropriate safe daily dose for arsenic and the speciation of arsenic in the environment, and the potential impacts of recent Agency regulations on the chemical com position of CCR. In addition, the Agency needs additional information on state programs before it is in a position to make a final Bevill Regulatory Determination.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06130

- 1 

### Organization 1 

### : Mecklenburg County, North Ca rolina


### Commenter 1 : Heidi Pruess Commenter Type: Local Government

Classification: Substantive



### Comment Excerpt Text: Mecklenburg County, North Carolina is bordered on the west by three (3) reservoirs operated by Duke Energy in the Catawba River system, including Lake Norman, Mountain Island Lake and Lake Wylie. These reservoirs include power plants owned and operated by Duke Energy that store coal combustion residuals (CCRs) in surface impoundments, including the Marshall, Riverbend and Allen Steam Stations. These reservoirs also provide raw drinking water supplies to local municipalities, serving approximately 1,000,000 residents in the Charlotte area.

Mecklenburg County’s Land Use and Environmental Services Agency (LUESA) is in favor of additional rules regarding CCRs and surface impoundments. Our concerns primarily relate to the potential impacts to surface waters fro m the permitted discharges, as well as the potential for a catastrophic release into a water supply. Within the last 6 months, LUESA has detected arsenic levels in Mountain Island Lake immediately below the Riverbend Steam Station ash basin discharge that are above the State’s water quality standard. LUESA recently provided comments to the North Carolina Division of Water Quality regarding proposed draft NPDES permits for this facility and the Allen Steam Station on Lake Wylie.

Response: Based on a reasse ssment of the Duke Power Allen Steam Generating Plant (Gaston, North Carolina) CCR site, EPA confirmed that this site qualifies as a potential damage case. In contrast, EPA received information about exceedance of MCLs at the Riverbend Steam Station

CCR s ite only after the cutoff date for the confirmation of new, alleged damage cases (November 14, 2011, the closing of the public comment period for the October 2011 NODA). Because EPA could no longer solicit publicly

- accessible rebuttals from the state or th e electrical utility, the Agency was precluded from vetting this case against EPA’s test

- of

- proof criteria. Therefore, the Riverbend Steam Station CCR site is still considered an alleged damage case.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06196

- 62 

### Organiz ation 1 

### : Comite Dialogo Ambiental


### Commenter 1 : Ruth Santiago Commenter Type: Advocacy Group

Classification: Substantive382



### Comment Excerpt Text: The greatest concentration of CCR use has been in the Jobos Bay watershed. Compounding the problem, tens, possibly hundreds of thousands of tons of CCRs were used in the expansion of the Salinas Municipal Landfill. To date, CCRs are still being deposited as fill material in the landfill, while photographic evidence indicates the uncontrolled discharge of storm waters t o nearby farms and the NOAA designated Jobos Bay National Estuarine Research Reserve [Footnote 43: See photographs of storm water discharges at SML. Appendix E. The Jobos Bay National Estuarine Research Reserve is a refuge for dozens of species of migrator y birds and aquatic life.].

Groundwater sampling in the Salinas Municipal Landfill has also detected selenium and other metals and chemicals in the aquifer above background levels. The Salinas Municipal Landfill is

90 meters from the Reserve and there is concern that the selenium will leach into the Reserve and cause fish deformities or inhibit fish reproductive capacity as has been documented in ecological studies (35171

- 71).

There is a concern that there will be cumulative or synergistic effects of the metals and chemicals leaching from the landfill in conjunction with the large amounts of CCRs disposed of at construction sites. This situation seems similar to that of Pines, Indiana.

The CCRs have been used to form a storm water retention pond in proxim ity to an irrigation canal and the South Coast Aquifer with no liner or groundwater monitoring. The CCR sample taken at the site indicated that the alpha radioisotopes reached 9.9 pCi/gm nearly doubling the ARAR standard. When the beta test result of 5.4 p Ci/g is added, exposure to radiation from

AES

- PR CCRs is three times the ARAR standard [Footnote 44: See Analytical Report, supra note 2. Appendix B.]. This batch of CCRs is currently exposed to wind currents and water

erosion because it was used to create a storm water retention pond for a residential project of approximately 500 homes. During the dry season, which starts in December and extends through May, it is expected that the CCRs will be mobilized by the tropical air currents coming from the

Caribbe an Sea. During the hurricane or rainy season, the CCRs will erode into the retention pond, percolate to the South Coast Aquifer or seep into the nearby irrigation canal that discharges to the Nigua River and eventually to an estuarine area in the Caribbean Sea.

Response: EPA, to the best of its knowledge, has not received sufficiently

- documented information about the adverse effects of CCR placement in the Salinas Municipal Landfill on groundwater and on Jobos Bay in Puerto Rico. This has precluded the Agency from vetting this site against EPA’s test

- of

- proof criteria to assess whether it is a legitimate CCR damage case. EPA has received information about CCR fugitive dust issues associated with the extensive use of CCRs in Puerto Rico as structural fill material: the Agen cy incorporated this case into the technical support document to impacts associated with fugitive dust, which is included in the

docket to the final rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06307

- 3 

### Organization 1 

### : Alaska Community Action on Toxics, et al.


### Commenter 1 : Sarah B. Petras383

Commenter Type: Advocacy Group

Classification: Substantive



### Comment Excerpt Text: In Alaska’s Interior, coal combustion waste has been disposed of with virtually no restrictions for decades. At the urging of Alaskan residen ts living near coal ash disposal sites, a public health advocacy organization commissioned an independent analysis of coal ash samples collected in Fairbanks, Alaska. The results of this coal ash analysis (“Coal Ash in Alaska: Our Health, Our Right to Know ”) found in almost every case that the levels of toxic chemicals were much higher than background soil samples from Fairbanks. In the coal ash samples, levels of arsenic and vanadium were found at concentrations that may harm human health. Two samples from the University of Alaska Fairbanks coal

- fired power plant show arsenic concentrations more than 100 times higher than the standard for residential soils set by the EPA. Furthermore, mercury was found at levels 70 times higher than background soils, and at levels high enough to be a potential concern if inhaled in the form of windblown dust.

This is a matter of protecting public health. Adverse health effects associated with exposure to arsenic, vanadium, and mercury include cancer, neurological problems, and developmental defects. In order to keep our communities safe and healthy we need to be sure these hazardous chemicals from coal ash do not end up in our neighborhoods. However, Alaskans are currently surrounded by these toxics on university land, in p ublic spaces, and throughout residential neighborhoods.

Because the coal ash produced in Fairbanks contains higher levels of toxic chemicals than background soil, it should not be considered "inert" as is currently the case (“Coal Ash in

Alaska: Our Heal th, Our Right to Know”). Without regulatory improvements, existing waste disposal and reuse practices in Alaska will continue indefinitely. Thus the undersigned 11 public interest organizations, representing several thousand Alaskans, respectfully ask the EPA to enforce "Subtitle C" to protect US citizens and their environments from hazardous coal ash.

Response: EPA decided to regulate the disposal of CCR under subtitle D of RCRA by issuing minimum national criteria. Similar to the subtitle C option, this option would require composite liners, groundwater monitoring, structural stability requirements, corrective action, and closure/post closure care. However, given available statutory authorities, EPA proposed this option to be a self

- implementing rule wi th no direct federal oversight, with an effective six months after publication in the Federal Register . The Agency is deferring its final Bevill Regulatory Determination with respect to CCRs that are disposed in CCR landfills and CCR surface impoundments u ntil additional information is available on a number of key technical and policy questions, including the risks of CCR disposal based on its arsenic content, such as the appropriate safe daily dose for arsenic and the speciation of arsenic in the environme nt, and the potential impacts of recent Agency regulations on the chemical composition of CCR. In addition, the Agency needs additional information on state programs before it is in a position to make a final Bevill Regulatory Determination.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06314

- 26 

### Organization 1 

### : Earthjustice et. al. (analyses prepared for Earthjustice et. al. by Russell384

Boulding, Boulding Soil

- Water Consulting, and submitted by Earthjustice)


### Commenter 1 : Lisa Evans Commenter Type: Advocacy Group

Classification: Substantive



### Comment Excerpt Text: Attachment B provides summary information on 36 additional sites that should be examined further by EPA and considered as part of the weight of evidence for the harm caused by inadequate state regulation of CCR disposal. These sites include

- Four major spills that have not been previously acknowledged by USEPA. With the four EPA and EIP damage cases that involve spills, the total number of damage cases in this category is

doubled.

- Significant harm to the health of residents of Bokoshe, Oklahoma and LaBelle, Pennsylvania from fugitive dust.

- Disposal of CCR at the San Juan Generating Station has severely contaminated surface water and groundwater in the Shumway Arroyo that discharges into the San Jua n River causing health problems for residents and livestock.

- Exceedances of MCLs in groundwater at 16 sites. MCLs were exceeded for arsenic (7 sites), lead (5 sites), selenium (4 sites), cadmium (3 sites) and mercury (2 sites).

- Other health

- based sta ndards were exceeded in groundwater at 21 sites. At twelve of these sites

other health

- based standards were exceeded but not MCLs. Other health

- based standards were exceeded for sulfate (14 sites), manganese (11 sites), boron (7 sites), cobalt (1 site) and silver (1 site).

- Exceedances of the SMCL for TDS at the Mohave Power Plant in Nevada where remediation focuses on high TDS.

- Exceedances of surface water quality standards for arsenic and zinc in Mountain Island Lake

near the Riverbend Power Plant su rface impoundment in North Carolina.

- Exceedances of water quality standards for selenium and hexavalent chromium at the Fort Martin Power Plant, West Virginia, and for arsenic and aluminum at the LaBelle CCR

- coal refuse disposal site in Pennsylvania.

- Harm to fish populations and selenium in fish tissue exceeding the toxic threshold as a result of discharge from the Mayo Power Plant surface impoundment into Mayo Reservoir in North

Carolina.

Two of the 137 damage cases which are Superfund sites that i nvolved other wastes, EPA’s Lemberger Landfill in Wisconsin and EIP’s Industrial Excess Landfill in Ohio, but the metals contamination can be attributed to the disposal of CCR at the site. The additional damage cases385

in Attachment B include another Superfu nd site, Valleycrest Landfill, Ohio where CCR disposal appears to be responsible to metals contamination in groundwater, and Table 4 [see original comment for ATTACHMENT 5, which contains Table A

- 4] identifies another ten Superfund Sites where fly ash has been disposed in addition to the Lemberger Landfill which has been recognized as a potential damage case. These sites which should also be further evaluated to assess whether they should be identified as CCR damage cases.

As noted earlier, most of the EP A and EIP damage cases are associated with 121 active power plants, almost one

- quarter of the 495 operating power plants. These additional damage cases added to the 137 EPA and EIP damage cases bring the total number of sites where environmental damage has been documented to more than 170. As noted earlier, there are major ash

- producing states (Colorado, Missouri, and Utah) where no damage cases have been identified simply because EIP’s efforts to obtain data to evaluate were unsuccessful and other major as h

- producing states, such as Texas, Arizona, Georgia, Alabama and Mississippi where most CCR sites are not required to monitor underlying groundwater or adjacent surface water. EIP’s experience in evaluating the impacts of CCR disposal where data are availa ble suggests there are hundreds more sites where contamination to groundwater and surface water, and harm to biota is taking place, but state regulatory programs simply have not been requiring that the data to document impacts be collected.

Response: EPA agrees in principle with the observation made by the commenter that, based on EIP’s experience in evaluating the impacts of CCR disposal where data are available, “there are hundreds more sites where contamination to groundwater and surface water, and harm to biota is taking place, but state regulatory programs simply have not been requiring that the data to document impacts be collected.” Quite a few of the 36 sites listed in Attachment B: Additional Documented and Potential Damage Cases are minefill sites or sites receiving CCR from industrial boilers: these sites are out of scope with respect to this rule. EPA confirmed one case (Eagle Valley Power Plant, IN) as a proven damage case; and yet others (e.g, Lemberger Landfill, WI; Curtis Po wer Plant, FL; TVA’s Paradise Power Plant, Kentucky; Cross Station, SC; and Winyah Station, SC) as potential damage cases. Additional sites are still under

assessment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06340

- 2 

### Organization 1 

### : Alaska Community Action on Toxics (ACAT)


### Commenter 1 : Pamela K. Miller and Sarah B. Petras Commenter Type: Advocacy Group

Classification: Substantive



### Comment Excerpt Text:

Health Concerns

For decades, coal

- fired power plants have dumped their coal ash into unlined ponds and lan dfills, resulting in dozens of polluted drinking water supplies and spills into our rivers and streams. Communities across the country are routinely put at an elevated risk of cancer, organ damage learning disabilities, birth defects and other illnesses du e to coal ash contamination.386

In Alaska, coal ash has been disposed of with minimal restrictions for decades, and reuse of coal ash has been encouraged because of the sheer quantity of this material. Alaskans have been repeatedly assured by industry and r egulatory agencies that coal ash is a non

- toxic substance that is safe to use throughout the community and at home

— even in garden soil. Such widespread use of a hazardous material may pose serious health risks, yet there is no publicly available, up

- to

dat e information on what is in Alaska’s coal ash.

In June 2010, at the request of concerned local residents, a sampling project was conducted in the Fairbanks area in an effort to determine the composition of Alaska’s coal ash and whether it may

be hazardous to public health. Researchers collected samples from sources of coal ash and sites with disposed and reused coal ash, such as residential fill piles and road surfacing areas of concern to local citizens. The samples were analyzed for a range of metals, an d preliminary findings show that numerous toxic elements are present in Fairbanks, AK coal ash. All of the coal ash samples contained detectable levels of the elements aluminum, antimony, arsenic, barium, cadmium, cobalt, chromium, manganese, mercury, nick el, thallium, uranium, vanadium, and zinc. Most concerning, levels of arsenic and vanadium were found at concentrations that may harm human health.

Coal ash is extremely hazardous, yet currently it is less strictly controlled than household garbage. The E PA must adopt enforceable, federal safeguards, not suggested guidelines that will protect our communities.

Response: Information on the Alaskan sites mentioned by the commenter is too scanty to have facilitated a credible vetting against EPA’s test

- of

- pro of criteria in order to establish whether they qualify as confirmed damage cases. Consequently, all these cases are still considered alleged damage cases. EPA has received information about CCR fugitive dust issues associated with the extensive dumping of CCRs in Alaska and the resultant air quality impacts of these practices. EPA included a couple of Alaskan cases in the technical support document to impacts associated with fugitive dust which is included in the docket to the final rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06346

- 3 

### Organization 1 

### : Commenter 1 : Kelly Spencer Commenter Type: Private Citizen

Classification: Substantive



### Comment Excerpt Text: It is also evident that less than adequate companies continue to operate disposal sites. For example, three of the dump sites (Brandywine Landfill in Prince George’s County, Faulkner Fly Ash Storage in Charles County, Westland Fly Ash storage site in Montg omery County) for coal ash operated by the Mirant company in Maryland alone had ground water contamination by leaching fly ash, yet they are allowed to easily move on and continue to operate at new locations.

Response: EPA concurs with the commenter’s ob servation about the three CCR damage cases in Maryland, where groundwater is being impacted. However, absent specific examples of cases where “they (Mirant) are allowed to easily move on and continue to operate at new locations”,387

and in light of Mirant’s D ecember 2010 merger with RRI Energy (formerly, Reliant Energy ) to form GenOn Energy, the Agency cannot v erify nor refute the commenter’s statement.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06545

- 1 

### Organization 1 

### : Commenter 1 : Mary Arlis Bates Commenter Type: Private Citizen

Classification: Substantive



### Comment Excerpt Text: I live within 5 miles the Ameren plant in Coffeen, Illinois and am very concerned EPA specifications are not being followed. I have also have friends and relatives living in Coffeen near the Ameren plant. The smaller coal ash pits are all lined with imper vious liners except for the largest pit. Recently, a Hansen Engineer working on the job revealed a waiver from EPA was received by Ameren to alter the original permit. He was told the original plan was not necessary. The contractor who wanted to

finish the job according to the permit was overruled. When questioned about water contamination the response was “we are going to have monitoring wells” According to the original plan at Ameren for the largest waste pit, (30 acres) was to have a clay liner, then a n impervious liner, then a one foot layer of sand and another impervious liner. I am concerned these short cuts in construction will lead to leaching of coal ash into the water

shed and into the Coffeen lake. Fishing tournaments are held in this lake eve ry year. It is owned by Ameren and is managed by the Illinois Dept of Natural Resources, Fish and Wildlife. I have always been concerned that no warning signs are posted against eating the fish from this lake. This is Ameren’s cooling pond and sometimes t he temperature gets extremely high. (If fact Ameren received a waiver to raise the water temperature certain times of the year.) When I inquired about the safety of eating the fish I was told by the Officer on duty the fish are completely safe to eat. I re main unconvinced. I believe the close proximity of the coal ash pond to the Coffeen Lake is very likely to leach in the future. Monitoring wells are not enough! Once the area is contaminated and the damage is

done to the watershed and cannot be reversed i f at all. Landowners are being told it is perfectly safe to live close to the Ameren plant. I strongly object to the waiver being granted to Ameren to eliminate the second liner as called for in the original permit.

Response: Thank you for your comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06549

- 1 

### Organization 1 

### : Sierra Club Michigan Chapter


### Commenter 1 : Rita Chapman Commenter Type: Advocacy Group

Classification: Substantive



### Comment Excerpt Text:388

This is a specific comment about a Coal Ash Spill that o ccurred on 17 Sept 2010, in Lansing, Michigan, into the Grand River. The Grand River is a tributary into Lake Michigan. The company whose coal ash spilled is the Lansing Board of Water and Light. Please see attached document, a Lansing City Pulse news arti cle, with specifics of the problem highlighted in yellow.

Response: Thank you for bringing to our attention the press article from Lansing City Pulse describing the 17 September, 2010 coal ash spill from a Lansing Board of Water and Light CCR management unit into the Grand River, Michigan. Briefly after the spill, the mat erial sampled from a stream of soil that ran into the River had elevated arsenic (119 mg/L) and rather high mercury (0.59 mg/L) values. Unfortunately, the limited data provided in the press article is insufficient to qualify this incident as a damage case.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06549

- 2 

### Organization 1 

### : Sierra Club Michigan Chapter


### Commenter 1 : Rita Chapman Commenter Type: Advocacy Group

Classification: Substantive



### Comment Excerpt Text: Soil laden with arsenic and mercury appears to have run off during a rainstorm from a Lansing Board of Water and Light facility into the Grand River in Lansing. An MSU scientist who analyzed the results of a soil test for City Pulse said the arsenic content was about three times higher than the high end of the safe range in soil, while mercury was at the high end of normal. The runoff came from BWL’s property at the north end of Comfort Street where the publicly owned utility is storing coal ash, which is the byproduct of burning coal that contains elevated

le vels of arsenic, mercury and lead. City Pulse collected the sample on Sept. 17, the day after a torrential rainstorm. City Pulse took it from the river side of a broken silt fence that was supposed to prevent runoff. The sample was

from a stream of soil th at ran into the river. In September, BWL denied coal ash eroded into the river. At the time, BWL said that rain and “clean backfill soil” had toppled the fence. Stephen Boyd, a professor of crop and soil sciences at MSU, analyzed the soil test results that MSU Extension sent to A&L Great Lakes Laboratories in Indiana at City Pulse’s request. Boyd said the “normal” range for arsenic in soil is between one and 50 parts per million (ppm), while for mercury it’s between .03 and .6 ppm. Those are figures from ab out six different academic sources, he added. The results showed arsenic at 119 ppm and mercury just below .59 ppm. “Those two definitely seem to be elevated relative to values found in typical soil, ” Boyd said. While lead and sulfur

were also detected in the sample, the levels were not as alarming as those for mercury and arsenic, Boyd said. Chuck Bennett, a water specialist with the Michigan Department of Natural Resources and Environment, said there was “very little evidence there had been material disc harged from that
site.” However, Bennett did not formally inspect the area until six days after the rainstorm. He said “it’s possible” that evidence of runoff could have disappeared in that time.389

A BWL inspector checked the site on the same day soil sample s were collected and confirmed the fence was breached in two areas by “clean backfill,” but it is not clear if he inspected the site where coal ash appeared to reach the river. The broken silt fence in question was replaced Sept. 20, according to BWL. No o ne was on site during the storm to witness the erosion

— nor is it possible to determine how much flowed in

— but its close proximity to the river suggests, in the least, weak barriers for holding it back.“We don’t believe any ash from our excavation got i nto the river, and we’re very convinced of that,” said George Stojic, BWL planning director. “However, I do believe we probably are more sensitive now to weather events and we’d like to get out there as soon as possible to make sure nothing happens.”

There was once 450,000 cubic yards of coal ash sitting at the roughly 60

- acre site on Lansing’s north side. BWL has voluntarily moved roughly 270,000 cubic yards to “sealed cells” owned by Granger, a hauling and landfill company, that would prevent contaminants from migrating through groundwater, as is the concern at Comfort Street. The excavation will cost BWL about $3 million and is scheduled to be finished next fall. Despite showing a BWL representative exactly where the sample was taken, BWL would not

commen t on the test results because they “did not see where they were taken” or “at what time.” Ingham County Drain Commissioner Pat Lindemann said that regardless if coal ash, or any soil, eroded into the river, the task at hand is preventing it from happening in the future. “I don’t know if this is an accident or not,” Lindemann said. “It doesn’t matter. It’s not a witch

hunt here. If it’s an issue, it will be corrected in the future. That’s a good thing.” Lindemann said erosion from this site “probably happen ed” before the public knew the dangers of what was sitting so close to the Grand River. “No one cared

— but people care now.” Michael Allen, a toxicologist with the Ingham County Health Department, said elevated levels of mercury and arsenic pose their own “specific threats.” Arsenic, an odor

- less and tasteless semi

metal, if consumed in drinking water, can cause skin damage or circulatory problems. Mercury negatively affects neurological development, especially in children.

Allen added that coal ash can de vastate stream habitats, but only in large quantities, like a couple of thousand tons. “Without an actual embankment collapse,” Allen said referring to the Comfort Street site, “I’m not overly concerned about it.” A broader question BWL faces is: Are the 2

- foot

- high silt fences lining the property enough to hold back coal ash in the event of heavy rainfall? Stojic said there will be a review process to see how effective the silt fences are. He also said he does not anticipate another rain event like Sept. 1 6 “that would undermine our efforts.” Next spring and summer will be a test for BWL’s preventive measures. As the excavation moves from the east side of the property to the west (where the sample was taken), the land topography

falls off toward the river. Excavating the land makes it easier for soil to travel, especially during

rainstorms. “We will be improving our process to make sure nothing happens and nothing washes into the river,” Stojic said, referring to earthen “berms” that will get built up, as is the case on the north side of the property.

Response: See response to comment excerpt EPA

- HQ

- RCRA

- 2009

- 0640

- 06549

- 1.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06815

- 32 

### Organization 1 

### : Michigan Department of Natural Resources and Environment (DNRE)390



### Commenter 1 : Liane J. Shekter Smith Commenter Type: State Government
Classification: Substantive



### Comment Excerpt Text: Michigan has eight sites that have been subject to corrective action due to releases from facilities that accept or have accepted CCR. All of thes e damage cases were from releases to the ground or surface water from historical unlined landfills or surface impoundments, and all sites have either ceased accepting CCR and have been capped, or have closed and capped the portion of the disposal facility that was the source of the release. The releases from these unlined facilities were detected by the hydrogeological monitoring systems required under Michigan's Solid Waste Management Act. Upon detection of an exceedance of the background groundwater quali ty, each facility was required to institute corrective action measures, including a response action plan, a remedial investigation to determine the extent of contamination, and the development of a corrective action plan, known in Michigan as a Remedial Ac tion Plan, to address the release. No structural failures of surface impoundments have occurred. Only one of these sites was included in the Table of EPA's Proven Damage Cases found in the Preamble. Please see Attachment 5 for a summary of damage cases in Michigan.

Response: We very much appreciate the initiative of Michigan DNRE to supplement EPA’s database of CCR damage cases. Moreover, EPA also appreciates the fact that Michigan's Solid Waste Management Act has been applied early enough to detect the re leases associated with these cases, as well as Michigan’s fastidious implementation of remedial action, including a response action plan, a remedial investigation to determine the extent of contamination events, and the development of a corrective action p lan to address the releases.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06815

- 39 

### Organization 1 

### : Michigan Department of Natural Resources and Environment (DNRE)


### Commenter 1 : Liane J. Shekter Smith Commenter Type: State Government
Classification: Substantive



### Comment Excerpt Text:
[ATTACHMENT 7: See attachment of original comment for MI DNRE Attachment 5: table of Michigan's proven damage cases]

Response: We very much appreciate the initiative of Michigan DNRE to supplement EPA’s database of CCR damage cases.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06885

- 6 

### Organization 1 

### : Hoosier Environmental Council (HEC)


### Commenter 1 : Jesse Kharbanda Commenter Type: Advocacy Group

Classification: Substantive391



### Comment Excerpt Text: EPA has verified that Indiana has one proven da mage site in the Town of Pines (drinking water wells contaminated with arsenic, manganese, molybdenum, and boron), and six suspected sites. Other sites with existing or potential contamination not listed by EPA are at Duke Energy’s Gibson and Cayuga power plants, both contaminated by boron, and the Indiana

- Kentucky Electric Company site in Madison, Indiana, contaminated by manganese, iron, sulfates, and

boron.

Given the extent of documented environmental contamination by toxic metals leaching from CCR disp osal sites, and the potential for continuing “imminent and substantial endangerment to health or the environment” from improper disposal practices, these wastes must be regulated by federally

- enforceable rules under Subtitle C of RCRA. Subtitle C regulatio ns for CCR disposal should require financial assurance comparable to those for any other RCRA

- regulated hazardous waste disposal facilities.

Response: EPA decided to regulate the disposal of CCR under subtitle D of RCRA by issuing

minimum national criter ia. Similar to the subtitle C option, this option would require composite liners, groundwater monitoring, structural stability requirements, corrective action, and closure/post closure care. However, given available statutory authorities, EPA proposed th is option to be a self

- implementing rule with no direct federal oversight, with an effective six months after publication in the Federal Register . The Agency is deferring its final Bevill Regulatory Determination with respect to CCRs that are disposed in C CR landfills and CCR surface impoundments until additional information is available on a number of key technical and policy questions, including the risks of CCR disposal based on its arsenic content, such as the appropriate safe daily dose for arsenic and the speciation of arsenic in the environment, and the potential impacts of recent Agency regulations on the chemical composition of CCR. In addition, the Agency needs additional information on state programs before it is in a position to

make a final Bev ill Regulatory Determination.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06917

- 25 

### Organization 1 

### : Texas Commission on Environmental Quality (TCEQ)


### Commenter 1 : Tangela Niemann on behalf of Mark R. Vickery Commenter Type: State Government
Classification: Substantive



### Comment Excerpt Text: In addition, based on the information available to TCEQ, molybdenum and selenium, which are naturally occurring metals, have been detected in groundwater at the LCRA Sam Seymour Fayette Power Project facility located in LaGrange, Fayette County, Texas. TCEQ is evaluating the levels of these detected metals to determine whether they are within the naturally occurring background concentrations. However, any releases from this facility, including any corrective action requir ed, are subject to the Texas Risk Reduction Program in 30 TAC Chapter 350. Some CCR landfills and surface impoundments in Texas are located near large reservoirs that store water for the plant's cooling operations. The dams across these reservoirs, however , are evaluated on a periodic basis by the TCEQ's Dam Safety program.392

Response: Thank you for your comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08226

- 8 

### Organization 1 

### : Ohio Environmental Protection Agency


### Commenter 1 : Chris Korleski Commenter Type: State Government
Classification: Substantive



### Comment Excerpt Text: Ohio’s evaluation of CCR damage cases is incomplete :

Ohio has a total of 57 CCR disposal sites. Seventeen of these sites have ground water monitoring with four showing some indication o f impact to ground water. There are 40 CCR disposal facilities in Ohio without ground water monitoring.

Response: Thank you for your comment. We have incorporated your comment into the preamble to the final rule, to illustrate the inadequacy of some stat e regulatory programs which this rule is set out to remedy.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08226

- 9 

### Organization 1 

### : Ohio Environmental Protection Agency


### Commenter 1 : Chris Korleski Commenter Type: State Government
Classification: Substantive Comment Category:



### Comment Excerpt Text: Extent of ground water risk posed by the management of CCR in Ohio is poorly documented :

Ohio has 44 unlined CCR disposal facilities. Forty CCR disposal sites do not have ground water monitoring. Knowledge of ris k due to ground water impacts is limited due to lack of ground water monitoring.

Four CCR disposal sites demonstrate an indication of an impact on ground water quality based upon ground water monitoring data.

• Conesville Station, Coshocton County, Ohi o. The impact on ground water quality of the fly ash pond is documented in the 1984 Electric Power Research Institute report Monitoring the Fixed FGD Landfill

– Conesville, Ohio. This site was acknowledged as a potential damage case in the July 9, 2007, U. S. EPA report titled Coal Combustion Waste Damage Case Assessments

.

• JM Stuart Station, Adams County, Ohio. At this time, there is evidence indicating the quality of ground water beneath the J.M. Stewart Station has been impacted. Samples collected at t he J.M. Stewart Station, well #2, between 1973 and 1986 by Ohio EPA staff indicates a rising level of393

total dissolved solids, sulfate, calcium, iron and magnesium. Ohio EPA continues to monitor ground water to determine if this trend continues and rises to a level where a full assessment is

warranted.

• WC Beckjord Station, Clermont County, Ohio. Analysis data from samples taken from monitoring wells around the fly ash ponds at the CW Beckjord Station indicate sulfate contamination. These fly ash ponds ar e near a public well field. This situation was investigated several years ago and remedial actions were implemented. The site continues to monitor ground

water.

• Cardinal Generating Station, Jefferson County, Ohio. Analysis data from samples taken from monitoring wells around the FAR 2 fly ash pond indicate elevated levels of boron and molybdenum in the Morgantown Aquifer due to a release from the fly ash pond. The Station also has an Ohio regulated solid waste FGD landfill. Because of the proximity of t he ash ponds to the landfill, the solid waste permit requires that the ground water monitoring, assessment, and corrective action requirements also apply to the ash ponds. The operator is conducting a ground water assessment of the ash pond in compliance w ith the solid waste rules.

Ohio EPA has reviewed the 2010 report IN HARM’S WAY: Lack of Federal Coal Ash Regulations Endangers Americans and Their Environment by Environmental Integrity Project, Earthjustice and Sierra Club. This report identifies four O hio sites as having contaminated ground water. Upon review of the report and available information, Ohio EPA does not support the report’s conclusion that two of those sites (Muskingum River Plant and Gavin Residual Waste Landfill) have demonstrated an ind ication of an impact on ground water quality. Ohio EPA identifies the third site, Cardinal Generating Station, as having a release to ground water. As noted above, the ash pond at Cardinal is being fully addressed under Ohio EPA’s solid waste ground water assessment and corrective measure rules. The report identifies a fourth site known as the Industrial Excess Landfill in Uniontown, Ohio. This U.S. EPA Superfund landfill disposed of various industrial wastes and is not representative of Ohio CCR disposal s ites.

Response: We agree with the commenter that the Industrial Excess Landfill in Uniontown, Ohio, disposed of various industrial wastes in addition to CCR; as a result, EPA has rejected this landfill site as a CCR damage case. EPA also agrees with the c ommenter that the Cardinal Generating Station, Conesville Station, JM Stuart Station, and the WC Beckjord Station have all impacted groundwater.

Gavin Residual Waste Landfill : Regardless of the controversy as to whether MCL and SMCL exceedances at Gavin ( MCLs: arsenic, barium, cadmium, lead, and Gross Alpha; SMCLs: manganese, chloride, and TDS; and EPA Lifetime Health Advisory: molybdenum) represent coal mining legacy or more recent, CCR management operations, OH EPA has set water quality criteria for Kyge r Creek for several metals that are all much higher than for the Ohio River; this results in significant mortality rate of the fathead minnow next to the mixing zone of the landfill’s leachate pond outfalls.

Muskingum River Plant: whereas OH EPA does not support the conclusion that the Muskingum River Plant has demonstrated impact on groundwater quality, in 2004 OH EPA mandated AEP to394

implement a groundwater monitoring plan and install 15 groundwater monitoring wells, four groundwater elevation monitoring wells, and five piezometers. Site groundwater have exceedances of both MCLs (barium and Gross Alpha) and SMCLs (iron, sulfate, and TDS).



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08243

- 3 

### Organization 1 

### : Commenter 1 : Gary Kuklish, et al. Commenter Type: Private Citizen

Classification: Substantive



### Comment Excerpt Text: These comments describe a history of regulatory mismanagement at LaBelle, including patchwork permit renewals and approvals of the placement of unauthorized wastes on

- site, and site manage ment that has taken a “do it first, ask for permission later” approach to their affairs. The people of LaBelle deserve better protection than this.

LaBelle Site

– LaBelle, PA small community located in western Pennsylvania, using coal ash as mine fill, i n conjunction with PA DEP issued General Permit WMGR052.
Latitude: 39 59’ 2 “ Longitude: 79 58’ 9” Operator: Matt Canastrale Contracting, Inc.

P.O. Box 234 Belle Vernon, PA 15012

- 0234

361.5

- acres as coal refuse disposal area

145.2

- acres as suppo rt area

– coal ash disposal/reprocessing

506.70 total acres in the LaBelle site

Ownership Chronology: Jones and Laughlin Steel Unknown

- May 23, 1982 LaBelle Processing Company May 24, 1982

- December 6, 1987 Northern Continental Operating Company, In c. December 7, 1987

- November 16, 1990 LaBelle Processing Company November 17, 1990

– March 26, 1992 Interstate Thermal Energy Conversion Corporation March 27, 1992

– September 12, 1996 Matt Canastrale Contracting, Inc. September 13, 1996 until present

Coal ash sources authorized for disposal at LaBelle site: [Footnote 1: Pa. Dep’t of Envtl. Prot., Coal Refuse Disposal Permit No. 26970702, Matt Canestrale Contracting, Inc., permitee, Apr. 4,

2006 revision at 12

- 13 (2006); Pa. Dep’t of Envtl. Prot., Co al Refuse Disposal Permit No. 26970702, Matt Canestrale Contracting, Inc., permitee, Sep. 26, 2006 revision at 14 (2006).]

1. Allegheny Power, Mitchell Power Station: Flue Gas Desulfurization by product used for coal ash placement under general permit WM GR052. 2. Allegheny Power, Hatfield Power Station: Fly ash for coal ash placement. 3. Allegheny Power, Hatfield Power Station: 9

- Bottom ash for coal ash placement under

statewide certification number CA00. 4. Orion Power, Elrama Power Station: Low per meability cementitious) material for placement395

under general permit WMG052 5. Orion Power, Elrama Power Station: Pond ash for coal ash placement. 6. Allegheny Power, Mitchell Power Station: Bottom ash 7. Fayette Thermal: Coal Ash

8. Greensburg Thermal: Coal Ash Site History:

The LaBelle site was originally created by Jones and Laughlin Steel Company as part of a coal preparation plant and is located along a tract of rail, barge and truck transport area adjacent to the Monongahela River. Rejected coal and coarse and fine refuse was deposited at this site for an unknown number of years until the coal preparation plant ceased operation in 1994. It is estimated that approximately 40 million tons of coal waste material has been dumped on a 300

- acre site in various depths

– some as deep as 150 feet, in places. A consultant’s report describes the impact of this dumping on nearby water resources:

“The fine coal refuse was deposited in two large impoundments that are contained by massive

embankments of coarse coal refuse. When operations ceased, the site was left in an abandoned, partially reclaimed condition with stability problems concerning one of the fine coal refuse impoundments. Water discharging from the site from the underdrain and other site provided a continuous supply of metals and sulfate contamination to the Monongahela River. Water seeping through the refuse and captured by the underlying Pittsburgh seam underground coal mine pool provided similar contamination to surface and groundwater resources to the south and southeast.

The impoundment of concern has a footprint of approximately 24 acres and a contributing drainage area of approximately 87 acres. Comparison of pre

- landfill mapping, post

- 1994 aerial photography, and drilling at various dates r esults in an impoundment depth range from 60 to 100 feet, averaging 74 feet. Several feet of standing water, contributed by precipitation falling on the surface of the drainage area, are present at all times in the impoundment and this water is loading

the fine coal refuse and the laterally

- confining coarse refuse.

As early as 1984, the eastern slope of the coarse refuse embankment began to show signs of movement and various engineering plans were designed and implemented to some degree before

the site wa s abandoned in 1994.

With respect to the water contamination associated with the site, six sampling points were evaluated and found to have an average cumulative flow rate of 627 gallons per minute and a total loading in pounds per day for iron of 6.6, m anganese 9.9, aluminum 0.7, and sulfates 19,282. The underdrain discharge, located below the coarse refuse embankment discussed above, is responsible for much of this contamination.” [Footnote 2: Earthtech, Inc., FGD as an Alkaline

Amendment for Coal Waste , at 33, 34, as part of the 1997 permit application (emphasis added).]

In 1996, Matt Canastrale of Matt Canastrale Contracting, Inc. purchased the LaBelle coal refuse landfill. At the time of the purchase, the property was in bankruptcy and the final sal e was contingent upon an agreement that the site would be reclaimed. [Footnote 3: Letter from Hiram Ribblett, Earthtech, Inc., to Mr. William Plassio, PA DEP California District Mining Office(Feb. 14, 2006).] Due to high costs associated with site reclamat ion, it was decided that the LaBelle396

site would utilize coal ash, under the statewide General Permit WMGR052, in order to stabilized the impoundment and address the issues of water pollution.

“At the time of the purchase or shortly thereafter, it was dec ided to explore the idea of providing a location at this site for the placement of coal combustion by

- products. In order to avoid the permitting and operational costs of a residual waste landfill, it was decided to import those by

products that had a benef icial use designation for low permeability cementicious (LPC) material for the purpose of stabilizing the impoundment and capping the entire refuse site in order to minimize the contribution of precipitation to the existing water contamination.” [Footnote 4: Earthtech, supra note 3, at 34.]

PA DEP authorized Mitchell Station’s Flue Gas Desulfurization (FGD)waste as a component of the LPC material placed in the buttress area, structural fill and a final cap.

“Placement of the Mitchell LPC began in Octobe r 1998 in the key

- cut excavated in original ground at the toe of the existing coarse refuse embankment... In April 2006, the Mining Activity Permit was renewed for an additional 2+ years to June 2008 with only the materials listed above approved for applicat ion at the site and only the Mitchell LPC material approved for placement at the buttress area, monitored by underdrain sampling point GW

- 5. Placement of this material in the buttress area was preceded by extending the underdrain in 1998 to avoid burial an d blockage as well as installation of additional shallow laterals to sufficiently drain the buttress area as it was being built. Approximately 1000 feet of channel, comprised of rip

- rap, wrapped in filter cloth,

has been installed at the interface of the L PC and original ground or the coarse refuse.” [Footnote 5: Id. at 35.] During a citizen site inspection on November 8, 2010, this rock

- lined channel was

observed. The channel witnessed while on

- site was not the same as the rock

- lined (rip

- rap)

channel desc ribed in the permit application documents. [Footnote 6: Earthtech, Inc., Application for the addition of a NPDES discharge point to existing coal refuse disposal permit #26970702,

Module 10 attachment at 10

- 4 (January 2008).] No “filter cloth” was observed , as was detailed in the 2008 permit application documents.

The rock

- lined channel shown to those attending the recent citizen inspection is pictured below. It appears brand new: there is no evidence of staining, watermarks, or other growth that would be present in a channel in operation since 1998.

[See original comment for image]

High

- hazard dam, Pond #3:

Pond #3 at the LaBelle site has a designation as a High

- Hazard dam

- a designation given to an embankment that. If breached, could result in loss of human life. According to company

documents:

“[t]he impoundment of concern has a footprint of approximately 24 acres and a contributing drainage area of approximately 87 acres. Comparison of pre

- landfilling mapping, post

- 1994 aerial photography, and drilli ng at various dates results in an impoundment depth range from 60 to 100 feet, averaging 74 feet. Several feet of standing water, contributed by precipitation falling397

on the surface of the drainage area, are present at all times in the impoundment and this water is loading the fine coal refuse and the laterally

- confining coarse refuse.” [Footnote 7: Earthtech, supra note 3, at 34]

Such dams must follow federal and state safety inspection and monitoring requirements. In fact, a 2009 letter from the Pennsylv ania Department of Environmental Protection (PA DEP) to Earthtech, noted the following requirements:

3. “The California District Mining Office received a copy of the letter Dam Safety sent to Matt Canastrale Contracting, Inc. on May 22, 2009 with regard to outstanding issues at this refuse site pertaining to the LaBelle Slurry Ponds #2 and #3, and buttress area. These changes must also be submitted to our office concurrently with Dam Safety.

Once all concerned issues from Dam Safety are resolved, please forward the approved changes so they can be incorporated within this revised phase changing plan.

(a) Also, written approval from MSHA is required for the permit to be processed for this phase changing plan.” [Footnote 8: Letter from Randolph Manack, Pe rmit Reviewer, PA DEP California District Mining Operations, to John D. Pile, Earthtech, Inc. (June 15, 2009).]

Despite the need for approval from three separate agencies (PA DEP, Bureau of Mining and Reclamation, PA DEP Bureau of Waterway Engineering (D am Safety), and MSHA), it appears that dewatering began before the 2008 permit application was even submitted. The application

states that:

“It has recently become necessary to begin dewatering operations to allow the beneficial use of coal ash byproduct placement within the ponds inner embankment. To do so, the inlet to the decant pipe was uncovered and opened to allow dewatering to begin.” [Footnote 9: Earthtech, Inc., Application for the addition of a NPDES discharge point to existing coal refuse dispo sal permit #26970702, Module 10 attachment, at 10

- 4 (January 2008).]

Did Matt Canastrale Contracting, Inc. have the proper authorization to begin the dewatering of this high

- hazard dam? And why wasn’t Mr. Manack made aware that the dewatering had already taken place in 2008?

Outdated approval?

A 1996 letter from The Mine Safety and Health Admisnistration to the mining consultant for the operator was submitted as part of the 2008 permit modification application, and this was apparently intended to show MSHA approval:

“A plan, dated August 9, 1996, to breach Impoundment ... at LaBelle Processing ... has been reviewed. This plan is technically acceptable and, therefore, your request is granted to implement this plan.” [Footnote 10: Letter from Joseph J. Garc ia, District Manager, Mine Safety and Health Administration, Coal Mine Safety and Health District 2, to Mr. William G. Rosner, Mining Consultant for Matt Canastrale Contracting, Inc. (Sep. 4, 1996).]398

In his June 15, 2009 letter, Mr. Manack of the PA DEP indicated, “... we will be holding an informal pre

- denial conference.” [Footnote 11: Manack letter, supra note 10.] Among the items to be discussed were the dam safety issues regarding the LaBelle Slurry Ponds #2 and #3. If there was to be a pre

- denial confe rence, why was it that Mr. Canastrale and his consultants were permitted to proceed with the dewatering plans for these same areas in late 2007 or early 2008?

Mitchell Ash Loses State Certification:

High arsenic levels and inconsistencies in the qualit y of the ash from the Mitchell Power Station prompted the PA DEP to revoke the beneficial use certification in April 2008. A 2000 letter from the PA DEP documents an arsenic problem:

“1. AE [Allegheny Energy] has found that they cannot guarantee that the y can meet the current levels under the existing general permit for total arsenic. Previous and ongoing analysis has shown that the arsenic level is quite variable.

2. The source of the arsenic can be traced to the flyash from the Mitchell plant. Changes in the source of coal may not alleviate the problem.

3. DEP cannot allow the increase of total arsenic levels for beneficial use under a general permit

due to human health and environmental concerns.

4. The LaBelle project does not appear to meet the regulatory criteria for a residual waste disposal facility.

5. The LaBelle project may meet the criteria under 25 Pa. Code 291

– Subchapter E

– Land Reclamation or Subchapter F

– Land Disposal. Although this alternative would not be considered

beneficial use, these subchapters allow the Department discretion regarding the types of waste that can be utilized on a project.” [Footnote 12: Letter from David E. Eberle, PA DEP, to Nancy D. Pointon, Allegheny Energy Supply (Mar. 21, 2000). ]

And a 2008 letter from the PA DEP explicitly revokes certification:

“We have reviewed your submittal dated March 28, 2008, for Mitchell Station. This source is not approved for use at mine sites and has not been approved for several years.

This source still cannot be app roved because it has a pH value that is too low to meet beneficial use guidelines. We only accept ash with a pH between 7 and 12.5.

The ash from the Mitchell Station has not been consistent in quality ... Process or procedural changes would need to be inst ituted at the site to assure chemistry of the ash. For these reasons, former ash certification approval CA021 is cancelled.” [Footnote 13: Letter from Keith Brady, PA DEP, to Leo Rajter, Vice President, Allegheny Energy (Apr. 9, 2008) (emphasis in original ).]

Of concern is the massive amount of Mitchell ash already disposed of at the LaBelle site,399

especially the ash used to stabilize the failing embankment. Is this safe? Will it remain stable? Are residents of the surrounding communities in harm’s way? Co uld this embankment collapse like the TVA Kingston impoundment? What assurances are there to prevent such a disaster?

The confusing patchwork of regulatory oversight (or lack thereof) is also evident in a 2009 letter that appears to authorize the disposa l of decertified wastes:

1. (c) The note “Areas not otherwise identified are to be filled with ash from Allegheny Supply Mitchell Power Plant” must be corrected to specify only the non

- shaded areas can contain the

Flue Gas

Desulfurization Material from Allegheny Power Mitchell Power Station as approved in the original application.” [Footnote 14: Manack letter, supra note 10.]

How is it that the PA DEP is still considering the placement of ash from the Allegheny Mitchell Power Station when the Departme nt revoked the ash certification from this same supplier in April, 2008

– one year prior? Does this mean the LaBelle site continued to accept decertified coal ash from the Mitchell plant defying a state revocation? If so, have violation notices been

issued ?

Another 2009 letter from PA DEP rejected coal ash from Hatfield Power Station: “The following source for beneficial use of coal ash is rejected: Source: Hatfield Power Station Units 1, 2 & 3 fly ash

This source does not qualify for statewide certific ation under 25 Pa. Code § 287.663 for beneficial use at active and abandoned coal mines in Pennsylvania because the aluminum leachate concentrations consistently exceed the certification value of 5.0 mg/l in all three units.

Site specific approval for pla cement at the LaBelle operation (Mining Permit No 26970702) is also revoked because there has been no justification supplied by the operator for use of this high aluminum material at the LaBelle site. Historic data shows that aluminum values are higher in concentration than the past samples used as the basis for the site

- specific approval originally granted for placement at the LaBelle site. The operator has not demonstrated to the Department’s satisfaction that use of this current material will not cause g roundwater pollution pursuant to 25 Pa. Code § 86.37(a)(3

- 4).

Use of this material must be halted immediately at each site using this source and no additional beneficial use at coal mining activity sites will be approved unless you can demonstrate that

m aterial meets certification requirements and otherwise meets the applicable provisions of the Department’s regulations governing the beneficial use of coal ash.” [Footnote 15: Letter from William Allen, Chief, Monitoring and Compliance Section, PA DEP, to Mr. Todd Koget, Allegheny Energy Supply Company (nov. 18, 2009) (emphasis in original).]

Impact to Public Water Supplies Not Fully Disclosed:

As part of the original 1997 permit application for use of coal ash in reclamation of the LaBelle400

site and the January 2008 application for an additional NPDES permitted outfall, Matt Canastrale Contracting, Inc. and their professional experts did not fully disclose numerous public water intakes impacted by the massive coal ash disposal site under their operation.

The permit application instructions require the following: Question, Section 8.5: “Provide the name, type and location of all current pubic (community and non

- community) surface water supplies that have intakes on the receiving stream within 10 miles do wnstream of the proposed permit area, and public water supplies in or within one half mile of the proposed permit area. [Footnote 16: Matt Canastrale Contracting, Inc., Coal Refuse Mining Permit #26970702 Modification , Beneficial Use permit application(19 97).]

The applicant’s 1997 response stated the following: Answer, Section 8.5: “There are no known surface water supplies that have intakes on the receiving stream within ten miles downstream of the proposed permit area. There are no known public water s upplies within one

- half mile of the proposed permit area.” [Footnote 17: Id]

The receiving stream is not the final receiving water: the final receiving water for the discharges from the LaBelle site is the Monongahela River, as confirmed by the Earthtech , Inc. documents as cited previously. The Monongahela River, with many public water supply intakes, is located approximately 0.6 miles from the LaBelle coal ash disposal site. And the Monongahela River is the primary drinking water source for approximately one hundred western Pennsylvania

communities.

Within the ten

- mile area defined in the permit application, there are at least twelve public water supply intakes:

East Millsboro

– approximate mile marker 65.0

Millsboro

– approximate mile marker 64.8

Fr edricktown

– approximate mile marker 64.3 Vestaburg

– approximate mile marker 63.5 LaBelle Processing Company

– approximate mile marker 63.0 Centerville Borough

– approximate mile marker 62.8 Kelly Run

– approximate mile marker 60.6 HBC Barge

– approx imate mile marker 58.75 Brownsville Water Company

– approximate mile marker 57.2 California Water Company

– approximate mile marker 52.6 Newell Municipal Authority

– approximate mile marker 50.9

Newell

- Allied Chemical

– approximate mile marker 50.0

W hy wasn’t the applicant required to fully disclose that the receiving stream flowed directly to a major drinking water source with numerous public water intakes? Subsequently, in the 2008 application for the addition of an NPDES permit, the operator was as ked to identify public water supplies and one is noted: Tri

- County Joint Municipal Authority, which includes several of those listed above. However, it is unclear if the operator of the LaBelle site has ever fully disclosed the

toxic metals known to be ass ociated with coal ash, making complete testing and reporting for these toxins possible by the local water authority.401

Again, in a subsequent portion of the same permit application(section 8.3 b (2)), when asked to provide information on public water suppl ies within ten miles of the receiving stream, the applicant responded “N/A.” [Footnote 18: Earthtech, supra note 10, at 8

- 3. ] As detailed above, there are at least twelve public water supply intakes within the ten miles prescribed in the permit applicatio n question.

LaBelle Site: Reclamation or Massive Dumping Authorized by the PA DEP?

According to PA General Permit WMGR052, low permeability cementitious (LPC) material must be in layers no thicker than two feet:

Appendix A, Use Restrictions of LPC Ma terial for Construction, The PA General Permit

WMGR052:

(9) LPC material shall be spread uniformly and compacted in layers not exceeding 2 feet in thickness. [Footnote 19: PA DEP General Permit WMGR052, Appendix A, Use Restrictions of

LPC Material for Con struction, Section 9.]

In direct violation of this section of the permit, the LaBelle site is dumping 100% coal ash

– without any soil lifts. The operator and his attorney confirmed to citizens while attending a recent mining inspection of the site (Nove mber 8, 2010) that no soil was being used; only LPC coal ash. The operator and his attorney explained that their engineers indicated that adding soil would interfere with the “cementicious” properties of the LPC ash. Therefore, even though there

are soil s poils areas available on the site, the operator is using only 100% ash for reclamation.

A 2004 Earthtech letter detailed “six existing soil storage piles within the LaBelle permit limits.” [Footnote 20: Letter from Robert R. Reese, Earthtech, Inc., to Jo seph Matyus, PA DEP California District Mining Office (Sep. 21, 2004).] Pile #1: Prison pile = 43, 883 cubic yards Pile #2: Prison and sewer line construction fill = 50,336 cubic yards Pile #3: Stockpile area above Sedimentation Pond #2 = 9,166 cubic ya rds Pile #4: Stockpile area below buttress area = 2,777 cubic yards Pile #5: Small stockpile, prison side = 2,222 cubic yards Pile #6: Large stockpile, top of hill, prison side = 14, 815 cubic yards

Subtotal soil piles = 123,199 cubic yards

Borrow ar ea = 112,933 cubic yards Total = 236,132 cubic yards

With so much soil stockpile available, why isn’t the PA DEP requiring the LaBelle site to comply with the General Permit’s requirements for soil lifts? Citizens wonder if this regulatory provision is being altered to allow for the disposal of millions of tons more ash.

Early documentation indicated the LaBelle site would require approximately 20,500,000 tons of coal ash to fully reclaim and close the site. By comparison, a reclamation plan including returning the site to a stable configuration with a covering of two feet of coal ash and then a soil402

cover would utilize approximately 1,500,000 tons of coal ash for a 361.5 acre coal refuse disposal area. According to the 2006 Earthtech letter, approximat ely 2,500,000 cubic yards (3,125,000 tons) of coal ash had already been placed at the LaBelle site. [Footnote 21: Letter from Hiram Ribblett, Earthtech, Inc., to William Plassio, PA DEP California District Mining Office (Feb. 14, 2006). ] Under the standar d reclamation permit requirements, the site would be

reclaimed and closed.

In 2009, Matt Canastrale asked for permission to add municipal water treatment sludge to the

LaBelle site:

“The Department of Environmental Protection (DEP) reviewed your June 1 5, 2009 request and subsequent information dated July 7, July 9, and July 13, 2009 to use Drinking Water Treatment Plant Sludge from West View Water Authority’s Davis Island Impoundment as a soil

substitute/soil amendment/final cover at the LaBelle Coal Re fuse Disposal Area in Luzerne Township, Fayette County and the Mathies Coal Refuse Disposal Area in Union Township, Washington County.” [Footnote 22: Letter from Elizabeth Bertha, Facilities Specialist Waste Management, PA DEP, to Matt Canastrale (July 28, 2009).]

If Matt Canastrale Contracting, Inc. and their consultant’s have provided information detailing that 236,132 cubic yards of soil stockpiles and/or borrow areas is readily available on

- site, why would the operator need to dispose of municipal wat er treatment sludge as part of the reclamation plan?

Is the LaBelle site truly being reclaimed or is this a disposal site for a variety of industrial waste streams? Is the LaBelle site providing a moneymaking opportunity for the operator, while presentin g dangerous environmental risks to the local communities?

And, has there been any testing of the co

- mingled coal ash, coal refuse, and municipal water treatment sludge to prove that it is safe for human health, water supplies, or the environment in

gener al?

If these data exist, they were not available in the public files for the LaBelle site. Environmental Impacts from Coal Refuse

– Rationale for Coal Ash Dumping: According to public documents obtained from the PA DEP, the LaBelle site was engineered to utilize LPC material to address environmental issues, as well. A document prepared by Earthtech indicated the following:

“When the LaBelle coal refuse facility was abandoned in 1994, it was contributing a net negative environmental impact for the follow ing reasons:

Polluted runoff and shallow groundwater flow was impacting the Monongahela River.

Polluted groundwater was seeping into the underlying Pittsburgh coal seam underground mine pool.

A huge potential existed for additional surface water cont amination due to the instability of sections of the refuse pile outslopes.403

Airborne fugitive emissions were escaping from the site due to several hundred acres of unreclaimed, exposed coal refuse.” [Footnote 23: Earthtech, supra note 3, at 35.]

The rep ort notes that “[c]ompletion of the project, involving the approved coal combustion by

products, dominated by the FGD

- sulfite from the Mitchell Plant, will eliminate these problems, hopefully resulting in a net positive environmental impact.” [Footnote 24: Id]

This same report goes on to detail how the LPC coal ash will be monitored: “The LPC material utilized at this site and its placement meets the criteria [of General Permit WMGR052] and its affect upon surface and groundwater will ultimately be measur ed at several points on and around the site, but the activity to date is measurable only at the underdrain (GW

- 5) and sediment pond

SP

- 1. The underdrain system ... has provided an uninterrupted flow that has been sampled prior to and during placement of the FGD

- sulfite material over a period of nine years. Sediment pond

SP

- 1 was constructed at or about the time placement of the Mitchell material began and it receives all the surface runoff from the placement area as well as some from the coarse refuse

above t he placement area. Both sites are in an excellent position to receive water that has been in contact with the LPC material in all of its states of solubility, throughout the project. [Footnote 25: Id (emphasis added)]

“Testing parameters for GW5 (underdr ain):

Quarterly: pH, total acidity, total alkalinity, total iron, total manganese, total aluminum, total sulfates, specific conductance and total suspended solids.

Annually

– effluent:

Total arsenic, total cadmium, total chloride, total calcium, tota l chromium, total copper, total lead, total magnesium, total mercury, total nickel, total potassium, total selenium, total sodium,

total zinc and total dissolved solids.

Monthly

– sediment pond (SP 1), if discharging: pH, total acidity, total alkalinity, total iron, total manganese, total aluminum, total sulfates, specific conductance, and total suspended solids.” [Footnote 26: Id]

Did coal ash decrease or increase environmental impacts?

The PA DEP, the site operator, and the operator’s team of consul tants claimed the addition of LPC coal ash to the massive LaBelle coal refuse piles and embankments would reduce the amount of water contamination draining from the LaBelle coal refuse site, increase stability of coal refuse outslopes, and address fugitive dust emissions from hundreds of acres of unreclaimed

coal refuse.

The reality has been much different. Public file reviews and community outreach among residents living near the LaBelle coal ash disposal site have revealed numerous examples of

water con tamination and complaints that fugitive emissions from the site have increased.404

Appendix 1 shows surface water and groundwater data in exceedance of state and federal

standards.

The 2008 application for a revision to the NPDES permit, that would allow an additional discharge point reveals that, the underdrain, previously acknowledge to be a source of ground and surface water pollution, was to be maintained as the new outfall source

- with the addition of

coal ash leachate:

“It has recently become necess ary to begin dewatering operations to allow the beneficial use of coal ash by

- product placement within the ponds inner embankment. To do so, the inlet to the decant pipe was uncovered and opened to allow dewatering to begin. The dewatering/overflow pipe ha s always been part of the previously submitted documents, but was inadvertently missed as an NPDES discharge point. Thus, an additional NPDES discharge point is required.

It is noted the proposed discharge point is the outlet for the pond and has been in existence since the previous operations. A box inlet on the inside embankment of the pond has been identified in prior submitted permit documents as the emergency spillway. The water elevation has always

remained well below this box inlet and is believed to been maintained via the pond draining out the underdrain. The proposed project will revise the existing permit to add one NPDES discharge point. The additional discharge point will be for Slurry Pond No. 3 and lies within the existing permit area. If ne cessary, the water, prior to leaving Slurry Pond No. 3 via the new discharge point, will be chemically treated to raise the pH to between 6 and 9, mixed using a pump, and provided sufficient retention time to allow for settling. When appropriate, a filter bag will be

used to remove solids.

The water flowing from Pond No. 3 will be discharged through the existing pipe to point 009 shown on Exhibit 6.1. The discharged water will gravity flow down hill via an existing drainage channel into Meadow Run.” [Foot note 27: Earthtech, Inc., Application for the addition of a NPDES discharge point to existing coal refuse disposal permit #26970702, Module 10

attachment at 10

- 4 (January 2008).]

Fugitive Dust Emissions Increase as a Result of Coal Ash Dumping:

Instead of decreasing the fugitive dust emissions as the operator and his experts predicted, the dangerous emissions from the disposal site have actually increased as the LPC coal ash has been dumped.

Fugitive dust emissions from the LaBelle site have resulted i n homes being covered with ash damaging roofing, aluminum siding and gutters, vegetation, beehives and property. Residents worry that this same fugitive dust is damaging their health.

Community members ask, “If the coal ash damages the exterior of homes, what does it do to human beings?”

[See original comment for photographs]405

The story of the community of LaBelle was recently featured in a story covered by The Marginalized: http://themarginalized.com/2010/11/03/whats

- killing

- labellepa/.

Both the Genera l Permit WMGR052 and the Coal Refuse Mining Permit #26970702 strictly prohibit fugitive dust emissions from leaving the site. And, in fact, the coal refuse permit specifically requires that “[a]ll trucks which transport coal ash shall be covered with a sui table covering to minimize dust emissions during transit from each generating station to the disposal site.” [Footnote 28: PA DEP, Coal Refuse Disposal Permit Number 26970702, Special Conditions and Requirements (2008).]

However, residents have not seen any trucks covered since the start of the coal ash dumping at the LaBelle site in 1998. And recently the LaBelle site excavator, Richard Lawson, admitted at a community meeting that he chose not to tarp any of the trucks believing that the tarps created

mo re dust (Community Meeting at the Luzerne Township Volunteer Fire Hall, October 28, 2010).

Uncovered trucks are a clear violation of the existing permits. And yet there have been no violations or fines issued by the PA DEP. Citizens continue to call in co mplaints to the PA DEP

offices.

Sunken Barge Loaded with LPC Coal Ash from Mitchell Power Station. May 16, 2006, Monongahela River:

Despite US EPA instructions (April 25, 2000 Press Release) warning states to ensure that coal

ash does not come into con tact with drinking water sources, the PA DEP issued permits to transport coal ash via barges along the Monongahela River from multiple power plants to the Matt Canastrale LaBelle site. The unthinkable happened on May 16, 2006 when a barge loaded

with coal ash from the Mitchell Power Station sank into the Monongahela River. Much of the 1,060.12 tons of coal ash sank into this drinking water source.

Inspectors from the Water Quality Division of the PA DEP arrived on scene to investigate.

Several Notice of V iolations were issued including:

One for the sunken barge

Another for illegally discharging ballast water containing coal ash into the river

A third for not having an NPDES storm water permit for the barge off

- loading facility

A fourth for a broken clam

- bucket at the barge off

- loading facility; this resulted in the discharge of large amounts of ash into the river Local residents report that the clam bucket continues to drop large quantities of coal ash into the Monongahela River while loading trucks in the barge unloading facility. LaBelle site: Reclamation or Open Dumping?

As noted in previously cited documents, the LaBelle site has been problematic for decades. However, the question remains: has the use of toxic coal ash provided safe reclamation or posed406

additional problems for future generations?

Left as it was, the LaBelle site did pose environmental problems including acid mine drainage into local waterways, fugitive dust emissions from the waste coal pile, and a high hazard dam

with a faili ng embankment. However, review of public documents shows that those problems still exist. And, along with the previous problems, the addition of coal ash, known to contain toxic metals, poses additional problems for public health and the environment.

Ear thtech touted disposal of coal ash as the remedy for the LaBelle site. [Footnote 29: Earthtech, supra note 3.] Given the fact that the bonds were not sufficient to reclaim the site, officials from the PA DEP and the Matt Canastrale Contracting, Inc. saw th e addition of coal ash as beneficial, both financially and environmentally.

However, the site continues to utilize the existing underdrain for discharges and the fugitive dusting has increased. In both scenarios, toxic metals have been added to these rel eases, putting the surrounding communities at greater risk. Residents firmly believe that without the federally enforceable C designation, the PA DEP will return to status quo

– allowing the LaBelle site to continue to accept more toxic coal ash for decade s to come without safeguards sufficient to protect human health and the environment.

The undersigned residents respectfully seek Subtitle C option

– federally enforceable rules to protect them from the harmful pollution caused by toxic coal ash. And, we ask the US EPA to require all mine fill projects to be subject a to Subtitle C designation, as sites like Mr. Canastrale’s LaBelle operation are actually open dumping being disguised as socalled

“beneficial use.”

Please protect our health, our water and our environment with federally enforceable regulations. Thank you.

Response: Thank you for the comprehensive review of the issues associated with the LaBelle CCR management site. Considering that this site is an abandoned coal mining pit, it is outside

t he scope of this rule. Some of the issues described by the commenter would most likely be addressed by the upcoming proposed OSM rule for the management of CCR in mine pits.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08243

- 5 

### Organization 1 

### : Commenter 1 : Gary Kuklish, et. al. Commenter Type: Private Citizen

Classification: Substantive



### Comment Excerpt Text: [ATTACHMENT: see original comment for Attachment 1 with tables with exceedances of state or federal water quality standards]

Response: See response to comm ent excerpt EPA

- HQ

- RCRA

- 2009

- 0640

- 08243

- 3.407



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08261

- 3 

### Organization 1 

### : Black Warrior Riverkeeper, Inc.


### Commenter 1 : Eva Dillard Commenter Type: Advocacy Group

Classification: Substantive



### Comment Excerpt Text:

Because scien tific data has determined that coal ash exhibits the characteristics of toxicity, EPA must list CCRs as a hazardous waste and regulate them under Subtitle C. Concerned about the effect of more stringent air pollution controls on the toxicity of coal ash, E PA conducted a study in December 2009 to characterize the leaching potential of certain toxic constituents in coal ash

from coal

- fired power plants with air pollution control technology. EPA report:
“Characterization of Coal Combustion Residues from Electr ic Utilities

-- Leaching and Characterization Data”, December 2009, p. viii. In previous studies, which relied on the test known as the Toxicity Characterization Leaching Procedure (TCLP), EPA determined that the amount of toxic material leaching from coal a sh did not reach the required threshold necessary to characterize the waste as toxic. However, in response to concerns raised by the National Academy of Science and EPA’s own Science Advisory Board about the accuracy of the TCLP test, the December 2009 stu dy implemented new and improved methods that predict leaching potential with much greater reliability. The results of the new study reveal high concentrations of toxic pollutants leaching from coal ash into the surrounding environment: •Arsenic was 1,800 times the federal safe drinking water standard, more than 3 times the threshold established for hazardous waste and over 76 times the level of previous leach tests; • Chromium was 73 times the federal safe drinking water standard, over 1.5 times the thres hold for hazardous waste, and 124 times the level of previous leach tests; • Selenium was 580 times the federal drinking water standard, 29 times the threshold for hazardous waste and nearly 66 times the level of previous leach tests; and
• Barium was 33 5 times the federal drinking water standard and almost 7 times the hazardous

waste threshold.12

These findings by EPA correspond with the contaminants found in the proven and potential damage cases reported in EPA’s 2007 Coal Combustion Waste Damage Case Assessments, which includes cases of arsenic and selenium contamination of groundwater and surface water and ecological damage cause by selenium contamination.13 Contamination levels exceeding federal drinking water standards for arsenic, selenium, and le ad have also been found at multiple coal ash disposal sites not yet considered by EPA.14

In addition to arsenic, selenium, and lead, CCRs contain many other contaminants of environmental concern: mercury, antimony, chromium, cadmium, nickel, and berylliu m.15 EPA itself has already recognized 67 proven and potential damage cases where maximum contaminant levels (MCLs) in drinking water have been exceeded and there has been serious harm to human health and the environment due to CCRs.16 Further investigatio n by outside organizations has identified 70 additional sites where groundwater or surface water has been poisoned by toxic pollutants from coal ash, bringing the tally up to at least 137 contaminated

sites in 34 states.17408

Residents of the communities th at contain these waste sites suffer from indigestion, diarrhea, nausea and vomiting, worsening eyesight, and problems with mental focus andcomprehension.18 Long

- term exposure to the toxic pollutants found in coal ash can cause cancer, heart and lung damage , kidney disease, reproductive and gastrointestinal problems, birth defects, and interference with cognitive development.19 Given the overwhelming scientific and anecdotal evidence establishing the toxicity of coal ash, it would be a grave injustice for EP A to ignore its own data and instead regulate this hazardous material as household garbage under Subtitle D. Since CCRs exhibit the toxicity characteristics necessary to classify them as hazardous waste, EPA must regulate CCRs accordingly under Subtitle C.

Response: EPA decided to regulate the disposal of CCR under subtitle D of RCRA by issuing minimum national criteria. Similar to the subtitle C option, this option would require composite liners, groundwater monitoring, structural stability requirements, corrective action, and closure/post closure care. However, given available statutory authorities, EPA proposed this option to be a self

- implementing rule with no direct federal oversight, with an effective six months after publication in the Federal Register . The A gency is deferring its final Bevill Regulatory Determination with respect to CCRs that are disposed in CCR landfills and CCR surface impoundments until additional information is available on a number of key technical and policy questions, including the ris ks of CCR disposal based on its arsenic content, such as the appropriate safe daily dose for arsenic and the speciation of arsenic in the environment, and the potential impacts of recent Agency regulations on the chemical composition of CCR. In addition, the Agency needs additional information on state programs before it is in a position to make a final Bevill Regulatory Determination.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09244

- 1 

### Organization 1 

### : Commenter 1 : Joanna Miller Commenter Type: Private Citizen

C lassification: Substantive



### Comment Excerpt Text: I have attached three articles I have published in the last month on coal ash. I hope you will find them helpful in your decision regarding Subtitle C. There are also related slide shows available

under each article. To find those, you can visit our website

- http://themarginalized.com Thank you, Joanna Miller

[ATTACHMENT: See original comment in Docket Reading Room; found on EPA's DVD#1 and

loaded into CommentWorks:

9244.1

-- "What is Poisoning Green T ownship?

9244.2

-- "What is Killing LaBelle, PA?

9244.3

-- "Death and Displacement in America: the EPA Decision"]

Response: Thank you for the information you have provided to us: What’s Poisoning Greene Township? http://themarginalized.com/2010/11/12/whats

- poisoning

- greene

- township/ ; What’s Killing LaBelle, PA? http://themarginalized.com/2010 /11/03/whats

- killing

- labelle

- pa/ ; and Death and Displacement in America: the EPA Decision,409

http://themarginalized.com/2010/11/18/death

- and

- displacemen t

- in

- america

- the

- epa

- decision/

. The Little Blue Run Impoundment is now slated to cease receiving CCRs by the end of 2016, when site closure is scheduled to begin. As to the LaBelle site, considering that this site is an abandoned coal mining pit, it is out side the scope of this rule. Issues such as those of the LaBelle site would likely be addressed by the upcoming proposed OSM rule for the management of CCR in mine pits.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09633

- 7 

### Organization 1 

### : Waterkeeper Alliance


### Commenter 1 : Scott Edwards Commenter Type: Advocacy Group

Classification: Substantive



### Comment Excerpt Text: In addition to arsenic, selenium, and lead, CCRs contain many other contaminants of environmental concern, including: mercury, antimony, chromium, c admium, nickel, and beryllium. [Footnote 34 EPA Proposed Rule, p. 24] EPA itself has already recognized 67 proven and potential damage cases where maximum contaminant levels (MCLs) in drinking water have

been exceeded and there has been serious harm to hum an health and the environment due to CCRs. [Footnote 35: EPA Proposed Rule, p. 40] Further investigation by outside organizations has identified 70 additional sites where groundwater or surface water has been poisoned by toxic pollutants from coal ash, bri nging the tally up to at least 137 contaminated sites in 34 states. [Footnote 36: In Harm’s Way: Lack of Federal Coal Ash Regulations Endangers Americans and Their Environment, Thirty

- nine New Damage Cases of Contamination from Improperly Disposed Coal Com bustion Waste, Environmental Integrity Project, Earthjustice and Sierra Club August 26, 2010 Jeff Stant, Project Director, Editor and Contributing Author, p. vi, available at: http://www.environmentalintegrity.org/news_reports/documents/INHARMSWAY_FINAL3.p d] Residents of the communities that contain these waste sites suffer from indigestion, diarrhea, nausea and vomiting, worsening eyesight, and problems with mental focus and comprehension. [Footnote 37: Coal Ash: The toxic threat to our health and environm ent, Report from Physicians for Social Responsibility and Earthjustice, by Barbara Gottlieb with Steven G. Gilbert and Lisa Gollin Evans, September 2010, p. 18; see also Coal Ash: The Hidden Story, by Kristen Lombardi, Center for Public Integrity, February 19, 2009, available at: http://www.publicintegrity.org/articles/entry/1144/?utm_source=publicintegrity&utm_medium=r elated_heds&utm_campaign=related_bottom] Long

- term exposure to the toxic pollutants found in coal ash can cause cancer, heart and lung dama ge, kidney disease, reproductive and gastrointestinal problems, birth defects, and interference with cognitive development. [Footnote 38: Coal Ash: The toxic threat to our health and environment, Report from Physicians for Social Responsibility and Earthju stice, by Barbara Gottlieb with Steven G. Gilbert and Lisa Gollin Evans, September 2010, p. vii] Given the overwhelming scientific and anecdotal evidence establishing the toxicity of coal ash, it would be highly irresponsible, not to mention arbitrary

and capricious, for EPA to ignore its own data and purport to regulate this hazardous material as essentially household garbage under Subtitle D. Since CCRs clearly exhibit the toxicity characteristic necessary to classify them as hazardous waste, it is incumb ent upon EPA to regulate CCRs accordingly under Subtitle C.410

Response: EPA decided to regulate the disposal of CCR under subtitle D of RCRA by issuing minimum national criteria. Similar to the subtitle C option, this option would require composite liners, groundwater monitoring, structural stability requirements, corrective action, and closure/post closure care. However, given available statutory authorities, EPA proposed this option to be a self

- implementing rule with no direct federal oversight, with an effective six months after publication in the Federal Register . The Agency is deferring its final Bevill Regulatory Determination with respect to CCRs that are disposed in CCR landfills and CCR surface impoundments until additional information is availabl e on a number of key technical and policy questions, including the risks of CCR disposal based on its arsenic content, such as the appropriate safe daily dose for arsenic and the speciation of arsenic in the environment, and the potential impacts of recent Agency regulations on the chemical composition of CCR. In addition, the Agency needs additional information on state programs before it is in a position to make a final Bevill Regulatory Determination.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 10019

- 1 

### Orga nization 1 

### : Spalding & Hilmes, PC


### Commenter 1 : Rosemary G. Spalding and Kathryn A. Watson, on behalf of Springer family et

al Commenter Type: Law Firm

Classification: Substantive



### Comment Excerpt Text: Background

Merom is an electric generating plant located at 5500 West Old 54, Sullivan, Indiana. It has two

coal

- fired boilers, a coal storage and handling system with a throughput of 4,351,419 tons per year, a pneumatic fly ash storage and handling system with a thr oughput of 1,752,000 tons of fly ash per year, and a wet bottom ash storage and handling system with a throughput of30,160 tons of bottom ash per year. Final disposal of coal ash is by landfill on site. Merom's first coal ash

landfill is closed and the cur rent coal ash landfill is near capacity. Merom currently has an permit application pending with the Indiana Department of Environmental Management ("IDEM") for a

new landfill.

The population of Sullivan County is 21,153. Our clients all own property near Merom, and most have owned their property since long before the Merom began operation. Our clients include sensitive populations such as families with young children and infants as well as older individuals. An increase in fugitive dust coming from Merom over the last several years has brought to light ongoing unsafe and unacceptable operation and management of coal ash at Merom and the need for strong federal regulation of coal combustion residuals ("CCR") from this facility. The aerial photograph attache d as Exhibit A shows the location ofthe facility and the current and proposed new landfill in relation to our clients. It shows that the proposed new landfill will bring this noxious material even closer to our clients and others who live in the vicinity.

The Extent of Risk Posed by the Mismanagement of CCR411

EPA's proposed rules and the supporting information regarding the health risks associated with CCR could not be more timely or relevant to the issues that are ofmost concern to our clients. As

discus sed below, CCR generated at Merom poses health risks not only to our clients, but to everyone living, working or recreating near the facility. Because Merom CCR is disposed in a landfill on site, we believe the primary exposure to our clients and other nea rby residents is inhalation. However, we do not have enough information to determine whether other routes of exposure pose significant risk, and that lack of information is itself a cause for concern.

The toxicity of CCR was addressed in a recent report by Physicians for Social Responsibility and Earthjustice, entitled "Coal Ash: the Toxic Threat to Our Health and Environment," September 2010 (http://www.psLorg/assets/pdfs/coal

- ash.pdf). According to the report:

While the toxic contents of coal ash may vary depending on where the coal is mined, coal ash commonly contains some ofthe world's deadliest toxic metals: arsenic, lead, mercury, cadmium, chromium and selenium. These and other toxicants in coal ash can cause cancer and neurological damage in human s. They can also harm and kill wildlife, especially fish and other water

dwelling species.

Typically, coal ash contains arsenic, lead, mercury, cadmium, chromium and selenium, as well as aluminum, antimony, barium, beryllium, boron, chlorine, cobalt, man ganese, molybdenum, nickel, thallium, vanadium, and zinc. All can be toxic. Especially where there is prolonged exposure, these toxic metals can cause several types ofcancer, heart damage, lung disease, respiratory distress, kidney disease, reproductive pr oblems, gastrointestinal illness, birth defects, impaired bone growth in children, nervous system impacts, cognitive deficits, developmental delays and behavioral problems. In short, coal ash toxics have the potential to injure all of the major organ syste ms, damage physical health and development, and even contribute to mortality.

Coal ash also follows land and air pathways to result in human exposure. Coal ash disposal operations can generate dangerous quantities of airborne ash, due to mismanagement of both ponds and landfills.

Coal ash is dangerous if inhaled, making fugitive dust a serious health concern. The health threat arises from minute particles of dust known as particulate matter, which may be composed of various substances. Airborne particle s of fly ash, ifbreathed in, can affect the lungs and bronchii. Of particular concern are the extremely small particles known as "fine particulate matter" (PM2.5).

These can lodge deep within the lung, where they can affect the lung lining, causing

infla mmation, altering immunological mechanisms, and increasing the risk of cardiopulmonary disease. They can or even pass through the lungs into the blood, causing serious adverse health effects ranging from triggered asthma attacks to increased mortality rate s. People with pre

existing chronic obstructive pulmonary disease, lung infection or asthma are particularly susceptible to coal ash effects, as are people with type II diabetes mellitus.

Concern also exists about the risks to health from coal ash toxica nts in combination. While the properties of coal ash toxicants are understood as they function individually, little is known412

about what happens when these toxic substances are mixed

- as routinely happens in coal ash.

Concurrent exposure to multiple conta minants may intensify existing effects of individual contaminants, or may give rise to interactions and synergies that create new effects. For example, aluminum, manganese and lead all have adverse effects on the central nervous system; barium,

cadmium and mercury all have adverse effects on the kidney. Where several coal ash contaminants share a common mechanism of toxicity or affect the same body organ or system, exposure to several contaminants concurrently produces a greater chance of increased risk to health. Yet the EPA has not taken into account in its risk assessments the possibility of synergistic interactions, despite the common occurrence of multiple contaminants in combination

in coal ash.

Emphasis added. EPA's proposed alternative to regulate CCR under subtitle C ofRCRA is the only option adequate to address the findings ofthis report.

1. Fugitive CCR Dust

Our clients observe and suffer the effects of CCR dust every time the wind carries CCR dust off

the surface ofthe landfill and other CCR storage and handling facilities. The CCR dust enters their homes, covers their vehicles, and settles on their lawns, outdoor furniture, children's toys and vegetable gardens. It also contaminates their crops. Although the ever

- present CCR dust certainly i s a nuisance that negatively affects the quality oftheir lives, of greater concern is the fact that the CCR dust is a health hazard, as supported by the preamble to the proposed federal

rule.

a. Health Risks from Exposure to Fugitive CCR Dust

In develo ping the proposed CCR rule, EPA conducted a preliminary screening modeling effort for fugitive dust from CCR landfills. The results are presented in "Inhalation of Fugitive Dust: A Screening Assessment of the Risks Posed by Coal Combustion Waste Landfills

- DRAFT." This review considered only fugitive dust from windblown erosion of exposed waste placed in a CCR landfill. It did not evaluate the effects of loading and unloading operations or transport of the waste, which are also of concern to our clients. Am ong the conclusions presented in this report are the following:

• Operation of CCR landfills with no controls for fugitive dust would result in a strong likelihood ofviolations of national ambient air quality standards (NAAQS) for fine particulate. These standards are established by EPA to be protective of human health.

• Fine particulate penetrates and deposits in the thoracic regions ofthe respiratory tract, and has been linked to both illness and death from respiratory and heart diseases, especially in vulnerable populations such as young children, the elderly and those with compromised immune systems;

and

• Pending further, more precise studies, only daily controls for fugitive dusts at CCR landfills can be definitively said not to cause excess lev els of particulates from windblown erosion.413

In addition, in justifying the need for the proposed rules EPA addressed the toxicity of coal ash. The rule preamble states:

The constituents of concern associated with CCRs include antimony, arsenic, barium, beryllium, cadmium, hexavalent chromium, lead, mercury, nickel, selenium, silver and thallium...the Agency believes that the metals identified are sufficiently toxic that they are capable of posing a substantial present or potential hazard to human health and the environment when improperly treated, stored, transported, disposed of or otherwise managed.

EPA relied on a risk analysis conducted to assess toxic chemicals present in coal ash dust. This study is entitled "Draft Final Report: Non

- Groundwater P athways, Human Health and Ecological Risk Analysis for Fossil Fuel Combustion Phase 2." This study estimated cancer risks posed by inhalation of CCR dust and ingestion from CCR dust deposited on farm and garden fruits and vegetables and soil. The EPA estim ated that there is an increased lifetime cancer risk from ingestion by children offarmers and from inhalation by farmers, children offarmers, and to a lesser extent, adult residents in proximity to a coal ash landfill.

b. Our Clients' Exposure to Fugitiv e CCR Dust

That our clients are being exposed to fugitive CCR dust on an almost daily basis is without question. Our clients and their children breathe air polluted with CCR dust. The outsides of their

homes are coated with residue and the surfaces insid es their homes are covered with CCR dust. They eat vegetables from their gardens that have been covered with CCR dust, and their children and grandchildren play outside where their toys are covered with CCR dust and the soil is

contaminated with CCR dust.

In response to complaints from our clients, representatives of Hoosier Energy and IDEM have suggested that the dust could be from farming activities or road dust. This suggestion is absurd.

The affidavits and statements attached as Exhibits B

- 1 through B

- 15 establish that our clients and others have personally observed CCR dust blowing from the Merom landfill onto their properties. Videos [two Exhibit C videos are included on EPA DVD#7] and photographs taken by our clients, which are attached as Exhibits C

- l through C

- 7, show CCR dust blowing from the Merom landfill and off the Merom site. (Please note: we can provide electronic copies of the photographs, which show clearer images ofthe fugitive CCR dust.) Finally, dust samples taken from a variety of loca tions have been analyzed by a laboratory and reviewed by an expert who has concluded that the elevated concentrations of specific trace metals in the samples are indicative of coal ash. The expert opinion of Dr. Perre Bums and the laboratory results he

rev iewed are attached as Exhibit D, which includes Dr. Bums' Curriculum Vitae.

The results from the laboratory analysis ofthe dust samples are of grave concern to our clients. Those who have small children or grandchildren are especially concerned, not only because of children's increased sensitivity to toxic substances, but also because ofthe potential for exposure through ingestion as well as inhalation. For example, Brad and Kayla Miller have a two

- year old daughter, Kathryn Springer and Michael Eslinger have a two year

- old daughter and a five

month

- old daughter and Matt and Heather Springer have a six year

- old son and a newborn.414

Babies and toddlers play and crawl on the floors in their homes and they touch toys, furniture

and other items contaminated with CCR dust. When they put their hands, toys or other CCR

dust

- covered surfaces in their mouths, they ingest CCR.

The laboratory results included in Exhibit D show high concentrations of some the constituents of concern for CCR, certainly higher than for n ormal household dust or backyard soil. For example, sample wipes taken of dust on Ms. Springer's and Mr. Eslinger's two

- year old daughter's toys on their outdoor deck showed lead of 1340 ~g/wipe and arsenic of2720 ~g/wipe.

Lead on the Millers' dresser in a bedroom was 886 ~g/wipe. In addition, the Millers have had their daughter tested for lead and results confirm lead exposure.

To minimize their children's exposure to CCR dust as much as possible, the Millers and the SpringerlEslingers keep their windows closed year

- round and clean their homes constantly trying to control CCR dust, but it is impossible to eliminate it. As Mike Eslinger testified during the EPA hearing held in Louisville, Kentucky on September 28, 2010. As Mike Eslinger testified... "my wi fe had complications with both of our pregnancies and Olivia was born two months premature. There are days that I cannot take my children outside to play because ofthe fugitive dust and the blue plume from the smoke stack is so bad. My house is covered wit h dust from the plant. I have tried everything I know to do, including driving 3 hours here today to beg the EPA to help. For the sake of my family's health, please help us, we have nowhere else to turn." Testimony of Michael Eslinger, attached as Exhibit E

- l.

Most of our clients are life

- long residents of Sullivan County The Springer family has been in Sullivan County for over 125 years. Those who moved to the area did so because ofthe beautiful rural setting and because they believed Sullivan County is an ideal place to raise a family. They are reasonable people who understand the need for electricity and the facilities that generate it. They understand that the Hoosier Energy Merom facility is important to the economy of Sullivan County. They have relat ives and friends who work at Merom, and in fact one of our clients is employed there. Our clients have never taken the position that Hoosier Energy should not have located Merom in Sullivan County or that Merom should be shut down. All they have ever asked is that Hoosier Energy be a good neighbor by operating Merom in compliance with the law and in a manner that does not affect their quality of life or pose a health risk to them or others.

They initially complained about fugitive dust because the dust wa s a nuisance and negatively impacted their quality of life. Once they realized, however, that the fugitive CCR dust they breathe and possibly ingest is toxic and poses serious health risks, our clients' tolerance for the situation evaporated. Their lives a re impacted daily, both by the fugitive CCR dust itself, as well as the fear they live with that their health and the health of their children and grandchildren is compromised.

The toll this fear takes must not be minimized. As Mike Eslinger testified at EPA's hearing: "I have been forced to have chemical testing done on my house which again is less than four years old, and I am horrified by the results of that testing. Lead, Arsenic, and other heavy metals are present at levels that certainly alarm me." Testimony of Michael Eslinger, attached as Exhibit E

1. Mike Blann, a Hoosier Energy employee and neighbor, also testified at the hearing, "It concerns me to have to put myself in this position today for reasons you can only imagine. Why415

should I or my fe llow neighbors even have to be here today if in fact there wasn't serious concerns for our families' health and well being? Personally over the years I have seen how the state of Indiana has regulated the power plant landfill in our backyards and can hones tly say it is without a doubt NOT working!" Testimony of Michael Blann, attached as Exhibit E

- 2.

Response: EPA decided to regulate the disposal of CCR under subtitle D of RCRA by issuing minimum national criteria. Similar to the subtitle C option, this option would require composite liners, groundwater monitoring, structural stability requirements, corrective action, and closure/post closure care. However, given available statutory authorities, EPA proposed this option to be a self

- implementing rule with no direct federal oversight, with an effective six months after publication in the Federal Register . The A gency is deferring its final Bevill Regulatory Determination with respect to CCRs that are disposed in CCR landfills and CCR surface impoundments until additional information is available on a number of key technical and policy questions, including the ris ks of CCR disposal based on its arsenic content, such as the appropriate safe daily dose for arsenic and the speciation of arsenic in the environment, and the potential impacts of recent Agency regulations on the chemical composition of CCR. In addition, the Agency needs additional information on state programs before it is in a position to make a final Bevill Regulatory Determination.

The Agency incorporated citations from your comment into this rule’s technical support document to the impacts of fugitiv e dust, which is included in the docket of the final rule. In response to the evidence presented by individuals residing next to the Merom Landfill, as well as other similar complaints elsewhere, the final CCR rule is introducing requirements for fugitive dust control. EPA expects that these measures would alleviate the exposure of residential communities next to CCR management sites to the adverse effects of CCR fugitive dust.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 10019

- 10 

### Organization 1 

### : Spalding & Hilmes, PC


### Commenter 1 : Rosemary G. Spalding and Kathryn A. Watson, on behalf of Springer family et

al Commenter Type: Law Firm

Classification: Substantive



### Comment Excerpt Text: [See original comment for exhibits with:

-- aerial photograph

-- affidavits a nd statements of area residents

-- photographs

-- expert opinion of Dr. Pierre Burns with laboratory results

-- copies of testimony

-- biological reports with biological and chemical monitoring in Turtle Creek Reservoir near Merom Generating Station]

[See EPA's DVD#7 for Exhibit C Videos]

Response: See response to comment excerpt EPA

- HQ

- RCRA

- 2009

- 0640

- 10019

- 1.416



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 10019

- 2 

### Organization 1 

### : Spalding & Hilmes, PC


### Commenter 1 : Rosemary G. Spalding and Kathryn A. Watson, on behalf of Springer family et

al Commenter Type: Law Firm

Classification: Substantive



### Comment Excerpt Text:

a. Air Pollution

Recent developments demonstrate the need for strong federal enforcement ofpower plants in Indiana. On July 26, 2010, Hoosier Ener gy entered a consent decree with EPA to resolve significant Clean Air Act violations at Merom and its Ratts generating station. On August 26, 2009, EPA issued a notice of violation (NOV) alleging that in 2008, Hoosier Energy made

modifications at the Merom plant without first complying with the New Source Review program's pre

- construction obligations, which include, obtaining pre

- construction permits and establishing an emission limitation based upon Best Available Control Technology, in violation

of:

• T he Clean Air Act (CAA) Prevention of Significant Deterioration provisions, 42 U.S.C. §§

7470

- 7492

• The Prevention of Significant Deterioration provisions ofthe Indiana State Implementation Plan (Indiana SIP)

• Title V ofthe Clean Air Act and the India na Title V regulations

Hoosier Energy agreed to pay a civil penalty of $950,000 and install and upgrade pollution control technology. Significantly for our clients, the consent decree requires Hoosier Energy to address a "blue plume" composed of sulfuric acid mist that has been emitted from the plant for several years and documented extensively by our clients. See Exhibit F. According to EPA, this requirement is the first ever included in a coal

- fired power plant settlement. Only federal authority can ens ure appropriate and effective enforcement to address noncompliance when

states fail to act.

Response: EPA decided to regulate the disposal of CCR under subtitle D of RCRA by issuing minimum national criteria. Similar to the subtitle C option, this option would require composite liners, groundwater monitoring, structural stability requirements, corrective action, and closure/post closure care. However, given available statutory authorities, EPA proposed this option to be a self

- implementing rule with no d irect federal oversight, with an effective six months after publication in the Federal Register . The Agency is deferring its final Bevill Regulatory Determination with respect to CCRs that are disposed in CCR landfills and CCR surface impoundments until ad ditional information is available on a number of key technical and policy questions, including the risks of CCR disposal based on its arsenic content, such as the appropriate safe daily dose for arsenic and the speciation of arsenic in the environment, and the417

potential impacts of recent Agency regulations on the chemical composition of CCR. In addition, the Agency needs additional information on state programs before it is in a position to make a final Bevill Regulatory Determination.



### Comment Number: EP A

- HQ

- RCRA

- 2009

- 0640

- 10019

- 3 

### Organization 1 

### : Spalding & Hilmes, PC


### Commenter 1 : Rosemary G. Spalding and Kathryn A. Watson, on behalf of Springer family et

al Commenter Type: Law Firm

Classification: Substantive



### Comment Excerpt Text:

b. Contaminated Water

Since beginning operations in 1982, Merom has been discharging wastewater and storm water

into Turtle Creek Reservoir under NPDES Permit No. IN0050296. The Turtle Creek Reservoir was constructed as a cooling water supply for the plant in 1980 and it was f illed in 1981. The most recent NPDES permit renewal was issued in 1997, expired September 30, 2002, and has been administratively extended since then. On August 17,2010, IDEM's Industrial NPDES Permit Section ofthe Office of Water Quality issued Draft NPDE S Permit No. IN0050296 and published it for public comment.

In reviewing the Draft NPDES Permit and prior permits, it became clear that despite the fact that Merom has been operating and producing millions of tons of coal combustion waste annually

since the early 1980s, the constituents of concern associated with coal combustion waste were never identified by Merom as potential pollutants in any of its NPDES permit applications, and therfore those parameters have never even been monitored, must less subje ct to effluent limitations. As a result, we have no idea how much antimony, arsenic, barium, beryllium, cadmium, hexavalent chromium, lead, mercury, nickel, selenium, silver and thallium has been discharged into Turtle Creek Reservoir during the last 28 ye ars. In preparing comments on the Draft NPDES Permit, we also learned that neither IDEM nor the Indiana Department ofNatural Resources has sampled the water or sediments in Turtle Creek Reservoir to determine the effect of Merom's discharges on the water q uality. As discussed in more detail below, we do know that Turtle Creek Reservoir has been impacted by selenium, as demonstrated by the increase in selenium in fish tissue. We also know that the reservoir is impaired for PCBs in fish tissue, according to I ndiana's 303(d) list of impaired waters requiring TMDLs (2008 list and draft 2010 list).

According to Hoosier Energy's current website, the 1,550

- acre Turtle Creek Reservoir "has matured into one ofthe best fishing and waterfowl hunting recreational spot s in Indiana." The website also boasts "For the fishing enthusiast, Turtle Creek Reservoir has been stocked with bluegill, redear sunfish, black crappie, largemouth bass and channel catfish." According to our clients and others, however, although Turtle Cr eek Reservoir was indeed a very popular and productive fishing destination at one time, the reservoir has degraded and the fish population declined to such an extent that it is no longer considered a desirable sport

- fishing location. Moreover, anecdotal re ports of deformed fish and dead wildlife (see photograph attached as418

Exhibit G) have increased concerns about the health risks from consuming fish from the reservoir or even recreating on the reservoir.

Response: Thank you for your comment. EPA agrees wi th the commenter that inadequately monitored effluents from the Merom Plant into Turkey Lake have resulted in elevated selenium in fish, causing physiological deformities and decline of the Lake’s fish population.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 10019

- 9 

### Organization 1 

### : Spalding & Hilmes, PC


### Commenter 1 : Rosemary G. Spalding and Kathryn A. Watson, on behalf of Springer family et

al Commenter Type: Law Firm

Classification: Substantive



### Comment Excerpt Text: The Extent of Existing Damage Cases

Part of EPA's analysis in proposing the CCR rule was evaluation ofthe so

- called "8 Bevill study factors," one of which is "documented cases in which danger to human health or the environment from surface runoff or leachate has been proved." EPA's rule incl udes "Appendix to the Preamble: Documented Damages from CCR Management Practices." This Appendix includes a Table of Proven Damages Cases. Although the focus of these cases is the failure of CCR surface impoundments, they describe damages similar to those being experienced at Turtle Creek Reservoir, which we submit as an addition to EPA's list of proven damages cases.

Like the Hyco Lake (NC), Belews Lake (NC), Brandy Branch (TX), Welsh Reservoir (TX) and Martin Lake (TX) cases, Merom has a cooling water s ource on

- site, Turtle Creek Reservoir. This reservoir receives Merom's NPDES outfalls, including multiple stormwater outfalls and one from the CCR landfill. Under Merom's NPDES permit, the stormwater receives no treatment prior to

outfall into Turtle Creek Reservoir. Also like the referenced cases above, Turtle Creek Reservoir has been impacted by selenium, as demonstrated by the increase in selenium in fish tissue and a corresponding decrease in fish populations.

As reported in "Biological and Chemical M onitoring in Turtle Creek Reservoir Near Merom Generating Station, 2008," EA Engineering, Science, and Technology, March 2010:

The selenium concentration in largemouth bass body tissue has increased in recent years (EA 2009). Elevated selenium concentrat ions have been reported to cause reproductive failure and mortality in warmwater fishes (Lemly 1999 and 2002) and may be a contributing factor in the declining largemouth population as of late. For example, the selenium concentration in bass has steadily i ncreased since 1997 while largemouth bass CPEs during this time declined from 17 fishl20 minutes in 1997 to <1 fishl20 minutes in 2008 (Figure 6

- 1).

As noted in EA's 2007 Merom report: "Selenium concentrations as low as 3.0 to 6.0 mg/kg have been reporte d to cause reproductive failure, among other toxic impacts, in warmwater fishes (Lemly 1999 and 2002)." Lemly A., "Guidelines for evaluating selenium data from aquatic419

monitoring and assessment studies." Environ. Monit. Assess. 1993:28(83

- 100). Mean seleni um concentrations in largemouth bass in Turtle Creek Reservoir have been over 3.0 ppm since 2001. Both reports are attached as Exhibits H

- l and H

- 2.

In the CCR rule preamble, EPA estimates that risks may exist for people who frequently eat fish

from wate rways affected by CCR arsenic or selenium contamination from surface impoundments. Similar risks can be present in waterways affected by run

- off from CCR

landfills. Some ofour clients fish in the Turtle Creek Reservoir. Yet as discussed in more detail

abov e, the NPDES permit issued by IDEM and the draft renewal contain no requirements to treat

the run

- off or limit discharges. Our clients cannot rely on IDEM to protect them from the hazards posed by CCR. Strong federal regulations and enforcement are the onl y solution.

Response: EPA decided to regulate the disposal of CCR under subtitle D of RCRA by issuing minimum national criteria. Similar to the subtitle C option, this option would require composite liners, groundwater monitoring, structural stability re quirements, corrective action, and closure/post closure care. However, given available statutory authorities, EPA proposed this option to be a self

- implementing rule with no direct federal oversight, with an effective six months after publication in the F ederal Register . The Agency is deferring its final Bevill Regulatory Determination with respect to CCRs that are disposed in CCR landfills and CCR surface impoundments until additional information is available on a number of key technical and policy questi ons, including the risks of CCR disposal based on its arsenic content, such as the appropriate safe daily dose for arsenic and the speciation of arsenic in the environment, and the potential impacts of recent Agency regulations on the chemical composition of CCR. In addition, the Agency needs additional information on state programs before it is in a position to make a final Bevill Regulatory Determination. In addition, we anticipate that the upcoming steam industry ELG rule will address the NPDES

issues c ited by the commenter.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 10029

- 1 

### Organization 1 

### : Commenter 1 : J. Henry Fair Commenter Type: Private Citizen

Classification: Substantive



### Comment Excerpt Text: I'm a New York photographer (my work on coal ash can be seen at: http://www.gq.com/news

politics/big?issues/201003/j

- henry

- fair

- coal

- ash

- containment

- site

- photos

- article) Coal ash is a great concern of mine for the hazards it is known to present to the Ame rican public. I urge you to impose the strictest restrictions possible on the storage and handling of this substance that is known to contain such toxins as lead, mercury, arsenic, selenium and boron. I believe that subtitle C regulations are insufficient for this material, and am frightened by some of the reuse options permitted. Attached is one of my photos of Cumberland Steam plant in Cumberland City, TN. This is both High

- Hazard facility and a known groundwater contaminator. Prompt action on this pub lic health threat is urgent thank you J Henry Fair420

[ATTACHMENT: See original comment in Docket Reading Room; found on EPA's DVD#1 and

10029.1 was loaded into CommentWorks

-- photo by J. Henry Fair]

Response: EPA decided to regulate the disposal of CCR u nder subtitle D of RCRA by issuing minimum national criteria. Similar to the subtitle C option, this option would require composite liners, groundwater monitoring, structural stability requirements, corrective action, and closure/post closure care. Howeve r, given available statutory authorities, EPA proposed this option to be a self

- implementing rule with no direct federal oversight, with an effective six months after publication in the Federal Register . The Agency is deferring its final Bevill Regulatory Determination with respect to CCRs that are disposed in CCR landfills and CCR surface impoundments until additional information is available on a number of key technical and policy questions, including the risks of CCR disposal based on its arsenic content , such as the appropriate safe daily dose for arsenic and the speciation of arsenic in the environment, and the potential impacts of recent Agency regulations on the chemical composition of CCR. In addition, the Agency needs additional information on stat e programs before it is in a position to make a final Bevill Regulatory Determination.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0258

- 2 

### Organization 1 

### : Environmental Integrity Project (EIP)


### Commenter 1 : Jeff Stant Commenter Type: Advocacy Group

Classification: Substantive Comment Category:



### Comment Excerpt Text: With these comments, EIP is submitting a draft report documenting twenty more previously unrecognized damage sites as Appendices A

- 1 through A

- 3. Nineteen involve groundwater

contamination and a twenti eth site involves soil contamination from ash used to construct a railroad bed. The discussion below will incorporate MCL exceedances documented at these new sites as well as exceedances of MCLs found in new monitoring data available from 2010 damage

sites :

- MCLs for every one of the Part 261 Appendix VIII parameters that EPA must consider in it regulatory decision pursuant to Part 261.11(a)(3) have been exceeded in groundwater at three or more of the 140 groundwater contamination damage cases identified by EPA and EIP et. al. (121 as of 2010 and 19 more with these comments). Appendix VIII parameters are antimony, arsenic, barium, beryllium, cadmium, chromium, lead, mercury, nickel, selenium, silver, and thallium. Among these, arsenic cadmium, lead, seleni um, and chromium, are the toxic trace elements found exceeding MCLs most commonly at CCR sites, but they are also analyzed for in monitoring more than the other Appendix VIII parameters.

- The MCL for arsenic has been exceeded at 76 sites, more than half, (54%), of the groundwater contamination sites. Eighteen of those sites were EPA damage cases (EPRI tabulated such exceedances at 14 of the EPA sites) and 46 of them were EIP damage cases identified in 2010.

Twelve more sites with arsenic exceedances are d escribed in Appendices A1 and A2. Most of the421

EPA sites document whether MCLs have been exceeded but do not provide actual concentrations. Out of the 86 groundwater contamination cases for which EIP has actual arsenic concentration data, arsenic levels wer e at least 10 or more times higher than the MCL in 26 cases (30%). Arsenic levels were 100 or more times higher than the MCL in 8 cases (9%). The maximum concentration identified in our 2010 comments was 3,419 ppb, 342 times higher than the MCL, measured b etween 2005 and 2010 in a well approximately 1,500 feet downgradient from the waste boundary at the Hatsfield Ferry Landfill in Pennsylvania. Some 1,680 ppb of arsenic was measured in this well in 2010. The dissolved component of this arsenic has ever

exce eded 0.1136 mg/L (11 times the MCL) as of 2010.

- However, data previously unavailable from three sites in South Carolina already identified as damage sites has since revealed substantially higher levels of arsenic at one of the sites: 5,100 ppb in ground water under the Wateree Station‘s ash pond (measured in 2006) and 2,100 ppb and 1,200 ppb of arsenic in groundwater under ash ponds at the Grainger and Urquhart Stations respectively (measured in 2010). Appendix A

- 3 discusses these concentrations and those of other metals measured at existing damage sites that indicate the damage is worse than originally documented at these sites. Multiple recent measurements in the last two years at each of these three sites has documented arsenic at levels exceeding 1,000 ppb. Arsenic higher than 5,000 ppb is exceeding the toxicity characteristic, the threshold that defines a hazardous waste (at 100 times the old MCL of 50 ppb). If that standard were revised to reflect the newer MCL for arsenic, these

concentrations would be close to or exceeding the toxicity characteristic for hazardous waste provided most of the arsenic is dissolved. Of course, groundwater is far more dilute than pure leachate to which this criteria is normally applied and should thus never approach much less exceed these concentrations. The danger posed by such concentrations actually monitored in groundwater under these sites should not be lost on decision

- makers. Arsenic concentration this high can and do expose Americans around ash sites to unacceptabl e risks. For example,1,000 to 1,200 ppb of arsenic was measured twice in a private well on land adjacent to the Pines Coal Ash

Landfill in Indiana in 1999/2000.

- The MCL for cadmium has been exceeded at 30 sites (21%), with the maximum concentration

170 higher than times the MCL. Cadmium has exceeded the MCL by more than ten times at 4 sites, and more than 100 times at one site. Cadmium exceedances occurred at 16 EIP damage sites and 14 EPA damage sites. The EPRI report (Volume 1) asserts that cadmium exc eeded the MCL at only 6 EPA damage sites (in Figure 4

- 2, page 4

- 3).

- The MCL for lead has been exceeded at 37 sites (26%) with the maximum concentration 179 times higher than the MCL. Lead has exceeded the MCL by more than 10 or more times at 8

sites and more than 100 times at one site. Lead exceedances occurred at 26 EIP damage sites and11 EPA damage sites. The EPRI report (Volume 1) asserts that lead exceedances occurred only at four EPA damage sites (Figure 4

- 3 on page 4

- 4).

- The MCL for selenium has been exceeded at 34 sites (24.0%). Four of these sites are among the 19 new damage sites in Appendix A including one site, the Fair Station in Iowa where selenium was measured at 713 ppb, more than 14 times the MCL. The maximum concentration of

selenium m easured at all of these sites was 1.85 mg/L (or 1,850 ppb) in 2008

- 2009, 37 times higher than the MCL and exceeding the toxicity characteristic (1,000 ppb), in groundwater422

contaminated by the Northeastern Plant‘s coal ash landfill in Oklahoma. Groundwater under the Big Cajun Plant‘s ash ponds in Louisana was contaminated by selenium at concentrations up to1,320 ppb in one downgradient well and 1,230 ppb in another in 1994

- 1999. At both of these

sites numerous substantive exceedances of the selenium MCL occu rred at other downgradient wells as well. In all, exceedances of the MCL for selenium occurred at 21 EIP damage sites and 13 EPA damage sites. The EPRI report (Volume 1) asserts that selenium exceedances occurred at only eight EPA damage sites (Figure 4

- 2, page 4

- 3).

- The MCL for chromium has been exceeded at 23 sites ((16%) with the maximum concentration 16.8 times higher than the MCL. Two sites with MCL exceedances are among the 19 new damage sites. Fourteen of these sites are EIP damage sites and nine are EPA damage sites. The EPRI report (Volume 1) asserts that chromium exceedances occurred at only five EPA damage sites (figure 4

- 2, page 4.3). The failure of states to require monitoring for the toxic species of

chromium known as hexavalent chromium is a major concern given the tendency for hexavalent chromium to leach from coal ash and the new California Public Health Goal (CA PHG) set in July, 2011 for ingestion of hexavalent chromium in drinking water of 0.02 ppb. This standard is

intended to reduce t he risk of cancer from ingestion of hexavalent chromium in tap water to acceptable levels. The present MCL for chromium (also called total chromium) is 5,000 times higher than the CA PHG. We are currently completing research that supports a presumption tha t chromium contamination from coal ash sites is almost all hexavalent (see Appendix B).

- Other highly toxic Appendix VIII parameters (antimony, beryllium, mercury and thallium) are not typically measured, yet have been found to significantly exceed the M CL when they are monitored for in groundwater at CCR disposal sites. Antimony has exceeded its MCL at seven sites with the maximum value of 315 ppb, 52.5 times higher than the MCL, found in private residential drinking water in Uniontown Ohio, polluted by a million tons of industrial (primarily tire industry) coal ash dumped at the Industrial Excess Landfill, a long

- time Superfund site. Antimony has also been found at 17 times the MCL at the Seward ash site in Pennsylvania. Four EIP damage sites have docume nted exceedances of the antimony MCL, including two of the new damage cases, and three EPA damage sites have. Beryllium has exceeded the MCL at six sites, with the maximum value 30 times higher than the MCL again found in groundwater leaving the

Industrial Excess landfill. Four EIP damage sites have had MCL exceedances for beryllium and two EPA damage sites have. Thallium has exceeded the MCL at 5 sites, three EIP and two EPA damage sites with a maximum value 8 times the MCL. The EPRI Report, Volume 1, asse rts that exceedances of MCLs at EPA damage sites for these metals, "could not definitively be associated with a release from the CCP facility." (page 4.3 The EPRI Report also asserts that there have been no exceedances reported for mercury at EPA‘s damage sites, while our information indicates that two EPA damage sites have had mercury exceedances including exceedances that ranged up to 450 times the MCL at the Kentucky‘s East Bend Scrubber Sludge

Landfill on the Ohio River. EIP has found exceedances of the MCL for mercury at two other sites, the Industrial Excess Landfill and the TransAsh Landfill in Tennessee.

- EPA‘s damage case assessment did not address alpha particles as a contaminant at CCR disposal sites. Nevertheless, the MCL for alpha particles (1 5 pCi/L) has been exceeded at three sites, with the maximum value (1,497 pCi/L) almost 100 times the standard. Very few423

groundwater monitoring programs require measurement of alpha radiation, and the MCL was

exceeded at all sites where data were available.

Response: Thank you for your comment. EPA is familiar with most of the specific damage cases addressed by the commenter. For instance, the Agency has designated the following two sites as proven damage cases: Hatsfield’s Ferry Landfill, Pennsylvania, and the TransA sh Landfill, Tennessee. EPA has designated the following sites as potential damage cases: Wateree Station site, South Carolina; Northeastern Plant‘s coal ash landfill, Oklahoma; Big Cajun Plant‘s ash ponds, Louisiana; Seward ash site, Pennsylvania; East Be nd Scrubber Sludge Landfill, Kentucky; and the Seward ash site, Pennsylvania. Finally, EPA has rejected the Industrial Excess Landfill, Uniontown, Ohio as a damage case, because this site also was in receipt of other waste types. For details, the commenter is referred to the technical support documents on damage cases in the docket of the final rule. In addition, EPA confirmed that 16 of the 20 alleged damage cases submitted by EIP to the docket of the October 2011 NODA qualify as potential damage cases.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0259

- 10 

### Organization 1 

### : Environmental Integrity Project (EIP)


### Commenter 1 : Eric Schaeffer Commenter Type: Advocacy Group

Classification: Substantive



### Comment Excerpt Text: [ATTACHMENT: see original comment for EIP Attachment A3 for

-- Appendix A.1, "Groundwater more toxic than hazardous waste: New evidence of groundwater polluted by coal

ash"

Excerpt from introduction to EIP Appendix A.1: In this report, we identify an additional 20 sites where leaking ash dumps ap pear to have caused groundwater pollution at levels above primary Safe Drinking Water Act standards for arsenic, selenium, and other contaminants. At many of these same sites, levels of boron, sulfate, and other pollutants are far higher than the Health Ad visories established by EPA for children and adults. We also present new information about 7 previously recognized damage cases, including stunning evidence of groundwater more toxic than hazardous waste leachate. The data for these

sites resulted from a s eries of Freedom of Information Act (FOIA) requests made by EIP to states in the spring of 2011. The groundwater or soil monitoring reports have been provided to EPA and are available from EIP upon request. The data cover seven sites in Illinois, three in South Carolina, two each in Iowa and Texas, and one each in Florida, Georgia, Indiana, Kentucky, Nevada, and Tennessee. More detail is provided in Tables 1 and 2 and in the appendices to this report. All data were derived from onsite monitoring wells; this was a practical necessity since there is virtually no offsite monitoring at coal ash disposal sites.]

Response: Thank you for your comment. EPA confirmed that 16 of the 20 alleged damage cases submitted by EIP to the docket of the October 2011 NODA quali fy as potential damage cases.

Two of the sites: the Yates Generating Plant, Georgia, and the North Valmy Generating Station, Nevada, were rejected because there is inadequate information to determine that groundwater

contamination at these sites is derived from CCR rather than from the surrounding424

soil/groundwater. Another site, the CSX rail corridor, Bloomington, Indiana, was rejected

because the source of contaminants was non

- utility CCR waste. Finally, one site, the
Commonwealth Edison Powerton Plant’s offsite Mahoney Landfill, Pekin, Illinois, had been already reported in EPA’s 2007 Coal Combustion Waste Damage Case Assessments, although in the context of a different CCR management unit at that site.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0259

- 11 

### Organization 1 

### : Environmental Integrity Project (EIP)


### Commenter 1 : Eric Schaeffer Commenter Type: Advocacy Group

Classification: Substantive



### Comment Excerpt Text: [ATTACHMENT: see original comment for EIP Attachment A3 for

-- Appendix A.2,

"Information on 1 8 new damages cases," compiled by J. Russell Boulding, Boulding Soil and Water Consulting, October 31, 2011.

Excerpt with list of new damage cases from introduction to EIP Appendix A.2: 1) Crist Plant, Gulf Power

-- Pensacola, FL 2) Yates Generating Plant, Georgia Power

— Newnan, GA 3) Fair Station, Central Iowa Power Cooperative

— Montpelier, IA 4) Prairie Creek Generating Station, Interstate Power and Light

— Cedar Rapids, IA 5) Former CSX Rail Corridor, CSX Railroad

- Bloomington, IN 6) Dallman Station, City Wa ter, Light and Power

-- Springfield, IL 7) Joliet 29 Generating Station, Midwest Generation

-- Joliet, IL 8) Joppa Steam Plant, Electric Energy/Ameren

-- Joppa, IL 9) Meredosia Power Station, Ameren Energy Generating

-- Meredosia, IL 10) Pearl Station, Prairie Pow er

-- Pearl, IL 11) Powerton Generating Station, Midwest Generation

-- Pekin, IL 12) Waukegan Generating Station, Midwest Generation

-- Waukegan, IL 13) Cross Generating Station, South Carolina Public Service Authority

-- Pineville, SC 14) McMeekin Station, South Carolina Electric & Gas Company

-- Columbia, SC 15) Winyah Generating Station, South Caroline Public Service Company

-- Georgetown, SC 16) Allen Fossil Plant, Tennessee Valley Authority

— Memphis, TN 17) Coleto Creek Station, International Power, Fannin, TX 18) Parish Generating Station, NRG Energy, Thompsons, TX

Response: See response to comment excerpt EPA

- HQ

- RCRA

- 2011

- 0392

- 0259

- 10.

___________________________________________________________________________ 

### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0259

- 2 

### Organiza tion 1 

### : Environmental Integrity Project (EIP)


### Commenter 1 : Eric Schaeffer Commenter Type: Advocacy Group

Classification: Substantive425



### Comment Excerpt Text: We have also included a detailed response to the Electric Power Research Institute’s critique of sites that show evidence of damage to groundwater or surface water from coal combustion waste (CCW) disposal sites. Our submission also includes a summary of g roundwater contamination at nineteen sites not previously identified, to supplement data from two previous reports from EIP

that were made available in this NODA.

Response: See response to comment excerpt EPA

- HQ

- RCRA

- 2011

- 0392

- 0259

- 10.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0259

- 7 

### Organization 1 

### : Environmental Integrity Project (EIP)


### Commenter 1 : Eric Schaeffer Commenter Type: Advocacy Group

Classification: Substantive



### Comment Excerpt Text: Monitoring Data Shows Significant Risks

We have provided EPA wit h both our analysis of groundwater monitoring results from numerous sites in two previous reports, “Out of Control,” (February, 2010), and “In Harm’s Way,” (August, 2010). We also include yet another compilation of groundwater monitoring data, from

ninetee n new sites, all of which show exceedances of primary MCL’s in one or more downgradient wells within the last several years, as well as numerous exceedances of health advisories. We note again that EPA has been provided with the underlying monitoring repor ts

– copied from state records

– for all the sites mentioned in our first two reports, and we will provide EPA with the data for the sites identified in the new one.

Response: Thank you for your comment. EPA has assessed all the alleged damage cases

inclu ded in Out of Control (February, 2010), In Harm’s Way (August, 2010) and Risky Business (November 2011) against EPA’s test

- of

- proof criteria and designated them as either proven, potential, or rejected. For details, the commenter is referred to Unit XI of the preamble to this rule and to the technical support documents on damage cases included in the docket of the final

rule.



### Comment Number: TRANS

- ARL

- 0017

- 1 

### Organization 1 

### : Commenter 1 : Ruth Santiago Commenter Type: Private Citizen

Classification: Substantive



### Comment Excerpt Text: Hundreds of thousands of tons of coal ash are being used as fill material at construction sites above the South Coast aquifer in Southeastern Puerto Rico. CCRs are being deposited within a few meters of public water well s, irrigation canals, streams, farms, wetlands, beaches, and other sensitive areas. The aquifer is the sole source of potable water for approximately 53,000426

residents of Salinas and Santa Isabel, and many more thousands of people in neighboring municipalit ies. In some places, contractors have excavated huge holes that are filled with CCRs below the aquifer water table. Groundwater sampling results at the Salinas municipal landfill, where coal ash has been used as daily cover, indicate the presence of selen ium and other heavy metals associated with CCRs above background levels. Residents of coastal areas fear that heavy metals, toxins, and radioactive isotopes in the CCRs are leaching into the water supply and will cause serious public health problems.

In a ddition to providing potable water for tens of thousands of people, the aquifer feeds the unique Jobos Bay estuary, a designated National Estuarine Research Reserve. As in the town of Pines, Indiana, the reserve and contiguous areas where coal ash is being buried contain low

lying, poorly drained wetlands. As in Pines, the soil is very sandy, unconsolidated, acidic, with high organic content. In some areas, the aquifer is contained within a thin, less than 40 feet clay

rich confining layer facilitating cont act with the CCRs, particularly during hurricane season such as right now. CCRs from the AES Puerto Rico, Limited Partnership, power plant are virtually given away at 15 cents per ton to anyone who will take them. AES also provides free transportation to

residential and commercial construction sites. AES has no on

- or off

- site disposal facility and disposes of all

-- disposes virtually all CCRs that it admits exceeds 300,000 tons per year through secondary use at construction sites and daily cover at the l andfill. Even after construction is completed, the coal ash is exposed because the rain erodes the thin layer of dirt sometimes placed over the CCRs. At once site a virtual mountain of CCRs was dumped similar to the illegal disposal of AES residues in the Dominican Republic in 2003/2004, which has been the subject of various lawsuits and a multimillion

- dollar settlement paid by AES. In the settlement agreement, AES prohibited the Dominican government from using any

evidence that AES coal ash is toxic or h armful. That's in paragraph 8 of that agreement. The Agremax use contract that AES requires all recipients to sign, limits the type of testing that can

be done on the CCRs.

Response: See response to comment excerpt EPA

- HQ

- RCRA

- 2009

- 0640

- 06196

- 62.

The beneficial use of CCR is still subject to the Bevil exclusion and is therefore exempt from regulation. This said, however, this rule provides guidance for the application of CCR at structural fill projects. For details, the commenter is referred to Unit IV of the preamble to this

rule.



### Comment Number: TRANS

- ARL

- 0051

- 1 

### Organization 1 

### : Environmental Integrity Project


### Commenter 1 : Jeff Stant Commenter Type: Advocacy Group

Classification: Substantive



### Comment Excerpt Text: I'd like to focus on the release of our report last week of "In Harms Way: Lack of Federal Coal Ash Regulation Endangers Americans and Their Environment" that we co

- released last week with Earthjustice and the Sierra Club which documents the problem of coa l combustion waste427

contamination at 39 more coal ash sites and demonstrates that in many cases state agencies have remained silent while private and public drinking water supplies are threatened by the

contamination. Highlights of the report are as follow s. Number one, that contamination from CCW is pervasive. When combined with the 31 other coal ash sites examined by EIP and Earthjustice in a February report, and the sites already acknowledged by EPA to be damaged by coal ash, the list of

contaminated sit es comprises some 137 sites now spread across 34 states, making this truly a national water pollution problem. At every one of the 35 sites in this report that had groundwater monitoring data, contamination of the groundwater was readily apparent.

Number two is that the levels of contamination are toxic. At every one of the 35 contaminated sites, MCLs for metals were exceeded in underlying groundwater with exceedances ranging as high as 341 times the standard for arsenic at the Hatfield's Ferry Landfill in Pennsylvania, 170 times the standard for cadmium, and 179 times the standard for lead in groundwater leaving the Little Blue impoundment in Pennsylvania, 37 times the standard for selenium at the Northeastern Landfill in Oklahoma, and antimony at 52 times , beryllium 30 times, chromium 17 times, and nickel 22 times at groundwater leaving the Industrial Access Landfill in Ohio. The third point is that the contamination is endangering people. At the five sites in which off

- site monitoring of drinking water w ells was undertaken, contamination of the wells was confirmed in every case, with four of the five having confirmed exceedances of MCLs in residential wells. Additionally, state records indicate that at least five private drinking water wells are located

w ithin 2 miles of 19 of the sites, and in 13 of those sites, the wells are in the direction that the contaminate flow is moving. In eight cases there's 25 or more private drinking water supplies within 2 miles of the site, and in

two cases there's more tha n 90 wells within a mile of site. People are in harm's way. The fourth and last point is that states are not preventing the contamination or requiring it to be remediated. Despite some indication of contamination being acknowledged at 21 of the sites,

ope rators have been required to determine the extent of the contamination at only five of them. At no site did we find the state requiring operators to clean up the contamination even when it was acknowledged that the contamination had moved beyond the proper ty lines of the dump

sites. I'd like to just close by saying that the decision about coal combustion waste facing EPA has been inevitable for decades. The agency must do its job under federal law and stop the pervasive,

imminent and substantial threat to human health in the environment occurring around the nation's coal ash dump sites today.

Response: Thank you for your comment. EPA has assessed all the alleged damage cases

included in In Harm’s Way (August, 2010) against our test

- of

- proof criteria and de signated them as either proven, potential, or rejected. For details, the commenter is referred to Unit XI of the preamble to this rule and to the technical support documents on damage cases included in the

docket of the final rule.

In addition, EPA decide d to regulate the disposal of CCR under subtitle D of RCRA by issuing minimum national criteria. Similar to the subtitle C option, this option would require composite liners, groundwater monitoring, structural stability requirements, corrective action, an d closure/post closure care. However, given available statutory authorities, EPA proposed this option to be a self

- implementing rule with no direct federal oversight, with an effective six428

months after publication in the Federal Register . The Agency is de ferring its final Bevill Regulatory Determination with respect to CCRs that are disposed in CCR landfills and CCR surface impoundments until additional information is available on a number of key technical and policy questions, including the risks of CCR d isposal based on its arsenic content, such as the appropriate safe daily dose for arsenic and the speciation of arsenic in the environment, and the potential impacts of recent Agency regulations on the chemical composition of CCR. In addition, the Agency needs additional information on state programs before it is in a position to make a final Bevill Regulatory Determination.



### Comment Number: TRANS

- ARL

- 0054

- 1 

### Organization 1 

### : Environmental Integrity Project


### Commenter 1 : Lisa Widawsky Commenter Type: Advocacy Group

Classification: Substantive



### Comment Excerpt Text: As I'm sure you know, both Subtitle C and Subtitle D will completely exempt regulation of beneficial reuses. Everyone in this room knows that, and you know that, too. We're not trying to

re gulate beneficial reuses, we're trying to get safeguards put in place from unsafe disposal that's been happening around the country, in Maryland, Virginia and all of the places you're hearing about today and in the next few weeks. EIP, our organization, w as founded by former EPA enforcement attorneys to ensure strict implementation and enforcement of environmental laws. We have recently investigated polluting coal ash dump sites throughout the 31 states nationwide that are now already home to leeching

coal ash dumps due to insufficient regulations and meager state enforcement attempts, including Maryland, Pennsylvania, and Tennessee. I'm licensed to practice in the Commonwealth of Pennsylvania, and I've spent many hours throughout the state visiting with fa milies and communities struggling to protect their livelihoods and their lives from the toxic effects of mismanaged coal combustion waste dumps in their communities. Although Pennsylvania has among the most extensive coal ash disposal regulations in the

c ountry, requiring liners, groundwater monitoring and other protections that many other states in the country still lack, its coal ash regulatory system is fraught with gaps that make the Subtitle C regulations a necessity for the protection of Pennsylvania ns as well as citizens throughout the
country. The Pennsylvania regulations have grandfathered out of regulation disposal sites that were active before the regulations were promulgated in 1992 and have left dangerous loopholes that permit and even promote dangerous so called beneficial reuses like reclamation of abandoned mines with coal ash of which there have been several damaged cases. These deficiencies in the state regulatory scheme have put communities at risk despite the state's intention to regulat e this toxic waste stream with more stringent regulations than most other states.

Response: This rule will regulate CCRs under RCRA subtitle D. The beneficial use of CCR is still subject to the Bevil exclusion and is therefore exempt from regulation. This said, however, this rule provides guidance for the application of CCR at structural fill projects. For details, the

commenter is referred to Unit IV of the preamble to this rule.

Section 8.8

- EPA seeks comment on EPRI’s November 2009 report (35148, 3522 4)429



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06260

- 104 

### Organization 1 

### : Kentucky Department for Environmental Protection


### Commenter 1 : R. Bruce Scott Commenter Type: State Government
Classification: Substantive



### Comment Excerpt Text: The EPRI report is consistent with the findings of the Commonwealth in that contaminants associated with the facilities in the damage cases are likely to be older, unlined facilities.

Response: Thank you for your comment.



### Comment Number: EPA

- HQ

- RCRA

- 20 09

- 0640

- 06314

- 31 

### Organization 1 

### : Earthjustice et. al. (analyses prepared for Earthjustice et. al. by Russell Boulding, Boulding Soil

- Water Consulting, and submitted by Earthjustice)


### Commenter 1 : Lisa Evans Commenter Type: Advocacy Group

Classification: Subst antive



### Comment Excerpt Text:
ATTACHMENT 2 (or 6314.2)

Docket ID No. EPA

– HQ

– RCRA

– 2009

– 0640

Proposed Rule on Disposal of Coal Combustion Residuals from Electric Utilities

Key Area 1: The Extent of Existing Damage Cases (FR 75(118): 35133)

Critique of EP RI Report Evaluation of Coal Combustion Product Damage Cases

By

J. Russell Boulding

Boulding Soil

- Water Consulting

Response: Whereas EPA does not necessary agree with the commenter’s designation of specific sites (e.g., Havana, IL; Hennepin, IL; Hutsonville, IL; Wood River, IL; Bailly, IN; Merom, IN; East Bend, KY; Lansing Smith, FL; R.M. Heskett, ND; Alma On

- Site, WI; E.J. Stoneman, WI; Duck Creek, IL; and Vermillion, IL) as proven damage cases, the Agency concurs with t he key points of the commenter’s critique of EPRI’s (2010) Report Evaluation of Coal Combustion Product Damage Cases. For additional information, the commenter is referred to the discussion of damage cases in Unit XI of the preamble to the final rule, as w ell as to the technical support documents on damage cases in the docket of the final rule.430



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06398

- 65 

### Organization 1 

### : Duke Energy


### Commenter 1 : Mike Stroben Commenter Type: Electric Utility Company

Classification: Substantive



### Comment Excerpt Text: Significantly, an EPRI analysis of the EPA damage case report in the 2008 Notice of Data Availability (“NODA”) shows only a handful of these cases actually involve circumstances

where off

- site contamination exceeded a pr imary drinking water standard or primary MCL.

Response: In the wake of the 2010 EPRI report ( Evaluation of Coal Combustion Product Damage Cases ), the Agency reassessed the 27 proven and 43 potential damage cases included in the July 2007 Coal Combustion W aste Damage Case Assessments report. For further details, the commenter is referred to the discussion of damage cases in Unit XI of the preamble to the final rule, as well as to the technical support documents on damage cases in the docket of the final

rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06534

- 22 

### Organization 1 

### : Lafarge North America Inc.


### Commenter 1 : Brian Gasiorowski on behalf of Craig S. Campbell Commenter Type: Beneficial User

Classification: Substantive



### Comment Excerpt Text:

2. The so

- calle d damage cases reported by EPA are not representative of beneficial use projects that are designed and constructed by Lafarge and other responsible companies participating in

the CCR beneficial use markets.

Response: Thank you for your comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 07047

- 19 

### Organization 1 

### : Great River Energy


### Commenter 1 : Erik Silvola Commenter Type: Electric Utility Company

Classification: Substantive



### Comment Excerpt Text: Coal Creek Station (CCS) has been identified as one of the proven damage cases which are being used as justification for the Subtitle C option. GRE would reference comments supplied by the Electric Power Research Institute (EPRI) and USWAG for background. As detailed in the EPRI comments, the ponds and landfills at CCS w ere constructed in the mid to late 1970s prior detailed regulation. These facilities were lined with compacted soils and had monitoring points installed. Once impacts were discovered and evaluated GREs predecessor Cooperative Power431

proactively and voluntar ily redesigned facilities with suspected leakage and spent roughly 40 million dollars to install composite liners in the late 1980s and early 1990s. We have continued to work with the North Dakota Department of Health (NDDH) to monitor improvements from

th e upgrades.

Response: In the wake of the 2010 EPRI report ( Evaluation of Coal Combustion Product Damage Cases ), the Agency reassessed the 27 proven and 43 potential damage cases included in the July 2007 Coal Combustion Waste Damage Case Assessments report. One of the assessed sites was Coal Creek Station. Based on EPA’s test of proof criteria, this site is designated as a potential damage case. For further details, the commenter is referred to the discussion of damage cases in Unit XI of the preambl e to the final rule, as well as to the technical support documents on damage cases in the docket to the final rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08244

- 15 

### Organization 1 

### : Edison Mission Energy, LLC


### Commenter 1 : Basil G. Constantelos Commenter Type: Electric Utility Company

Classification: Substantive



### Comment Excerpt Text: 2. EPA’s “Damage Cases” Are Not Representative Of And Overstate The Risks Posed By CCRs In addition to the scientific deficiencies in EPA’s proposal, the damage cases identified by the Agency do not validate its modeling results and are contrary to its claims. EPA relies on 24 “proven” damage cases as confirmation of the appropriateness of its Subtitle C approach because those cases allegedly demonstrate the mismanagement of these wastes [Footnote 156: 75 Fed. Reg. at 35,147.]. EPA’s reliance is misplaced. The universe of “proven” damage cases represents a period of time that spans nearly 60 years of coal ash disposal, ranging from 1952 to present [Footnote 157: U.S. EPA, Coal Comb ustion Waste Damage Case Assessments, at 13

- 25 (July 9, 2007), available at http://www.publicintegrity.org/assets/pdf/CoalAsh

- Doc1.pdf. EPA cites the Salem Acres Site (Massachusetts) as one of its “proven” damage cases. Salem Acres operated as a disposal s ite, according to EPA, from at least 1952 to 1969. EPA also relies on the U.S. Department of Energy Savannah River Project (South Carolina), which commenced operations and coal ash disposal in 1952, where it sluiced fly ash to a series of open settling bas ins and, ultimately, released CCRs into a nearby swamp and the Beaver Dam Creek.]. It also captures over 25 years of EPA’s response to the circumstances outlined in those cases [Footnote 158: Id.

at 13

- 16. The Virginia Power Yorktown Power Station, Chisman Creek Disposal Site (Virginia) received coal fly ash from 1957 to 1974. EPA proposed listing the site on its National Priorities List (“NPL”) in September 1983, but did not begin cleanup of the site until late 1986. Similarly, EPA proposed adding the Sale m Acres Site to the NPL in October 1984. The Agency ultimately added it in 1986, and signed a Consent Order in 1987 to evaluate the nature and extent of contamination and to present technical options for cleanup.]. The Agency relies on two cases in particu lar

– (1) a 2005 release of 0.5 million cubic yards of fly ash slurry into the Delaware River at the Martin’s Creek Power Plant in Pennsylvania, and (2) the well

- documented 2008 release of 5.4 million cubic yards of fly ash sludge over land and into a bran ch of the Emory River from the TVA’s Kingston, Tennessee facility [Footnote 159: Id.]. EPA alleges that these cases definitively demonstrate the hazard to human health and the environment posed by CCR disposal sites. This432

assertion simply mischaracterizes what these damage cases represent [Footnote 160: EME understands that EPRI has completed a report and submitted it to the docket for the Proposed Rule that provides information on the 67 “proven” and potential damage cases originally cited by EPA in 2007, as well as four new damage cases outlined in the preamble. EPRI’s report also addresses 31 alleged damage cases identified by the July 2010 Environmental Integrity Project, Earth Justice, and Sierra Club report titled, “In Harm’s Way: Lack of Federal Coal Ash Regulations Endangers Americans and Their Environment.” EPRI analyzed the data from the damage cases and collected additional information both to assess the extent of groundwater impacts and to evaluate commonalities that may exist among the sites. EPR I found that more than 90 percent of the sites were either unlined or partially lined, including all of the “proven” damage cases. CCR constituents identified in the groundwater in each of the damage cases varied by site, with sulfate and boron exceeding g roundwater standards more often than the other constituents. According to EPRI’s analysis, more than 60 percent of the damage cases occurred in locations with low potential for groundwater receptors. EPRI also found that groundwater

remediation was either completed or ongoing at 23 of the 24 “proven” damage case sites and at 24 of the potential damage case sites. See EPRI Comments, Hazardous and Solid Waste Management System; Identification and Listing of Special Wastes; Disposal of Coal Combustion

Residual s From Electric Utilities, No. EPA

- HQ

- RCRA

- 2009

- 0640, at 49

- 50 (November 19, 2010).]. As explained below, the damage cases flagged by EPA illustrate only the hazards associated with the sudden release of large quantities of materials. The resultant damage in each instance would have been the same whether mud, water, CCRs or any other material were released from the failed impoundments, given the volume of materials involved. Moreover, despite EPA’s claims, neither damage case offers any evidence of unaccept able exposure to the CCR materials themselves or their constituents. For example, no homes were located in the path of the Martin’s Creek spill and all damages/impacts from it were confined to the EGU site itself [Footnote 161: 75 Fed. Reg. at 35,147.]. Th us, EPA’s emphasis on these spills as evidence supporting its Subtitle C approach is misplaced because it improperly suggests that some undefined characteristic of the CCRs created the problem, as opposed to the volume of the material stored.

Response: Th is rule will regulate CCRs under RCRA subtitle D: for further details, see unit IV of the preamble to the final rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09281

- 3 

### Organization 1 

### : Exelon Power


### Commenter 1 : Victoria K. Will Commenter Type: Electric Utility Company
Classification: Substantive



### Comment Excerpt Text: In its study of potential regulatory approaches for CCR disposal units under the criteria established by the Bevill Amendment, EPA identified 67 cases of groundwater or surface water impacts associ ated with CCRs as meeting the criteria for a proven or potential damage case. 75 Fed. Reg. 35230

— 31; “Coal Combustion Waste Damage Case Assessments,” U.S. Environmental Protection Agency, Office of Solid Waste (July 9, 2007). These cases show that

where da mage to the environment can be attributed to CCRs, such incidents are primarily433

associated with older, legacy disposal units that were constructed in earlier times when they were much less likely to have been equipped with liners and/or groundwater monitor ing systems. The Electric Power Research Institute (“EPRI”) analyzed the 67 damage case studies in a separate publication entitled “Evaluation of Coal Combustion Product Damage Cases” (hereafter, “EPRI Report”), which reviewed EPA’s assessment. The EPRI Re port offered the following perspective:

The power industry has managed coal ash for more than 60 years. The majority of [CCR] damage case sites identified in the 2007 USEPA report are older sites that began operation prior

to enactment of current waste d isposal regulations. Although results suggest that unlined sites can be a source of groundwater impacts, such sites are not representative of modem nonhazardous waste disposal designs that include liners and leachate collection systems. Most new [CCR] disp osal facilities built in the last 15 years are constructed with liners and monitor groundwater.

EPRI Report at vi. The EPRI Report observed that “two

- thirds of the sites with known operational dates were opened prior to promulgation of RCRA in 1976, and all with known operational dates opened before 1990.” EPRI Report 8

- 1. Such units were less likely to be subject to regulations that imposed protective technological standards. Further, proven damage cases were more likely to involve impoundments rather th an landfills, and the median opening year for proven damage case facilities was 1967. EPRI Report at 3

- 4, 3

- 8. Exelon believes that these conclusions from the EPRI Report are valid and support EPA’s adoption of a Subtitle D program which, as proposed, woul d require uniform protective standards for new or lateral expansions of landfills and impoundments, groundwater monitoring for all existing landfills and impoundments, and the eventual retrofit with liners and leachate collection systems of impoundments wh ich choose to continue operating. The proposed Subtitle D program can adequately fill any gaps that may exist between modem regulatory requirements and appropriate controls that may not have been previously required for older units.

Bringing all CCR mana gement units into conformity with state

- of

- the

- art technology, including Mine Safety and Health Administration (“MSHA”)

- like stability/design standards, over a 5

— 7 year period under EPA’s Subtitle D proposal would help protect the environment by limiting t he likelihood of the more typical damage case recurring. As highlighted in the EPRI Report, the majority of the instances identified by EPA as proven damage cases are connected to impoundments constructed and/or operated prior to 1990.

Response: This rule will regulate CCRs under RCRA subtitle D: for further details, see unit IV of the preamble to the final rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09765

- 41 

### Organization 1 

### : Electric Power Research Institute (EPRI)


### Commenter 1 : Ken Ladwig Commenter Type: Trade Association

Classification: Substantive 

### Comment Excerpt Text: US EPA Damage Cases434

The EPRI two

- volume report referenced in the preamble of the Proposed Rule was a 2009 draft. The final EPRI report is appended to these comments as Attachments G (Vol ume 1) and H (Volume 2) (EPRI 2010a, b). The purpose for developing the EPRI report was to collect and provide additional data to supplement the information available to US EPA on the nature and extent of groundwater impacts at the damage cases cited in th e 2007 US EPA report, and to evaluate any common characteristics among these cases. Evaluation of the commonalities can provide insight into the best measures for avoiding similar issues in the future. Data collection was accomplished by performing detaile d literature and internet searches, and contacting site owners to obtain additional and more recent data. Results are briefly summarized below.

Fifty

- four of the 67 proven and potential damage cases in US EPA (2007) involved groundwater impacts associated with CCRs. [Footnote 6: Four of the 67 damage cases were oil ash sites, and nine were surface water sites.] Of these, 16 were classified as proven damage cases and 38 were potential damage cases. The most prominent commonality among the groundwater impact sites is that more than 90 percent were unlined or partially lined sites, including all of the proven damage cases. Leachate collection systems were installed at only a few facilities. The absence of liners and leachate collection systems reflects the fac t that these cases largely represent older facilities; 86% of the sites for which operational periods were available were opened prior to 1980. As has been noted by US EPA and 6 others, almost all new CCR disposal areas are constructed with liners (US DOE and US EPA, 2006). Because the composite liner requirements are the same in both the Subtitle C and Subtitle D options, they would have substantively the same effect on reducing risk from unlined facilities if properly implemented.

Constituents most commo nly observed in groundwater at the sites that were associated with CCR releases varied by site. Sulfate and boron were the two constituents with the most groundwater quality standard exceedances, and they were observed at the highest percentage of sites wh ere they were monitored. Sulfate and boron are typically used as leachate indicators at fly ash management sites due to their common presence in fly ash leachate and relatively high mobility in groundwater. Their occurrence at the damage case sites is cons istent with previous research showing that these two constituents were by far the most common drivers of groundwater remediation at CCR sites (EPRI, 2006). Most of the documented exceedances at the damage

cases were in on

- site wells; in our analysis 8 of t he 54 groundwater damage cases had off

- site groundwater exceedances, and 3 of the 54 had off

- site exceedances of a maximum contaminant level (MCL). It is recognized, however, that not all sites had both on

- site and off

- site wells, and

not all sites monitor ed the same constituents.

In our analysis, slightly more than 60 percent of the damage case sites were located in areas with low potential for groundwater receptors. CCR facilities that did not have receptors were usually either in a remote location, serv ed by a public water supply, or located adjacent to a surface water body such as a river or lake that intercepts groundwater before it can reach potential users. Our analysis also found that groundwater remediation was either completed or ongoing at 23 of the 24 proven damage case sites, as well as 24 of the potential damage cases, thereby significantly limiting potential for future risk from these sites. As previously noted, remediation is typically driven by the early arrival of the indicator constituents boron and sulfate, which mitigates the potential for impacts from the less mobile metals species (EPRI, 2006).435

Of the nine surface water cases, eight were categorized as proven cases and one as potential. Five of the nine surface water cases are cooling water reservoirs where no CCPs were directly deposited; four of these received discharge waters from CCP impoundments and one received runoff from a coal pile. Only two of the nine surface water cases had documented exceedances of water quality standards. The other cases were listed due to occurrence of coal ash in sediment either within a surface water body or wetland, or due to selenium concentrations in fish tissue (three of which were later rescinded by the State of Texas).

Response: See response to co mment excerpt EPA

- HQ

- RCRA

- 2009

- 0640

- 06398

- 65.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09765

- 9 

### Organization 1 

### : Electric Power Research Institute (EPRI)


### Commenter 1 : Ken Ladwig Commenter Type: Trade Association

Classification: Substantive



### Comment Excerpt Text: Damage Cases

EPRI performed a detailed assessment of the proposed and potential damage cases identified by US EPA in 2007. Our purpose in doing so was to collect and provide additional data to supplement the information available to US EPA on the na ture and extent of groundwater impacts at the damage cases listed in the 2007 US EPA report, and to evaluate any common characteristics among these cases.

In general, the damage cases are primarily older, unlined facilities. Remediation activities are

eit her ongoing or completed at 26 of the 27 proven damage cases for which data are available (the status of one site is unknown), as well as most of the potential damage case sites. In most cases, off

- site groundwater impacts were not documented. The damage c ase sites do not reflect the design of new lined CCR disposal site cells built over the last 15 years. Because the liner requirements proposed in the Subtitle D and Subtitle C options are identical, from a technical perspective the two options should perfo rm equivalently to mitigate groundwater releases.

Response: This rule will regulate CCRs under RCRA subtitle D: for further details, see unit IV of the preamble to the final rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09885

- 11 

### Organization 1 

### : Progress En ergy, Inc.


### Commenter 1 : Caroline Choi Commenter Type: Electric Utility Company

Classification: Substantive



### Comment Excerpt Text: The damage cases do not support the Subtitle C option436

EPA suggests that the newly identified “damage cases” may warrant revers al of the 2000 Regulatory Determination, resulting in the regulation of CCRs under RCRA Subtitle C. However, the new damage cases, which are limited almost exclusively to older, unlined units (as were the original damage cases), in no way undermine EPA’s o riginal decision in the 2000 Regulatory Determination that the best means to address the damage cases is to “develop national Subtitle D regulations.”

Some of the damage cases identified by EPA have had environmental impacts. At the same time, the propose d Subtitle D requirements

– including the liner, groundwater monitoring, corrective action and structural stability requirements

– will be fully effective in addressing EPA’s concerns about the damage case sites without the attendant adverse impacts of the Subtitle C option. Therefore, the new damage cases justify neither the reversal of EPA’s 2000 final Regulatory Determination nor the resulting regulation of CCRs under Subtitle C. The proven damage cases represent only a subset of CCR management units, an d EPA’s concerns about this distinct subset of units will be adequately addressed under the Subtitle D option.

The damage cases represent a subset of older, unlined CCR disposal units

At the time of the final 2000 Regulatory Determination, EPA had identi fied 14 “proven” damage cases and 36 “potential” damage cases. Since that time, EPA has identified 13 additional proven damage cases and four more potential damage cases, bringing the total to 27 proven cases and 40 potential damage cases. Virtually all of these damage cases involve unlined units that began operation prior to 1990; these cases do not involve the newer, lined units that have commenced operation since that time. It is inappropriate for EPA to include potential damage cases in its

evaluation o f the appropriate regulatory option for CCRs. The Bevill amendment provides that, in considering the “documented cases” of danger from the management of CCRs, the agency was only to evaluate those instances where such danger “has been proved.” EPA has ackn owledged this statutory limitation, observing in its final 2000 Regulatory Determination that, although the potential damage cases may pose a “potential danger” to human health and the environment in some circumstances, they do not “satisfy the statutory c riteria of documented, proven damage cases because damage to human health or the environment has not been proven...” It is inconsistent with the plain language of the statute for EPA to include the potential damage cases
in its assessment of the “documente d cases” of danger to human health and the environment from the management of CCRs. EPA cannot use the potential damage cases as the foundation for a reversal of its final 2000 Regulatory Determination.

It is important to note that even the proven damage cases are limited to only a subset of the universe of CCR disposal units; namely, older, unlined units. Of the 16 proven damages cases identified in the 2007 Notice of Data Availability (NODA) that involved groundwater contamination, 15 of the 16 units wer e unlined (with the remaining unit being a surface impoundment where it was unclear whether the unit was lined or unlined). The only other proven damage case involving groundwater contamination identified since the 2007 NODA is the BBBS Sand and Gravel Qua rries in Gambrills, MD, also an unlined site.

Even assuming for purposes of argument that it is appropriate to include the potential damage437

cases in this evaluation, the vast majority of impacts to groundwater from the potential damage cases are similarly from unlined facilities. According to EPRI’s comprehensive evaluation, of the combined total of damage cases identified in the 2007 NODA, only six (10%) had liners. Since issuance of the NODA, the only other potential damage case identified by EPA is the Battlefield Golf Course in Chesapeake, VA, an unlined site.

In addition, virtually all of the damage cases, both proven and potential, involve older units that commenced operations prior to implementation of what is now the common practice of installing

l iners in CCR disposal units. Of the 63 proven and potential damage cases identified in the 2007 NODA, approximately two

- thirds of the facilities for which operating periods could be established began operations prior to 1976, and all began operations prior to 1990. The data are even more striking when this analysis is properly limited to the proven damage cases; all of the 24 proven damage cases identified in the NODA commenced operations between 1948 and 1983, with “the median opening year of 1967.”

As EP A itself reported in the joint DOE/EPA report, the vast majority of CCR disposal units that have been constructed since 1990 are “better designed, in that they are lined and have installed groundwater monitoring systems, and therefore the total percentages of unprotected units have been reduced.” In fact, the joint DOE/EPA Report found that “[t]he vast majority (98%) of the 56 identified units (both landfills and surface impoundments)” built or expanded from 1994 to 2004 have liners.” The damage cases invol ve older and almost exclusively unlined units and represent only a segment of the total universe of CCR disposal units.

Not only do the damage cases involve only a subset of CCR disposal units, legitimate questions exist regarding whether even this limite d subset of units are truly “damage” cases. EPRI’s Damage Case Report identifies a number of important flaws with the proven and potential damage cases identified in the 2007 NODA, including, among other things, that (1)

characterization of at least 13 of the sites as “damage” cases was questionable because of the lack of any long

- term impacts that could be attributed to CCRs; (2) nearly two

- thirds of the 54 groundwater damage case facilities were located at sites where there was a low potential for downgra dient receptors; and (3) off

- site exceedances of maximum contaminant levels (MCLs) attributable to CCR impacts, a fundamental criterion for being classified as a proven damage case, were observed in only three cases of the combined total of 54 proven and potential groundwater damage cases.

These findings underscore the fact that the damage cases, in particular the proven damage cases, represent only a fraction of CCR disposal units and that the limited number and nature of these

cases do not warrant Subti tle C regulation. The lack of justification for CCR regulation under Subtitle C is underscored by the fact that the Subtitle D controls can fully address EPA’s

concerns with these facilities.

The proposed Subtitle D controls will prevent future damage cas es, and existing damage cases are being effectively remediated

EPA’s primary concerns with the identified damage cases involve surface and groundwater contamination from CCR disposal units and the structural failure of CCR surface impoundments.438

These are precisely the risks that the proposed Subtitle D controls are designed to address.

EPA has stated repeatedly that the standards for CCR disposal units are identical under the Subtitle C and Subtitle D options, with both proposed regulatory programs requir ing liners and leachate collection systems for new disposal units and lateral expansions of existing units, as well as the retrofitting of existing CCR impoundments. Further, under the Subtitle D option, existing CCR disposal units would be subject to grou ndwater monitoring standards that will allow for the early detection of any groundwater contamination from both lined and existing unlined units. The Subtitle D option would impose structural integrity requirements on all CCR surface impoundments, thus add ressing EPA’s concerns with the potential structural failure of such units that served as the basis for identifying the TVA Kingston facility and Martin’s Creek Power Plant as proven damage cases.

While the Subtitle D regulations will be effective in prev enting future damage cases, the existing damage cases already are being properly remediated under state and federal remediation programs. As EPA acknowledged with respect to the proven damage cases identified in the 2000 Regulatory Determination, all of th ese cases are being addressed adequately by the states (and in two cases, by EPA under the Superfund program), which EPA explained shows “the effectiveness of states responses when damages were identified.” In addition, the newly identified damage cases ar e being effectively remediated. The EPRI Damage Case Report includes a detailed analysis of the remediation efforts at these additional sites and found that “[a]vailable information indicates that remediation is complete or underway at all sites where

reme diation was required.” Indeed, of the 16 proven cases of damages to groundwater, EPA has confirmed that “corrective actions have been completed in seven cases and are ongoing in the remaining nine cases.”

In short, existing damage cases are already being adequately addressed, and the proposed Subtitle D regulations will prevent future damage cases. Therefore, there is no reason for EPA to pursue the Subtitle C option when the Subtitle D option will effectively address the issues associated with the damage cases. Given the underlying goal of the Bevill amendment that EPA avoid the Subtitle C regulation of CCRs “if at all possible” ( EDF v. EPA , 852 F.2d at 1314), there is no basis for EPA to rely on the damage cases as the basis for pursuing the Subtitle C

op tion.

Response: In the wake of the 2010 EPRI report ( Report Evaluation of Coal Combustion Product Damage Cases ), the Agency reassessed the 27 proven and 43 potential damage cases included in the July 2007 Coal Combustion Waste Damage Case Assessments repo rt. For further details, the commenter is referred to the discussion of damage cases in Unit XI of the preamble to the final rule, as well as to the technical support documents on damage cases in the docket to the final rule. In addition, t his rule will re gulate CCRs under RCRA subtitle D: see Unit IV of the preamble to the final rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 10483

- 18 

### Organization 1 

### : Utility Solid Waste Activities Group (USWAG) et al.


### Commenter 1 : James R. Roewer Commenter Type: Trade Association439

Classification: Substantive



### Comment Excerpt Text: EPA suggests that the newly identified “damage cases” may warrant reversal of the 2000 Regulatory Determination, resulting in the regulation of CCRs under RCRA Subtitle C. 75 Fed. Reg. a t 35155

- 56. [Footnote 20: One of the eight statutory study factors that EPA must evaluate in determining whether CCRs warrant regulation under RCRA Subtitle C is “documented cases in which danger to human health or the environment from surface runoff or le achate has been proved.” RCRA § 8002(n)(4). These cases are referred to by EPA as “damage cases.” See 75 Fed. Reg. at 35146.] However, the new damage cases, which are limited almost exclusively to older, unlined units as were the original damage cases, in no way undermine EPA‘s original decision in the 2000 Regulatory Determination that the best means to address the damage cases is to “develop national Subtitle D regulations.” 65 Fed. Reg. at 32216.

USWAG acknowledges that some of the damage cases identifi ed by EPA have had environmental impacts. At the same time, however, the proposed Subtitle D requirements

– including the liner, groundwater monitoring, corrective action and structural stability requirements

– will be fully effective in addressing EPA‘s c oncerns about the damage case sites without the attendant adverse impacts of the Subtitle C option. Therefore, the new damage cases justify neither the reversal of EPA‘s 2000 final Regulatory Determination nor the resulting regulation of CCRs under Subtitl e C. We discuss below the fact that the proven damage cases represent only a subset of CCR management units and that EPA‘s concerns about this distinct subset of units will be adequately addressed under the Subtitle D option.

A. The Damage Cases Represent A Subset Of Older, Unlined CCR Disposal Units

At the time of the final 2000 Regulatory Determination, EPA had identified 14 “proven” damage cases [Footnote 21: “Proven” damage cases “means those cases with (i) Documented exceedances of primary maximum co ntaminant levels (MCLs) or other health

- based standards measured in ground water at sufficient distance from the waste management unit to indicate that hazardous constituents have migrated to the extent that they could cause human health concerns, and/or ( ii) where a scientific study provides documented evidence of another type of damage to human health or the environment (e.g., ecological damage), and/or (iii) where there has been an administrative ruling or court decision with an explicit finding of speci fic damage to human health or the environment.” 75 Fed. Reg. at 35131.] and 36 “potential” damage cases. [Footnote 22: Potential damage case means those cases with documented MCL exceedances that were measured in ground water beneath or close to the waste source. In these cases, while the association with CCRs has been established, the documented exceedances had not been demonstrated at a sufficient distance from the waste management unit to indicate that waste constituents had migrated to the extent that t hey could cause human health concerns. Id. ] 75 Fed. Reg. at 35142. Since that time, EPA has identified 13 additional proven damage cases and four more potential damage cases, bringing the total to 27 proven cases and 40 potential damage

cases. Id. at 3514 3. Virtually all of these damage cases involve unlined units that began operation before 1990; these cases do not involve the newer, lined units that have commenced operation since that time. See “Evaluation of Coal Combustion Product Damage Cases,” Electr ic Power Research Institute, July 2010, EPRI Report No. 1020553 (“EPRI Damage Case Report”).440

Before addressing the nature of the damage cases, it is important to emphasize that it is inappropriate for EPA to include potential damage cases in its evaluatio n of the appropriate regulatory option for CCRs. The Bevill Amendment provides that, in considering the “documented cases” of danger from the management of CCRs, the Agency was only to evaluate those instances where such danger “has been proved.” RCRA § 80 02(n)(4) (emphasis added). EPA has acknowledged this statutory limitation, observing in its final 2000 Regulatory Determination that, although the potential damage cases may pose a “potential danger” to human

health and the environment in some circumstance s, they do not “satisfy the statutory criteria of documented, proven damage cases because damage to human health or the environment has not been proven. . . .” 65 Fed. Reg. at 32225. Therefore, it is inconsistent with the plain language of

the statute for EPA to include the potential damage cases in its assessment of the “documented cases” of danger to human health and the environment from the management of CCRs. EPA cannot use the potential damage cases as the foundation for a reversal of its final 2000

Re gulatory Determination.

It is important to note that even the proven damage cases are limited to only a subset of the universe of CCR disposal units; namely, older, unlined units. Of the 16 proven damages cases identified in the 2007 NODA that involved gr oundwater contamination, 15 of the 16 units were unlined (with the remaining unit being a surface impoundment where it was unclear whether the unit was lined or unlined). 75 Fed. Reg. at 35147. The only other proven damage case involving groundwater contam ination identified since the 2007 NODA is the BBBS Sand and Gravel Quarries in Gambrills, MD, also an unlined site. Id.

Even assuming, for purposes of argument, that it is appropriate to include the potential damage cases in this evaluation, the vast majo rity of impacts to groundwater from the potential damage cases are similarly from unlined facilities. According to EPRI‘s comprehensive evaluation of the combined total of 63 proven and potential damage cases identified in the 2007 NODA, only six (10%) had liners. EPRI Damage Case Report at 3

- 5. Since issuance of the NODA, the only other potential damage case identified by EPA is the Battlefield Golf Course in Chesapeake, VA, an unlined site, although EPA has recently issued a report concluding that no resi dential wells were impacted by CCRs at the site and that there are no adverse health effects expected from exposure

to surface water or sediments at the site. See http://yosemite.epa.gov/opa/admpress.nsf/0/72D8A4102AE78DA88525770D00546146.

In addition, vi rtually all of the damage cases, both proven and potential, involve older landfills that began operating before it was common practice to install liners in CCR disposal units. Of the 63 proven and potential damage cases identified in the 2007 NODA, approxi mately two

- thirds of all the facilities for which operating periods could be established began operations before 1976 and all began operations before 1990. Id. at 3

- 7

– 3

- 8. The data are even more striking when this analysis is properly limited to the prov en damage cases; all of the 24 proven damage cases identified in the NODA commenced operations between 1948 and 1983, with “the median opening year of 1967.” Id. at 3

- 8.

As EPA itself reported in the DOE/EPA Report, the vast majority of CCR disposal units that have been constructed since 1990 are “better designed, in that they are lined and have installed441

groundwater monitoring systems, and therefore the total percentages of unprotected units have been reduced.” 75 Fed. Reg. at 35150. In fact, the DOE/EPA Report found that “[t]he vast majority (98%) of the 56 identified units (both landfills and surface impoundments)” built or expanded from 1994 to 2004 have liners. Id. at 31. The point is that the damage cases involve older and almost exclusively unlined u nits and represent only a segment of the total universe of CCR disposal units.

Not only do the damage cases involve an unrepresentative subset of CCR disposal units, legitimate questions exist regarding whether even this limited subset of units are truly “damage” cases. The EPRI Damage Case report identifies a number of important flaws with the proven and potential damage cases identified in the 2007 NODA, including, among other things, that (1) characterization of at least 13 of the sites as “damage” case s was questionable because of the lack of any long

- term impacts that could be attributed to CCRs; (2) nearly two

- thirds of the 54 groundwater damage case facilities were located at sites where there was a low potential for downgradient receptors; and (3) o ff

- site exceedances of MCLs attributable to CCR impacts, a fundamental criterion for being classified as a proven damage case, were observed in only three cases of the combined total of 54 proven and potential groundwater damage cases. Id. at vi of Report Summary.

These findings underscore the fact that the damage cases, including in particular the proven damage cases, represent only a fraction of CCR disposal units and that the limited number and nature of these cases do not warrant Subtitle C regulation. The lack of justification for CCR regulation under Subtitle C is underscored by the fact that the Subtitle D controls can fully
address EPA‘s concerns with these facilities.

Response: See response to comment excerpt EPA

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### Comment Number: EPA

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- RCRA

- 2009

- 0640

- 10494

- 3 

### Organization 1 

### : Electric Power Research Institute (EPRI)


### Commenter 1 : Ken Ladwig Commenter Type: Trade Association

Classification: Substantive



### Comment Excerpt Text: [see original comment in Docket Reading Room; Part 2 of EPRI comments: PDF contains Attachment G: Report 1020553 Damage Case V1; also found on EPA's DVD#1 and attachment

was loaded into CommentWorks

Attachment G

-- Evaluation of Coal Combustion Product Damage Cases: Volume 1 Data Summary and Conclusi ons , EPRI Report 1020553].

Response: See response to comment excerpt EPA

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### Comment Number: EPA

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- 2009

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- 10494

- 4 

### Organization 1 

### : Electric Power Research Institute (EPRI)


### Commenter 1 : Ken Ladwig442

Commenter Type: Trade Association

Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: [see original comment in Docket Reading Room; Part 2 of EPRI comments: PDF contains Attachment H: Report 1020554 Damage Ca se V2; also found on EPA's DVD#1 and attachment

was loaded into CommentWorks

Attachment H

-- Evaluation of Coal Combustion Product Damage Cases: Volume 2 Case

Summaries , EPRI Report 1020554].

Response: See response to comment excerpt EPA

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### Comment Number: EPA

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- 2009

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- 11177_CHI

- 008

- 2 

### Organization 1 

### : Duke Energy


### Commenter 1 : Richard Meiers Commenter Type: Electric Utility Company

Classification: Substantive



### Comment Excerpt Text: Certain activist groups are alleging dozens of new damages cases, including some Duke Energy facilities. In its final May 2000 Regulatory Determination concluding that CCRs do not warrant Subtitle C regulation, EPA was aware of fourteen (14) proven damage cases and thirty six (36) potential damage cases. EPA has since listed an additional thirteen (13) proven damage cases and only four (4) more potential damage cases, bringing the total to twenty seven (27) proven damages and forty (40) potential damage cas es, respectively.

A close examination of the facts reveals many flaws in the recent allegations made by activist groups regarding additional damage cases. Many of the assertions are based on extremely flimsy evidence, with unfounded conclusions. EPA cann ot rely on these assertions in any final rulemaking without conducting its own factual, independent review of the sites and allowing for public notice and comment on their findings.

An EPRI analysis of the EPA damage case report in the 2008 Notice of Data Availability (NODA) shows only a handful of these cases actually involve circumstances where there was

off

- site contamination of an MCL occurred. Of the 54 proven or potential damage cases cited by EPA in the NODA involving groundwater contamination, only three involved off

- site contamination exceeding MCLs. The same is likely true with the alleged new damage cases. In fact, during their press conference, the activists acknowledged that some of these cases do not

involve off

- site contamination, but specula te merely that the damage may migrate off

- site at some point in the future.

Another significant flaw is that the allegations have been made without prior consultation with the very states whose programs the groups allege are deficient. The states are cont esting these443

allegations and charging that the activist groups have improperly characterized the effectiveness

of their state controls.

Response: See response to comment excerpt EPA

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### Comment Number: EPA

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- 11479_L

- 056

- 2 

### Organization 1 

### : Duke Energy


### Commenter 1 : Debbie Nispel Commenter Type: Electric Utility Company

Classification: Substantive



### Comment Excerpt Text: Certain activist groups are alleging dozens of new damages cases, including some Duke Energy facilities. In its final May 2000 Regulatory Determination concluding that CCRs do not warrant Subtitle C regulation, a close examination of the facts reveals many flaws in the recent allegations made by activist groups regarding addition al damage cases. Many of the assertions are based on extremely flimsy evidence, with unfounded conclusions. EPA cannot rely on these assertions in any final rulemaking without conducting its own factual, independent review of the sites and allowing for pub lic notice and comment on their findings. An EPRI analysis of the EPA damage case report in the 2008 Notice of Data Availability (NODA) shows only a handful of these cases actually involve circumstances where off

- site contamination occurred of a primary

dr inking water standard, also known as a primary MCL. Of the 54 proven or potential damage cases cited by EPA in the NODA involving groundwater contamination, only three involved off

site contamination exceeding primary MCLs. The same is likely true with the alleged new damage cases. In fact, during their press conference, the activists acknowledged that some of

these cases do not involve off

- site contamination, but speculate merely that the damage may migrate off

- site at some point in the future.

Another si gnificant flaw is that the allegations have been made without prior consultation with the very states whose programs the groups allege are deficient. The states are contesting these allegations and charging that the activist groups have improperly characte rized the effectiveness

of their state controls.

Response: See response to comment excerpt EPA

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### Comment Number: EPA

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- 0198

- 12 

### Organization 1 

### : Electric Power Research Institute (EPRI)


### Commenter 1 : Ken Ladwig Commenter Type: Trade Association

Classification: Substantive



### Comment Excerpt Text: 3 Damage Cases

NODA Section VI notices three reports related to damage cases. Our overall comment is that444

sufficient information and analysis are needed before the damage cases are used in a regulatory

context. More site

- specific information is required to place each site in the proper context in terms of disposal practices at the site, long

- term monitoring trends, and current status of the site.

This information is critic al to assure that the assessments do not rely solely on old or incomplete data, informal or media reports, or partial datasets. Information that should be considered in evaluating the relevance of these alleged damage cases or that raises questions about t heir reliability is described below.

Response: See response to comment excerpt EPA

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### Comment Number: EPA

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- 2011

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- 0198

- 4 

### Organization 1 

### : Electric Power Research Institute (EPRI)


### Commenter 1 : Ken Ladwig Commenter Type: Tr ade Association

Classification: Substantive



### Comment Excerpt Text: 3.1 EPRI (2010) Reports

NODA Section VI

- 2 notices the final EPRI reports titled “Evaluation of Coal Combustion Product Damage Cases: Volume 1: Data Summary and Conclusions” and “Evaluation of Coal Combustion Product Damage Cases: Volume 2: Case Summaries” (EPRI, 2010b,c). We would like to take this opportunity to respond to EPA’s statement in the NODA that “In these reports EPRI claimed that the EPA was inconsistent in applying its ‘test of proof’ criteria to determine which of the damage cases included in EPA’s July 2007 report qualify as CCRs

- related proven damage cases”. We did not specifically question EPA’s test of proof criteria, or its application, in our reports, although we did obse rve that in a subset of the damage cases the impacts did not appear to be CCR related (e.g., because CCRs represented only a very small fraction of waste at a much larger mixed waste site, or investigations showed that observed contamination was not

relate d to CCPs). The primary purpose of the reports was to assemble additional information that we felt was pertinent to the EPA assessment of damage cases presented in EPA (2007). Our specific objectives were:

- To collect additional information for as many of the damage cases listed in the 2007 report as possible

- To asses whether contamination at a facility is related to CCR management or possible other

sources of information

- To compile information on the extent of environmental damage, the media affecte d, and the

constituents of concern

- To estimate potential for drinking water receptors

- To identify remedial actions performed to date

The above objectives were designed to provide additional information, and to assess similarities445

among the sites tha t we believed would be useful in the regulatory context. The significance of the damage cases lies in how this information can be used to develop management alternatives that are both environmentally protective and cost effective. For example, the damage c ases, regardless of the absolute number of proven or potential cases, illustrate that unlined sites comprise the preponderance of the documented groundwater impacts. The relative absence of damage cases involving single

- or composite

- lined CCR disposal sit es, some of which have been in operation for more than two decades, demonstrates the successful implementation of these designs under several state programs.

Equally important to assessing the actual risks associated with the damage case sites are

observa tions regarding remediation. Remediation was either completed or ongoing at all proven damage case sites, thereby mitigating potential future risks from any constituents at the sites. It is not possible to quantitatively evaluate risks from future CCR rele ases without considering risk mitigation measures that have been routinely instituted by power companies in past cases of CCR release. CCR groundwater remediations to date have most often been driven by more mobile indicator constituents, sulfate and boron , suggesting that a groundwater monitoring program will provide advance warning of potential impacts from higher risk constituents such as arsenic, further mitigating any long

- term risk from these constituents.

Response: See response to comment excerpt EPA

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### Comment Number: EPA

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- 15 

### Organization 1 

### : Commonwealth of Kentucky, Department for Environmental Protection, Division of Waste Management


### Commenter 1 : Anthony Hatton
Commen ter Type: State Government



### Comment Excerpt Text: 2. In late 2009, EPRI submitted to EPA two draft reports titled ‘‘Evaluation of Coal Combustion Product Damage Cases: Volume 1: Data Summary and Conclusions’’ (finalized in July 2010),
and ‘‘Evaluation of C oal Combustion Product Damage Cases: Volume 2: Case Summaries’’(finalized in September 2010). In these reports EPRI claimed that the EPA was inconsistent in applying its own ‘test of proof’ criteria to determine which of the damage cases

included in EPA’s July 2007 report qualify as CCRs

- related proven damage cases. These reports are available from the docket to the proposed rule (EPA

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EPA

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– 0327, respectively). These are copyrighted reports and are not

available for viewing on

- line. The 2010 final reports are also copyrighted and are only available for viewing by visiting the docket to this Notice. They are also available on

- line from EPRI at: http://my.epri.com/portal/server.pt?open=512&objID=413&&PageID=230509& mode=2&cache

d=true

The Commonwealth has no comment on this report.

Response: Thank you for your comment.446



### Comment Number: EPA

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- 2011

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- 0258

- 1 

### Organization 1 

### : Environmental Integrity Project (EIP)


### Commenter 1 : Jeff Stant Commenter Type: Advocacy Group

Classification: Substantive



### Comment Excerpt Text: The Environmental Integrity Project appreciates this opportunity to address damage cases resulting from the lax management of coal combustion waste that is allowed by most states today. In its Notice of Data Availability and Request for Comment [Federal Register, Vol. 76, Issue 97 (Wednesday, October 12, 2011)], EPA noticed two reports from the Electric Power Power Research Institute (EPRI), "Evaluation of Coal Combustion Product Damage Case s: Volume 1: Data Summary and Conclusions” (finalized in July 2010) and "Evaluation of Coal Combustion Product Damage Cases: Volume 2: Case Summaries" (finalized in September 2010). The NODA states, "In these reports EPRI claimed that the EPA was inconsist ent in applying its own 'test of proof' criteria to determine which of the damage cases included in EPA‘s July 2007 report qualify as CCRs

- related proven damage cases." While we may concur that EPA has been somewhat inconsistent in applying its "test of pr oof" criteria to damage cases, the evidence demonstrates that EPA has minimized damages from the mismanagement of CCRs rather than overstating them as EPRI's two Volumes assert. These Volumes and much of the comments of states in opposition to EPA regulati on of coal ash make a number of fallacious assertions about CCR damage cases.

Following are responses to these assertions:

EPRI: “Most damage case facilities are older facilities that were opened before current landfill regulations were promulgated. . . Such sites are not representative of modern nonhazardous waste disposal designs that include liners and leachate collection systems. . . .While the damage cases are relevant to evaluating the potential from older units still in operation today, they provid e limited insight relevant to new units or for comparing the technical performance of common designs in use today.”

Response: This statement creates the false impression that most modern coal ash disposal sites today have liners and leachate collection sy stems. Some 94% of EPA‘s damage cases involve active (currently operating) surface impoundments. While most of them may have been built prior to 1976 without liners or leachate collection systems, they are still operating today without those safeguards. Ma ny have been expanded without those safeguards and will thus operate well into the future without them. Furthermore new coal ash impoundments can be built in most states today without meeting legal requirements to be certified or inspected by professional engineers, or install liners, monitoring, leachate collection systems or other basic safeguards. For example, the states of Indiana, Kentucky, Missouri, Iowa, Tennessee, Georgia, Alabama and Mississippi have no regulations setting construction, performance or monitoring requirements for surface impoundments even though these states contain large numbers of active surface impoundments. The EPRI report misses entirely the reality that surface impoundments are causing much of the damage and yet for the most pa rt, remain completely unregulated by states nearly three years after the disastrous impoundment collapse in Kingston, Tennessee.447

The EPRI report also fails to account for the fact that many of the damage cases have occurred at landfills that are currently operating. Some 47% of EPA‘s 2007 damage cases and 74% of damage cases identified by EIP and Earthjustice in 2010 involve active landfills. Assuming for the sake of discussion that many of these landfills have been operating since before 1990 and that

sta tes have long since started requiring them to have solid waste permits as EPRI and many states would have us believe, it would appear that the state regulations they operate under have allowed them to damage the environment and continue to operate under re newed permits that fail to require the operator to address that damage or prevent more of it from occurring. In fact an EIP July 2011 Report, Toxic Waters Run Deep, has found that monitoring data shows at least 33

such coal ash landfills in 19 states are o perating as illegal "open dumps" which subtitle D of RCRA requires to be shut down and cleaned up. Yet states are allowing them to continue to operate with the contamination to groundwater unabated.

There are a large number of relatively recent damage cas es that involve the disposal of CCR in unlined fills and even in quarries in direct contact with the water table. Much, if not most of the CCR disposed in Iowa, is still dumped into quarries as an unregulated beneficial use without any monitoring or liner requirements. The practice occurs even with receptors nearby such as private or public wells that may be using groundwater in direct connection with the quarry.

Other states‘s requirements aren‘t much better. In fact most states still have some type of

be neficial use law or regulation that exempts almost unlimited quantities of coal ash being used as fill from meeting solid waste disposal regulations. Whether you‘re talking about Chapter NR

538

- 10(8) in Wisconsin, the Illinois Environmental Protection Act, 415 ILCS 5/3.135, Indiana‘s

IC 13

- 19

- 3

- 3, Virginia‘s Coal Combustion Byproduct Regulations at 9 VAC 20

- 85

- 10 et seq., North Carolina‘s Beneficial Reuse Exemption at 15A NCAC 13B.1708, or any number of similar laws or regulations in other states that burn lots of coal, the basic waiver of common sense waste disposal standards such as liners and monitoring is available for those who want to get rid of unlimited quantities of coal ash as fill; who want to dump it in some low area or depression out, of site, o ut of mind without a permit or any requirement to notify the local community. They just need to speak the write language; talk about "beneficial use," call it a "structural fill," "flowable fill,"or "a controlled strength application." They also may need t o subject a small sample of their ash to a quick leach test that any waste would pass and fill out a one or two sheet registration or form of some type and send it in to the proper state official. Once that is done, the same green light that allowed the co ntamination of drinking water with arsenic and molybdenum ash dumped in the wetlands of Pines, Indiana, or the Grays Siding fill that contaminated folks‘ wells with lead near Danville, Illinois, or the filling and contamination of a

wetland with lead and a rsenic called the Swift Creek Fill near Rocky Mount, North Carolina, or the building of a golf course with coal ash leaching arsenic to the underlying groundwater in Chesapeake, Virgina, can just as easily bring this nightmare on to another unwitting commu nity. Just as easily and quietly today as could have occurred 20 years ago.

The laws have not changed.

EPRI: “Most of the damage sites do not have liners and leachate collection systems”.448

Response: EPRI is apparently confused about what the typical real ity is at most "modern" coal ash disposal sites in the US. No one is arguing that coal ash cannot be safely disposed with proper safeguards such as liners, leachate collection systems, siting restrictions, covers, monitoring, etc. Rather it is the lack of them at most coal ash sites in operation today that has led to the current list of damage sites and promises to keep generating more of them. There is not a shred of evidence in either of EPRI‘s Volumes that suggests that states are requiring the

hundreds of existing surface impoundments, landfills and beneficial use sites without liners, leachate collection systems or other safeguards to be retrofitted to install these safeguards. The

construction of a few new state

- of

- the art CCR landfills or expansion of surface impoundments onto lined ground will do nothing to address the massive potential threats to water supplies and the environment posed by the hundreds of CCR disposal units and beneficial use sites currently operating without these safeguards. That i s the unacceptable, nationwide condition that EPA‘s regulation must address.

Furthermore, the existence of a liner does not ensure that damage will not occur. Of the seventy damage cases identified by EIP in 2010, one quarter of the cases, six surface imp oundments and twelve landfills, are reported to have liners. The majority of these cases involved use of compacted soil, clay, and/or ash as a liner material. It is evident that soil, clay, or ash, even when ostensibly compacted to specifications such as 1 x10

- 7 cm/second, do not provide adequate protection of groundwater at CCR disposal sites. Some cases also involved geosynthetic liners. However, none appeared to involve well designed, installed and maintained composite (geomembrane and clay) liners. Examp les of groundwater contamination occurring at lined sites include the following:

- A clay liner under an inactive ash landfill at the Sheldon Plant in Nebraska has not prevented selenium from rising past the Maximum Contaminant Level (MCL) to 0.0728 mg/L in a monitoring well 400 feet downgradient from the waste boundary and sulfate from rising to nearly double its Secondary MCL in another well at the property line.

- A surface impoundment at the Leland Olds Plant in North Dakota is lined with clay. MCLs f or arsenic (0.0789 mg/L) and lead (0.0716 mg/L) have been exceeded in wells downgradient from the impoundment.

- At the Gavin Plant in Ohio, an active ash and FGD waste landfill has a clay base with a 30 mil geomembrane liner, and fly ash and bottom ash p onds are both lined. MCLs have been exceeded for alpha particles (1,497 pCi/L), arsenic (0.057 mg/L), barium (13.8 mg/L), cadmium (0.007 mg/L), and lead (0.051 mg/L) in underlying groundwater, and molybdenum, has been found at 0.409 mg/L, ten times the EPA Lifetime Health Advisory (LHA

– 0.040 mg/L), in a monitoring well 700 feet downgradient from the disposal area.

- An active landfill at the Boardman Plant in Oregon is "lined" with a base of hydrated, compacted ash. Vanadium is 3 to 4 times higher than s tate health standards and rising in the shallow groundwater underneath and downgradient of this liner.

- Ponds at the Mitchell Plant in Pennsylvania are lined with concrete sides and a compacted soil/bottom ash base. In downgradient monitoring wells arsen ic has been measured at twice the449

MCL (0.02 mg/L) and boron at greater than 6 mg/L, more than twice the Child Health Advisory (CHA

– 3.0 mg/L).

- The Bangor Quarry Landfill for the Portland Plant‘s ash in Pennsylvania is lined with a 60 mil LLDPE geomembr ane over a 6" fly ash sub

- base. The most recent available groundwater monitoring data from the site showed an upward trend for arsenic, projected to exceed the MCL in a year.

Furthermore liner installations provide only marginally improved protection of g roundwater at a site when existing unlined landfills and surface impoundments are contaminating groundwater, as many states are allowing. For example:

- Arsenic has increased to more than four times the MCL for the past few years in groundwater downgradie nt from the Clifty Creek Coal Ash Landfill in Madison, Indiana. The landfill was built with a composite liner, but unfortunately, the state permitted it over the objections of local residents and the top of an older coal ash landfill and ash pond that were not lined.

- The Cardinal FGD Landfill in Ohio was recently built with a synthetic liner, but on top of an unlined surface impoundment. Downgradient monitoring wells have measured arsenic at ten times the MCL and molybdenum at more than ten times the Lif etime Health Advisory (LHA).

- The landfill at the Spurlock Plant in Kentucky was originally permitted as an "inert" landfill in 1979, presumably without any requirements for a liner. In 2005 the KDWM approved a 389

- acre horizontal expansion. The horizont al landfill expansion areas have a 2

- foot thick compacted clay liner with a permeability of 1x10

- 7 cm/sec. The liner has failed to prevent contamination from
the old landfill‘s areas which has continued to worsen. Arsenic has increased from twice the

MCL i n 2005 to sixteen times the MCL in 2009 in downgradient groundwater.

- The Big Stone Plant in South Dakota has a composite lined brine pond on top of an unlined brine pond. This site has very high levels of groundwater contamination with recent

concentrat ions in shallow groundwater of sulfate more than 112 times EPA‘s Drinking Water Advisory, DWA, and boron 34 times higher than the LHA.

EPRI: The contamination at coal ash damage sites is not serious. “The constituents identified

most often were sulfate an d boron, and impacts were generally contained on site. Nearly two

thirds of the cases have little potential for downgradient receptors.”

The contamination at coal ash damage sites is very serious. Our tabulation of EPA‘s 67 damage

cases indicates that MCL s were exceeded in 33 of the 57 cases, (58%), that involved groundwater contamination. We note that at least 13 of these cases have involved exceedances of two MCLs and 8 cases have involved exceedances of three or more MCLs in groundwater. Data

from EIPs damage cases identified in 2010 and for which EPA is also soliciting comment in this NODA shows that MCLs were exceeded in 61 of 64 cases (95%) that involved groundwater

contamination. At least 15 of these sites had exceedances for two MCLs and 21of them h ad

exceedances for three or more MCLs.4 50

The levels of toxicity found at these sites warrants a resumarization from our comments submitted a year ago for the proposed regulation.

Response: See response to comment excerpt EPA

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### Co mment Number: EPA

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- 2011

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- 0258

- 2 

### Organization 1 

### : Environmental Integrity Project (EIP)


### Commenter 1 : Jeff Stant Commenter Type: Advocacy Group

Classification: Substantive



### Comment Excerpt Text: With these comments, EIP is submitting a draft report d ocumenting twenty more previously unrecognized damage sites as Appendices A

- 1 through A

- 3. Nineteen involve groundwater

contamination and a twentieth site involves soil contamination from ash used to construct a

railroad bed. The discussion below will inco rporate MCL exceedances documented at these new sites as well as exceedances of MCLs found in new monitoring data available from 2010 damage

sites:

- MCLs for every one of the Part 261 Appendix VIII parameters that EPA must consider in it regulatory decis ion pursuant to Part 261.11(a)(3) have been exceeded in groundwater at three or more of the 140 groundwater contamination damage cases identified by EPA and EIP et. al. (121 as of 2010 and 19 more with these comments). Appendix VIII parameters are antimony , arsenic, barium, beryllium, cadmium, chromium, lead, mercury, nickel, selenium, silver, and thallium. Among these, arsenic cadmium, lead, selenium, and chromium, are the toxic trace elements found exceeding MCLs most commonly at CCR sites, but they are a lso analyzed for in monitoring more than the other Appendix VIII parameters.

- The MCL for arsenic has been exceeded at 76 sites, more than half, (54%), of the groundwater contamination sites. Eighteen of those sites were EPA damage cases (EPRI tabulated such exceedances at 14 of the EPA sites) and 46 of them were EIP damage cases identified in 2010. Twelve more sites with arsenic exceedances are described in Appendices A1 and A2. Most of the EPA sites document whether MCLs have been exceeded but do not pr ovide actual concentrations. Out of the 86 groundwater contamination cases for which EIP has actual arsenic concentration data, arsenic levels were at least 10 or more times higher than the MCL in 26 cases (30%). Arsenic levels were 100 or more times highe r than the MCL in 8 cases (9%). The maximum concentration identified in our 2010 comments was 3,419 ppb, 342 times higher than the MCL, measured between 2005 and 2010 in a well approximately 1,500 feet downgradient from the waste boundary at the Hatsfield Ferry Landfill in Pennsylvania. Some 1,680 ppb of arsenic was measured in this well in 2010. The dissolved component of this arsenic has ever exceeded 0.1136 mg/L (11 times the MCL) as of 2010.

- However, data previously unavailable from three sites in So uth Carolina already identified as damage sites has since revealed substantially higher levels of arsenic at one of the sites: 5,100 ppb in groundwater under the Wateree Station‘s ash pond (measured in 2006) and 2,100 ppb and 1,200 ppb of arsenic in ground water under ash ponds at the Grainger and Urquhart Stations451

respectively (measured in 2010). Appendix A

- 3 discusses these concentrations and those of other metals measured at existing damage sites that indicate the damage is worse than originally

documente d at these sites. Multiple recent measurements in the last two years at each of these three sites has documented arsenic at levels exceeding 1,000 ppb. Arsenic higher than 5,000 ppb is exceeding the toxicity characteristic, the threshold that defines a haz ardous waste (at 100 times the old MCL of 50 ppb). If that standard were revised to reflect the newer MCL for arsenic, these concentrations would be close to or exceeding the toxicity characteristic for hazardous waste provided most of the arsenic is disso lved. Of course, groundwater is far more dilute than pure leachate to which this criteria is normally applied and should thus never approach much less exceed these concentrations. The danger posed by such concentrations actually monitored in groundwater un der these sites should not be lost on decision

- makers. Arsenic concentration this high can and do expose Americans around ash sites to unacceptable risks. For example, 1,000 to 1,200 ppb of arsenic was measured twice in a private well on land adjacent to t he Pines Coal Ash

Landfill in Indiana in 1999/2000.

- The MCL for cadmium has been exceeded at 30 sites (21%), with the maximum concentration 170 higher than times the MCL. Cadmium has exceeded the MCL by more than ten times at 4 sites, and more than 100 times at one site. Cadmium exceedances occurred at 16 EIP damage sites and 14 EPA damage sites. The EPRI report (Volume 1) asserts that cadmium exceeded the MCL at only 6 EPA damage sites (in Figure 4

- 2, page 4

- 3).

- The MCL for lead has been exceeded at 37 sites (26%) with the maximum concentration 179 times higher than the MCL. Lead has exceeded the MCL by more than 10 or more times at 8 sites and more than 100 times at one site. Lead exceedances occurred at 26 EIP damage sites and11 EPA damage sites. Th e EPRI report (Volume 1) asserts that lead exceedances occurred only at four EPA damage sites (Figure 4

- 3 on page 4

- 4).

- The MCL for selenium has been exceeded at 34 sites (24.0%). Four of these sites are among the 19 new damage sites in Appendix A inclu ding one site, the Fair Station in Iowa where selenium was measured at 713 ppb, more than 14 times the MCL. The maximum concentration of selenium measured at all of these sites was 1.85 mg/L (or 1,850 ppb) in 2008

- 2009, 37 times higher than the MCL and exc eeding the toxicity characteristic (1,000 ppb), in groundwater contaminated by the Northeastern Plant‘s coal ash landfill in Oklahoma. Groundwater under the Big Cajun Plant‘s ash ponds in Louisana was contaminated by selenium at concentrations up to1,320 p pb in one downgradient well and 1,230 ppb in another in 1994

- 1999. At both of these sites numerous substantive exceedances of the selenium MCL occurred at other downgradient wells as well. In all, exceedances of the MCL for selenium occurred at 21 EIP dama ge sites and 13 EPA damage sites. The EPRI report (Volume 1) asserts that selenium exceedances occurred at only eight EPA damage sites (Figure 4

- 2, page 4

- 3).

- The MCL for chromium has been exceeded at 23 sites ((16%) with the maximum concentration

16.8 times higher than the MCL. Two sites with MCL exceedances are among the 19 new damage sites. Fourteen of these sites are EIP damage sites and nine are EPA damage sites. The EPRI report (Volume 1) asserts that chromium exceedances occurred at only five EPA damage sites (figure 4

- 2, page 4.3). The failure of states to require monitoring for the toxic species of chromium known as hexavalent chromium is a major concern given the tendency for hexavalent452

chromium to leach from coal ash and the new California Publ ic Health Goal (CA PHG) set in July, 2011 for ingestion of hexavalent chromium in drinking water of 0.02 ppb. This standard is intended to reduce the risk of cancer from ingestion of hexavalent chromium in tap water to acceptable levels. The present MCL fo r chromium (also called total chromium) is 5,000 times higher than the CA PHG. We are currently completing research that supports a presumption that chromium contamination from coal ash sites is almost all hexavalent (see Appendix B).

- Other highly toxic Appendix VIII parameters (antimony, beryllium, mercury and thallium) are not typically measured, yet have been found to significantly exceed the MCL when they are monitored for in groundwater at CCR disposal sites. Antimony has exceeded its MCL at seven

s ites with the maximum value of 315 ppb, 52.5 times higher than the MCL, found in private residential drinking water in Uniontown Ohio, polluted by a million tons of industrial (primarily tire industry) coal ash dumped at the Industrial Excess Landfill, a l ong

- time Superfund site. Antimony has also been found at 17 times the MCL at the Seward ash site in Pennsylvania. Four EIP damage sites have documented exceedances of the antimony MCL, including two of the new damage cases, and three EPA damage sites have. Beryllium has exceeded the MCL at six sites, with the maximum value 30 times higher than the MCL again found in groundwater leaving the Industrial Excess landfill. Four EIP damage sites have had MCL exceedances for beryllium and two EPA damage sites have. Thallium has exceeded the MCL at 5 sites, three EIP and two EPA damage sites with a maximum value 8 times the MCL. The EPRI Report, Volume 1, asserts that exceedances of MCLs at EPA damage sites for these metals, "could not definitively be

associated with a release from the CCP facility." (page 4.3 The EPRI Report also asserts that there have been no exceedances reported for mercury at EPA‘s damage sites, while our information indicates that two EPA damage sites have had mercury exceedances including

excee dances that ranged up to 450 times the MCL at the Kentucky‘s East Bend Scrubber Sludge Landfill on the Ohio River. EIP has found exceedances of the MCL for mercury at two other sites, the Industrial Excess Landfill and the TransAsh Landfill in Tennessee.

- EPA‘s damage case assessment did not address alpha particles as a contaminant at CCR disposal sites. Nevertheless, the MCL for alpha particles (15 pCi/L) has been exceeded at three sites, with the maximum value (1,497 pCi/L) almost 100 times the standard . Very few groundwater monitoring programs require measurement of alpha radiation, and the MCL was

exceeded at all sites where data were available.

Response: Thank you for summarizing the extent and magnitude of exceedances of primary MCLs in groundwater. EPA is familiar with all the amage cases addressed by the commenter. For instance, the Agency has designated the two following sites as proven damage cases: Hatsfield’s Ferry Landfill, Pennsylvania and the TransAsh Landfill, Tennessee. EPA has designated the following sites as potential damage cases: Wateree Station site, South Carolina; Northeastern Plant‘s coal ash landfill, Oklahoma; Big Cajun Plant‘s ash p onds, Louisiana; Seward ash site, Pennsylvania; East Bend Scrubber Sludge Landfill, Kentucky; and the Seward ash site, Pennsylvania. Finally, EPA has rejected the Industrial Excess Landfill, Uniontown, Ohio, as a damage case because this site was also in r eceipt of waste types other than CCR. For details, the commenter is referred to the technical support documents on damage cases in the docket of the final rule.453



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0258

- 3 

### Organization 1 

### : Environmental Integrity Project (EIP)


### Commenter 1 : Jeff Stant Commenter Type: Advocacy Group

Classification: Substantive



### Comment Excerpt Text: While it is forced to eventually acknowledge that "exceedances of MCLs, were observed at many sites" (Summary and Conclusions, page 8

- 2), the EPR I Report, Volume 1 states repeatedly that "sulfate and boron, which do not have MCLs, were the most common constituents with exceedances, . . .” It points out on page 8

- 1, that, "The five constituents with the most observed exceedances were sulfate (37 cas es), boron (21 cases), manganese (19 cases), iron (15 cases), and arsenic (14 cases).” When assessing damage at CCR disposal sites, EPRI and EPA have largely ignored the federal, health

- based drinking water quality standards for sulfate, boron,

manganese, iron and other parameters such as molybdenum and sodium that should be considered particularly at CCR disposal sites. The EPA damage cases include a relatively high percentage (26.1%) of cases, mostly "potential damage" cases where "only" exceedances of

SM CLs have been conceded. By focusing exclusively on secondary drinking water standards for parameters like sulfate, iron, and manganese in cases where exceedances of MCLs have not yet been documented, the effect is to characterize groundwater contamination cases purely on the grounds of their aesthetic impacts when they are likely to have adverse health impacts to people and animals who may ingest the water. The gastrointestinal illnesses that the residents of Colstrip, Montana, experienced from drinking wat er with excessive sulfate and boron and the deaths of livestock and gastro

- intestinal illness endured by the residents of Waterflow, New Mexico from drinking with water with elevated sulfate are testament to this reality faced by people living next to coal ash and FGD waste disposal sites. If data on actual concentrations of manganese and sulfate and other parameters without primary MCLs were more carefully considered, EPA might find that many of the EPA damage cases have actually involved repeated

exceedan ces of health

- based standards with potentially very unhealthy exposures to nearby private well owners or users of public wells with draw down zones near ash sites without the first MCL exceedance being documented. For example:

- Exposure to high concentra tions of boron can result in developmental and reproductive health effects. According to EPA, "[a]s levels of boron in drinking water increase above the One

- Day

and Ten

- Day Health Advisory (3.0 mg/L) and the Longer Term Health Advisory (2.0 mg/L) for

child ren, the risk for the potential effect on the testes of young males increases. [Footnote 1: US EPA, 2008. Drinking Water Health Advisory for Boron and Compounds. Prepared by Health and Ecological Criteria Division (HECD), Office of Science and Technology ( OST), Office of Water (OW) for Office of Groundwater/Drinking Water (OGWDW), OW, U.S. EPA.] EPA‘s Child Health Advisory of 3 mg/L has been exceeded at one

- quarter of the groundwater damage cases (31 sites) documented as of 2010. More sites would fall in th is category if lower state health

based groundwater standards for boron were used to assess groundwater damage, such as 0.315 mg/L used in North Carolina, 0.9 mg/l in Wisconsin, 1.0 mg/L in Minnesota, and 1.4 mg/L in

Florida and Nevada. Even if such state standards are ignored, the maximum concentration found for boron of 520 mg/L is more than 173 times the EPA CHA, and boron concentrations have exceeded this standard by more than 10 times in at least 5 sites documented as of 2010.454

- High levels of molybde num are associated with mineral imbalance and gout

- like symptoms. [Footnote 2: US EPA, 1992, Integrated Risk Information System (IRIS) profile for molybdenum, available at http://www.epa.gov/IRIS/subst/0425.htm.] EPA‘s Lifetimee Health Advisory (LHA)

for m olybdenum (0.04 mg/L) has been exceeded at 9 sites with the maximum value of 22 mg/L being 550 times the LTA. The LHA has been exceeded by 10 to 99 at six sites as of 2010. The only reason there are not more sites identified with molybdenum contamination i s that it is still common for groundwater monitoring programs not to analysis for this parameter.

- EPA‘s damage case assessment consistently overlook the health

- based Drinking Water Advisory for sulfate, the Lifetime Health Advisory for Manganese, and th e Drinking Water Advisory for sodium.

- Manganese has been associated with neurotoxicity. One study, for example, found a reduction in children‘s intelligence test scores at drinking water concentrations of 0.2

- 0.5 mg/L. [Footnote 3: Wasserman, G.A. et al ., 2006. Water manganese exposure and children‘s intellectual function in Araihazar, Bangladesh. Environmental Health Perspectives 114(11):124

- 29.] The US EPA set the Lifetime Health Advisory for manganese at 0.3 mg/L to protect against these kinds of effe cts. [Footnote 4: US EPA 2004. Drinking Water Health Advisory for Manganese, available at http://www.epa.gov/ogwdw/ccl/pdfs/reg_determine1/support_cc1_magnese_dwreport.pdf.] In fact, EPA recommends using 0.3 mg/L as an acute (10

- day) exposure guideline for infants. [Footnote 5: Id.] The LHA of 0.3 mg/L has been exceeded at 23 sites (19.0%) of those documented by 2010. The maximum concentrations of manganese (>100 mg/L) have exceeded the LHA by 333 times, and manganese has exceeded this standard by more than 10 times at

eleven sites and more than 100 times at three sites.

- Short

- term exposure to sulfate above the Drinking Water Advisory (DWA) of 500 mg/L has been associated with laxative effects and diarrhea, with infants being particularly sensitive. [Foot note 6: US EPA 2003, Drinking Water Advisory: Consumer Acceptability Advice and Health Effects Analysis on Sulfate, available at http://www.epa.gov/ogwdw/ccl/pdfs/reg_determine1/support_cc1_sulfate_healtheffects.pdf.] The DWA has been exceeded at 26 damage sites (21.5%) as of 2010. The maximum concentration of sulfate (56,000 mg/L) exceeded the DWA by 112 times, and sulfate concentrations have exceeded this standard by more than 10 times at three sites, and more than

100 times at two sites.

- Excessive sod ium intake is widely known to be associated with high blood pressure and hypertension, and EPA established a health

- based Drinking Water Advisory of 20 mg/L for people on sodium

- restricted diets. [Footnote 7: US EPA 2003. Drinking Water Advisory:

Consumer Acceptability Advice and Health Effects Analysis on Sodium, available at http://www.epa.gov/ogwdw/ccl/pdfs/reg_determine1/support_cc1_sodium_dwreport.pdf.] Groundwater contaminated by coal ash and FGD waste often exceeds the drinking water advisory for sod ium of 20 mg/L. It has been exceeded at seven sites at least, with the maximum value of 40,000 mg/L being 2,000 times the DWA. The DWA was exceeded by 10 to 99 times at the other five sites. The residents of East Mt. Carmel were drinking water with sodium at about 10 times the Drinking Water Advisory.455

- The LHA for nickel of 0.1 mg/L, formerly an MCL, and an Appendix VIII parameter, has been exceeded at seven sites with the maximum value greater than 3 mg/l, more than 30 times the LHA. Oral exposure to nic kel has been associated with decreased body and organ weights. [Footnote 8: US EPA, 1996, Integrated Risk Information System (IRIS) profile for nickel, available at http://www.epa.gov/iris/subst/0271.htm.]

- Cobalt and vanadium are two parameters increasi ngly being found at coal ash sites for which Tapwater RSLs have been established as well as health

- based standards by several states. Oral exposure to high levels of cobalt has caused polycythemia in adult men, and has also been associated with heart damag e and other health effects. [Footnote 9: ATSDR 2004, Toxicological profile for cobalt.] Vanadium at high doses has been associated with decreased body weight gain in animal studies. [Footnote 10: ATSDR 2009. Toxicological profile for vanadium.]

Furthermor e, groundwater contaminated by coal ash typically presents the risk of combined exposure to multiple pollutants. The cumulative risk of the toxic soup created by coal ash has been ignored in risk assessments to date, but is likely to be significant:

- Alt hough the risk assessments supporting the proposed rule treat arsenic as the only carcinogen in coal ash, there are in fact several constituents that are likely to be carcinogenic, including cadmium, [Footnote 11: Cadmium is a B1 probable carcinogen. Altho ugh this classification is based mainly on inhalation studies, and several oral exposure studies have shown no response, intramuscular and subcutaneous administration in rodent assays have shown a tumor response. US EPA, Integrated Risk Information System: Cadmium (CASRN 7440

- 43

- 9), available at http://www.epa.gov/ncea/iris/subst/0141.htm.] lead, [Footnote 12: Lead is a B2 probable carcinogen based on oral exposure studies. US EPA, Integrated Risk Information System: Lead and compounds (inorganic) (CASRN 74 39

- 92

- 1), available at http://www.epa.gov/ncea/iris/subst/0277.htm.] fluoride, [Footnote 13: The EPA IRIS database entry for fluoride is very outdated. The most prestigious current review of the literature presents convincing evidence that fluoride is link ed with childhood osteosarcoma. See National Research Council, Fluoride in Drinking Water: A Scientific Review of EPA‘s Standards (2006).] and chromium, [Footnote 14: Hexavalent chromium (Chromium VI) is a Group A known carcinogen by inhalation with insuff

icient evidence to assess its oral carcinogenicity. US EPA, Integrated Risk Information System: Chromium VI (CASRN 18540

- 29

- 9), available at http://www.epa.gov/ncea/iris/subst/0144.htm.] and others that we don‘t know enough about. [Footnote 15: Many of the chemicals assessed have inadequate evidence to draw a conclusion about possible carcinogenicity. The EPA IRIS database weight

- of

- evidence characterization for boron, for example, is that "data are inadequate." US EPA, Integrated Risk Information System:

B oron and compounds (CASRN 7440

- 42

- 8), available at http://www.epa.gov/IRIS/subst/0410.htm. There are no human data, and results of rodent bioassays are "difficult to interpret." Id. This means that boron may or may not pose a cancer risk

in humans. The sam e can be said about selenium (group D, not classifiable), antimony (no data), and molybdenum (no data).]

- The risk assessments also failed to account for possible additive or synergistic noncancer risks. For example, as noted in the preamble, cobalt and antimony are both linked to heart and lung456

effects, and both were among the constituents of concern in the final, full

- scale analysis. [Footnote 16: The preamble notes that "exposure to high levels of cobalt . . . can result in lung and heart effects, the same endpoints as antimony. Thus, these two constituents could act additively or synergistically on both the heart and lungs." 75 FR 35128, 35173 (June 21, 2010).] There are also at least five neurotoxins present in coal ash, including aluminum, arsenic, f luoride, lead, and manganese. [Footnote 17: See generally ATSDR toxicological profiles for aluminum, arsenic, fluoride, lead, and manganese.] Although the combined effect of these neurotoxins, for example on children‘s developing brains, could be substanti al, it was not accounted for in the

risk assessments.

Even exceedances of SMCLs at CCR Disposal Sites Should Not Be Minimized as a Matter of Concern. Siignificant harm can be caused by exceedances of non

- health based SMCLs for aluminum, total dissolved so lids (TDS), pH, and iron. These include:

- Although there is not a scientific consensus that there are long

- term adverse impacts on human health from high concentrations of aluminum in drinking water, symptoms including nausea, vomiting, diarrhea, mouth u lcers, skin ulcers, skin rashes, and arthritic pain have been noted (WHO, 2003). Aluminum has been measured as high as 1,100 mg/L at one EIP damage site.

- Economic harm to residents who shoulder the expense of having water heaters burn out prematurely fr om water contaminated by high TDS. For example, in the late 1980s two coal ash ponds at the Phillips Power Plant in Pennsylvania contaminated several public water wells operated by the Cresswell Heights Joint Authority with high levels of total dissolved s olids (TDS) that were ruining residents‘ hot water heaters. Legal action initiated by the Pennsylvania Department of Environmental Protection (PADEP) in 1990 led to closure of the ash ponds and payment of a $50,000 fine.

- Exceedances of the SMCL for pH a s a result of contamination by CCR can result in highly acidic (as low as 3.6) or alkaline conditions (as high as 11.6, see Table 2). At the Trans Ash CCR landfill it was complaints by a resident of being burned while showering that led to the discovery

th at her well was contaminated by mercury.

- USEPA has noted that ingesting iron from drinking water above the SMCL of 0.3 mg/L is not directly associated with adverse health effects; although, trace impurities and microorganisms that are absorbed by iron s olids may pose health concerns. See: http://www.epa.gov/nrmrl/wswrd/cr/corr_res_iron.html.

Response: Thank you for your comment, where you are laying out the health hazards of some of the secondary MCLs. In the wake of the 2010 EPRI report ( Evaluation of Coal Combustion Product Damage Cases ), the Agency reassessed the 27 proven and 43 potential damage cases included in the July 2007 Coal Combustion Waste Damage Case Assessments report. The reassessment of the damage cases was performed against EPA’s test o f proof criteria, including exceedances of MCLs, SMCLs, HALs and LHAs. For further details on our damage case reassessment methodology, the commenter is referred to the discussion of damage cases in Unit XI of the preamble to the final rule. For additional information on individual damage cases the457

commenter is referred to the technical support documents on damage cases in the docket to the

final rule.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0258

- 4 

### Organization 1 

### : Environmental Integrity Project (EIP)


### Commen ter 1 : Jeff Stant Commenter Type: Advocacy Group

Classification: Substantive



### Comment Excerpt Text: In characterizing EPA‘s 2007 Damage Cases, EPRI‘s Volume 1 Report states repeatedly that, "The impacts were generally contained on site.” More specifically in Chapter 4, page 4.2, the report states, "In most cases (35 of the 43 cases with exceedances attributed to CCP management), the exceedances were only detected within the site boundaries.”

It is very misleading to suggest exceedances of water quality sta ndards were contained on site in EPA‘s damage cases when the monitoring systems at these sites in virtually every case have not determined the extent to which contamination has migrated nor whether damage has occurred offsite. Despite the fact that 24 of E PA‘s damage cases are considered, ?proven,? we find no compelling evidence in Volume 2 of the Report, Case Summaries that plume mapping has in fact occurred at the large majority of EPA‘s groundwater damage sites. EPA‘s damage cases include

sites where mon itoring appeared to be sufficient enough to determine that migration of contaminants had moved a significant distance from the waste boundary, e.g., traveling 250 feet from the landfill at the Port Washington power plant in Wisconsin, 400 feet from the was te boundary of the Miamiview Landfill, in Ohio, into a residential area next to the Chisman Creek Disposal site in Virginia, and beyond the property boundary at the Faulkner Offiste Ash Landfill in Maryland. It also specifically mentioned in a few cases, s uch as at the Highway 59 Landfill and Nelson Dewey sites in Wisconsin, that operators were sampling offsite residential and park wells. However in the large majority of cases including some of these, EPA‘s assessments did not examine whether monitoring sys tems were adequate to determine how far contamination has moved from the disposal unit much less indicate that any systematic efforts to sample offsite wells of neighboring residents, businesses or property owners had occurred. Without presenting

more cred ible evidence of offsite monitoring at these sites, EPRI‘s claim that impacts were contained on site amounts to convenient use of the, "null fallacy," i.e. asserting that some event has not happened with certainty even though one has not undertaken the mos t basic steps to check to see if it has happened.

Information obtained in the identification of EIP‘s damage cases was sufficient to determine that contaminated groundwater has moved significant distances beyond CCR disposal sites

-- 200 feet to a mile, i n 24 cases (37% of EIP‘s groundwater damage cases):

- Contamination has migrated from 200 to 500 feet from the waste boundary at nine EIP damage sites (14.1% of facilities with contamination of groundwater): Flint Creek LF Arkansas (360‘), Venice SI, Illi nois (200‘ south and 400‘ east), Cape Fear SI, North Carolina (250‘), Lee SI, North Carolina (250‘), Sheldon LF, Nebraska (400‘), Reid Gardner SI&LF (200‘), Muskingum River SI, Ohio (350‘), Hunlock SI, Pennsylvania (240‘), TransAsh LF, Tennessee (400‘ into two458

private wells).

- Contamination has extended 500 to 1,000 feet beyond the waste boundary at seven EIP damage sites (10.9%): Spurlock LF, Kentucky (750‘), Karn/Weadock SI, Michigan (500‘), Belews Creek SI&LF (650‘), James Gavin SI&LF, Ohio (700‘), Uni ontown LF, Ohio (900‘ into residential areas on private wells), Northeastern LF, Oklahoma (900‘), Bruce Mansfield SI, Pennsylvania (825‘

— into as many as 22 offsite private wells), Fayette SI&LF, Texas (750‘).

- Contamination has traveled 1,000 feet to on e mile beyond the waste boundary at eight EIP damage sites (9.4%): Seminole LF, Florida (1 mile), Dolet Hills SI&LF (1/2 mile), Colstrip, Montana (1,000

- 2,000‘), Boardman LF, Oregon (1,500‘), Hatfield‘s Ferry LF, Pennsylvania (1,500‘), Oak Creek/Caledonia LF, Wisconsin (1,500‘ into at a dozen private wells and low areas

– although WE Energies disputes this) and Bruce Mansfield SI, Pennsylvanai (1,490‘ to 1/2 mile into as many as 22 private wells) and Joliet/Lincoln Quarry (1,000 feet into more than a dozen private wells).

The concentrations that contaminants have reached in these plumes also warrants mentioning:

- At the Flint Creek CCW landfill in Arkansas, a 2009 groundwater assessment found selenium at 3 times the MCL, sulfate at 8 times the SMCL and 4 times EPA‘s health

- based Drinking Water Advisory (DWA), and TDS at 5 times the SMCL in the monitoring well 360 feet downgradient from the landfill. A leachate seep discharges beyond the landfill into a stream that drains into unmonitored ash ponds which di scharge off

- site to a recreational reservoir without limits or monitoring of ash metals. Selenium was up to 8.4 times the MCL, chromium up to 3.4 times the MCL, boron up to 4 times EPA‘s Child Health Advisory,sulfate up to 4.5 times the DWA and TDS up to 7 .4 times the SMCL in samples of this seep collected from 2007 to 2010.

- At the Venice Plant in Illinois, the contaminant plume extending 400 feet offsite measured concentrations of arsenic 26 times the MCL onsite and up 4 times the MCL some 400 feet beyo nd the boundary of closed ash ponds offsite.

- At the Sheldon Plant in Nebraska, two wells 400 feet downgradient of a closed, clay

- lined coal ash landfill at the property line have measured steadily rising selenium up to 1.5 times the MCL

in one well and sulfate in another up to 1.4 times the SMCL as of 2008.

- At the Gavin Plant in Ohio underlying groundwater is contaminated with alpha activity, arsenic, barium, cadmium, lead and molybdenum, all exceeding MCLs by several to as much 99 times for alpha act ivity. Molybdenum has been measured exceeding the EPA‘s Lifetime Health Advisory (LTHA) by 2.5 times, manganese and chloride nearly twice the SMCL, and TDS 3

times the SMCL in an off

- site downgradient groundwater monitoring well 700 feet south of the

waste boundary.

- At the Spurlock Plant in Kentucky, arsenic levels have consistently exceeded the MCL since 2005, reaching as high as16 times the MCL in 2009 in a monitoring well 750 feet downgradient

of the CCW landfill.459

- At the Northeastern Plant in Oklah oma, a contaminant plume moving rapidly offsite from a coal ash landfill exceeds the MCLs for arsenic and lead by more than 9 times and chromium by more than two times 900 feet beyond the boundary of the landfill. Closer to the landfill, selenium

has been measured at up to 1.85 mg/L, 37 times the MCL and nearly twice the toxicity characteristic, barium measured at more 4 times the MCL, thallium exceeding the MCL and average vanadium concentrations 5 to 8 times over state health standards set by Minnesota an d Florida. All concentrations were measured in sampling from 2005 to the present day.

- At the Boardman Plant in Oregon, vanadium has been rising since the 1990s in wells monitoring a coal ash fill, reaching 0.126 mg/L, 2.5 times state health standards, i n 2006 in a well 1,500 feet downgradient of the fill.

- At the Hatfield‘s Ferry Plant coal ash landfill in Pennsylvania, total arsenic has been measured at 342 times the MCL, and boron and molybdenum have been measured at 5 times and 33 times their LHAs, respectively, in contaminated shallow groundwater 1,500 feet downgradient of the landfill that is flowing toward the Monongahela River across from a Public Water Supply

Intake..

- At the Dolet Hills Plant in Louisiana, TDS and sulfate concentrations have reached levels more than four times higher than their SMCLs and more than twice the health based DWA for sulfate in a contaminant plume one half mile (2,640 feet) downgradient of bottom ash ponds. Metals have not been normally sampled at the plant‘s CCW si tes which have operated since at least 1986, but 2009 sampling found arsenic and lead exceeding their MCLs and selenium exceeding its MCL by more than 3 times in wells closer to the waste units.

- At the Seminole Plant in Florida, groundwater at the prope rty line, one mile (5,280 feet) downgradient of an unlined FGD sludge landfill, had a chloride concentration of 590 mg/L (twice the SMCL), a sulfate concentration of 780 mg/L (3.1 times the SMCL and more than 1.5

times the health

- based DWA), a TDS concentr ation of 3,100 mg/L (6.2 times the SMCL), a boron concentration of 4 mg/L (exceeding the EPA Child Health Advisory and 2.9 times the Florida standard), and 12 mg/L of iron (40 times the SMCL). The source of this plume was unmistakably the FGD landfill, whe re the shallow underlying groundwater in the same round of sampling had a chloride concentration of 21,000 mg/L, a sulfate concentration of 1,100 mg/L, a TDS concentration of 59,000 mg/L, a boron concentration of 344 mg/L, and an iron

concentration of 29 m g/L.

The above statistics do not provide the complete picture of the extent to which contaminated groundwater is migrating from CCR disposal sites but rather indicate only that it has moved to monitoring wells or private wells sampled at these distances f rom the waste boundary. At only one of the 24 sites listed above (closed surface impoundment at the Venice Plant Illinois) has the full extent of the contaminant plume been mapped. At many other sites, there are no wells established at appreciable distance s from the waste boundary, making it impossible to document the rates or distances of contaminant flow. Despite the evidence of contamination moving appreciable distances, EIP could find evidence that states and operators were monitoring groundwater or sam pling drinking water beyond the property boundary at only 17 of the 70 damage cases documented by EIP in Out of Control (Feb., 2010) and In Harms Way (Aug.,460

2010).

Response: Thank you for your comment. In the wake of the 2010 EPRI report ( Evaluation of

Co al Combustion Product Damage Cases ), the Agency reassessed the 27 proven and 43 potential damage cases included in the July 2007 Coal Combustion Waste Damage Case

Assessments report. The reassessment of the damage cases considered EPA’s test of proof

crite ria, including exceedances of MCLs, SMCLs, HALs and LHAs. As stated in Unit XI of the preamble to the final rule, EPA agrees with the commenter that the scarcity of groundwater monitoring wells offsite limits its capability to assess the extent to which mo nitored constituents have migrated beyond the boundaries of CCR management units. For further details on EPA’s damage case reassessment methodology, the commenter is referred to the discussion of damage cases in Unit XI of the preamble to the final rule. F or detailed information on individual damage cases the commenter is referred to the technical support documents on damage cases in the

docket to the final rule.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0258

- 5 

### Organization 1 

### : Environmental Integrity Project (EIP)


### Commenter 1 : Jeff Stant Commenter Type: Advocacy Group

Classification: Substantive



### Comment Excerpt Text: Similarly, EPRI‘s Volume 1 Report attempts to minimize EPA‘s damage cases by asserting that, "Nearly two

- thirds of the cases have little potentia l for downgradient receptors.” without undertaking the necessary site based research to credibly substantiate this claim. EPRI claims that, "No downgradient groundwater receptors were identified for 33 of the 54 groundwater damage cases, while slightly mor e than one

- third (21 of 54) were found to have potential receptors." (Section 5, page 5

- 1)

EPRI says, "CCP facilities that did not have receptors were usually either in a remote location or located adjacent to a surface water body such as a river, lake, o r ocean that intercepts groundwater before it can reach potential users. Potential receptors were assumed to be present if

there were

- dwellings and/or other buildings in a downgradient position and the following conditions applied:

- The area was not se rved by a public water supply;

- Dwellings/buildings were present between the site and a groundwater discharge point, or within 1 mile of the site if there are no identified groundwater discharge points; and

- Sites where alternative water supplies were br ought in as part of remediation were counted as having potential receptors because there was a potential receptor at the time of the initial
release.”

The Section 1 of Volume 1, (page 1

- 4) states, "A key element in performing the receptor analysis

was gro undwater flow direction. In most cases, this was determined based on information obtained during the evaluation, such as monitoring well groundwater levels or narrative461

descriptions of groundwater flow direction. If no groundwater flow data were available, then groundwater flow direction was estimated based on locations of major surface water drainage ways and surface elevation changes, because shallow unconfined groundwater typically flows in a direction that mimics surface elevation toward drainage ways.”

A review of the Case Summaries in Volume 2 does not demonstrate that much site specific evaluation was used to decide if potential downgradient receptors existed at a site. In most cases the, the relevant text says that the site‘s groundwater flows to a river or that the residences around the site are on or were placed on public water supply systems without discussing any technical basis for deciding whether nearby wells are upgradient or downgradient or whether public water systems resulted clearly as a result of remediating problems at the site. Furthermore the summaries conclude without indicating explicitly whether EPRI believes the potential for human receptors exists or doesn‘t exist at a site although in the vast majority of cases, the text provided in the table for "potential human receptors" attempts to imply there are none. Only in six cases, (Vitale

- MA, Nelson Dewey

- WI, Port Washington

- WI, Weber

- NY, Alma Offsite

- WI,

AB Brown

- IN, and Muscatine

- IA) is the reader given a clear impression that the wr iter believes there are potential human receptors. Even the existence of a "creek" such as "Lost Creek" at the Powerton Plant‘s Mahoney Landfill or the "small creek" at the Coffeen, White and Brewer Trucking site in Illinois is mentioned as a basis for dis missing the potential for human receptors

to be effected.

Response: See response to comment excerpt EPA

- HQ

- RCRA

- 2009

- 0640

- 06398

- 65.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0258

- 6 

### Organization 1 

### : Environmental Integrity Project (EIP)


### Commenter 1 : Jeff Stant Commenter Type: Advocacy Group

Classification: Substantive



### Comment Excerpt Text: By contrast, when EIP researched whether potential human receptors, could be effected by the damage sites for its second report in 2010, In Harms Way, many hours of staff time were spent on phone calls with state and local agencies and county offices asking for information on the location of private and public wells, repeatedly discussing locations, sending multiple emails and submitting FOIA requests for such information, conducting internet searches for well registries, etc., etc. Public information was often incomplete, out of date or off limits ostensibly for national security reasons. In several cases our efforts still came to no avail or we received information

that we did not feel was reliable enough to use. At the end of this process, we had collected enough records to indicated reasonably that there were approximately, at least, 204 private wells within one mile, 4,675 private residential wells within two miles and 1 69 public wells within five miles of the 35 groundwater damage sites examined in this report and probably many more such wells. We also used the specific data from each site to discern whether these wells were located in the direction of shallow groundwate r flow. We found that contaminated groundwater underneath at least 15 of these sites was within two miles of private wells and that there are at least 25 wells within two miles of eight of the sites (Joliet 9

- IL, Gavin

- OH, Lansing

- IA, Muskingum

- OH, Unionto wn

- OH, Bruce Mansfield

- PA, Fayette Power

- TX, and Oak Creek

- WI).462

At Joliet 9 and Uniontown there are at least 90 wells within one mile of the contaminated disposal sites with many of them in downgradient positions relative to the contamination.

Our researc h also concluded that public wells with much larger withdrawal capacities that often can change the direction of groundwater flow pulling contaminated groundwater from major

distances and all directions were within five miles of at least 18 of the 35 sites examined in In Harms Way. In fact, our information indicates there are at least five public wells within a five mile radius of eight of these sites which is not surprising given that many public water supply aquifers located in the same geologic formation s under rivers that power plants are located on. We believe that a much stronger, more site specific analysis of the hydrology and geomorphology of river systems must be undertaken before broad brush assumptions such as those being made by EPRI to dismiss potential human exposure to coal ash contamination along rivers should be considered, much less relied upon. [Footnote 18: See Norris, Charles, H. & Hutson, Mark A., Geo

- Hydro, Inc. Critique of EPRI CCW Risk Evaluation, Geo

- Hydro, Inc., Nov. 5, 2010 submit ted as Appendix J to Comments of Earthjustice, et al. on Hazardous and Solid Waste Management System; Identification and Listing of Special Wastes; Disposal of Coal Combustion Residuals From Electric Utilities; Proposed Rule, 75 Fed. Reg. 35128 (June 21,

2 010) Docket ID No. EPA

- HQ

- RCRA

- 0640.]

Response: The report titled Critique of EPRI CCW Risk Evaluation , by Norris, Charles, H. &
Hutson, Mark A., Geo

- Hydro, Inc., Nov. 5, 2010 (docket document EPA

- HQ

- RCRA

- 2009

- 0640

- 6313, virtual pages 53

- 55) is critical t o some of the fundamental population risk assumptions made in the EPRI (2010) report. The commenter cites EPRI’s default assumption that groundwater in areas of humid climates moves from the CCR disposal unit at the power plant (high

- ground) to the river o r lake (low

- ground). EPA agrese with the commenter that under certain circumstances this is an unrealistic assumption. In reality, and as documented at quite a few damage case sites, groundwater flow through alluvial valleys, the dominant geographic

settin g for coal

- fueled power plants, can be complicated by numerous factors.

Flow can be directed in a variety of directions depending on the following variables: (i) geology: e.g., the presence of coarse paleo

- channel deposits within the alluvial valley can create preferred flow pathways, parallel or oblique to the river’s flow direction; (ii) river stage and stage variations: at low river stage groundwater flows dominantly down the valley and only obliquely toward the river in the valley, whereas at high riv er stage groundwater may flow away from the river; and (iii) human

- caused impacts. Examples of anthropogenically

- induced changes include (a) pumping centers related to industrial, agricultural, or residential water supply systems that

can induce flow of c ontaminated groundwater in directions completely unrelated to the topographically

- induced flow; (b) many CCR landfills are constructed above natural grade, sometimes over previously utilized CCR impoundments, and filled to elevations well above surrounding areas, which can result in mounding of groundwater and/or leachate under landfills; and (c) unlined surface impoundments and cooling lakes may leak profusely into groundwater, which often creates radial flow paths in all directions from the facility that are capable of driving contaminated groundwater in directions contrary to the topographic, down

- to

- the

- river flow.

In those cases where CCR management sites have potentiometric groundwater maps, instances of groundwater flow in directions other than down the topographic gradient towards the closest463

river or lake can be easily identified, and seemingly contradictory evi dence on ‘up

- gradient’ vs.

‘down

- gradient’ groundwater monitoring wells can be reconciled. Such ‘anomalous’ flow directions would refute utility and/or state regulator arguments that the presumed source of contaminants is leaching from local soils. For fur ther information on the application of the cited geohydrologic concepts to specific damage cases, the commenter is referred to the technical support documents on damage cases in the docket to the final rule.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0258

- 7 

### Organization 1 

### : Environmental Integrity Project (EIP)


### Commenter 1 : Jeff Stant Commenter Type: Advocacy Group

Classification: Substantive



### Comment Excerpt Text: EPRI: “Remediation is completed or underway at all sites where remediation was known to be require d”.

Response: At more than 80 percent of the EPA damage sites, the Volume 2 Case Summaries, indicate that at least the monitoring and usually additional remedial actions are still underway, underscoring the longterm nature of the problem caused by lax dis posal of coal ash. Volume 1 of the EPRI Report (Sec. 6, page 6

- 1) also indicate that, "at least 62% of the potential damage cases have undergone remediation." Figure 6

- 1 indicates that 17 potential damage cases have installed caps, three have undertaken so me removal of CCP, 1 has provided an alternate groundwater supply, 5 have been engaged in "groundwater extraction" and 3 have installed barrier walls. The fact that remediation was completed at a site or is underway indicates that there was real damage,

an d that the site should therefore no longer be considered just a "potential" damage case.

The twenty

- one EPA damage cases involving state

- ordered cleanup according to EPRI represent 31.3% of the total EPA damage cases. In contrast at only eight of the 70 E IP damage cases was

there a state

- ordered cleanup underway, indicating that states are much less proactive in dealing with groundwater contamination at CCR disposal sites than the EPA damage cases alone would suggest. The fact is that state regulatory acti ons to compel cleanups at contaminated sites have fallen woefully short of the mark for decades. Even after contamination is found in off

- site drinking water wells, the record is replete with sites illustrating that state regulators do little to stop furth er human exposure. Please review pages 104 through 108 of our comments submitted on the regulatory proposal last November for examples of this inaction which has cost the people living around coal ash sites dearly.

Response: EPA agrese with the commenter that EPRI’s (2010) contention that “Remediation is completed or underway at all sites where remediation was known to be required,” and therefore these sites should be expunged from the damage case record is untenable. EPA also agrees with

the commenter tha t the fact that remediation was completed at a site or is underway indicates that there was real damage to natural resources. The Agency also agrees that failure of state regulatory agencies to compel cleanups or at least assessment monitoring at contamina ted sites at times expresses state

- specific regulatory waivers, such as the concept of Groundwater Mixing Zone (GMZ). In a GMZ, state intervention as an enforcement agent is not statutorily mandated.464

For developing its database of CCR damage cases, the Age ncy has applied a universal test of proof criteria that steer away from such localized regulatory idiosyncrasies. For additional information on this subject, the commenter is referred to the discussion of damage cases in Unit XI of the preamble to the fina l rule; for specific information on individual damage cases the commenter is referred to the technical support documents on damage cases in the docket to the

final rule.



### Comment Number: TRANS

- CHI

- 0021

- 3 

### Organization 1 

### : Duke Energy


### Commenter 1 : Richard Meiers Commenter Type: Electric Utility Company

Classification: Substantive



### Comment Excerpt Text: An EPRI analysis, the Electric Power Research Institute, of EPA damage case report in the 2008 Notice of Data Availability (NODA) shows only a handful of the se cases actually involve circumstances where there was an offsite contamination of a primary drinking water standard MCL occurred. Of the 54 proven or potential damage cases cited by EPA in the NODA involving groundwater contamination, only three of those involved offsite contamination exceeding the primary drinking water standards. The same is likely true with the alleged new damage cases. In fact, during their press conference, the activists acknowledged that some of these damage cases do not involve off site contamination, but speculate merely that damage may migrate offsite at some point in the future.

Response: The commenter criticizes ‘activists’ for merely speculating that at some of the damage

case sites CCR

- inflicted damage may migrate offsite at s ome point in the future. However, by stating that akin to the 54 proven or potential damage cases cited by EPA in the (October 2011) NODA that involve groundwater contamination, only three involve offsite contamination exceeding the primary drinking water standards, and “the same is likely true with the alleged new damage cases,” the commenter also resorts to speculating. To steer away from speculation, the Agency has applied universal test of proof criteria as a tool for reassessing both EPA’s

established damage cases and the newly alleged damage cases that were submitted to the Agency by environmental advocacy groups in February and August 2010 and in October 2011. For further details, the commenter is referred to the discussion of damage cases in Unit XI of the preamble to the final rule. For specific information on individual damage cases the commenter is referred to the technical support documents on damage cases in the docket to the final rule.



### Comment Number: TRANS

- CLT

- 0161

- 2 

### Organization 1 

### : Duke Ener gy 

### Commenter 1 : Allan Stowe Commenter Type: Electric Utility Company

Classification: Substantive 

### Comment Excerpt Text: Environmental groups allege dozens of new damage cases, listing some Duke Energy facilities. The actual number of proven damage cases is q uite small. The current total is 27 proven damage465

cases and 40 potential damage cases. A close examination of the facts will reveal many flaws in the recent allegations made regarding damage cases. Many of the assertions in the reports are

based on extreme ly flimsy evidence, with unfounded conclusions meant to scare the public. EPA cannot rely on these assertions in any final rulemaking without conducting its own factual, independent review of the sites and allowing for public notice and comment on its find ings. For example, an Electric Power Research Institute analysis of the EPA damage case report in 2008 shows only a handful of these cases actually involve MCL exceedances. For example, of the 54 proven or potential damage cases cited by EPA in the report involving groundwater contamination, only three involved off

- site contamination exceeding MCLs.

The same is likely true with the alleged new damage cases cited by environmental groups. In fact, during their press conference, they acknowledged that some of these cases do not involve

off

- site contamination, but were merely speculating that the damage may migrate off

- site at some point in the future.

Response: See response to comment excerpt TRANS

- CHI

- 0021

- 3.



### Comment Number: TRANS

- LVL

- 0045

- 3 

### Organization 1 

### : Duke Energy


### Commenter 1 : Debbie Nispel Commenter Type: Electric Utility Company

Classification: Substantive



### Comment Excerpt Text: An EPRI analysis of the EPA damage case report in the 2008 Notice of Data Availability shows only a handful of these cases actually involve circumstances where offsite contamination occurred of a primary drinking water standard, also known as a primary MCL. Of the 54 proven or potential damage cases cited by EPA in the NODA involving groundwater contamination, only three invol ved off

- site contamination exceeding pre

-- primary MCLs. The same is likely true with the alleged new damage cases. In fact, during their press conference, the activists acknowledged that some of these cases do not involve offsite contamination, but specu late merely that the damage may mitigate

-- may migrate offsite at some point in the future.

Response: See response to comment excerpt TRANS

- CHI

- 0021

- 3.

Section 8.9

- EPA seeks comment on February 2010 report of additional damage cases by

Environmental Integrity Project and EarthJustice (35224)



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06260

- 106 

### Organization 1 

### : Kentucky Department for Environmental Protection


### Commenter 1 : R. Bruce Scott Commenter Type: State Government
Classification: Substantive466



### Comment Excerpt Text: The reports have been recently submitted and their allegations have not been verified. The February 24, 2010 report does not contain any additional cases for Kentucky , but a follow up report dated August 26, 2010 (In Harm's Way) does include 3 Kentucky facilities. In general, the three sites listed in Kentucky have shallow groundwater flow towards or along the adjacent Ohio River, with no residential wells between the source and the river. The classification of the residential wells is suspect, and should be investigated since the source contains unverified historical data. The main impact would be to the river, and its aquatic life, which requires much more analyses. T he arsenic data presented is from on

- site wells, and needs modeling or off

- site monitoring to determine impacts to human health, if any. The preponderance of the remaining data is mostly secondary or tertiary drinking water constituents.

Per the 2000 Regu latory Determination, 65 FR 32224 and the Technical Background Document to the Report to Congress on Remaining Waste from Fossil Fuel Combustion: Potential Damage Cases (1999), classifying damage to groundwater as a proven damage case requires the

satisfac tion of at least one of three "tests of proof": scientific investigation, administrative ruling,

or court decision.

Most of the data in the studies appears to be presented under "scientific investigation". While it is monitoring data, it is on

- site and co ntains no off

- site results. While on

- site arsenic data exceeds MCLs, there is no off

- site data or modeling to estimate impacts to residential groundwater users. Therefore, the study fails to " ... demonstrate that damages are significant in terms of impact s on human health or the environment." Response: EPA has assessed, among others, all the newly alleged damage cases submitted in the August 2010 report In Harm’s Way . Based on the screening of the three Kentuck y sites cited in In Harm’s Way against EPA’s test

- of

- proof criteria, the Agency designated all three sites as potential damage cases. For a summary of stakeholder arguments addressing these three sites and the rationale for the Agency’s designation decision, see the technical support do cuments on damage cases in the docket of the final rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06260

- 107 

### Organization 1 

### : Kentucky Department for Environmental Protection


### Commenter 1 : R. Bruce Scott Commenter Type: State Government
Classification: Substantive



### Comment Excerpt Text: Specific comments on the three cases are provided.

LG&E Mill Creek, Louisville : Looking at the map on page 60, the shallow groundwater flow is from the surface impoundment to the river. Since LG&E owns the property betw een the pond and the river, there are no households between the pond and the river and no residents drinking the groundwater. The samples exceeding the MCL for arsenic are from on

- site wells, so any effect on off

- site wells is conjecture without sampling a nd long

- term trend analyses.467

In regard to the statement on Page 61 of "In Harm's Way", related to the lack of KDWM's requirement for off

- site sampling, off

- site drinking water well investigations, or on

- site corrective actions. Kentucky has discretion und er 401 KAR 45:160, Section 1 to require or not require groundwater corrective action. The rule states: "The requirements of this administrative regulation apply to owners and operators of ... facilities at which the cabinet determines groundwater and surfa ce water monitoring shall be required, and special waste sites or facilities required to perform corrective action as a result of documented groundwater contamination." The pond is a permit

- by

- rule under 401 KAR 45:060, that is, the pond has a permit as lo ng as its KPDES (NPDES) permit is current. The owner or operator is currently not required to monitor groundwater. The data quoted in the report is from the landfill permit. The purpose of this proposed rule is to make such corrective action necessary for surface impoundments as well as

landfills.

Most of the wells shown within a two mile radius of the plant are most probably inconsequential. The predominant direction of flow is to the river, so only the wells next to the Ohio River downgradient from the p lant may be of some interest and those are most likely industrial wells.

Households in the Louisville

- Jefferson County Metro neighborhood are connected to municipal drinking water lines.

Tennessee Valley Authority

- Shawnee Fossil Plant, Paducah : The map on page 66 shows most wells to be upgradient from the disposal area. There are 3

- 6 side gradient or downgradient, at most. The metadata in the GIS database may not be reliable and most of these wells are likely monitoring wells.

The plant is downgradient from U.S. DOE Paducah, a heavily contaminated site involved in

extensive state and federal clean

- up efforts and domestic use of groundwater is highly unlikely. For more info, see http://www.epa.gov/region4/waste/npl/nplky/paducaky.htm

As with the first ca se, the exact nature of each of the six down or side gradient wells must be investigated before any final conclusions may be reached. Most of the shallow groundwater impact appears to be to the Ohio River.

Eastern Kentucky Power Cooperative

- Spurlock Sta tion, Maysville : There only appears to be one residential well downgradient from the landfill within the two mile radius. This well needs to be investigated for its actual use, as it appears it may be on plant property. The data from the sidegradient well is not presented. Use of a side gradient well is scientifically defensible when no accessible areas exist for an upgradient well.

Response: Some of the information included in the comment, when combined with EPA’s damage case records suggest s gaps in KDEP’s regulatory requirements and /or their enforcement. Examples include unlined CCR management units, no groundwater monitoring requirements,

and a permitted groundwater standard for arsenic, 0.050 ppm, which is five times less stringent

than the nation al standard of 0.010 ppm. Specifically:

Mill Creek Station

– Louisville Gas &Electric : The comment states that “The samples exceeding

the MCL for arsenic are from on

- site wells, so any effect on off

- site wells is conjecture without468

sampling and long

- term trend analyses

, ” then proceeds to say that “The owner or operator is currently not required to monitor groundwater.” In addition, the fact that assessment monitoring for sulfate is currently required, and KDEP is currently evaluating the information on c hl oride exceedance suggest that the design and/or operation of the site’s CCR management units are

deficient.

TVA Shawnee Fossil Plant, Paducah : There are allegations about MCL exceedances at the site of arsenic, selenium, and beryllium, of a HAL for boron, and of SMCLs for cobalt, nickel, molybdenum, vanadium, sulfate, manganese, TDS, and pH. A groundwater assessment was performed at the site in the 1980s, but no KDWM enforcement action has taken place since. In 2007, KDWM permitted the expansion of the sit e’s CCR landfills without a liner (as “special waste landfills”), over old, unlined ash ponds.

Eastern Kentucky Power Cooperative

- Spurlock Station : Eastern Kentucky Power Cooperative (EKPC) has been directed by the KDWM to conduct an assessment in monit oring wells MW

- 2A

& MW

- 3A, to determine the cause of the detection of arsenic in MW

- 3 at a concentration exceeding the permit limit. KDWM did require a Remedial Action Plan (RAP) under its regulations; the plan has been approved and EKPC has implemented it . The RAP concluded that the migration of arsenic is impeded by natural attenuation; however, out of abundant caution, the RAP proposed as a remedy the collection of leachate from the site’s active CCR landfill.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06305

- 2 

### Organization 1 

### : Clean Water Network


### Commenter 1 : Natalie Roy Commenter Type: Advocacy Group

Classification: Substantive



### Comment Excerpt Text: A seminal report released in August 2010 by the Environmental Integrity Project (EIP)

, Earthjustice and the Sierra Club identified 39 additional coal

- ash dump sites in 21 states that are contaminating drinking water and surface water with arsenic and other heavy metals. These new sites are in addition to the 31 coal ash dump sites in 14 st ates that were identified by the same groups in February 2010. In addition to the sites identified in the two reports, the EPA has already identified 67 sites, bringing the total number of sites reporting toxic contamination from coal ash pollution to 137 in 34 states. These 137 sites represent approximately 29 percent of the 467 plants nationwide that dispose of coal ash onsite or offsite.

Response: EPA assessed all the newly alleged damage cases submitted in 2010 and 2011 by environmental advocacy groups . The Agency also reassessed the established database extant at the signature of the proposed rule. V etting against EPA’s test of proof criteria, the Agency has

confirmed around 1 5 0 damage cases, 40 of them proven. For a summary of stakeholder arguments ad dressing each of these sites and for the rationale for the Agency’s damage case designation decision s , see the technical support documents on damage cases in the docket of the

final rule.469



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06314

- 11 

### Organization 1 

### : Earthjustice et al. (analyses prepared for Earthjustice et. al. by Russell Boulding, Boulding Soil

- Water Consulting, and submitted by Earthjustice)


### Commenter 1 : Lisa Evans Commenter Type: Advocacy Group

Classification: Substantive



### Comment Excerpt Text:

Con tamination from CCR Disposal Sites is Widespread.

EPA’s sixty

- seven damage cases are located in 24 states, and EIP’s seventy damage cases are located in 29 states. To date, one or more damage cases have been identified in 35 states with a

total count of 137. Table 1 [see original comment for ATTACHMENT 4, which contains Table 1] shows the distribution of damage cases among states, which are ranked in order of the amount of CCR generated in 2005. Contamination from CCR disposal sites has been found in all states where data have been available to evaluate. There is a tendency for states that generate the most CCR to have higher numbers of damage cases, but the availability of data to document damage is also a significant factor. Pennsylvania, the top CCR gen erator, ranked third in number of damage cases at 10 sites, and Indiana, ranked sixth in CCR generation, with 9 damage cases ranks fourth. The necessity of monitoring to evaluate the impact of CCR disposal is illustrated by the fact that Wisconsin, a state that has been proactive in requiring monitoring, ranks first in number of damage cases with 13, but ranks 30 th in CCR generation. An indication the weaker monitoring requirements generally required in the top ten CCR generating states is that in 2005 they generated 62.2% of the CCR, but accounted for only 38.7% of damage cases (53 cases). Similarly, the top twenty CCR generating states generate more than four

- fifths of the CCR (82.7%) but include less than two

- thirds of the damage cases (90 cases, 65.7%).

Response: EPA essentially agrees with the commenter’s statement that “The necessity of monitoring to evaluate the impact of CCR disposal is illustrated by the fact that Wisconsin, a state that has been proactive in requiring monitoring, ranks first in number of damage cases with 13, but ranks 30 th in CCR generation

. ” The only caveat is that according to EPA’s reco rds, there are actually 14 CCR damage cases in Wisconsin. The Agency makes a similar observation in Unit XI (Summary of Damage Cases) of the preamble to this rule. For information on specific damage cases in Wisconsin, the commenter is referred to the tech nical support document on damage cases included in the docket of this rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06314

- 12 

### Organization 1 

### : Earthjustice et al. (analyses prepared for Earthjustice et. al. by Russell Boulding, Boulding Soil

- Water Consulting, and submitted by Earthjustice)


### Commenter 1 : Lisa Evans Commenter Type: Advocacy Group

Classification: Substantive



### Comment Excerpt Text: There are a number of states which produce a significant amount of CCR for which damage470

cases have not been identified. Colorado (10 plants with surface impoundments), Missouri (14 plants with surface impoundments) and Utah (1 large plant with 6 surface impoundments) produced more than 1 million tons of CCR in 2005, but despite repeated efforts, EIP was unable

to obtain da ta to the review the impacts of CCR disposal in these states. There are a number of other major ash

- producing states with only one or two damage cases (Alabama, Arizona, Georgia and West Virginia) where EIP was unable to obtain data to review. More damage cases would likely be identified in Texas, which ranked second in terms of CCR generation, but does not require groundwater monitoring at most CCR generating facilities. The fact that so many damage sites have been found in states that require more monitor ing combined with the wide distribution of damage cases reflected in Table 1 [see original comment for ATTACHMENT 4, which contains Table 1] suggests that many more damage sites exist but are unknown due to poor monitoring requirements.

Response: The Age ncy concurs with the conclusion made by the commenter “that many more damage sites exist but are unknown due to poor monitoring requirements.” For additional

information on specific damage cases

, the commenter is referred to the technical support document on damage cases included in the docket of this rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06314

- 14 

### Organization 1 

### : Earthjustice et al. (analyses prepared for Earthjustice et. al. by Russell Boulding, Boulding Soil

- Water C onsulting, and submitted by Earthjustice)


### Commenter 1 : Lisa Evans Commenter Type: Advocacy Group

Classification: Substantive



### Comment Excerpt Text: CCR Disposal Has Created Significant Adverse Impacts on Groundwater, Surface Water and Ecosystems.

Table A

- 3 [see original comment for ATTACHMENT 4, which contains Table A

- 3] presents a breakdown of types of harm documented in the EPA and EIP damage cases. The discussion here focuses on the 137 total damage cases.

- A large majority of CCR damage cases, 121 (8 8.3%) involve groundwater contamination.

These cases are discussed in more detail below.

- Almost a third of CCR damage cases, 44 (32.1%) involve surface water contamination. The relatively lower number of cases documenting damage to surface water can be attributed to the fact that NPDES permits for discharges from CCR disposal sites typically do not require monitoring of metals.

- Damage to biota has been documented in 21 cases (15.3%). The relatively low number of ecological damage cases can be attribut ed to the rarity with which such monitoring is required at CCR disposal facilities.

Levels of Groundwater Contamination are Serious

.471

Comparison of the EPA and EIP damage cases shows that EPA’s earlier damage case

assessments have underestimated the extent to which maximum contaminant levels (MCLs) at CCR disposal sites have been exceeded for highly toxic contaminants, such as arsenic, cadmium and lead, and overstated the extent to which secondary maximum contaminant levels (SMCLs) for drinking water have been exceeded. Furthermore, actual concentrations of contaminants at many sites are far higher than has been previously acknowledged. Table 2 [see original comment for ATTACHMENT 4, which contains Table 2] provides a statistical summary of the number of EPA and EIP damages cases where contaminants have exceeded applicable standards, and data on the maximum concentrations for 30 parameters for which MCLs (13 parameters), other

health

- based standards (12 parameters), and SMCLs (7) parameters) have been e stablished. Groundwater sites were classified according to whether MCLs, other health

- based standards (HBSs), and SMCLs were exceeded with the result:

- More than three quarters of the EPA and EIP damage cases combined (76.9%) involved

exceedances of one or more MCLs. Table 2 [see original comment for ATTACHMENT 4, which contains Table 2] shows that more than half of the sites involved exceedances of two or more MCL parameters.

- An additional 7 sites (5.8%) exceeded other federal or state health

- based st andards (HBSs) but

not MCLs.

- At 21 sites in the EPA damage cases (17.4% of total damage cases) only SMCLs were

exceeded

– there no exceedances of health

- based standards documented. None of the EIP damage cases fall in this category. As discussed below, a significant number of EIP damage cases involved concentrations of manganese and sulfate that exceeded HBSs for these parameters. The EPA damage cases only report these parameters in connection with SMCL exceedances, but it is likely that a number of thes e damage cases would be reclassified into the HBS category if data had been available for review.

Many of the sites in the MCL category also exceeded HBSs and SMCLs.

Table 2 [see original comment for ATTACHMENT 4, which contains Table 2] also shows the

m aximum measurements for contaminants and how far those values were above applicable standards, the total number of sites where a contaminant standard has been exceeded, and the number of sites where the standard has been exceeded by more than a factor of t en, and more than a factor of one hundred. In a few instances SMCLs have been exceeded by a factor of more than 1,000 and this is also noted in Table 2 [see original comment for ATTACHMENT 4, which contains Table 2]. Additional key conclusions that can be drawn from the data in Table 2 [see original comment for ATTACHMENT 4, which contains Table 2] include:

- MCLs or other health

- based standards for every one of the Part 261 Appendix VIII parameters that EPA must consider in its regulatory decision pursuan t to 261.11(a)(3) have been exceeded at three or more disposal sites. These are (boldfaced in Table 2) [see original comment for ATTACHMENT 4, which contains Table 2]: antimony, arsenic, barium, beryllium, cadmium, chromium, lead, mercury, nickel, selenium , silver, and thallium.472

- Arsenic, cadmium, lead and selenium, among the most toxic of the Appendix VIII parameters, are among the elements that exceed MCLs most commonly at CCR disposal sites. The MCL for arsenic has been exceeded at 63 sites, more than half (52.5%) of the sites, with the maximum value measured being 342 times the MCL. Arsenic has exceeded the MCL by more than 10 times at 19 sites, and more than 100 times at 5 sites. The MCL for cadmium has been exceeded at 27 sites (more than one

- fifth), with the maximum concentration 170 times the MCL. Cadmium has exceeded the MCL by more than ten times at 4 sites, and more than 100 times at one site. The MCL for lead has been exceeded at 30 sites (24.8%) with the maximum measured value 179

times the MCL . Lead has exceeded the MCL by more than 10 times at 6 sites and more than 100 times at one sites. The MCL for selenium has been exceeded at 29 sites (24.0%).

- Other highly toxic Appendix VIII parameters (antimony, beryllium, mercury and thallium) are

no t typically measured at CCR disposal sites, yet where they have been measured, have been found to significantly exceed the MCL. Antimony has been found to exceed the MCL at three sites, with the maximum value 52.5 times the MCL, and has been more than 10 t imes the MCL at two sites. Beryllium has been found to exceed the MCL at four sites, with the maximum value

30.3 times the MCL. Thallium has been found to exceed the MCL at 5 sites with a maximum

value 8 times the MCL.

- EPA’s damage case assessment did not address alpha particles as a contaminant at CCR disposal sites. Nevertheless, the MCL for alpha particles (15 pCi/L) has been exceeded at three sites, with the maximum value (1,497 pCi/L) almost 100 times the standard. Very few groundwater monitoring p rograms require measurement of alpha radiation, and the MCL was

exceeded at all sites where data were available.

Other HBSs are commonly exceeded at CCR disposal sites as well as MCLs:

- Boron is a parameter where health

- based standards are commonly exce eded at CCR disposal sites. The EPA Health Advisory for children (3 mg/L) has been exceeded at one

- quarter of the groundwater damage cases (31 sites, 25.6%). More sites would fall in the category if state health

based groundwater standards for boron were u sed (examples include 0.315 mg/L in North Caroline, 0.9 mg/l in Wisconsin, 1.0 mg/L in Minnesota, and 1.4 mg/L in Florida and Nevada). The maximum concentration found for boron of 520 mg/L is more than 173 times the EPA HA,

and boron concentrations have ex ceeded this standard by more than 10 times at 5 sites.

- The Long Term Health Advisory (LTHA) for molybdenum (0.04 mg/L) has been exceeded at 9 sites with the maximum value of 22 mg/L being 550 times the LTHA. The LTHA has been exceeded by a factor of 10 to 99 at six sites, and the only reason there are not more sites identified with molybdenum contamination is that it is uncommon for groundwater monitoring programs to require analysis for this parameter.

- EPA’s damage case assessment fails to note that manganese and sulfate have health

- based standards, and by only identifying these parameters as constituting exceedances of SCMLs, underestimated the potential harm from these contaminants at CCR disposal sites. The EIP damage cases did identify when HBSs for manganese and sulfate were exceeded. The (LTHA)473

for manganese (0.3 mg/L) has been exceeded at 23 sites (19.0%), and the Drinking Water Advisory (DWA) for sulfate (500 mg/L) has been exceeded at 26 sites (21.5%). The maximum concentration of manganese ( >100 mg/L) exceeded the LTHA by 333 times, and exceeded this standard by more than 10 times at eleven sites and more than 100 times at three sites. The maximum concentration of sulfate (56,000 mg/L) exceeded the DWA by 112 times and exceeded

this standard by more than 10 times at three sites, and more than 100 times at two sites. It should be noted that EPA’s damage case assessment rarely indicated actual concentrations of manganese or sulfate, only that the SCML had been exceeded.

- Sodium is another par ameter that is where major exceedances of HBSs can occur. The DWA for sodium, 20 mg/L, has been exceeded at seven sites, with the maximum value of 40,000 mg/L being 2,000 times the DWA. The DWA was exceeded by 10 to 99 times at the other five sites.

- Ot her contaminants for which EPA health

- based standards have been developed are sometimes exceeded at CCR disposal sites. The LTHA for nickel (0.1 mg/L), formerly an MCL, and an Appendix VIII parameter, has been exceeded at seven sites with the maximum value of >3 mg/l, more than 30 times the LTHA. The LTHA for strontium, a parameter that is infrequently measured at CCR disposal sites, has been exceeded at four sites. The LTHA for zinc has been exceeded at four sites. The LTHA for silver, another Appendix VII I parameter that is infrequently measured at CCR disposal sites, has been exceeded at two sites, and the Action Level (AL) for copper has been exceeded at one site.

- Cobalt and vanadium are two parameters for which no federal standards exist, but health

- based standards have been established in several states. Both are infrequently measured at CCR disposal sites. The health

- based standards for vanadium that are applied in Florida and Minnesota have been exceeded at four sites (for the purposes of this anal ysis the site does not necessarily have to be in either state). The health

- based residential protective concentration level (PCL) for cobalt in Texas has been exceeded at one site in Texas.

Response: Thank you for your comment. In the wake of the 2010 EPR I report ( Evaluation of Coal Combustion Product Damage Cases ), the Agency reassessed the 27 proven and 43 potential damage cases included in the July 2007 Coal Combustion Waste Damage Case

Assessments report. The Agency also assessed the 9 0 ‘newly alleged’ damage cases submitted to

EPA by environmental advocacy groups in the course of 2010 ( Out of Control and In Harm’s Way ) and 2011 ( Risky Business ) . Both the reassessment of the established damage cases and the

assessment of the ‘newly alleged’ cases were performed against EPA’s test of proof criteria,

which includ e exceedances of MCLs, SMCLs, HALs and LHAs. For further details on EPA’s damage case reassessment methodology, the commenter is referred to the discussion of damage cases in Unit XI of the preamb le to the final rule

. For a summary of stakeholder arguments addressing each of these sites and for the rationale for the Agency’s damage case designation decisions, see the technical support documents on damage cases in the docket of the final rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06314

- 28 

### Organization 1 

### : Earthjustice et. al. (analyses prepared for Earthjustice et. al. by Russell Boulding, Boulding Soil

- Water Consulting, and submitted by Earthjustice)


### Commenter 1 : Lisa Evans474

Commenter Type: Advoca cy Group

Classification: Substantive



### Comment Excerpt Text: Methodology for Statistical Analysis of EPA and EIP CCR Damage Cases. [part of ATTACHMENT 1 (or 6314.1)]

The statistical analysis presented in these comments is based information compiled in seve ral spreadsheets with data about the 67 EPA and 70 EIP CCR damage cases. Table A

- 1 [see original comment for ATTACHMENT 4, which contains Table A

- 1] provides a list by organized by state, and report source for the 137 damage cases. EPA’s 2007 Damage Case A ssessment Report included four sites that involved oil combustion residue rather than CCR (Brayton Point, MA, and Port Everglades, Riviera and Bartow plants in Florida), but since that report EPA has identified four additional damage cases, identified as E PArec in Table A

- 1: [see original comment for ATTACHMENT 4, which contains Table A

- 1] Gambrils Landfill, MD, Martins Creek Surface Impoundment, PA, Kingston Surface Impoundment, TN and Battlefield Gold Club (classified here as a structural fill).

Table A

- 2 [see original comment for ATTACHMENT 4, which contains Table A

- 2] shows data on total ash generation and the number of power plants in each state (taken from EPA’s Regulatory Impact Analysis), the number of plants with surface impoundments and number of surface impoundments in each state (taken from EPA’s 2009 Surface Impoundment Survey), and number of damage cases in each state (from Table A

- 1) [see original comment for ATTACHMENT 4, which contains Table A

- 1]. Table A

- 2 [see original comment for

ATTACHM ENT 4, which contains Table A

- 2] also shows the state’s rank in each category.

The following information on the 137 damage cases was compiled into a spreadsheet: site name, owner, damage case source, surface impoundments (number, active/inactive, lined/un lined/?), landfills/structural fills (active/inactive, lined/unlined/?), type of CCR, type of impact (groundwater/surface water/biota), regulatory action, type of exceedances (MCL/HBS/SMCL/WQS/spill), private/public wells affected, and a summary of paramet ers with exceedances, elevated or identified as COCs.

Table A

- 3 [see original comment for ATTACHMENT 4, which contains Table A

- 3] provides a summary of the statistics for the EPA, EIP and EPA+EIP damage cases, which are discussed in the main body of the r eport.

Determining the number of active power plants that are involved in the EPA and EIP damage cases was not a simple matter. Several of EPA’s damage cases involved several sites with ash from the same plant (Port Washington and Cedar Sauk LF), the Dai ryland Power’s Alma Plant

had on

- site and off

- site landfills, and the Yard 520 Landfill at Pines received ash from both Bailly and Michigan City Plants in Indiana, each of which had their own listing. A similar situation exists for some EIP damage cases. T he TranAsh Landfill in Tennessee receive ash from the Johnsonville Plant, which is also listed separately as a damage case. The EIP Montville, Connecticut and Venice, Illinois Plants now burn oil rather than coal and were not counted as active plants. Info rmation was not available for all sites to be certain whether they involved an475

active power plant, so the number of 57 active plants involved in EPA damage cases and 64 in EIP damage cases is approximate, but close. Note that the EPA Belews Lake and EIP Be lews Creek SI&LF involve the same power plant, so it was omitted from the EIP power plant count so

as to not double count.

Table A

- 4 (in Appendix F_5) [see original comment for ATTACHMENT 5, which contains

Table A

- 4] provides data on exceedances of MCLs f or Appendix VIII Metals at the 137 EPA and EIP damage sites. Note that this table includes MCL exceedances at EIP’s Clifty Creek Landfill, Indiana and EPA’s East Bend Landfill, Kentucky, based on groundwater monitoring data that

was not reviewed when the r eports including these sites were published.

Response: Thank you for the informative comment. As stated in the response to the preceding comment excerpt (EPA

- HQ

- RCRA

- 2009

- 0640

- 06314

- 14), the Agency has reassessed those of the damage cases that were establ ished by the time the proposed rule was signed in June 2010

, and assessed the ‘newly alleged’ damage cases submitted to EPA by environmental advocacy groups in February and August 2010 ( Out of Control and In Harm’s Way , respectively) and in November 2011 ( Risky Business ) . The information submitted by the commenter (a single arsenic exceedance) from the East Bend Landfill, Kentucky, was too scanty to justify the inclusion of this site in the damage case assessment. For further details on EPA’s damage case

as sessment/reassessment methodology, the commenter is referred to the discussion of damage cases in Unit XI of the preamble to the final rule. For a summary of stakeholder arguments on each of the individual cases and for the rationale for the Agency’s damag e case designation decisions, see the technical support documents on damage cases in the docket of the final rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06314

- 29 

### Organization 1 

### : Earthjustice et. al. (analyses prepared for Earthjustice et. al. by Russell Boulding, Boulding Soil

- Water Consulting, and submitted by Earthjustice)


### Commenter 1 : Lisa Evans Commenter Type: Advocacy Group

Classification: Substantive



### Comment Excerpt Text: Attachment C. Response to TVA Response to In Harm’s Way [part of ATTACHMENT 1 (or 6314.1)]

Below is the entirety of a TVA press release in response to EIP’s In Harm’s Way report. Italics indicate EIP’s response.

TVA RESPONSE TO AUGUST 26 EIP REPORT

TVA is reviewing the report released today by three activist groups (Sierra Club, Earthjustice and Environmental Integrity Project). All of TVA’s discharges are highly regulated by the EPA and under permits with the states of Tennessee, Kentucky and Alabama.

Response : Solid waste and water quality are primarily regulated by the state governments under delegated authority. EIP found little evidence of EPA oversight of TVA’s plants and EIP’s review476

of state regulatory programs found Tennessee, Kentucky and Alabama to be among the weakest in terms of regulations and enforcement. At the ti me this response was written, for example, only the Bull Run plant had a current National Pollutant Discharge Elimination System (NPDES) permit and only half of TVA’s coal plants had solid waste permits. As EIP and other groups have pointed out many times before, Tennessee does not require groundwater monitoring at surface impoundments, and coal ash landfills in Tennessee are regulated with minimal oversight. See also Southern Alliance for Clean Energy, The State of Coal Ash Regulation in Tennessee,

availab le at http://www.cleanenergy.org/images/files/TN%20Regulatory%20and%20Damage%20Report1.pd f. It is simply inaccurate to state that “TVA’s discharges are highly regulated.”

TVA’s plants receive extensive scrutiny to ensure the protection of human health an d the environment. These permits are regulated and enforced by the states to protect public drinking water. Groundwater at all TVA fossil plants is monitored regularly, and results are reported to

the states.

Response : Groundwater monitoring at TVA sites is woefully inadequate. Surface impoundments are regulated as wastewater treatment units through NPDES permits. These permits govern point source discharges but not groundwater contamination, and so these dumps typically have little or no groundwater moni toring. For example, at the Gallatin Plant in Tennessee only the closed, unlined ash pond is monitored. Groundwater in the two active unlined surface impoundments is not monitored. At the Johnsonville Plant in Tennessee, no groundwater monitoring is curren tly taking place at the unlined surface impoundment with active ash disposal, or at the north abandoned ash disposal area (Area A), despite the fact that groundwater monitoring in the 1990s showed significant groundwater contamination. Current groundwater monitoring at the South Rail Loop and Dredged Ash Disposal areas shows significant contamination yet only includes non

- metals.

TVA follows all permit requirements for groundwater monitoring and works with state and federal officials to make sure any groun dwater issues are properly addressed.

Response : None of the states the TVA operates in (Alabama, Kentucky and Tennessee) have mandatory groundwater or surface water monitoring requirements, so this statement means

little. At the Johnsonville Plant in Ten nessee the state has not required TVA to monitor off

- site groundwater or surface water.

This report misleadingly applies water quality standards in a number of cases. For example, the report applies fish consumption criteria and drinking water standards t o groundwater data, which is a misleading and inappropriate comparison.

Response : We are not sure what TVA is referring too here. In EIP’s first report, data from monitoring wells along the Holston River at the John Sevier Plant in Tennessee were cited a s exceeding water quality criteria (WQC) because, as noted in the report, “in Tennessee, groundwater that enters a stream or other surface water is subject to water quality criteria and treated as surface water.” At the Johnsonville Plant in Tennessee, EIP noted concentrations of contaminants in the Tennessee River exceeding EPA WQC. No references were made to WQC477

exceedances in the other three damage cases for plants operated by TVA.

This report is highly subjective, uses very select data and does not dis cuss the full breadth of data that is reported to states on groundwater at TVA’s fossil plant sites. Like many other reports by activist groups, this study uses misleading criteria inappropriately to sensationalize conclusions. TVA’s ash pond discharges ar e well studied and permitted under requirements to protect drinking water and river ecosystems.

Response : EIP went to considerable lengths to obtain all available groundwater, surface water and ecosystem data and carefully analyzed all data that were obt ained. While it is true that our report focused on the data showing exceedances and violations, we do not accept the idea that we were somehow sensationalizing the information. The facts, as we lay them out in our reports, plainly show that TVA plants have frequently violated laws designed to protect surface water and drinking water. If TVA is suggesting that they are only violating the law some of the time, and should be commended for not violating the law more often than they do, then of course we disagre e.

TVA is working with the states of Tennessee and Kentucky to assess and evaluate groundwater exceedances that TVA discovered and reported to state officials at the Gallatin, Cumberland and Shawnee fossil plants. TVA closely monitors the rivers and thei r ecosystems near its plants.

Response : As of the time of the writing of EIP’s report, it was not evident that any actions were being taken to assess and evaluate the groundwater exceedances at these three plants. At

Gallatin there are two active onsite units for which EIP was able to find no evidence that monitoring was taking place. At the Johnsonville Plant the Tennessee Department of Environmental Conservation has allowed TVA to stop monitoring for metals at the two areas where the highest levels of m etals contamination have been measured in the past.

Response: EPA vetted all the established CCR damage cases as well as the ‘newly alleged’ cases against EPA’s test of proof criteria . The assessment included TVA’s fossil plants in Alabama, Kentucky and Tennessee. C urrently , EPA’s database contains around 150 confirmed damage

cases. For further details on EPA’s damage case assessment methodology and specific information on individual damage case sites, the commenter is referred to the discussion of damage cases in Unit XI of the preamble to the final rule

. For a summary of stakeholder arguments addressing each of these sites and for the rationale for the Agency’s damage case designation decisions, see the technical support documents on damage cases in the docket of the

final rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06314

- 30 

### Organization 1 

### : Earthjustice et al. (analyses prepared for Earthjustice et. al. by Russell Boulding, Boulding Soil

- Water Consulting, and submitted by Earthjustice)


### Commenter 1 : Lisa Evans Commenter Type: Advocacy Group



### Comment Excerpt Text: Attachment D. Response to South Dakota Department of Environment and Natural478

Resources Criticisms of the Big Stone Damage Case ( In Harm’s Way, pp. 184

- 193) : [part of ATTACHMENT 1 (or 6314.1)]

St aff in the Waste Management Program of the South Dakota Department of Environment and Natural Resources are making three assertions that are simply incorrect or not supported by the monitoring data at the Big Stone site.

Their first point is that monitori ng indicates the CCR is not contaminating the groundwater. In fact data sited in our report and posted at http://denr.sd.gov/coalash.aspx by DENR from the 2009 Annual Water Monitoring Report at Big Stone indicate that the ash pond is leaching boron,

sodium , sulfate and other constituents into shallow groundwater that is not found in groundwater upgradient to the pond. In 2009, three measurements of sulfate in the ash pond waters ranged from 6,890 to 17,700 mg/L. Sodium ranged from 2,920 to 6,900 mg/L and bo ron ranged from 26.7 to 54 mg/L. In monitoring well H

- 3OX closest to the pond whose water level was the same as that in the pond, sulfate ranged from 2,050 to 2,540 mg/L compared to 236 to 1,770 mg/L in monitoring wells H

- 4OX and H

- 4I screened at a higher level upgradient of the ash pond. Boron ranged from 12 to 14 mg/L in H

- 3OX close to the pond (at least four times higher than the child health advisory for ingestion of boron in drinking water). While this was a fourth to a half the boron in the ash pond, it was 54 to 88 times higher than the concentration of boron in the upgradient H

- 4OX and H

- 4I (0.16 to 0.22 mg/L) in 2009. And sodium ranged from 93 to 477 mg/l in H

- 3OX in 2009, 3 to 20 times higher than the sodium in H

- 4OX and H

- 4I (24 to 34 mg/L). Arsen ic in the ash pond water was four times higher than the federal drinking water standard and selenium concentrations exceeded water quality standards for the protection of aquatic life by more than three times in 2009 although these toxic metals were not ex ceeding standards in the underlying groundwater.

DENR staff point to the groundwater data from the landfill and ignore the fact that much of their upgradient data is actually from the groundwater around the ash pond. There is no valid “upgradient data” t o measure the impacts of the ash landfill against (data of groundwater quality not already influenced by ash and waste waters from the plant) and very little data actually measuring groundwater that is clearly downgradient of the landfill, with only one se t of two nested monitoring wells designated to be in that position (Monitoring Wells H

- 1I and H

- 1OX). Despite the considerable dilution of groundwater in the area by recharge of water from the cooling pond and evaporation pond that flank both sides of the landfill, the 2009 data which was the latest available for our report, indicates that boron concentrations downgradient of the landfill are 18 to 22 times higher than boron concentrations at the most upgradient point from the landfill and the ash pond.

Th e second point DENR makes is that the concentrations of contaminants in the monitoring data are found naturally in the highly mineralized shallow groundwater in the state. While the extremely high concentrations of sulfate and boron are reflective of ash l eachate that has been measured at other CCW sites in the nation and are designated indicators of ash contamination at this site by DENR, the fact is there are no upgradient monitoring wells that demonstrate that such degraded conditions exist naturally in the shallow groundwaters at this site. It should be noted that those waters are used for drinking water supplies and discharge to the Whetstone River479

offsite. That DENR makes this argument repeatedly without a single monitoring point that

demonstrates shal low groundwater upgradient to the Big Stone facility is in fact degraded naturally with these constituents to the point of being nonnpotable indicates a lax mentality within DENR about protecting groundwater around power plants and their CCW disposal sites

.

The third point that DENR staff is making is that the EIP report is alleging that the groundwater underneath the brine ponds at the site is being contaminated by the coal ash landfill. This is completely false. Nowhere does the EIP report make this asse rtion. Our report states that the extreme degradation shown in 2007

- 2009 monitoring data in shallow groundwater downgradient of the brine ponds, e.g., where sulfate has been measured as high as 52,300 mg/L (more than 104

times over the federal health based Drinking Water Advisory standard) and boron as high as 204 mg/L (68 times higher than the child health advisory) indicates that releases are continuing to occur from the brine ponds and did not just occur from a release twenty years ago. Our report points out that impurities within Big Stones holding ponds and brine water units are continually being concentrated and that, “Without a permitted surface discharge, aside from evaporation the only exit for water from this closed loop system that concentrates wa stes and impurities in the waters is into the shallow groundwater at the site along with all leachate from the unlined ash pond and landfill.” (Environmental Integrity Project, Earthjustice, and Sierra Club, IN HARMS WAY: Lack of Federal Coal Ash Regulatio ns Endangers Americans and Their Environment

, August 26, 2010, page 191). The monitoring data strongly supports this conclusion.

Response: EPA rejected the Big Stone site, South Dakota as a CCR damage case. EPA’s assessment concluded that although there are exceedances of primary EPA MCLs, EPA Lifetime Health Advisories, and EPA SMCLs in onsite groundwater, the exceedances generally occur near the brine ponds and are possibly related to the water softening and tre atment process: CCRs cannot be directly implicated as a source of the contamination.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06315

- 60 

### Organization 1 

### : Earthjustice et al.


### Commenter 1 : Lisa Evans Commenter Type: Advocacy Group

Classification: Substantive



### Comment Excerpt Text: In August 2007, environmental organizations formally submitted a summary of 15 additional cases of damage to US EPA in comment on the Notice of Data Availability (NODA) for RCRA

Docket No. EPA

- HQ

- RCRA

- 2006

- 0796 and once again specific ally asked the Agency to investigate these sites for inclusion on its damage case list and, where warranted, to pursue remedial action. Yet the discussion in the preamble to the proposed rule provides no indication that the Agency has considered or investi gated 14 of the 15 sites that were submitted. Environmental groups have since submitted two reports that document substantial evidence of damage to groundwater, surface water, drinking water and/or aquatic life at 70 damage sites in every major region of t he US. [Footnote 321 ( corrected per #10492, with additions in bold ): See EIP Reports, Out of Control and In Harm’s Way .] Fourteen of the 15 cases summarized in our comment on the 2007 NODA are examined in these reports. In addition, in these comments we

pr ovide information on 37 additional cases and note 10 more sites on the National Priority List480

that warrant careful examination by EPA for recognition on its damage case list. [Footnote 322 ( corrected per #10492, with deletions in strikeout and additions in bold ): See Appendix F. “Appendix F_1, at 12 and Attachment B (within App. F_1) Additional Documented and Potential Damage Cases , at 16

- 27. ]

As EPA moves to a final rule, it is essential that the Agency consider the 137 sites in the two 2010 reports from EIP, Earthjustice and Sierra Club, as well as the additional 47 sites identified

in these comments. ( sentence deleted per #10492 technical corrections; corrected sentence per #10492 follows in bold ) As EPA moves to a final rule, it is essential that the Ag ency consider the 117 sites in the two 2010 reports from EIP, Earthjustice and Sierra Club, (70 sites), and additional sites, (47 sites), identified in these comments. We also ask that EPA consider all other sites that it has “rejected” or declared “indete rminate” in order to fulfill its responsibility under the statute to consider damage from coal ash sites.

Response: the commenter makes a reference to a comment (or comments?) submitted by an environmental organizations in August 2007 to the CCR NODA, docket EPA

- HQ

- RCRA

- 2006

- 0796. The commenter says that in th at comment (comments?) there was information on 37 additional damage cases and 10 more sites on the National Priority List that, according to the commenter, warrant careful examination by EPA for r ecognition on its damage case list. In the absence of a document number (numbers?), the Agency resorted to searching the 2007 NODA’s docket, but to no avail.

Considering the 9 0 ‘newly alleged’ damage cases submitted to the Agency by environmental organiz ations in February and August 2010 ( Out of Control and In Harm’s Way , respectively), and in November 2011 ( Risky Business ), EPA assessed all these cases against EPA’s test of proof criteria. For additional details, the commenter is refer red to Unit XI in t he preamble to this rule, and to the technical support documents on damage cases in the docket of the final rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06398

- 66 

### Organization 1 

### : Duke Energy


### Commenter 1 : Mike Stroben Commenter Type: Electric Utility Company

Classification: Substantive



### Comment Excerpt Text: Of the 54 proven or potential damage cases cited by EPA in the NODA involving groundwater contamination, only three involved off

- site contamination exceeding primary MCLs. The lack of, or low level of, of

f

- site contamination is likely true with the alleged new damage cases. In fact, during their press conference when the reports were released, the special interest groups acknowledged that many of these cases do not involve off

- site contamination; instead, they speculated that certain contaminants may migrate off

- site at some point in the future.

Response: In addition to a score of new damage cases that were first alleged in the two 2010 “special interest groups” reports and confirmed as proven damage cases due to offsite migration of primary MCLs, Duke Energy should be aware of another proven damage case

- the February481

2, 2014 Dan River CCR slurry spill from one of the Utility’s North Carolina inactive Plant’s

CCR surface impoundments.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06410

- 7 

### Organization 1 

### : Commenter 1 : Anonymous Commenter Type: Anonymous
Classification: Substantive



### Comment Excerpt Text: EPRI’s report and data should be subject to an audit by a third party g roup just like state and federal agency reports are audited. Any data or analysis collected and performed for this report needs to follow a federal or state approved sampling and analysis plan (SAP) and quality assurance projection plan (QAPP). If a SAP an d QAPP do not exist or are not approved by a federal or state agency, the data and analysis should not be including for decision making.

Response: The 2010 EPRI report proved to be very useful in providing information on 67 proven and potential damage cases that were included in EPA’s July 2007 report: Coal Combustion Waste Damage Case Assessments. Whereas the background site information and the inf ormation on the status of remedial actions pursued by these CCR management facilities in general was deemed reliable, it can be reasonably assumed that in many instances the interpretation of the perceived source of the contaminants was tainted by industry ’s tendency to project its performance in a positive light. A n objective assessment as to whether some of this interpretation is factually incorrect (e.g., that the source of certain contaminants was local soils or a preceding coal mining legacy at the sit e, rather than leaching from CCR) requires a specific site study of all the monitoring well data and that of a potentiometric groundwater map to ascertain which of the wells are upgradient and which ones are downgradient from the CCR management unit (s) . Th is was accomplished by the Agency in those cases where such information was available. Alternatively, in those sites where the state pursued enforcement actions (e.g., Consent Orders, Notices of Violation, etc.) in response to constituent exceedances in gr oundwater, such actions

were construed to support the reported damage record. Th e Agency considers this vetting process adequate to confirm or reject CCR damage cases, particularly considering the impracticality of obtaining auditable data from hundreds of electric utility facilities.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06516

- 5 

### Organization 1 

### : Plains Justice, Iowa Environmental Council, Iowa Interfaith Power & Light, Iowa Physicians for Social Responsibility


### Commenter 1 : Carrie La Seur Commenter Type: Advocacy Group



### Comment Excerpt Text: The danger of contaminated water is not merely conjecture. Research by EPA, as well as two reports by the Environmental Integrity Project, Earthjustice and Sierra Club document 137 cases of surface or groundwater dama ge in 34 states. In the most recent report each and every one of the 35 sites studied show heavy metal contamination above federal drinking water standards.482

These results, in fact, are just a small percentage of the real damage occurring at coal ash dispos al sites across the country.

Response: Whereas the Agency’s tally of confirmed CCR damage cases differs from that of the

commenter, EPA agrees essentially with the commenter’s inference that the damage case record

is under

- representative of “the real damage occurring at coal ash disposal sites across the
country

. ” This is so because many of the CCR management facilities still lack groundw ater monitoring.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06526

- 4 

### Organization 1 

### : Utility Solid Waste Activities Group (USWAG)


### Commenter 1 : Jim Roewer Commenter Type: Trade Association

Classification: Substantive



### Comment Excerpt Text: [USWAG Appendix 24: Commonwealth of Pennsylvania, Department of Environmental Protection, Southwest Region, October 13, 2010 Report: "Review of the Environmental Integrity Project and Earthjustice Report: “Out of Control: Mounting Damages From Coal Ash Waste Sites,” for the s ites:

Mitchell Power Station Seward Generating Station Phillips Power Station/Landfill Fern Valley Disposal Site] Response: For a rebuttal to PADEP’s review of the February 2010 Out of Control report addressing the Mitchell Power Station site, Seward Gener ating Station site, Phillips Power Station/Landfill, and the Fern Valley Disposal Site, see discussion of the cited sites in the technical support document on damage cases in the docket of the final rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06534

- 22


### Or ganization 1 

### : Lafarge North America Inc.


### Commenter 1 : Brian Gasiorowski on behalf of Craig S. Campbell Commenter Type: Beneficial User

Classification: Substantive



### Comment Excerpt Text:

2. The so

- called damage cases reported by EPA are not representative of beneficial use projects that are designed and constructed by Lafarge and other responsible companies participating in

the CCR beneficial use markets

.

Response: Thank you for your comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06815

- 33 

### Organization 1 

### : Michigan Department of Natural Resources and Environment (DNRE)


### Commenter 1 : Liane J. Shekter Smith483

Commenter Type: State Government

Classification: Substantive



### Comment Excerpt Text: The February 24, 2010, report prepared by the Environmental Integrity Project and Earth Justice lists only one alleged damage case in Michigan. The report lists the JR Whiting ash impoundments, operated by Consumers Energy, and located in Erie, Michigan as a damage case based on the results of a study conducted by the U.S. Fish and Wildlife Service in 1984. The study reports elevated levels of certain contaminants in lake sediments; however, the levels of Arsenic, Cobalt, Selenium, and Nickel were below Mic higan's cleanup standards for sediments.

No follow

- up investigation has been completed, and due to the levels reported, it will not be required. It should be further noted that this facility has ceased discharging to surface water with the ongoing closure of the fly ash ponds.

In addition to the February 24, 2010, report, Environmental Integrity Project, Earth Justice and

the Sierra Club issued a follow

- up report on August 26, 2010, listing additional damage cases. Again, only one location was listed for Michigan, the Consumers Energy D.E. Karn and J.C. Weadock surface impoundments. As noted in the report, this facility, which includes the two adjacent impoundments, is under review by the DNRE. Elevated levels of Arsenic have been

detected in water below t he impoundments, a slurry wall has been constructed around the majority of the J.C. Weadock impoundment, and the possibility of installing a slurry wall to contain the D.E. Karn impoundment is under review. Requirements for further investigation and

defini tion of the site hydraulic conditions and the groundwater

- surface water interface characteristics were included in the operating licenses issued for these facilities on October 15, 2009. Due to the ongoing site investigation, and the determination that the water under the impoundments has been determined to be groundwater not in an aquifer, the DNRE has not listed this site as a proven damage case at this time.

Response: For a summary of stakeholder arguments addressing the JR Whiting and the D.E.

Karn an d J.C. Weadock Sites, see discussion of the cited sites in the technical support documents on damage cases in the docket of the final rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 06846

- 18 

### Organization 1 

### : Florida Department of Environmental Protection (FDEP)


### Commenter 1 : Richard B. Tedder on behalf Mary Jean Yon Commenter Type: State Government
Classification: Substantive



### Comment Excerpt Text: The Environmental Integrity Project and Earthjustice (collectively called "EIP") have prepared
two reports on c oal ash waste sites in the country. The first one dated February 24, 2010 is titled, "Out of Control: Mounting Damages From Coal Ash Waste Sites." The second one dated August 26, 2010 is titled, "In Harm's Way: Lack of Federal Coal Ash Regulations Endanger s Americans and Their Environment." These reports identify four coal

- fired power plants in Florida that are allegedly "a clear and present danger to public health and the environment" using language directly from both reports. The Department believes this characterization of these four facilities484

listed in Florida is inappropriate and inaccurate. Contrary to the claims by EIP in the reports, the Department is taking necessary enforcement actions to address and correct any environmental

issues associated wit h these facilities. The four facilities and the Department's response to concerns expressed about them are presented as follows.

o Curtis Stanton Energy Center, Orange County

- This facility was permitted under the Florida Electrical Power Plant Siting A ct (PPSA), Chapter 403 Florida Statutes, Part II, in 1981. At that time they conducted EP Tox testing to show that their process of adding lime sludge to their ash and then compacting it in their on

- site landfill was protective because of the pozzolanic, " cement like," nature of the ash. While EIP is correct that some contaminants have leached from this landfill and impacted water quality near it, this problem is completely contained on

- site and there is no danger of any impacts to human health or potable d rinking water wells. The Department is working with the facility to assess the extent of this contamination and conduct corrective actions if necessary. The Department will also require bottom liner systems for any future disposal units

at their on

- site la ndfill.

o Seminole Electric Cooperative Inc., Putnam County

- This facility was permitted under the PPSA in 1978 and is in compliance with the Department's ground water requirements. While concentrations of some parameters in water quality results mentio ned by EIP exceeded their corresponding primary or secondary ground water standards, these results were based on samples taken from within the facility's designated zone of discharge. According to the Department's regulations these standards do not apply w ithin the facility's zone of discharge, and therefore the elevated concentrations are not violations. Data referenced by EIP for surface water were generated from samples taken in ditches adjacent to the facility's flue gas desulfurization (FGD)

landfill. Surface water quality standards are not applicable to these ditches because they are part

of an NPDES Multi

- Sector General Permit treatment system. There have been some areas of stressed vegetation identified in the past in an on

- site wetland near the FGD landfill. The cause of this is unknown, but the wetland appears to be recovering. The facility has also implemented a Department approved Interim Remedial Action Plan requiring the collection of ground water from the surficial aquifer near the FGD landfill that is fed back into the power plant process.

o Tampa Electric Company, Big Bend, Hillsborough County

- Before the PPSA, this facility was permitted under an Industrial Wastewater permit. In 1979 another unit was added and permitted

under the PPSA. Muc h of the ground water data cited by EIP were taken from micro wells located adjacent to on

- site disposal units of the facility and were within the facility's designated zone of discharge where primary and secondary ground water standards do not apply. One former disposal unit was believed to have caused stressed vegetation off

- site from the facility. As a result of actions by the Department this unit has been closed. In 2001, the facility also entered into a Consent Order with the Department that required a facility

- wide environmental evaluation and corrective actions, if necessary. The facility has been complying with this Consent Order and is implementing appropriate changes as needed to their on

- site management of CCRs.

o Mcintosh Power Plant, City of L akeland, Polk County

- This facility was permitted under the PPSA in 1974. The ground water data cited by EIP were taken from monitoring wells located within the facility's designated zone of discharge where primary and secondary ground water

standards do not apply. The facility entered into a Consent Order with the Department on485

December 7, 2001 which required a facility

- wide environmental assessment and corrective actions, if necessary. The facility is complying with the Department's Consent Order.

Resp onse: Based on an assessment of the Curtis Stanton Energy Center, the Seminole Electric Cooperative Inc., the Tampa Electric Company, Big Bend, and the Mc I ntosh Power Plant sites against EPA’s test

- of

- proof criteria, the Agency designated all four sites as potential damage cases. For a summary of stakeholder arguments addressing these four sites, see the technical support documents on damage cases in the docket of the final rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 07533

- 44 

### Organization 1 

### : Nebraska Department of Environmental Quality (NDEQ)


### Commenter 1 : David B. Haldeman Commenter Type: State Government

Classification: Substantive



### Comment Excerpt Text: NDEQ is aware that the Environmental Integrity Project and EarthJustice submitted an additional report to EPA that listed a CCR landfill in Nebraska as a damage case. NDEQ offers the following additional information and clarification of the conditions at t he landfill identified in the report.

Sheldon Station Ash Pit #3

The Environmental Integrity Project, Earthjustice, and the Sierra Club have identified the closed fossil fuel combustion ash (FFCA) landfill at Sheldon Station (Coal Ash Pit #3) as a damage case in a recently released report titled “IN HARMS WAY: Lack of Federal Coal Ash Regulations Endangers Americans and Their Environment.” Most of the information in the report is accurate regarding the fact that selenium and sulfate have been detected at levels exceeding maximum contaminant levels (MCLs) in some of the monitoring wells at the site. However it is not

conclusive that the landfill is the source of the elevated levels of selenium and sulfate. The information obtained to date suggests that addi tional investigation is warranted at Ash Pit #3 and, the site is being further investigated by the Nebraska Public Power District under the direction of the Nebraska Department of Environmental Quality. The purpose of the additional investigation

is to det ermine to what extent, if any Coal Ash Pit #3 has impacted ground water quality at the

site.

At this time the NDEQ has not concluded that the site is a potential or proven damage case as defined by EPA. Further investigation is necessary in order to arriv e at those conclusions.

The following provides some background information on the site:

Naturally Occurring Substances/Contaminants of Concern

The two contaminants of concern, selenium and sulfate, exist as naturally occurring minerals throughout the re gion. Both selenium and sulfate have been detected in wells downgradient and upgradient of Ash Pit #3. Similar observations have been made in downgradient and upgradient486

monitoring wells at the currently operating landfill, Ash Pit #4, located near the sou thern edge of the property.

Other Possible Source or Sources being Considered

The natural occurrence of both substances is being considered in evaluation of the site, as well as the possibility of a localized discharge of cooling tower water used for fir e suppression or similar activity involving power plant operations.

Site is Closed in Post

- Closure Monitoring Status and Regulatory Standards have Improved

The report IN HARMS WAY refers to the closed landfill as “clay

- lined.” However the closed

landfill was not constructed with an engineered liner. This site was constructed in 1989 prior to promulgation of the regulations that now apply to coal ash landfills. The substantial new requirements for FCCA landfills were adopted in 1993. After the adoption of the new regulations, all new facilities or lateral expansion of existing facilities are required to be lined.

As a point of interest, the currently operating landfill, Ash Pit #4 was designed to the newer regulatory standards, with a compacted clay liner, a leachate collection system, and an evaporation pond. None of the seven monitoring wells associated with the active site have shown any indications of a possible release.

Conditions Unlikely to Impact Useful Water

- Bearing Aquifer

Under the “at

- risk pop ulation” column of a table in the report IN HARMS WAY, an irrigation well has been identified as being within one mile of the landfill. However that irrigation well draws water from the deeper regional aquifer with the upper and lower aquifers being separa ted by a 50

- to 100

- ft. thick, low permeability clay layer. Ash Pit #3 was constructed above a shallow aquifer consisting of glacial till. The glacial till is underlain by a high

- density clay layer that acts as a protective barrier above the lower regional aquifer which is the zone used for water wells. The elevated groundwater monitoring results are from the low

- yield uppermost zone and since it is not a source of drinking or irrigation water, it is currently not a public health threat.

Regulatory and Enf

orcement Perspective

The site continues to be monitored and evaluated to more conclusively determine the extent to which the landfill may be contributing to the cumulative observed levels of these naturally occurring contaminants, and what further steps s hould be taken to ensure that private wells within any reasonable distance of the site are not adversely impacted. The owner/operator has agreed to install additional monitoring wells to further determine possible attribution to the site and assess the pos sibility of off

- site migration of these substances.

No Removal or Remedial Action Warranted Under Current Conditions

The report IN HARMS WAY listed Ash Pit #3 as having enforcement actions. The public

owned power plant facility is voluntarily conducting additional groundwater investigation with487

the NDEQ’s guidance. If however, the facility’s owner/operators were not complying with the NDEQ’s recommendations, enforcement action could be pursued. The MCL for selenium is 0.05 mg/l, and 250 mg/l for sulfate. The highest concentrations of selenium and sulfate at Ash Pit #3 were 0.073 mg/l and 381.0 mg/l respectively. Unless the levels of selenium and/or sulfate increase dramatically, the likely remedial action for this site would be continued groundwater

monito ring and/or restricted groundwater use.

Response: Based on an assessment of the Sheldon Station Ash Pit #3 site against EPA’s test

- of

proof criteria, the Agency designated this site as a potential damage case. For a summary of stakeholder arguments addres sing this site and the basis of the Agency’s decision , see the technical support documents on damage cases in the docket of the final rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 07793

- 13 

### Organization 1 

### : South Dakota Department of Environmental and Natural Resources


### Commenter 1 : Vonni Kallemeyn Commenter Type: State Government
Classification: Substantive



### Comment Excerpt Text: • The In Harm's Way report contains numerous inaccuracies and misrepresented findings about the Big Stone Power Plant in South Dakota . Despite our best efforts to help the report author to understand the facility, the report's accuracy suffered from the author's unfamiliarity with the facility/site and the haste with which the report was written. We will not attempt to refute all of

the errors in the report. Instead we will refute only a portion of what we believe to be some of the more important errors or grossly misrepresented information.

• The In Harm's Way report states that arsenic has been measured in a down

- gradient groundwater monitoring well at a level that is 13 times the federal MCL. The referenced measurement for arsenic is 0.1322 mg/L (total metals). The federal drinking water standard for treated drinking water is 0.01 mg/L (total metals). The South Dakota Groundwater Qual ity Standard for dissolved arsenic is 0.01 mg/L. On the date the referenced down

- gradient monitoring well measured 0.1322 mg/L total arsenic, the same well was also measured for dissolved arsenic with the result being 0.0066 mg/L. Despite what the In Harm' s Way report states, the federal drinking water standard cannot be compared to a treated drinking water

standard . South Dakota's Groundwater Quality Standard for dissolved arsenic was not exceeded

for water drawn from the same well on the same date. The In Harm's Way report also makes similar claims that the same well sampled on the same date exceeded the federal action level for lead by 7 times. We have the same comment above for lead as we have commented on for

arsenic.

• In Harm's Way identifies numerou s waste disposal ponds or impoundments at the Big Stone Power Plant. The only permanent disposal unit for CCR at the power plant is a single dry tomb landfill located adjacent to and between some large cooling and evaporation ponds. In Harm's Way reported that the large ponds are used for disposal of CCR. In reality, these ponds are only used to store cooling water for the power plant boilers. There is one small boiler slag sluice pond on the property where slag is temporarily stored until it is removed and dried prior to being488

shipped offsite for recycling or hauled in dry form to the nearby dry tomb landfill.

• In the At Risk Populations section of In Harm's Way, the report states, "Groundwater is the only source of public water supply in South Dakota, wi th no known surface water supply intake in the entire state (Wendte, July 2010)." It is absurd that anyone would suggest that South Dakota does not have a single surface water supply intake. As an explanation, it is important to

understand that the author did ask our department about any public water supply intakes for the small community (Big Stone City) located near the power plant. In response, our department

wrote to the author that there are no known surface water intakes in South Dakota as it relates to the community of Big Stone City, South Dakota and adjacent Big Stone Lake which borders

South Dakota and Minnesota. The author was advised to contact the state of Minnesota about potential surface water intakes being used on the Minnesota side of Big St one Lake. Instead of using the information provided in the context it was given, the author chose to make the statement that there is not a single surface water intake for a public water supply in the entire state. For the record, large portions of South D akota are provided water from surface water intakes on the Missouri River system in addition to many other surface water intakes from other sources. This comment has to do with the integrity of the report and not anything to do with

environmental issues.

• In Harm's Way leads the reader to believe that there is groundwater contamination throughout the power plant site. Our department has acknowledged that there is one occurrence of groundwater contamination related to a brine pond release that occurred mor e than 20 years ago. Big Stone Power must treat surface water prior to using it in its plant because the water is not pure enough. As a result of that treatment process, Big Stone Power currently maintains two lined ponds, called brine ponds, where the rem nants from the water softening treatment process are placed. The brine ponds have never been used for the storage or disposal of CCR. Prior to 1988, a single brine pond was in existence and not lined. As a result, water from the brine pond was leaking out of the bottom of the pond, resulting in impacts to shallow groundwater. Once this was discovered, additional groundwater monitoring was required for this area and currently continues to monitor the impacts from the brine pond which have not moved off the B ig Stone Power Plant property. The In Harm's Way report is taking the groundwater quality data gathered from the brine pond release that occurred more than 20 years ago and is using that information to suggest there are groundwater impacts related to CCR d isposal. The water treatment process used by Big Stone Power has nothing to do with its coal ash disposal practices and in no way should be used to support any new regulations for coal ash disposal.

• The In Harm's Way author alleges that naturally occurr ing high levels of sulfate and metals found in the groundwater at the power plant site is a result of coal ash disposal. The groundwater quality in the area around the power plant site is highly mineralized, very hard, and high in sulfates. This is very ty pical of groundwater found in glacial till in eastern South Dakota. The high sulfate and metal levels found upgradient from the power plant disposal site is a result of naturally

- occurring minerals, and not as a result of any coal ash disposal at the plant . This position again is supported by the groundwater monitoring conducted at the plant that shows that naturally

- occurring groundwater upgradient from the plant has high sulfate and metal levels.

• The In Harm's Way author states that there are two wells downgradient of the ash disposal489

landfill that are located almost 900 feet from the ash disposal units " ... too far away to reliably distinguish impacts to water quality from these units." In reality those wells are located less than

50 feet from the clo sed and capped portion of the ash disposal site.

As stated earlier in this letter, it is not our intention to refute every statement made in the Big Stone Power Plant section of the In Harm's Way report that is in error. By highlighting some of

the more i naccurate and inappropriate claims made in the report, we believe we have made a strong case that information provided by the Environmental Integrity Project on the Big Stone Power Plant should not be considered as you continue to evaluate the future regul ation of CCR.

Response: EPA rejected the Big Stone site, South Dakota

, as a CCR damage case. EPA’s assessment concluded that although there are exceedances of primary EPA MCLs, EPA Lifetime Health Advisories, and EPA SMCLs in onsite groundwater, the exceedances generally occur

n ear the brine ponds and are possibly related to the water softening and treatment process: CCRs cannot be directly implicated as a source of the contamination.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 07806

- 4 

### Organization 1 

### : Comm enter 1 : Mass Comment Campaign sponsoring by Earthjustice (165 signatures) Part 1 of

2 Commenter Type: Advocacy Group

Classification: Substantive



### Comment Excerpt Text: The danger of contaminated water is not merely conjecture. Research by EPA, as well as two reports by the Environmental Integrity Project, Earthjustice and Sierra Club document 137 cases of surface or groundwater damage in 34 states. In the most recent rep ort each and every one of the 35 sites studied show heavy metal contamination above federal drinking water standards. These results, in fact, are just a small percentage of the real damage occurring at coal ash disposal sites across the country. Many state s do not require any on

- site or off

- site water monitoring, meaning that there is no source of monitoring data for investigators compiling damage cases.

Response: Thank you for your comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08211

- 12 

### Organization 1 

### : North Dakota Department of Health


### Commenter 1 : L. David Glatt Commenter Type: State Government
Classification: Substantive



### Comment Excerpt Text: Earth Justice and the Environmental Integrity Project also released a report of additional damage claim sites in 2010, two of which were located in North Dakota. The NDDoH believes their cursory review and assessment had many shortcomings and overstated th e risk from these sites.490

Again, both sites are documented by the NDDoH solid waste program and are public information. Similar to the previously noted sites, these facilities were constructed prior to our current CCR disposal standards. There is no indicat ion that the limited impacts from these sites extend beyond their compliance boundaries, though the report implied that public water supplies as far away as five miles (and also up gradient) were at risk. The clay lined waste unit that received only dry CC Rs at one of the facilities was closed in 1998. This site is located in reworked mine spoils, and the side gradient well referenced by the Earth Justice

- Environmental Integrity Project likely reflects spoil impacted water from the relatively low yielding , highly mineralized wet zone located at the base of reclaimed spoils. The other facility on a river terrace, with state encouragement, converted to a dry fly

- ash handling system and closed the fly

- ash disposal ponds in 1996, with the remaining impoundment s only used for low

- toxicity boiler slag. Dry fly ash from this facility is now disposed in a more environmentally favorable landfill several miles from the Missouri River. Newer waste units at the sites were constructed following

the current Subtitle D

- eq uivalent standards. Arsenic concentrations in wells at the old sites did exceed drinking water standards. However, they failed to realize that naturally occurring arsenic concentrations exceed those measured in these wells, at many locations in North Dakot a. One reference to elevated lead appears to be an anomaly, since it is an upgradient well, and lead is not typically elevated in North Dakota CCRs.

Response: The Agency infers that the commenter is addressing the Antelope Valley Station, Beulah, and the Leland Olds Station, Stanton, two North Dakota CCR management sites discussed in the August 2010 EIP, EarthJustice and Sierra Club report In Harm’s Way: Thirty

nine New Damage Cases of Contamination from Improperly Disposed Coal Combustion Waste.

Based on an assessment of these two sites against EPA’s test

- of

- proof criteria, the Agency designated the Leland Olds Station site as a potential damage case . EPA rejected the Antelope Valley Station site as a CCR damage case because the landfill is located in a m ined out lignite pit; minefilling is outside the scope of this rule. For a summary of stakeholder arguments addressing these two sites and the rationale for the Agency’s decision s , see the technical support documents on damage cases in the docket of the fi nal rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08226

- 9 

### Organization 1 

### : Ohio Environmental Protection Agency


### Commenter 1 : Chris Korleski Commenter Type: State Government
Classification: Substantive



### Comment Excerpt Text: Extent of ground water risk posed by the management of CCR in Ohio is poorly documented :

Ohio has 44 unlined CCR disposal facilities. Forty CCR disposal sites do not have ground water monitoring. Knowledge of risk due to ground water impacts is limited due to lack of ground

water monitor ing.

Four CCR disposal sites demonstrate an indication of an impact on ground water quality based upon ground water monitoring data.491

• Conesville Station, Coshocton County, Ohio. The impact on ground water quality of the fly ash pond is documented in t he 1984 Electric Power Research Institute report Monitoring the Fixed FGD Landfill

– Conesville, Ohio. This site was acknowledged as a potential damage case in the July 9, 2007, U.S. EPA report titled Coal Combustion Waste Damage Case Assessments

.

• JM S tuart Station, Adams County, Ohio. At this time, there is evidence indicating the quality of ground water beneath the J.M. Stewart Station has been impacted. Samples collected at the J.M. Stewart Station, well #2, between 1973 and 1986 by Ohio EPA staff in dicates a rising level of total dissolved solids, sulfate, calcium, iron and magnesium. Ohio EPA continues to monitor ground water to determine if this trend continues and rises to a level where a full assessment is

warranted.

• WC Beckjord Station, Cler mont County, Ohio. Analysis data from samples taken from monitoring wells around the fly ash ponds at the CW Beckjord Station indicate sulfate contamination. These fly ash ponds are near a public well field. This situation was investigated several years ag o and remedial actions were implemented. The site continues to monitor ground

water.

• Cardinal Generating Station, Jefferson County, Ohio. Analysis data from samples taken from monitoring wells around the FAR 2 fly ash pond indicate elevated levels of b oron and molybdenum in the Morgantown Aquifer due to a release from the fly ash pond. The Station also has an Ohio regulated solid waste FGD landfill. Because of the proximity of the ash ponds to the landfill, the solid waste permit requires that the groun d water monitoring, assessment, and corrective action requirements also apply to the ash ponds. The operator is conducting a ground water assessment of the ash pond in compliance with the solid waste rules.

Ohio EPA has reviewed the 2010 report IN HARM’S WAY: Lack of Federal Coal Ash Regulations Endangers Americans and Their Environment by Environmental Integrity Project, Earthjustice and Sierra Club. This report identifies four Ohio sites as having contaminated ground water. Upon review of the report and available information, Ohio EPA does not support the report’s conclusion that two of those sites (Muskingum River Plant and Gavin Residual Waste Landfill) have demonstrated an indication of an impact on ground water quality. Ohio

EPA identifies the third site, Cardinal Generating Station, as having a release to ground water. As noted above, the ash pond at Cardinal is being fully addressed under Ohio EPA’s solid waste ground water assessment and corrective measure rules. The report identifies a fourth site known as the Industrial Excess Landfill in Uniontown, Ohio. This U.S. EPA Superfund landfill disposed of various industrial wastes and is not representative of Ohio CCR disposal sites.

Response: Based on EPA’s records, the Agency agrees with the commenter that the Cardinal Generating Station, Conesville Station, JM Stuart Station, and the WC Beckjord Station have all impacted groundwater.

Industrial Excess Landfill: EPA agree s with the commenter that the Industrial Excess Landfill in Uniontown, O hio, disposed of various industrial wastes in addition to CCR; as a result, EPA rejected th is site as a CCR damage case.492

Gavin Residual Waste Landfill : Regardless of the controversy as to whether MCL and SMCL exceedances at Gavin (MCLs: arsenic, barium, cadmium, lead, and Gross Alpha; SMCLs: manganese, chloride, and TDS; and EPA Lifetime Health Advisory: molybdenum) represent coal mining legacy or a more recent, CCR m anagement operation, OH EPA has set water quality criteria for Kyger Creek for several metals that are all much higher than for the Ohio River; this results in significant mortality rate of the fathead minnow next to the outfalls’ mixing zone.

Muskingum R iver Plant: whereas OH EPA does not support the conclusion that the Muskingum River Plant has demonstrated an indication of an impact on groundwater quality, in 2004 OH EPA mandated AEP to implement a groundwater monitoring plan and install 15 groundwater monitoring wells, four groundwater elevation monitoring wells, and five piezometers. Site groundwater have both MCL (barium and Gross Alpha) and SMCL (Fe, Sulfate, and TDS)

exceedances.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08244

- 19 

### Organization 1 

### : Edison Mission Energy, LLC


### Commenter 1 : Basil G. Constantelos Commenter Type: Electric Utility Company

Classification: Substantive



### Comment Excerpt Text: d. In EME’s Experience, CCR Disposal As Quarry Fill Does Not Pose A Hazard To Either

Human Health Or Th e Environment Midwest Generation, a subsidiary company of EME, owns and operates the Joliet 9 coal ash landfill. This landfill is also known as the Lincoln Stone Quarry (“LSQ”) [Footnote 193: EME understands that EPA has received a report from the EIP enti tled “In Harm’s Way: Lack of Federal Coal Ash Regulations Endangers Americans and Their Environment,” which contains numerous false and unsubstantiated allegations and misleading statements regarding Midwest Generation’s Joliet 9 coal ash landfill. The sig nificant errors in the EIP report are summarized and corrected in this section. For more detailed, point

- by

- point rebuttals of each of the misstatements in the EIP report, please see the technical memorandum submitted as an

attachment to these comments at Appendix A. The rebuttal is entitled “Technical Assessment of ‘In Harm’s Way: Lack of Federal Coal Ash Regulations Endangers Americans and Their

Environment’

– Damage Case Joliet 9 Generating Station.”]. The LSQ is a regulated landfill that has been operat ing in compliance with its permits and the applicable environmental regulations since it began receiving material in 1962. Based on data collected and maintained by EME, it does not pose a threat to human health or the environment. The LSQ landfill is subj ect to Illinois’ Class I Groundwater Protection Standards and the state’s regulations for new solid waste landfills regarding groundwater protection [Footnote 194: See ILL. ADMIN. CODE tit. 35, part 811 (1996) titled “Standards for New Solid Waste Landfill s.” This is true even though the LSQ is an existing landfill subject to Part 814 regulations, because Part 814 incorporates many of the Part 811 regulations.]. Consequently, the LSQ landfill was required to install a groundwater monitoring network consisti ng of 26 monitoring wells, three of which are located off

- site, and has established groundwater protection standards for the facility [Footnote 195: See infra Appendix A at 2. The groundwater monitoring network and groundwater protection standards

are requ ired by ILL. ADMIN. CODE tit. 35, § 811.318(b) (1996) and were approved by the493

Illinois Environmental Protection Agency.]. In fact, 18 of the 24 parameters monitored at the LSQ site have Applicable Groundwater Quality Standards (“AGQS”) values that are equ al to or stricter than the corresponding Illinois Class I groundwater standards [Footnote 196: See id. at 3. Unlike the Class I Ground Protection Standards, the AGQS values are site

- specific and based on existing background concentrations in the groundwate r near a particular landfill. The AGQS may therefore differ from the Class I standards because they take into consideration local conditions.]. Midwest Generation must initiate an assessment monitoring program any time groundwater monitoring identifies a c onfirmed exceedance of an AGQS outside the zone of attenuation at the facility. If the assessment determines that the exceedance is the result of a release from the landfill, Midwest Generation must take corrective action. In short, the LSQ does not operat e under a “relaxed” set of groundwater standards, as the Environmental Integrity Project’s alarmist report contends. Midwest Generation maintains a leachate management system that consists of a gravity fed water system [Footnote 197: See id. at 6.]. The le achate management system manages 8.5 million gallons of leachate per day, and the gravity flow draining system captures all but 1.2 percent of the water volume leaving the site via groundwater flow [Footnote 198: Id.]. The standards applicable to the LSQ f acility allow this small percentage to flow directly into the Des Plaines River because the relevant data and information shows that at the point at which the flow discharges into the river, there is no discernible impact on water quality [Footnote 199: Id .]

Response: Regardless of the arguments raised by Edison Mission Energy, LLC (EME) to refute

and/ or clarify the evidence cited in EIP’s In Harm’s Way regarding the regulatory infractions at Midwest Generation’s (MG) Lincoln Stone Quarry (LSQ) Landfill

, EPA presume s that the following is not disputed by EME: On August 31, 2009, IEPA issued a Notice of Violation (NOV) to MG for “failure to operate a leachate collection and management system that assures the protection of Class I potable resource groundwat er”. The NOV cited exceedances of Applicable Groundwater Quality Standards (AGQS) between July 14 and August 31, 2009 at the site. MG petitioned the Illinois Pollution Control Board (IPCB) for an extended Groundwater Management Zone (GMZ), claiming that an inward gradient would be maintained at the site that would disallow contamination to escape the facility.

IEPA approved a corrective action of pumping wells for the southeastern LSQ area in 2009, along with additional groundwater assessment. MG implement ed the corrective action in 2010; in 2011, the IEPA approved the assessment reports along with an interim GMZ for the southeast area of the facility, along with a proposal for additional, preventative, corrective action along the southern side of the LSQ. The corrective action has a two

- fold purpose: to control the source (and reintroduce an inward gradient required by the IPCB) and to mitigate impacts in the south of the LSQ landfill. Currently, there are two approved GMZs encompassing the LSQ landfill and its immediate vicinity, and groundwater assessment and evaluation continues at the site. These administrative actions justify designating this site as a potential damage case.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08244

- 40 

### Organization 1 

### : Edison Mission Energy, LLC


### Commenter 1 : Basil G. Constantelos Commenter Type: Electric Utility Company494

Classification: Substantive



### Comment Excerpt Text:

2.0 REBUTTAL OF EIP “IN HARM’S WAY” PUBLICATION 2.1 Overview and Background Before addressing the specific statements relating to the “Joliet 9 Generating Station Damage Case,” a brief historical summary of relevant Illinois solid waste regulations is helpful to understanding the important fact that the Quarry landfill is and has been regulated for years by

the State of Illinois. The Illinois solid waste regulations that apply to the Quarry landfill arise from the U.S. EPA’s adoption of the initial RCRA Subtitle D standards in 1991, pursuant to RCRA and the Hazardous and Solid Waste Amendments of 1984 (HSWA), Pub.L. No. 9 8

- 616, 98 Stat. 3221. The RCRA Subtitle D standards called for stringent federal standards for the state regulation of non

- hazardous waste management facilities. See 40 C.F.R. Part 258. In response, the Illinois legislature amended the Illinois Environment al Protection Act to require the incorporation of the federal standards into the state regulatory system and authorized the Illinois Pollution Control Board (the “Board”) to adopt rules identical in substance to the federal RCRA Subtitle D requirements. (I llinois Environmental Protection Act, §22.40). The Board adopted regulations implementing the RCRA Subtitle D standards in 1993. See In re RCRA Subtitle D Amendments, PCB R93

- 10 (Sept. 15, 1993). Under these regulations, new Illinois landfills were require d to meet the standards set forth in 35 Ill.Adm.Code Part 811 and existing landfills were regulated by the standards set forth in 35 Ill.Adm.Code Part 814. The Quarry landfill is regulated by 35 Ill.Adm.Code Part 814 which in turn incorporates the Part 811 regulations for requirements such as groundwater monitoring, leachate collection, etc.

Because the Parts 811 and 814 landfill regulations have general applicability and therefore, were not developed to address site

- specific conditions that may exist at c ertain Illinois landfills, there is a provision in the Illinois Environmental Protection Act, Section 28.1 (415 ILCS 5/58.1 (1994)) under which a landfill owner or operator may seek to “adjust” these regulatory standards

to fit the different conditions at its landfill which were not considered as part of the adoption of the landfill regulations. When the required technical demonstration is successfully made, the Act authorizes the Board to grant an “adjusted standard” that takes site

- specific conditions int o account while still affording the same level of protection to public health and the environment as the landfill regulations. [Footnote 1: A petition for an adjusted standard must demonstrated that: (a) site factors are substantially and significantly dif ferent from the factors relied upon by the Board in adopting the general regulation and justify an Adjusted Standard; (b) the requested standard will not result in environmental or health effects substantially and significantly more

adverse than the effect s considered by the Board in adopting the general regulation; and (c) the Adjusted Standard is consistent with any applicable federal law.] Therefore, it is incorrect to refer to such adjusted standards as either “relaxed” or “reduced” standards, as does E IP. For example, the general landfill regulations require a daily soil cover to be placed over the waste material. This standard is not technically feasible for a former quarry facility such as the Quarry landfill which sluices the ash into the disposal un it. Therefore, the Quarry’s Adjusted Standard instead requires the ash be covered with water rather than soil. The Quarry received an adjusted standard from the Board which, in relevant part, modifies the following Illinois Part 814 regulatory requirements governing nonhazardous solid waste landfill operations:495

1. Leachate collection and management system; 2. Groundwater monitoring requirements for certain inorganic and organic constituents; 3. Location of monitoring wells; 4. Zone of attenuation; and

5. Da ily and final cover for the Quarry landfill. In granting the Adjusted Standard, the Board agreed that the relevant factors for the Quarry landfill “are substantially and significantly different from the factors relied on by the Board in adopting the regula tion for general applicability.” [Footnote 2: Opinion and Order of the Board,

AS96

- 9, 1996, p.19.] After a review of the extensive technical and scientific information and data that was presented during the adjusted standard proceeding before the Board, th e Board found, and IEPA agreed, that granting the Quarry landfill Adjusted Standard would not have an adverse affect on the environment. [Footnote 3: Opinion and Order of the Board, AS96

- 9, 1996, p.19.] Unlike several of the stories told in the “In Harm’s Way” EIP publication, the Quarry landfill is and has been subject to extensive state regulatory requirements that protect both the environment and public health. 2.2 Damage Case Rebuttal The following discussion rebuts various statements and allegations ma de in the ”In Harm’s Way” EIP publication relative to the “Joliet 9 Generating Station Damage Case,” as found on pages 41 through 47 of the publication. This rebuttal addresses items in various sections of the EIP publication starting with the summary foun d on page 41. For ease of reference and context, the same section titles used in the “In Harm’s Way” publication are included here and are

italicized as subsections. 2.2.1 Summary 1) Environmental Integrity Project Statement (pg. 41): Since 1996, the Landf ill has been exempt from complying with Illinois Class I Groundwater Protection Standards and the Illinois Environmental Protection Agency (IEPA) has applied relaxed standards for boron, cadmium, selenium, and molybdenum that allow groundwater with concent rations up to 52 times standards for protection of public health to flow off

- site. Correction: The Quarry landfill is not exempt from complying with Illinois Class I Groundwater Protection Standards. The Quarry facility must comply with the Part 811 “Stand ards for New Solid Waste Landfills” regulations regarding groundwater protection. The investigation, assessment and standards for groundwater are important components of the requirements for both Parts 811 and 814 Illinois solid waste landfills. Although t he Quarry was an existing landfill within the meaning of the Part 814 landfill regulations, Part 814 incorporates many of the same requirements regarding groundwater standards, monitoring and assessment from the Part 811 regulations for new landfills and h ence, those requirements are applicable to the Quarry landfill, as discussed further below. [Footnote 4: 35 Ill.Adm.Code § 814.302(a) states that all requirements for new units described in 35 Ill.Adm.Code 811 will apply with the exception of (1) location standards, (2) foundation and mass stability analysis, (3) final cover for those units or portions of units that were closed/covered and vegetated prior to the effective date, (4) liner and leachate drainage/collection requirements and (5) hydrogeological site investigation requirements except that Part 814 existing landfills are not exempt from the requirements to implement a groundwater monitoring program in accordance with 811.318 and 811.319 and establish background concentrations for the purpose of est ablishing site

- specific AGQSs pursuant to 811.320.] The groundwater program that is established under Part 811 requires an in

- depth investigation of496

the groundwater conditions, the use of that data to make a model to predict the effect of the landfill on g roundwater, the setting of groundwater quality standards and the monitoring of actual groundwater conditions to make certain that the groundwater does not exceed the groundwater quality standards or the levels predicted by the model. The Quarry was require d to and has complied with each of these regulatory requirements. A groundwater monitoring network that satisfied the requirements of section 811.318(b) was established for the Quarry facility and approved by IEPA. The groundwater monitoring network

consis ts of multiple monitoring wells at shallow and deeper depths. It has been expanded as necessary to remain in compliance with the Part 811 regulations based on regular evaluations of the groundwater flow conditions in the vicinity of the Quarry. The groundw ater monitoring network requirements, as approved by IEPA, are incorporated into the terms and conditions of the Quarry’s landfill permit. The Quarry facility’s landfill permit currently includes 26 routine monitoring wells (three of which are off

- site), o ne piezometer, one surface water monitoring

location and four additional off

- site groundwater assessment wells. The groundwater protection standards for each chemical constituent included in the monitoring program were established for the facility, and app roved by IEPA, based on groundwater monitoring results and a statistical background evaluation, performed in accordance with the requirements of the Part 811 regulations. Each Part 811 and 814 solid waste landfill has special groundwater standards applicab le to it in accordance with 35 Ill.Adm.Code §811.320(a)(1). The default groundwater standard is the background concentration level (35 Ill. Adm. Code §811.320(a)(1)(A)). Background concentration levels are established using approved statistical techniques and one year’s monitoring data gathered during the groundwater investigation phase (35 Ill.Adm.Code §811.320(d)). These regulatory requirements were applied to the Quarry landfill. The Quarry statistical background evaluation used four quarters of consecut ive groundwater monitoring data from several monitoring wells in the early 1990s. This data provided the required “background concentrations” on which the site specific standards for the Quarry were based. These site specific standards are referred to in t he Part 811 regulations as Applicable Groundwater Quality Standards (AGQSs). When an AGQS is in place, it becomes the applicable groundwater standard for the facility (35 Ill.Adm.Code §811.320(a)(1)(B)). If the groundwater monitoring identifies a

confirmed exceedance of an AGQS outside the zone of attenuation [Footnote 5: The zone of attenuation for the Quarry is a three

- dimensional space that is above the botton of the uppermost aquifer underlying the disposal unit and that has a horizontal extent that is more than 100 feet from the edge of the landfill but within the Midwest Generation property line, as described in the Quarry Adjusted Standard. See also 35 Ill.Adm.Code 810.103.], the facility must initiate an assessment monitoring program in accordance wi th Part 811.319(b) to determine whether the exceedance is the result of a release from the regulated unit. If the assessment monitoring program determines that the exceedance is the result of a release from the regulated unit, then a

remedial action must b e implemented in accordance with Part 811.319 (d). Because the AGQSs are based on existing background concentrations in the groundwater in the vicinity of the subject landfill, they may differ from the generic Illinois Class I Groundwater

Protection Standa rds. If the AGQS for a particular parameter is higher than the Class I groundwater standard, it is because the relevant background concentration for that chemical constituent is higher than the Class I groundwater standard. The converse is also true. If th e background concentration for a chemical constituent is lower than the Class I groundwater standards, then the AGQS is set at a level that is more stringent than the Class I groundwater497

standard. Thus, the AGQS achieves its purpose of protecting against d egradation of the existing quality of the groundwater that might otherwise be caused by landfill operations. For this reason, the AGQSs are often equal to or more stringent than the Illinois Class I Groundwater Standards. Further, if IEPA identifies a cons tituent for monitoring based on the nature of the waste disposed of in the landfill, and there is no established Illinois Class I groundwater standard for that constituent, then an AGQS value is also established for that constituent using the same

methodol ogy as discussed above. For example, there is no promulgated Illinois Class I Groundwater Standard (or federal Maximum Contaminant Level (MCL)) for ammonia. However, the IEPA required ammonia monitoring as part of the groundwater monitoring program for the Quarry landfill. Using the same background data set of four quarters of monitoring in the early 1990s, an AGQS of 1.57 mg/L for ammonia was calculated and established for the Quarry. By requiring an AGQS for constituents not regulated under the

Illinois C lass I Groundwater Standards, the established regulatory monitoring program using AGQS values actually provides broader and more complete protection of groundwater quality. Table 1 provides a comparison of the AGQSs and the Class I Standards for each chemi cal constituent that is sampled for as part of the monitoring requirements applicable to the Quarry landfill. The bolded values designate site specific AGQSs that are set lower than existing Illinois

Class I Groundwater Protection Standards or for which a Class I standard does not exist. Eighteen of the 24 parameters monitored have AGQS values that are stricter than the corresponding Illinois Class I groundwater standards (or lack thereof). Clearly, the AGQSs for the Quarry do not constitute “relaxed” stand ards in comparison to the Class I groundwater standards. Further, the AGQSs do not “relax” the protection afforded to maintain existing background concentrations of these constituents in the vicinity of the Quarry landfill. [See the original comment for Ta ble 1] 2) Environmental Integrity Project Statement (pg. 41): As of early 2007, unsafe concentrations of arsenic, boron, and molybdenum were flowing off

- site to the south. Correction: A review of the permit monitoring data for all of the off

- site wells tha t existed “as of early 2007” and would have monitored flows to the south does not support EIP’s claim. The off

site wells are G38S, G38D and G39S. Our review included an evaluation of arsenic, boron and molybdenum data from these wells from 2007 (see Table 2). All of the data values were below both the established AGQSs and Illinois Class I standards. [See the original comment for Table 2. 2007 Off

- site Groundwater Monitoring Results] It appears that because the off

- site well data showed no migration of con taminants, EIP may have instead used data from monitoring wells that are within the landfill’s boundaries. There are three such monitoring wells, wells G46S, G47S and G48S, located along the south side of the Quarry Landfill. Groundwater monitoring did ide ntify and confirm exceedances of the AGQS at

on

- site locations G47S and G48S during the noted 2007 time period as well as in monitoring events since that time. It was determined that the exceedances were associated with the Quarry as a result of Laraway Qu arry dewatering operations moving water from the Quarry to the south/southeast. Based on this evaluation, in accordance with both Part 811 regulations and permit requirements, Midwest Generation implemented corrective action through the installation and op eration of an extraction well system which was rendered fully operational as of April 30, 2010. This is discussed in more detail under the response to item 6 below. 3) Environmental Integrity Project Statement (pg. 41): IEPA issued a Notice of Violation (N OV) in response to the groundwater contamination in late August 2009. The NOV identified 50 exceedances of groundwater quality standards in ten wells, including high concentrations of498

arsenic, barium, boron, copper, and molybdenum. Arsenic was measured in two off

- site groundwater monitoring wells at 0.022 to 0.083 mg/L (2.2 to 8.3 times the Illinois Class I Groundwater standard of 0.01 mg/L). Correction: This allegation is false. A NOV was never issued by IEPA. As stated by Mr. Rick Cobb, IEPA Bureau of Wat er, in an August 27, 2010 Herald News article, a draft notice was developed based on a hypothetical set of future conditions that never occurred and which were associated with the proposed dewatering of Boyd’s Quarry east of the Quarry. Because this

future scenario on which the draft NOV was developed never occurred, the NOV was never finalized or issued. As Mr. Cobb told the Herald News: “The whole thing became moot”. The EIP’s statement that there were 50 exceedances is misleading as it combines both the initial

and confirmation re

- sampling (duplicate samples) performed each quarter, in order to double the number of alleged exceedances from a single quarterly sampling event. Therefore, the maximum number of potential exceedances that would have been allege d would be 25. Of the remaining 25, four would not have been “exceedances of groundwater quality standards” because they are surface water sampling results for which groundwater standards (or AGQSs) are not applicable. Of the remaining 21 “exceedances”, 15 would have been for parameters which have a site specific AGQS set below (i.e., more rigorous and conservative than) the Illinois Class I groundwater standard as discussed under item 1 above. Of the remaining six exceedances, five

would have been from wel ls G47S and G48S located along the southeast boundary of the facility. Both of these wells are “on

- site” wells and not off

- site wells, as EIP wrongly contends. Midwest Generation has installed groundwater control wells in the southeast area of the landfill to prevent further outward migration of any affected groundwater (see further discussion in Item 6 below). The last of the noted exceedances would have been for well A08S for boron. This well is located north of the Quarry and within the zone of attenuati on. There were no boron exceedances further downgradient to the north within the zone of compliance. The current Illinois Class I groundwater standard for arsenic is 0.05 mg/L and not 0.01 mg/L, as incorrectly stated by EIP. Therefore, the alleged magnitud e of the exceedances is also wrong and one is not an exceedance because it is less than the correct Class I standard of 0.05 mg/L. A more detailed rebuttal of this issue is provided under item 15 below. 4) Environmental Integrity Project Statement (pg. 41) : The locations of the groundwater monitoring wells indicate that contamination is flowing from the CCW Landfill off

- site to the southeast, south, west, and north. Correction: This statement is false. Any potential further migration from the southeast port ion of the facility to the south/southeast associated with ongoing dewatering operations at Laraway Quarry has been stopped through the installation of a groundwater extraction system (see discussion for item 6 below). Natural groundwater flow to the north and west is in accordance with the leachate management system under the Adjusted Standard as discussed below. The Quarry facility operation consists of bottom ash and slag sluiced from Joliet 9 and 29 to a Main Quarry area. In accordance with the Adjusted Standard AS96

- 9 granted by the Pollution Control Board for the Quarry facility, Midwest Generation must maintain a leachate management system that consists of gravity fed water from the Main Quarry to the North Quarry

and maintains the water level below t he natural water table elevation. After settling, the water is gravity fed to the North Quarry and is then discharged through Outfall 005, NPDES permit IL 0002216 to the Des Plaines River. This operation is substantially and significantly different than

fo r a typical landfill. The Quarry manages 8.5 million gallons of “leachate” per day [Footnote 6: Opinion and Order of the Board, AS96

- 9, 1996, p. 4.] through this gravity flow treatment499

system. The gravity flow drainage system captures all but 1.2 percent ( 101,400 gpd) of the water volume leaving the site via groundwater flow. [Footnote 7: Petition of Commonwealth Edison Company for Adjusted Standard from 35 IAC 811.814, April 1, 1996.] The water volume leaving the site through a groundwater route is allowed to flow directly to the Des Plaines River which is where it would have been routed by the North Quarry discharge. The Adjusted Standard allows this small percentage of flow to the north and west from the bedrock directly into the River rather than being c hanneled to the leachate management system. This is allowed because the relevant data and information shows that at the point at which this flow discharges to the Des Plaines River, there is no discernible effect on water quality in the River. The constitu ent concentrations in the groundwater have historically shown no discernible effect on water quality in the Des Plaines River. [Footnote 8: Opinion and Order of the Board, AS96

- 9, 1996, p. 14.] Table 3 summarizes background upstream river sampling (average d data from United States Geologic Survey and Harza Engineering sampling), the calculated incremental weighted average of groundwater contributions discharging to the river from the site, along with applicable surface water quality standards as presented t o the Pollution Control Board in support of the Adjusted Standard for leachate management. The information in Table 3 shows that any effect of any Quarry

- related groundwater discharge is well below established surface water quality standards. In fact, many of the values are below analytical detection limits. Under the Adjusted Standard for leachate management, Quarry leachate is not allowed to flow to the south or east. This is generally referred to as the “inward gradient” requirement for the landfill (i.e ., the natural inward gradient from the south and east must be maintained resulting in groundwater flow from those directions into the Quarry and not away). Since the issuance of the Adjusted Standard, the inward gradient from the east has always been main tained and there has only been one instance where the inward gradient from the south was not continuously maintained. Specifically, there was a loss of inward hydraulic gradient to the southeast resulting from unrelated dewatering activities that are part of the operations of the Laraway Quarry located approximately 1,000 feet southeast of the Quarry landfill. As discussed under item 6 below, to reestablish the inward gradient in that area, four groundwater extraction wells have been installed by Midwest Ge neration. In addition, an interim groundwater management zone (GMZ) is being evaluated for an area of approximately 32.4 acres south/southeast along the Quarry facility boundary to assist in managing and remediating groundwater that may have been drawn in that direction due to ongoing Laraway Quarry dewatering activities to the southeast. There are no residential wells or other groundwater receptors within the proposed interim GMZ area. Most of the area is within an existing Commonwealth Edison transmission /pipeline right

- of

- way. Therefore, no risks to human health ever existed due to the temporary loss of the inward gradient

to the southeast. [See original comment for Table 3.] 5) Environmental Integrity Project Statement (pg. 42): The IEPA Bureau of Water recently found the CCW Landfill to be in an area with very high geologic vulnerability and a high potential for potable well contamination. There are 94 wells within a mile of the CCW Landfill. Drinking water wells up to a thousand feet south of the Landfi ll show evidence of degradation of water quality, and there is evidence to suggest that contamination is moving toward the Smiley Subdivision northeast of the Landfill. Midwest Generation has bought out nearby residents or had deeper wells drilled for resi dents. Only limited sampling has been done by IEPA to assess the extent of contamination in private drinking water wells.500

Correction: There is no factual basis for the EIP’s contention regarding the IEPA Bureau of Water’s alleged recent findings that is re levant to the Quarry. EIP provides no supporting document or other information that would support its implication that the Quarry landfill has affected any residential wells in the area. EIP also has not produced data supporting its allegation that “drinki ng water wells up to a thousand feet south of the Landfill show evidence of degradation of water quality.” In 2006, Midwest Generation sampled 18 residential wells located immediately to the south and southeast

of the Landfill. The data showed that these w ells were not degraded. Boron was used as an indicator parameter in this sampling of residential wells to search for potential Quarry

- related effects. Boron (and its isotopes) is widely recognized as a good, conservative tracer compound due to its high sol ubility in water, natural presence in nearly all water, and its insensitivity to evaporation, volatilization, oxidation

- reduction reactions or mineral precipitation or dissolution in all but extremely saline water. [Footnote 9: Munster, J., Hanson, J.N., B okuniewicz, H., A Geochemical Study to Determine the Sources of Nitrate in the Groundwater of Suffolk County, Long Island, NY. 2003. Conference on the Geology of Long Island and Metropolitan New York.] The use of boron as a tracer constituent was reviewed with and supported by IEPA. The resulting sampling data did not indicate any constituents above standards or degradation of water quality. Midwest Generation did not “buy out” any residents nor did it offer to do so. This is another

false EIP statement. Mi dwest Generation made an unconditional offer to provide new, deeper wells for these residents. Also, groundwater modeling done at that time did not show that any excursion of a groundwater standard would affect these residential wells in the future. Recogn izing that nearby residents might not be adequately comforted by modeling results alone, Midwest Generation voluntarily and pro

- actively initiated the aforesaid residential well sampling program for residents to the south/southeast of the Quarry to both co nfirm that there had been no impact to their wells from the Quarry landfill’s operations and to address their concerns about potential future developments, by offering to replace their residential wells with wells that obtain water from a deeper formation that is hydraulically isolated from any potential shallow groundwater impacts (i.e., within the Silurian dolomite) so that these residents could not possibly be affected at some point in the future. The existing residential wells were sampled before any

ne w wells were drilled and sampling results did not indicate any impacts to the wells. Finally, with regard to the EIP contention that “there is evidence to suggest that contamination is moving toward the Smiley Subdivision northeast of the Landfill,” EIP do es not state what the referenced “evidence” is or how it suggests that there is any threat to the Smiley Subdivision. The known facts and relevant data do not support any such “suggestion.” First, groundwater modeling does not indicate any migration of pot ential Quarry constituents, under either past or current conditions, toward the Smiley Subdivision. Second, no loss of the inward gradient on the east side of the facility has occurred (i.e., groundwater continues to flow from the east to the west, which i s towards the Quarry landfill, not away from it). Third, in 2009, the IEPA collected water samples from multiple residential wells within the Smiley subdivision, with some as close as 300 feet from the boundary of the Quarry facility. A review of the data did not indicate any constituents above Illinois Class I drinking water standards. The IEPA also stated that the results of the sampling did not indicate any contamination in these wells. EIP’s statement is wrong and it has provided no evidence to support it. 6) Environmental Integrity Project Statement (pg. 42): As of mid

- 2010, there was no evidence that IEPA had taken significant actions to address the contamination flowing off

- site in violation501

of the CCW Landfill operating permit.

Correction: This state ment is false. There was no permit violation to enforce against because the required corrective action to address outward migration of groundwater in the southeast area of the Quarry Landfill was taken and successfully completed before mid

- 2010.

In accorda nce with 35 Ill. Adm. Code 811.319(d)(1) and 811.319(d)(2), Midwest Generation submitted an Application for Significant Modification to Permit on September 2, 2009 which detailed a proposed corrective action for the loss of inward gradient at the southeast side of the Quarry facility. The proposed corrective action included the design and installation of a groundwater extraction system along the east portion of the south perimeter of the Quarry facility to intercept Quarry water moving to the south and part ially pull back any groundwater with levels above the AGQS that may have migrated past site boundaries. In addition, the proposed permit modification included conducting further investigation of off

- site groundwater quality to

the south/southeast to assist in defining the extent of potential migration of constituents, if any. The IEPA approved the Application for Significant Modification to Permit on December 1, 2009. In accordance with 35 Ill.Adm.Code 811.319(d)(3) and 811.319(d)(4), and the current
operat ing permit, Midwest Generation has implemented the corrective action. The extraction well system was installed and rendered operational by April 30, 2010. The system has been pumping since that time. A cone of depression has been established between south perimeter wells G48S, G47S and G38S and the Quarry. Groundwater from the southeast perimeter of the site is now being drawn back to the north to the extraction well system. Water from the Quarry that would flow to the south is also being intercepted by the extraction system. The extracted water is being discharged back into the Main Quarry. The off

- site groundwater investigation is in process and is expected to be completed shortly.

2.2.2 Test of Proof 7) Environmental Integrity Project Statement (pg. 42): In May 1994, an Application for Significant Landfill Permit Modification documented exceedances of the applicable groundwater quality standard for boron, selenium, manganese, sulfate, total dissolved solids, molybdenum, zinc, pH, ammonia, chloride, potassi um, sodium, and total organic carbon (TOC) levels. The application further noted that any contaminants derived from CCW can migrate to downgradient areas and to the river bank area “with no significant reduction in concentration.”

Clarification: The exceed ances noted were generally within the zone of attenuation, as defined in the Quarry’s operating permit. Within this zone, exceedances can be managed such that they do not extend into the zone of compliance which is immediately downgradient of the zone of

a ttenuation. This concept is similar to a groundwater management zone. As to the statement regarding migration to downgradient areas, the 1994 application was referring to the very small volume of groundwater that passes through the Quarry to the Des Plaine s River without being captured by the gravity feed system at the Quarry. This is an area in which there are no groundwater receptors. Further, this issue was addressed in the 1996 Petition for Adjusted

Standard in which it was demonstrated that this small percentage (i.e., 1.2%) of overall groundwater flow through the Quarry system is discharged to the Des Plaines River and that the constituent levels will not adversely affect the Des Plaines River water quality (see detailed discussion under item 4 above). These findings and conclusions were supported by the IEPA and accepted and relied upon by the Pollution Control Board in its decision to grant the Adjusted

Standard. 8) Environmental Integrity Project Statement (pg. 42): IEPA permit reviewer notes for the Landfill dated August 1, 2002 and October 15, 2003 state that the groundwater sampling502

“indicates that the site has caused statistically measured impacts on downgradient groundwater quality.” Clarification: Midwest Generation has not been privy to the not ed reviewer comments. However, as required by the Quarry operating permit, and applicable Illinois regulations, groundwater quality assessments were performed for various parameters subsequent to the referenced dates in the EIP statement, primarily within the zone of attenuation. Midwest Generation complied with all groundwater assessment requirements and submitted the evaluations to IEPA. As noted above, the only downgradient area in which the groundwater evaluations indicated statistically

measured effect s on groundwater quality was in the southeast area of the Landfill and this outward migration has been stopped. 9) Environmental Integrity Project Statement (pg. 42): In 2004, Andrews Engineering submitted to IEPA, on behalf of Midwest Generation, a propos ed “assessment monitoring program” to address confirmed exceedances of several pollutants. This submittal also clearly acknowledged that inward gradient was not being maintained at the Landfill’s Main Quarry. Clarification: In this 2004 submission, indicat ions of a loss of inward gradient were referring only to the south side of the Quarry facility as a result of unrelated dewatering operations occurring at the Laraway Quarry located approximately 1,000 feet southeast of the Quarry. As

noted in item 6 above , this limited loss of the inward gradient has been stopped. The inward gradient from the east side of the facility has historically been, and is currently being, maintained. Natural groundwater flow to the north and west is in compliance with the terms of the Adjusted Standard. 10) Environmental Integrity Project Statement (pg. 42): Midwest Generation’s February 15, 2005 submittal (Log No. 2005

- 058) acknowledged that the Des Plaines River is a “major area of discharge for the Silurian dolomite aquifer” and identified elevated concentrations of pollutants associated with the CCW Landfill operations in the groundwater monitoring wells located along

the River. Clarification: The Des Plaines River is a major discharge point for the Silurian dolomite on a region al basis, not just in the vicinity of the Quarry. This is not a unique situation as the EIP seems to suggest. As noted in the response to item 4 above, the Adjusted Standard for the Quarry allows for discharge of a small quantity of leachate through the Si lurian dolomite aquifer to the Des Plaines River that is not captured by the gravity flow system. The constituent concentrations in the groundwater have historically had no discernible effect on water quality in the Des Plaines

River. It is noted that if t his small volume of leachate was captured by the gravity flow system, it would still eventually be discharged to the River via NPDES permitted outfall No. 005. A more detailed discussion of this part of the Adjusted Standard is provided in item 4 above.

11 ) Environmental Integrity Project Statement (pg. 42): The October 13, 2005 Significant Modification Application (Log No. 2005

- 413) concluded that “current water levels in the Main Quarry and the shallow monitoring wells indicate that there is an outward gr adient from the Main Quarry such that groundwater movement is to the south, west and north.” Midwest Generation’s consultants, KPRG, confirmed to IEPA on February 22, 2006 that water level measurements in all of the existing monitoring well locations aroun d the perimeter of the CCW landfill demonstrated a loss of hydraulic gradient at the landfill. This submittal stated that “evaluations are also being performed relative to potential corrective measures which may be implemented” to address the loss of hydra ulic gradient. Clarification: The first part of this statement is correct as it states that there is an outward gradient from the Main Quarry to the south, west and north. However, the existence of an503

outward gradient to the west and north is compliant wit h the terms of the Adjusted Standard and the Quarry’s Permit, as already explained. The outward gradient to the west and north is part of the natural flow system that is to be maintained for the facility and is in accordance with the Adjusted Standard. The outward gradient to the south is the result of unrelated dewatering operations occurring at the Laraway Quarry located approximately 1,000 feet southeast of the Quarry. The second part of this statement is worded in a manner that suggests a loss of hydrau lic gradient on all sides of the Quarry. This is not true. At no time was there an indication of loss of hydraulic gradient to the east. Based on all available data and information, groundwater has been, and is currently flowing under natural conditions, f rom the east to the west (i.e., into and not out of the Quarry). The last part of this statement is also correct. Midwest Generation performed a series of engineering evaluations to determine the best course of action to address the loss of hydraulic gradi ent to the south. As noted in the response to item 6 above, the outward flow to the southeast has been stopped by the installation of a groundwater extraction wells system. . 12) Environmental Integrity Project Statement (pg. 42

- 43): In April 2006, Midwest Energy conducted sampling of 18 private wells on Brandon Road along the east side of the landfill and south to Laraway Road about 4,000 feet south of the southeast corner of the landfill. Only boron (and no other ash

- related contaminants) was analyzed in the samples. The results were reported to the residents in May 2006 (Arcadis, 2006). Concentrations of boron in two wells exceeded 1.0 mg/L, with a maximum being 1.5 mg/L

– far above the natural background concentration, which has been identified by Midwes t Generation’s consultant to be around 0.3 mg/L in the local carbonate rocks in the vicinity of the Quarry (KPRG, 2008a). Boron concentrations in six other wells ranged between 0.33 to 0.71 mg/L, also above natural background concentrations. Assuming that the wells with elevated boron are from residents closest to the CCW Landfill, it appears that the groundwater quality has been degraded in wells possibly up to 1,000 feet south of the Landfill. The results of this sampling led Midwest Generation to either buy out or drill deeper wells for the residents south of the Landfill. Nothing has been done to systematically sample private wells in the Smiley neighborhood northeast of the Landfill despite the fact that, as discussed in the next bullet, groundwater mod eling indicates migration of contaminants in that direction as well (Thompson, 2010).

Corrections and Clarifications: Correction of Purpose of the Residential Well Sampling Program: Midwest Generation offered to replace the residential wells without regard to what the sampling results from the subject residential wells showed. Both the offer to replace the wells and the offer to sample them were made to these residents as part this effort. The decision to offer to replace these wells was made

without knowle dge of what the sampling results would show. The available information prior to the residential well sampling, such as the groundwater monitoring and modeling data, indicated that these wells were not being affected by the Quarry landfill. Contrary to EIP’ s assertions, the sampling was not for the purpose of determining whether the residential wells were affected and therefore should be replaced. The purpose was to gather evidence that directly confirmed or refuted what the other available data showed, name ly that these residential wells had not been impacted by any Quarry operations. It also served the goal of “transparency” with the residents. Midwest Generation conducted this sampling to confirm to the residents that its landfill had not impacted their we lls and that the well replacement Midwest Generation was offering was a voluntary choice that each resident could either decide to make or refuse. As further explained below, the sampling results did confirm that none of these wells were being affected by the504

Quarry Landfill operations. None of these facts are disclosed in the EIP “In Harm’s Way” publication. These sampling results are persuasive, direct evidence that dispels the EIP’s false accusations that the residential wells had been impacted by the Qu arry. As previously noted, Midwest Generation did not offer to, nor did it “buy out” any of the residents. Clarification of Selection of Boron as Sampling Parameter for Residential Wells: As part of that well replacement program, Midwest Generation impleme nted a boron and boron isotope sampling program for the noted 18 wells south of the facility. Boron was chosen as an indicator of potential Main Quarry water impacts due to its conservative nature in the environment, which

means that of all the constituent s that may be associated with an ash landfill, boron has the ability to move uninhibited through the groundwater system and thus, it is the parameter that is reasonably expected to be the first indication of off

- site migration of groundwater. One of many

l iterature references for the applicability of the use of boron as a conservative tracer compound was provided under Item 4 above. This information concerning boron’s ability to “out run” other

ash

- related constituents in groundwater is not acknowledged any where in the EIP’s publication. It is a commonly known, established fact in the scientific literature as well as among persons knowledgeable about ash constituents and their ability to migrate in groundwater. Although less well known, but also available in the relevant literature, the boron isotope analytical method is a means to identify whether or not boron detected in groundwater is associated with natural or anthropogenic sources such as coal ash [Footnote 10: Ruhl, L.A., Dwyer, G.S., 2009. Boron and

St rontium Isotope Proxies for Tracing Environmental Impact of the TVA Coal Ash Spill, Kingston, TN. Geologic Society of America Annual Meeting, Portland, October 18

- 21. Abstracts with Programs, 41(7), 334.]. Boron has two naturally occurring stable isotopes, 11B (80.1%) and 10B (19.9%). 11B is the dominant isotope of boron and the average 11B/10B in nature is approximately 4.0. Boron isotope data can be reported as the 11B/10B ratio or in d (delta) notation in units of ‰ (per mil) relative to National Institu te of Standards and Technology (NIST) standard NIST SRM 951. Negative delta values indicate that there is less 11B in the sample than in the standard. Positive delta values indicate that there is more 11B in the sample than in the standard. Water samples w ere collected from the residential wells for boron isotope analysis as well as a sample of Main Quarry leachate. Based on a comparison of the isotope ratios from the residential wells to that of the Main Quarry leachate, it was concluded that the

boron det ected within residential wells did not originate from the Quarry. Because Midwest Generation’s purpose in sampling the residential wells was to show the residents with direct evidence that they had not been affected by the Quarry’s operations, it was not n ecessary to identify other potential sources of boron in the groundwater sampled. However, because boron is a constituent that does naturally occur in groundwater or due to other causes, Midwest Generation needed to conduct the boron isotope testing in ant icipation of the fact that boron would likely be detected and if so, the question of whether it was coming from the Quarry landfill would need to be answered. The boron isotope results provided the answer to this question for those wells in which boron was detected. There was no need to include testing of other parameters in the residential well sampling that Midwest Generation conducted. Correction of the Boron Sampling Results: First, the EIP does not mention that all of the boron

results were well below the AGQS for boron of 5,924.16 ug/L that applies to the Quarry landfill. Second, the boron results were all well below the Illinois Class I Groundwater standard for boron. Again, this is not mentioned by the EIP. Third, the boron isotope results showed tha t any boron detections in those residential wells were not associated with boron that may have originated from the Quarry facility (i.e., the isotopes analyses indicated a different source of505

boron). Correction of the Alleged Boron Natural Concentration of 0.3 mg/L: The EIP’s treatment of the issue of the natural concentration of boron that would occur in the groundwater in the vicinity of the Quarry landfill is another clear example of how it twists and misuses available information. For purposes of contam inant transport evaluations conducted by Midwest Generation’s consultants, it was necessary to use a boron background concentration as an input to the model being used for this evaluation. This model input value is the source of the EIP’s 0.3 mg/L alleged boron background value. The boron value used for modeling purposes is an estimated value. As EIP scientists should be aware, such background concentration values are an estimated average from a larger data set. The noted background value was obtained from the Illinois State Geologic Survey (ISGS) Will County Water Quality Database for wells screened within the Silurian dolomite. A total of 689 data points for boron were available. The boron concentrations from these samples ranged from not detected to 2.88 mg/L. The mean (average) of the data was 0.34 mg/L with a median of 0.23 mg/L. 15% of the detections were in excess of 0.90 mg/L. The residential well sampling results were not “above background concentrations.” All of the boron

detections in the residenti al wells were well within the overall range of the Will County boron dataset used for identifying a general background value for modeling purposes, with the highest boron value in the residential wells being 1.5 mg/L compared to the background dataset’s hi ghest value of 2.88 mg/L. Correction of EIP’s Smiley Subdivision Speculation: There is certainly no threat of any potential impact to the Smiley Subdivision residential wells caused by the Quarry Landfill. The IEPA has gathered direct evidence of the absen ce of any threat or impact to these residential wells in 2009 through the collection of water samples from multiple residential wells within the Smiley Subdivision as close as 300 feet from the Quarry facility. The results of the sampling showed no

contami nation in these wells. This data is available in the public records and was conveniently ignored by EIP. Further, groundwater modeling performed for past and current conditions does not indicate any loss of gradient or migration of constituents to the east /northeast toward the Smiley neighborhood. This is supported by available field data for water level measurements from monitoring wells surrounding the Quarry facility. As discussed in the next response, groundwater model runs were made under a potential f uture scenario if the former owners of Boyd’s Quarry (a.k.a., Brandon Road Quarry) were allowed by IEPA to dewater their quarry for subsequent use as a construction debris landfill. Under those potential future conditions modeling suggested that there may be a loss of gradient to the east/northeast potentially resulting in migration of Quarry constituents in that direction. It is for this reason that Midwest Generation proactively approached the IEPA Bureau of Water to make the results of this modeling avai lable to the Agency and to request that the pending permit application for dewatering of the Boyd’s Quarry be thoroughly considered with this information in hand. Midwest Generation submitted that the issuance of an NPDES permit that allowed the dewatering of Boyd’s Quarry would not be consistent with applicable Illinois law. Midwest Generation also requested that if the IEPA disagreed and decided the NPDES permit should be issued, then Midwest Generation should be allowed the opportunity to institute preca utionary measures to prevent the loss of the inward gradient that might result from a dewatering of Boyd’s Quarry. The IEPA encouraged Midwest

Generation to find a resolution of the matter. Midwest Generation resolved the matter in the most timely and prot ective way possible

– it bought Boyd’s Quarry. Midwest Generation, as the new owner of Boyd’s Quarry, has no plans to dewater it.506

It is unfortunate that EIP apparently relied on speculative, hearsay from a local activist resident and presented it as fact i n its publication. There is no indication in the EIP’s “In Harm’s Way” document that it performed any investigation to attempt to confirm the accuracy of this unsupported accusation. 13) Environmental Integrity Project Statement (pg. 43): In response to co ncerns that dewatering of the Brandon Road/Boyd Quarry east of the landfill would cause contaminants to migrate toward the residential area, groundwater modeling found that a boron contaminant plume with concentrations greater than 2.0 mg/L (Illinois Class I Groundwater Standard) would discharge into the dewatered Quarry within 5 years, and that the 1.0 mg/L isoconcentration line for boron would extend for more than 1,000 feet into the Smiley residential area to the northeast (KPRG, 2008c). The Annual Groun dwater Flow Evaluations submitted by KPRG to IEPA for Midwest Generation CCW Landfill for 2006 to 2008 confirm a change in direction of groundwater flow at the Landfill and concede that the change in direction of groundwater flow “is also a change from

the conditions that existed at the time of the adjusted standard for the facility” (Driver, 2009). Correction and Clarification: There is no contamination moving from the Quarry facility to the Smiley neighborhood to the northeast. Midwest Generation did have concerns that the proposed dewatering of Boyd’s Quarry, if it were allowed to occur, would change the direction of groundwater flow in the vicinity of the Quarry Landfill. Midwest Generation proactively voiced

those concerns both to the IEPA and to local citizens at the community Baptist church within the Smiley subdivision in a meeting to discuss this issue. However, as noted above, Midwest Generation eliminated the possibility that its concerns could become a reality by purchasing Boyd’s Quarry. EIP’s tw isted description of the relevant facts never discusses the fact that this potential future scenario never came to be, that Midwest Generation timely disclosed its concerns to both the community and the IEPA, and that Midwest Generation prevented the issue from ever becoming a reality. Similarly, the EIP twists the truth of the contents of the referenced Annual Groundwater Flow Evaluations. Those evaluations addressed an entirely different change in direction of groundwater flow beneath the Quarry facility that is unrelated to and has no possible effect upon the Smiley Subdivision residents. The referenced change from the groundwater flow conditions that existed at the time of the Adjusted Standard for the facility was describing the flow conditions along th e south side of the Quarry landfill due to unrelated dewatering activities associated with the Laraway Quarry located approximately 1,000 feet southeast of Quarry. The same Annual Evaluations also clearly stated and demonstrated that the inward gradient fr om the east of the Quarry facility remained intact and that there is no movement of groundwater from the Quarry to the east/northeast. The EIP improperly chose to present this information in a distorted manner to wrongly imply that it is related to the flo w of groundwater to the

east/northeast. 14) Environmental Integrity Project Statement (pg. 43): KPRG’s 2007 Annual Report for the Landfill, submitted on behalf of Midwest Generation, showed high concentrations of arsenic, boron and molybdenum and pH above applicable groundwater quality standards in well G47S...and well G48S...IEPA’s applicable groundwater quality standards (AGQSs) for the first quarter 2008 were exceeded for eight dissolved parameters (arsenic, boron, molybdenum, ammonia, chloride, sodium and f luoride), and concentrations of total copper and nitrate exceeded the AGQS (KPRG, 2008c). Clarification: As noted above, this statement identifies groundwater monitoring results from on

site wells G47S and G48S located at the southeast side of the Quarry f acility. Please see507

discussion under item 6 above. 15) Environmental Integrity Project Statement (pg. 43

- 44): On August 31, 2009, IEPA issued a Notice of Violation (NOV) to Midwest Generation for “failure to operate a leachate collection and management sys tem that assures protection of Class I potable resource groundwater” (IEPA, 2009a). The NOV cited exceedances of AGQS between July 14 to August 31, 2009 at the site as summarized below: [The statement proceeds with 8 bullet items summarizing various

exceed ances]. Correction: This statement is false. Neither the described NOV nor any other NOV was ever issued to Midwest Generation by IEPA. As stated by Mr. Rick Cobb, IEPA Bureau of Water, in an August 27, 2010 Herald News newspaper article, the draft notice was developed based on a hypothetical set of future conditions that never occurred. The hypothetical conditions were associated with the potential dewatering of Boyd’s Quarry east of the Quarry. Because these conditions never occurred, the NOV was never fi nalized or issued. As Mr. Cobb told the Herald News: “The whole thing became moot”. Because EIP also mischaracterizes the contents of the draft NOV, the following additional errors in its description are also noted and corrected: · EIP Bullet (pg 43): Ten wells were identified where AGQS violations were found, including “upgradient” G38S, four wells within zone of attenuation (G30S, R08S, G47S, G48S) and five compliance wells (G31S&D, G41S&D, G42D). Of these wells, G38S, G47S and G48S and five compliance we lls are from 150 to 200 feet beyond the edge of the landfill and are called off

- site

wells in the discussion below. Correction: Wells G47S, G48S and all five compliance wells are “on site” wells (i.e., on Midwest Generation property), not off

- site wells as EIP claims. The only off

- site well EIP references is G38S. The only parameter that was detected above the AGQS at this well location during the July 14 through August 31, 2009 timeframe was total nitrate. This well is within an actively cultivated farm fi eld. Nitrates are a standard component of fertilizers and other agricultural amendments routinely applied to farm fields. There were no AGQS exceedances of other typical CCW constituents such as boron, arsenic and molybdenum. In fact, arsenic was not

detec ted and molybdenum was at 21 ug/L, which is lower than even the unpromulgated advisory level of 40 ug/L. · EIP Bullet (pg. 43): There were a total of 50 exceedances for individual monitoring parameters.
Correction: The EIP’s statement that there were 50 ex ceedances is misleading as it combines

both the initial and confirmation re

- sampling (duplicative samples) performed each quarter, in order to double the number of alleged exceedances from a single quarterly sampling event. Therefore, the maximum number of potential exceedances that could have been alleged is 25. Of the remaining 25, four would not have been “exceedances of groundwater quality standards” because they are surface water sampling results for which groundwater standards (or AGQSs) are not appli cable. Of the remaining 21 “exceedances,” 15 would have been for parameters which have a site specific AGQS set below (i.e., more rigorous and conservative than) the Illinois Class I groundwater standard as discussed under item 1 above. Of the remaining si x exceedances, five would have been from wells G47S and G48S located along the southeast boundary of the facility. Both of these wells are “on

- site” wells and not off

- site wells, as EIP wrongly contends. Exceeding an AGQS in an on

- site well is not a permit violation. Midwest Generation has installed groundwater control wells in the southeast area of the landfill to prevent further outward migration of any effected groundwater (see further discussion in Item 6 above).

The last of the noted exceedances would have been for well A08S for boron. This well is located508

north of the Quarry and within the zone of attenuation. There were no boron exceedances further downgradient to the north within the zone of compliance. · EIP Bullet (pg 44): Exceedances of boron were in southeast wells G47S and G48S, but also in G46S and R08, indicating that contamination is also migrating to the south and west from the

Landfill.

Correction: The on

- site boron exceedances in wells G47S and G48S located along the east portion of the sou th perimeter have been addressed as noted above (see Item 6). The EIP statements regarding well G46S monitoring results are false. There have been no confirmed AGQS exceedances in well G46S either during the noted July 14 through August 31, 2009 time

frame , prior to that time frame or during any monitoring since that timeframe through the third quarter of 2010 (most recent complete sampling as of this rebuttal). Well R08S is located north of the Quarry facility and is within the zone of attenuation. This we ll has historically indicated elevated levels of boron above the AGQS, however, compliance wells further downgradient of this location have not had any boron AGQS exceedances. The movement of some leachate through the groundwater system to the north (and w est for that matter) is in accordance with the Adjusted Standard for the site as discussed in item 7 above. Relative to the statement that contamination is moving to the west of the site, none of the wells identified are west of the Quarry facility. Well c luster G44S/G44D is located west of the facility. These wells did not indicate any exceedances. This is yet another false statement by the EIP. · EIP Bullet (pg. 44): Discharge from NPDES Outfall S501 also violated the AGQS for barium (0.36 mg/L, AGQS 0.07 5), copper (0.03 mg/L, AGQS 0.02 mg/L) and dissolved nitrate (3.4 mg/L, AGQS 2.43 mg/L). Correction: Sampling point S501 is a surface water sample collected from the North Quarry settling pond. It is neither a NPDES outfall sampling point nor is it a groun dwater monitoring point for which the AGQSs are applied. Sampling of the actual NPDES Outfall No. 005 for the Quarry facility did not indicate any discharge permit exceedances. It is also noted that the three identified compounds of barium, copper and diss olved nitrate have the AGQSs set below either federal MCLs or IEPA Class I drinking water standards. These are:

- Barium: MCL and IEPA Class I

– 2.0 mg/L

- Copper: MCL

– 1.3 mg/L, IEPA Class I

– 0.650 mg/L

- Dissolved Nitrate: MCL

– none, IEPA Class I

– 10 mg /L The noted detections in the surface water of the North Quarry are substantially below these

standards. 16) Environmental Integrity Project Statement (pg. 44): The current NPDES permit, issued by IEPA for the CCW Landfill in 2009, identifies Outfall No. 5 as “Quarry (ash pond) discharge”. Despite the extensive documentation of contamination of groundwater by ash constituents, and the fact that surface water discharges are mostly water that has been in contact with the ash that is slurried to the landfill, IEPA requires only testing of pH and total suspended solids. The latest IEPA Inspection Report indicates that Midwest Generation is in compliance with the permit (IEPA 2009a). The limited data contained in this report indicates that from January 2008 to M ay 2009, pH exceeded the AGQS (6.14 to 8.56) in 7 of the 17 sampling events (maximum pH of 8.8). As noted above, apparently separate sampling related to the Groundwater NOV found exceedances of the AGQSs for barium, copper, and nitrate at the No. 5 Outfall

. Correction: Total suspended solids (TSS), pH and oil and grease are required routine indicator parameters for NPDES Outfall No. 005 discharge monitoring in accordance with the permit. However, as is required for all NPDES permit applications in order to obtain the permit, an509

expanded list of parameters was analyzed for in the influent North Quarry water before its discharge to the Des Plaines River. These analytical results were submitted to IEPA as part of the Midwest Generation discharge permit applicat ion. They are part of the public record for the Midwest Generation NPDES Permit and would have been available for review by the EIP with any Freedom of Information Act request. Based on EIP’s unsubstantiated allegation, it is not currently known whether th e EIP reviewed this information. For the subject Outfall No. 005 discharge, this list included the following 36 parameters: TSS, pH, color, fluoride, nitrate

- nitrite, total nitrogen, oil and grease, phosphorous, sulfate, sulfide, surfactants, aluminum, bar ium, boron, cobalt, iron, magnesium, molybdenum, manganese, tin, titanium, antimony, arsenic, beryllium, cadmium, chromium, copper, lead, mercury, nickel, selenium, silver, thallium, zinc, cyanide and phenols. This expanded list must also be analyzed for w ith permit renewal applications. Based on the levels of these 36 parameters in the influent to Outfall No. 005, IEPA determined that monitoring requirements for TSS, pH and oil and grease was necessary. The EIP does not identify any basis for its opinion t hat the monitoring requirements for Discharge No. 5 are inadequate. The noted EIP document reference to IEPA 2009a as an “Inspection Report” is wrong. This “IEPA 2009a” reference is the draft NOV which was never issued (the correct internal document

refere nce probably should be IEPA 2009b). The EIP also either intentionally or carelessly makes another mistake. It takes a groundwater standard, the AGQS for pH of 8.8, which does not apply to surface water discharges like the Outfall No. 005 discharge, and app lies it to the Outfall No. 005 discharge. This is the basis of the EIP’s false accusation that IEPA issued an inspection report that indicated that the facility was in compliance when there were allegedly exceedances of pH limits. As EIP should be aware if it reviewed the NPDES permit for Outfall No. 005, the applicable pH limits for the Outfall No. 005 discharge is 6.0 to 9.0, which is the pH limit typically contained in Illinois discharge permits to protect surface waters. The monitored discharge from Out fall No. 005 was consistently within these limits. The EIP put forth no explanation, nor could it, for why it ignored the applicable pH discharge limit and instead used the inapplicable AGQS standard for groundwater in order to create its false claim that the surface water discharge violated pH limits. Please also see further discussion under item 15 above. In addition, besides the fact that an NOV was never issued by IEPA, the EIP’s contention that “apparently separate sampling related to the groundwater N OV found exceedances of the AGQSs for barium, copper, and nitrate at the No. 5 Outfall” makes absolutely no sense and is pure speculation. No proof is provided of any such “separate sampling” of the NPDES outfall related to the alleged NOV and Midwest Gene ration is not aware of any such sampling being conducted. The sampling and analytical data submitted with Midwest Generation’s discharge permit application shows that there are no exceedances of applicable effluent and water quality

standards associated wi th the Outfall No. 5 discharge. 2.2.3 Regulatory Action 17) Environmental Integrity Project Statement (pg. 44): The operating permit for the Landfill has gone through a complex series of modifications since 1994 related to groundwater at the site,

with add itions and removals of monitoring wells and parameters monitored. The latest Significant Modification of the Landfill operating permit was submitted in 2006 (KPRG, 2006) and approved in 2007 (IEPA, 2007). Correction: First, it is important to understand th e nature and intent of a Significant Modification to Permit. This term should not be misconstrued to imply that something negative has occurred which requires a permit modification, which appears to be the EIP’s intent. An Application for510

Significant Modif

ication to Permit is a regulatory requirement for submittal and IEPA approval whenever there is a proposed change in the operation of the facility that is not specifically accounted for in the facility’s operating permit. For example, when Midwest Generati on identified a beneficial reuse for ash that required the removal of that material from the landfill, this was a significant change in the operation of the landfill, albeit a positive change, and the operator (Midwest Generation) was required to apply for and obtain a Significant Modification to the Permit prior to being able to initiate the recycling operation. The noted permit modification is not the latest modification as stated by EIP. There have been several approved Significant Modifications since th e one noted above. Specifically, these are: · Application for Significant Modification to Permit dated October 10, 2007 and approved by IEPA as Permit Modification 11 on July 21, 2008. This modification was for the removal of up to 40,000 tons of ash annua lly from the northwest corner of the Main Quarry for beneficial reuse in sand blasting and asphalt shingles. · Application for Significant Modification to Permit dated September 2, 2009 and approved by IEPA as permit Modification 12 on December 1, 2009. Th is modification was for the installation/implementation of a corrective action to address the loss of hydraulic gradient and potential migration of Quarry water to the south/southeast of the facility. · Application for Significant Modification to Permit da ted April 6, 2010 and approved by IEPA as permit Modification No. 13 on July 1, 2010. This modification was for a minor schedule

extension for off

- site well installations due to property access issues.

At least the first two documents noted above should ha ve been available to EIP at the time of its alleged IEPA files review. Perhaps because these modifications and associated actions are positive and proactive measures being taken by Midwest Generation, they have been ignored by EIP because they contradict t he negative statements in its publication. 18) Environmental Integrity Project Statement (pg. 44

- 45): The groundwater monitoring program ...A “G2” list of parameters that must be sampled annually includes: barium, copper, iron, lead, mercury, and nitrate (un filtered total concentration). The request in the latest Significant Permit Modification (KPRG, 2006) to eliminate ten parameters from the G2 list (dissolved antimony, beryllium, chromium, cobalt, cyanide, iron, lead, mercury, nickel, and thallium) was app roved by IEPA (IEPA, 2007). Clarification and Correction: While the referenced Significant Modification to Permit is not the “latest”, it is true that Midwest Generation requested the noted parameters to be removed from the annual monitoring G2 list. In Se ction X. Groundwater Monitoring Program, Condition 13, List G2, Note iii of the operating permit, there is a provision to re

- evaluate the appropriateness of the G2 list of parameters being monitored at the site. Specifically, this permit item states that i f after five years of monitoring for an inorganic constituent listed in List G2, there has been no statistically significant increase above the AGQS, the operator may propose to discontinue monitoring for that constituent as a permit modification. EIP does not acknowledge that this permit provision provides the basis for the request to remove the subject parameters. The List G2 annual groundwater monitoring data through 2005 (the Application for Significant Modification to Permit was dated May, 2006) shows that there were a number of parameters that had not shown a statistically significant increase above the AGQS for at least the last 5 years of monitoring. Specifically, these parameters were antimony, beryllium, chromium, cobalt, cyanide (total and dissolv ed), iron (total and dissolved), lead (total and dissolved), mercury (total and dissolved), nickel and thallium. In fact, antimony, beryllium, chromium, cobalt, cyanide, mercury and thallium were generally not detected at all. A detailed description of thi s extensive511

period of monitoring data for each parameter was provided in the document EIP referenced. IEPA’s approval of the permit modification on January 31, 2007 (Modification No. 10) approved the removal of some of the requested parameters, not all of them as stated incorrectly by EIP. Iron, lead and mercury were not approved for removal from List G2 monitoring and continue to

be monitored on a routine basis. 19) Environmental Integrity Project Statement (pg. 45): A review of the AGQSs, as defined in

th e latest significant permit modification approval, indicates that the modified standards for boron, cadmium, manganese, molybdenum, and selenium for the landfill are significantly higher

than either Illinois Class I Groundwater Standards or other health

- ba sed water quality standards (IEPA, 2007). [The statement proceeds with 5 bullet items summarizing AGQS values relative to other standards]. Clarification: See explanation of how the AGQS is determined, using background groundwater information, and the char t comparing the AGQS to Class I Groundwater Standards in Item 1 above. To the extent that the EIP is apparently also contending that the AGQS groundwater standards should be as strict as the Illinois surface water quality standards, this is a contention

th at goes well beyond the scope of the compliance status of the Quarry landfill and which is not a position that either the IEPA nor the U.S. EPA has supported. 20) Environmental Integrity Project Statement (pg. 45): A consequence of the IPCB’s AS for ground water, combined with the AGQSs that have been set, is that groundwater with significant

concentrations of toxic metals can move off

- site and be in compliance with the terms of the current Landfill operating permit. Correction: EIP has not provided any evid ence that shows movement of metals off

- site at significant concentrations, let alone at any concentrations that would be toxic to the public. EIP’s statement that such groundwater would be allowed to move off

- site and be in compliance with the Quarry landf

ill permit is wrong. For groundwater flows to the north and west, as established and discussed above under item 7, the Adjusted Standard allows for the movement of groundwater under natural flow conditions from the Quarry to the north and west with eventua l discharge to the Des Plaines River at levels so low that their effect, if any, is indiscernible. There is absolutely no way that anyone could ever be exposed to any significant concentrations of

metals in this direction because there are no residential w ells or any other potable wells present between the landfill and the point of eventual discharge to the Des Plaines River. There are no

residential wells located within a one

- mile radius to the west or north of the Quarry facility. Applicable standards mus t be met at the point of compliance prior to discharge to the River either via groundwater or through the permitted NPDES outfall. In addition, the AS does not allow for the movement of potentially affected groundwater to the south or east. The corrective action work which Midwest Generation has done to stop outward migration of groundwater to the southeast, as discussed in item 6 above, demonstrates that the permit’s requirements are effective in protecting the environment and the public health. 21) Enviro nmental Integrity Project Statement (pg. 45): Despite evidence that groundwater contamination at the Landfill has repeatedly exceeded even the relaxed AGQSs that have been allowed by IEPA, no significant enforcement action was taken until a Notice of Viola tion dated August 31, 2009 was issued. The details of the NOV are summarized in the Test of Proof

section. Correction: This statement is false. The descriptions of the exceedances, the AGQSs, the NOV’s alleged issuance and the need for any enforcement acti on are all inaccurate. Please see detailed

discussions under items 3 and 15 above. .512

22) Environmental Integrity Project Statement (pg. 45): The IEPA Ash Impoundment Assessment identifies the Lincoln Quarry Ash Landfill as having an IPCB Groundwater Manage ment Zone (GMZ) designation (IEPA, 2009c). Such a designation has the potential for allowing off

- site contamination of groundwater within a designated zone. However, according to IEPA internal communications there is no GMZ at the site (EPA, 2010). The onl y information available as part of the voluminous material eventually received in response to FOIA requests for information about the Joliet 9 ash disposal site that would indicate that a GMZ is even being considered is a June 2009 map prepared by KPRG sho wing proposed locations of initial GMZ monitoring wells. Clarification: Relative to the first part of this statement, not being privy to the internal IEPA communications referenced (Midwest Generation performed a detailed FOIA file review on September 15, 2010 and these documents were not in the files made available), it appears that there may be confusion between the Zone of Attenuation established under the Illinois Pollution Control Board approved Adjusted Standard and a GMZ. Relative to the second part of the statement, the eventual establishment of an interim GMZ is part of the overall approved corrective action being implemented by Midwest Generation for the southeast corner of the Quarry facility. Work to adequately define the interim GMZ is ongoing. 2.2.4 Hydrogeologic Conditions 23) Environmental Integrity Project Statement (pg. 46): Consultants for Midwest Generation have developed a nine

- layer model three dimensional groundwater flow model for the site (KPRG, 2008b), details of which have been ques tioned by consultants for Brandon Road Properties (owners of the old Quarry east of the ash landfill) (C&E, 2008). Clarification: In response to the C&E questions, KPRG provided to IEPA, on behalf of Midwest Generation, a Technical Memorandum dated Novembe r 12, 2008 documenting the numerical groundwater flow model along with a diskette that included a working copy of the model along with various calibration runs and supporting backup. It is our understanding that C&E was provided with this information (incl uding the diskette with the flow model for their evaluation) two times as apparently C&E misplaced the first copy that was provided to them. In addition, a second submittal was provided to IEPA dated January 30, 2009 which addressed each individual

item in the above referenced C&E letter. To our knowledge, C&E did not review the submitted model, associated backup and answers to their initial questions. C&E also did not provide any technical backup or discussions regarding the basis for the questions associa ted with the modeling effort. 24) Environmental Integrity Project Statement (pg. 46): A proposal by Brandon Road Properties (BRP), LLC to dewater an inactive Quarry immediately east of the Lincoln Quarry Ash Landfill (referred to in documents variously as the BRP, Boyd, and former De Be Land Quarry) raised concerns that groundwater would also begin to flow east to this Quarry and northeast toward a residential area. This concern led IEPA to deny BRP’s application for an NPDES permit, a

denial that BRP has c ontested (Driver, 2009). Even without dewatering of the BRP Quarry, there is evidence that contamination is moving to the northeast into the Smiley subdivision, probably as a result of residential well usage.

Clarification and Correction: The unidentified source of the referenced “concerns” that were expressed about a change in groundwater flow direction that might arise from a dewatering of Boyd’s Quarry was Midwest Generation. Midwest Generation was the party who brought these

concerns to the attention of IEPA, BRP and to the community and proposed alternatives to prevent any such risk from occurring. EIP doesn’t reveal this fact because it would undermine its513

attempt to characterize Midwest Generation as an “unconcerned” landfill operator. But more import antly, EIP also does not identify any information to support its allegation that even without the dewatering of Boyd’s Quarry, contamination is moving to the northeast into the Smiley Subdivision because none exists. This allegation is unsubstantiated by a ny information or data provided in the EIP report. Relevant site data and direct sampling of Smiley Subdivision residential wells shows that contamination is not moving to the northeast towards the Smiley Subdivision. Groundwater modeling performed for pas t and current conditions does not indicate any loss of gradient or migration of constituents to the east/northeast toward the Smiley neighborhood. Standard residential well usage does not affect this conclusion. This is also supported by available field da ta of water level measurements from monitoring wells surrounding the Quarry facility. Finally, IEPA has collected water samples from multiple residential wells within the Smiley subdivision in 2009 as close as 300 feet from the Quarry facility. The results of the IEPA’s residential well sampling did not indicate any contamination in

these wells. 2.2.5 “At Risk Population” 25) Environmental Integrity Project Statement (pg. 46): There are 94 wells used for drinking

water within a one

- mile radius of the Landfi ll (IEPA, 2009c). An unincorporated area lies northeast of the landfill, a few private residences lie to the south. Private and public well data for the state of Illinois is maintained on a county by county basis via online database operated by the

Illinoi s State Water Survey. Plotting the wells from this database on a map is nearly impossible for the reason that instead of each well being assigned an exact x and y location (Latitude and Longitude), the exact position of the well falls in a one

- to five

- mil e area of a square that is arranged by section, township, and range. It is unknown how many wells are downgradient of the

site. Clarification and Correction: The Illinois State Water Survey database for residential wells is organized in a manner that makes it difficult to plot the well locations on a map. However, there are other ways to identify downgradient drinking water wells in the vicinity of a landfill. Proper due diligence and scientific rigor should include at least a windshield survey of the area and a thorough understanding of local groundwater flow conditions. These same suggestions are contained in an IEPA Fact Sheet for evaluating and identifying potential groundwater receptors

for a site. A windshield survey of the area indicates that resident ial wells within a one

- mile radius of the Quarry are located to the northeast and south/southeast of the facility. There are no residential

wells located within a one

- mile radius to the west or north of the Quarry facility

– which is the downgradient direc tion. Therefore, it is known how many potential residential wells are currently

within one

- mile downgradient of the Quarry facility that obtain potable water from the Silurian dolomite (shallow aquifer). The answer is none

.

Response: See response to comment excerpt EPA

- HQ

- RCRA

- 2009

- 0640

- 08244

- 19.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08255

- 9 

### Organization 1 

### : LG&E and KU Energy LLC


### Commenter 1 : Robert J. Ehrler on behalf of Dorothy E. O'Brien Commenter Type: Electric Utility Company

Classification: Subs tantive514



### Comment Excerpt Text:

VII. The August 26, 2010 Report By Environmental Integrity Project and Earth Justice Fails to Demonstrate That LG&E’s Mill Creek Plant Is a “Damage Case.”

The Environmental Integrity Project and Earth Justice submitted a report dated August 26, 2010 entitled “In Harm’s Way” alleging that various coal

- fired power plants including LG&E’s Mill Creek plant constitute “damage cases” that should be considered by E PA. In response to EPA’s reference to the “report of additional damage cases,” we provide the following with respect to the Mill Creek site. Groundwater monitoring conducted by LG&E at Mill Creek has not identified an exceedance of a primary MCL at any off

- site location. Furthermore, there is no significant potential for adverse impacts on local water supplies. Groundwater flow for the location is in the direction of the river and there are no residential wells (or non

- company owned properties)

between the plant and the river. All local households are connected to public water supplies. The report cites arsenic values from on

- site wells which are not indicative of any off

- site impacts and which, in any event, would be indiscernible in terms of effect on the adjacent Ohio River (which is a large river with high flow volumes).

The Kentucky Department for Environmental Protection has reviewed the available groundwater data and concluded that it does not indicate that CCR management at the Mill Creek plant pose s any significant risk to public health or the environment. See Kentucky Comments, p. 30. Indeed, the Department characterizes the report’s assessment of off

- site impacts as “conjecture without sampling and long term trend analysis.” Kentucky Comments, p. 30. In short, available information including the results of groundwater monitoring conducted at the site since 1982 simply does not support the allegation that LG&E’s Mill Creek plant constitutes a “damage case” representing environmental damage resulting from improper management of CCRs.

Response: For a discussion of LG&E’s Mill Creek plant site and the rationale for designating it as a potential damage case, see the technical support document to damage cases in the docket of

the final rule.



### Comment Nu mber: EPA

- HQ

- RCRA

- 2009

- 0640

- 08288

- 20 

### Organization 1 

### : Oklahoma Department of Environmental Quality


### Commenter 1 : Scott Thompson Commenter Type: State Government
Classification: Substantive



### Comment Excerpt Text: In the August 26, 2010 report titled, In Harm's Way: Lack of Federal Coal Ash Regulations Endangers Americans and Their Environment (hereafter referred to as "the Report") the Environmental Integrity Project, et al. identified the American Electric Power Northeastern Station in Oologah, OK (AEP) as an a dditional damage case justifying federal RCRA Subtitle C regulation of coal ash disposal sites. While DEQ acknowledges groundwater contamination at the site, we dispute many of the conclusions drawn by the authors, including the implications that federally prohibited open dumping has occurred, that DEQ is ignoring federal law by allowing an illegal coal combustion waste disposal site to operate and contaminate drinking water sources, and that we are not adequately addressing contamination that has been iden tified.515

[Footnote 13: The Report, pg viii.]

The Report correctly notes that groundwater monitoring began at the site in 2008 with the installation of four monitoring wells. When samples consistently demonstrated high levels of arsenic and selenium, and hi gh pH values, DEQ required AEP to submit a plan and schedule to address the apparent release, even before background monitoring had concluded. Over the past two years, AEP has installed an additional 22 monitoring wells, bringing the total number of

wells to 26. Because the immediate concern is to ensure groundwater impacts do not affect the Verdigris River located just southeast of the site, AEP has submitted a proposal to construct a slurry wall and grout curtain barrier along the length of the landfill f acing the River, as well as a proposal to ensure rainwater infiltration into the landfill proper is minimized or eliminated.

The Report also asserts that because DEQ has not identified a proper upgradient monitoring well for the site, we have failed to i dentify a northward

- and northwestward

- moving plume of contamination. [Footnote 14: Ibid., pg 153.] This is incorrect. The groundwater regime at AEP is complex, and this fact appears to be acknowledged in the Report. Due to this complexity, there are no "up gradient" wells in the classic sense; however, the array of monitoring wells installed at the site is such that an evaluation of impacts to groundwater, due to flow of groundwater under the landfill can be, and is being, made. It is this evaluation that re sulted in the proposal described in the preceding paragraph.

With respect to the Report's implication that federally prohibited open dumping is occurring at AEP, DEQ also disputes this. 40 CFR 257.1(a)(1) states that failure to comply with the provisions of Part 257 constitutes prohibited open dumping. Though the Report does not directly discuss how the AEP site is an open dump, the implication is that failure of either the DEQ or AEP to address the groundwater issues is a violation of Part 257 standards and as such, AEP is an open dump. AEP is in substantial compliance with DEQ's groundwater monitoring regulations

—

regulations that are essentially equivalent to the Part 257 standards. Therefore, AEP is not an open dump as that term is defined in Part 257.

While other statements in the Report are misleading, the fact is that DEQ is using its authorities under Subtitle D and state regulations to address the groundwater contamination issues at AEP a fact that dispels the assertion CCR disposal sites are not adequately regulated by the states so that federal Subtitle C regulation is required.

Response: Based on an assessment of AEP’s Northeastern Station in Oologah, Oklahoma against

EPA’s test

- of

- proof criteria, EPA designated this site as a potential damage case. For a summary of stakeholder arguments addressing this site and the rationale for the Agency’s designation decision, see the technical support documents on damage cases in the docket of the final rule.

In addition, this rule will regulate CCRs under RCRA subtitle D: see Unit IV of the final rule’s preamble.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08690

- 2 

### Organization 1 

### : Commenter 1 : Greg A. VanDerwerker516

Commenter Type: Private Citizen

Classification: Substant ive



### Comment Excerpt Text: The Environmental Integrity Project found 3 South Carolina coal ash impoundments have arsenic levels significantly higher than allowed in the state's drinking water standard.

Response: Thank you for your comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 08787

- 11 

### Organization 1 

### : Association of State and Territorial Solid Waste Management Officials (ASTSWMO)


### Commenter 1 : Stephen A. Cobb (Al) Commenter Type: State Government
Classification: Substantive



### Comment Excerpt Text: Information submitted by environmental and public interest groups identifying sites as damage cases has been less than reliable. For example, only 11 out of 59 alleged cases identified by such entities in 1999 were determined to be "proven damage cases," e ven using the "tests of proof". Over the past year, an environmental group labeled 70 sites as "damage cases" in two reports: Out of Control: Mounting Damages From Coal Ash Waste Sites, Environmental Integrity Project, Earthjustice, February 24, 2010, and In Harm's Way: Lack of Federal Coal Ash Regulations Endangers Americans And Their Environment, Environmental Integrity Project, Earthjustice and Sierra Club, August 26, 2010. Considering that the reports identify file reviews

at State environmental offices as "evidence" for their claims, it is surprising how much of the reported information is incomplete, incorrect and/or misleading based on our discussions with the State representatives. Certain patterns of errors can be gleaned from the "scientific review of each facility's data," familiarity with the sites and their groundwater data and impacts. Some of the categories of error include:

O claims of damage made without providing pertinent information o monitoring well(s) not identified o sample date not provided o analytical data not provided o hydrogeologic data not provided to support claims of seepage o no data to support claims about source of disposal unit contents o failure to report how "at

- risk" sources were identified

O assumptions made ba sed on available, but inappropriate information o assumptions about groundwater flow based on a topographic map rather than a groundwater flow map based on subsurface data

O data in State files made available for review contradict claims in the reports o State review of the data indicate no upward trends in contaminant levels o historical groundwater data indicates that the facility has been and remains in compliance for a517

referenced parameter o data reported from a limited number of monitoring wells for a short interval when monitoring has been ongoing for many years and no upward trends have been established o results of a reported data point are an anomaly when compared to all available data o claims that a facility does not have an approved groun dwater monitoring system when monitoring has been conducted for many years and continues

O obvious errors o claims that contaminants are leaking from facilities that no longer exist o source of data incorrectly identified as a CCR facility o secondary and non

- health related parameters (taste, odor or appearance) reported to support damage case claim o well identified as source resulting in an "at

- risk population" actually draws water from a deeper aquifer

O technical errors o report values for natu rally occurring constituents o report data that is detected in both downgradient and upgradient wells o ignored findings that contamination was from another source

O status of the case inaccurately reported o did not report that owner/operator agreed t o install additional monitoring wells o owner/operator initiated a groundwater investigation in response to the new regulations o reported that owner/operator discontinued a remedial measure that was actually ongoing

O other comments o expert opinion is that the report did not contain standard scientific documentation o information provided by State program staff was misconstrued/misrepresented o contacted multiple agency staff rather than establishing one point of contact

.

Response: Thank you for your comment. For a summary of damage case comments by the major stakeholder groups and the Agency’s rebuttal, the commenter is referred to Unit XI in the preamble to this rule. For a summary of stakeholder arguments addressing EPA’s confirmed damage case site s and the rationale for the Agency’s damage case designation decisions, see the technical support documents on damage cases in the docket of the final rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09274

- 19 

### Organization 1 

### : RRI Energy Inc.


### Commenter 1 : S. Dixon Commenter Type: Electric Utility Company

Classification: Substantive



### Comment Excerpt Text: VI. Rebuttals to Alleged Damage Case Accusations

The following are responses to the report prepared by the Environmental Integrity Project and518

Earthjustice, titled "Out of Control: Mounting Damages From Coal Ash Waste Sites Thirty

- one New Damage Cases of Contamination From Improperly Disposed Coal Combustion Waste Sites", February 24, 2010. The responses are limited to those sites in the report that are, or ha ve been, operated by RRI Energy, they include the Fern Valley Disposal Site in A l leghany County, PA; the Bangor Ash Disposal Site in Northampton County; and the Seward Generating Station in Indiana County, PA.

Fern Valley Disposal Site

Accusation:

"The Fern Valley CCW Landfill, on the west side of the Monongahela River across fro Elizabeth, P A received coal ash from the Elrama Power Plant from 1989 to 2003. Arsenic levels 2.8 times higher than primary MCL (0.010 mg/L) were first noted in groundwater mo nitoring in 1995, and peaked in 2001 when the arsenic concentration was 36 times the primary MCL in one downgradient well and 29 times the primary MCL in another. Concentrations of boron, chloride, sulfate and total dissolved solids (TDS) in monitoring wel ls regularly exceeded health

- based levels or secondary MCLs."

Response:

The Fern Valley landfill was constructed down gradient of an abandoned surface coal mine and adjacent to an old, unlined municipal waste landfill. In 1995 a groundwater assessment wa s conducted and the P ADEP concluded that both of these past activities have had a negative impact on groundwater quality and surface water quality upgradient and sidegradient of the facility as evidenced by background groundwater monitoring.

Accusation:

"Leachate from the CCW landfill has degraded surface water quality with high levels of arsenic, boron, chloride, sulfate and TDS compared to upstream surface waters."

Response:

The leachate being treated is discharged under an NPDES permit. The permit l imits were established based on the fact that the stream, in which the treated leachate discharges, ultimately flows into the Monongahela. The facility is in compliance with its NPDES permit.

Accusation:

"The NPDES permit for the landfill has never inclu ded limits for arsenic, selenium, or other toxic pollutants that were known to be in surface water and groundwater discharges from the

landfill."

Response:519

During the repermitting process of this landfill, an extensive benthic invertebrate survey was conducted on the stream adjacent to the landfill. It was established that the surface mining upgradient and the former municipal landfill sidegradient of the site has impacted the benthic quality. As noted previously, the NPDES permit limits and parameters for the landfill reflect the flow and quality of the water to which the receiving stream ultimately discharges, the Monongahela River.

Accusations:

There are numerous accusations that discharges from the landfill have degraded downstream water quality.

Response:

As noted previously, upgradient surface and groundwater quality has been impacted by an abandoned strip mine and an unlined municipal waste landfill. The limits established for the NPDES were based on the fact that the landfill ultimately disch arges to the Monongahela River.

Accusation:

" Arsenic has been a troublesome contaminant in the groundwater at the landfill as have boron, sulfate, chloride, and TDS."

Response:

Intermittent low levels of arsenic have been identified in upgradient well s, with the source being the acid mine drainage originating from the strip mine up gradient of the landfill. Health

- based standards for boron for the European Union and the Minnesota Department of Health are introduced as though they are applicable. These standards are irrelevant since this landfill is not required to meet those limits. Lastly, chloride, sulfate, and TDS do not have enforceable primary MCLs, they have" secondary MCLs which address aesthetic issues and are not health

- based

standards and thes e constituents have been impacted by surface mining and an unlined municipal

waste landfill.

Accusation:

"Interpretation of groundwater monitoring data at the site is hampered by apparent mischaracterization of several monitoring wells as "upgradient" wh en a closer examination of the hydrogeology of the site indicates that they are probably receiving groundwater inflow from the CCW landfill. For example, "upgradient" MW

- 12 is located on the ridge between Fern Valley and the Monongahela River. This well is installed at a surface elevation of about 980 feet, 300 feet south of the lower constructed wetland, on the side of a sub

- drainage into Fern Valley. It is completed at a depth whose elevation is between 838 feet and 853 feet, about 50 feet below the

eleva tion of the original Fern Valley stream level. In other words, ash has been placed at elevations starting at least 50 feet above the level of the well screen. Water elevations in this well average 919 feet, about even with the elevation of the original Fer n Valley stream level and520

below the level of the ashfill. MW

- 12 is completed in the Morgantown Sandstone at structural elevations below the nearest drainage in Fern Valley and above the Monongahela. The Morgantown Sandstone outcrops in the floor of Fern Va lley and on the side of the ridge above the Monongahela River. Structural dip of the unit is toward the river. (Norris, 2002). The information on elevations and the likely mounding effect of groundwater moving outward from the landfill clearly do not suppo rt the identification of MW

- 12 as an upgradient well, nor has the data gathered from this well which suggests it is picking up contaminants draining from the landfill. A review of the Fern Valley Disposal Site maps (DPL, 1996) and the recent satellite phot ographs of the final fill area, reinforces the concern that none of the designated "upgradient" monitoring wells (MW12, MW15 and MW5A) can be reliably considered upgradient. The closeness of these wells to the margins of the ash disposal area and the eleva tions of groundwater in the wells below the level of the filling created the potential for groundwater flow through the fill to the wells from the inception of filling."

Response:

A review of the water levels in the monitoring wells in the valley determi ned the following:

• The water level in up gradient well MW

- 12 has gone down about 85 feet since the initial readings taken in April, 1997 to the current March 2010 elevation of about 856 feet;

• The water level in upgradient well MW

- 15 went down about 1 15 feet between September 1993 and October 1995 and then started back up and, as of the March 2010 reading, has risen about 66 feet to an elevation of about 955 feet;

• The water level in upgradient well MW

- 5A has not changed more than a foot or so since the first reading in September 1993. The March 2010 reading was at an elevation of about 857 feet.

• The water level in downgradient wells MW

- 6 and MW

- 7 varied on the order of 10 feet or so between September 1993 and April 1997 but since that time the wat er levels have varied by no

more than a few feet. In March 2010 the water levels were at about elevations 745 feet and 734 feet respectively.

• The water levels in downgradient wells MW

- 20 and MW

- 21 have only varied a few feet since the first reading in J une 1995 and as of March 2010 were at about elevations 751 feet and 754 feet respectively.

In comparing the water elevations in the seven wells, the upgradient wells have higher water level elevations than the downgradient wells. The difference in elevati on between the upgradient wells and the downgradient wells is about 100 feet for MW

- 12 and MW

- 5A and about 200 feet

for MW

- 15. This data supports the conclusion that the upgradient wells are in fact in upgradient positions.

Concerning the statement "_the likely mounding effect of groundwater moving outward from the landfill

- N. The landfill was built with a low permeability layer overlying the rock rubble in the lower portion of the valley to cap the very permeable material. A bottom ash blanket drain was521

i nstalled on top of the low permeability layer and original ground. This drain would direct any water in it downslope and to the mouth of the valley to be discharged and would prevent mounding of groundwater in the valley. The drain would tend to maintain g roundwater flow that is similar to the flow regime that existed before the landfill was built. Therefore, there should not be groundwater mounding underneath the landfill site.

The topographic position of the monitoring wells is either inside the valley o n the valley walls (MW

- 12 and MW

- 5A) or on the ridge surrounding the valley (MW

- 15). It would be expected that groundwater flow would mimic the original topography of the valley so that the highest groundwater levels should be found beneath the ridge surro unding the site. The groundwater levels should be less on the hillsides and be at their lowest point under the base of the valley. Groundwater levels should be highest at the head of the valley and be lower going down valley

to the mouth. This would result in groundwater flow from the ridges to the valley bottom and then down valley to the mouth. Therefore, based on the original topography of the valley, the upgradient wells are in upgradient positions and the downgradient wells are in downgradient position s.

Based upon the above, the upgradient wells at the Fern Valley Landfill are, in fact, up gradient of

the site.

Accusation:

"More than 90% of water discharging does not pass through controlled or monitored outlets."

Response: All waters leaving the si te, whether it is non

- contact stormwater, leachate, or waters from the upland wetlands, are sampled per the NPDES or the residual waste permits.

Accusation:

"Neither the storm water system, nor the underdrain and runoff system for the CCW disposal

area c onvey close to the amount of water they should."

Response:

All waters associated with the Fern Valley site are captured into the appropriate conveyance system. There is a conduit running underneath the site that transports non

- contact waters from

the wet lands and streams upland of the site. Another collection system is for the leachate which is conveyed to the pond at the toe of the landfill. The third conveyance system consists of diversion ditches around the site perimeter for uncontaminated stormwater.

Accusation:

The storm drain system does not convey to its mouth all of the water that enters it allowing water

to infiltrate into the landfill and add to the leachate load.

Response: The stormwater conveyance system is not only the two diversion ditch es that one sees522

from the toe of the landfill. There are a series of catch basins throughout the landfill that capture uncontaminated stormwater system & joins with the waters flowing from the wetlands & upland streams through the conduit beneath the landf ill. The leachate transport system is independent of these two other conveyance systems.

Accusation:

For water that does discharge from the controlled outlets, there are no discharge limits for arsenic, selenium, lead and other toxic pollutants known to be present at concentrations of concern, and there are many more toxic pollutants that may be present but have never been

monitored.

Response:

Leachate and surface water samples are taken in compliance with the residual waste permit,

which include these parameters. Constituents monitored include aluminum, arsenic, boron, chloride, lead, selenium, sulfate and TDS

- except for aluminum, samples are taken in compliance with the residual waste landfill permit and the analytical results are submitted to the

r egulatory agency. Samples are taken quarterly for chloride, sulfate, TDS, arsenic, lead, and selenium are taken quarterly. Samples are analyzed annually for boron. Samples are analyzed for aluminum in compliance with the NPDES permit with numerical limits imposed for Outfalls 001 (primarily leachate and stormwater), 002 (underdrain from sedimentation pond) and 003 (emergency overflow from sedimentation pond) and a Monitoring/Reporting condition for Outfall 004 (stormwater).

Seward Generating Station

Accus ation:

"The Seward Generating Station's unlined coal ash and refuse pit, as well as its Closed Ash Sites No.1 and No.2 have leached and continue to leach many pollutants into the underlying aquifer at levels that far exceed both Pennsylvania and federal M CLs, and up gradient concentrations."

Response:

This statement is misleading and incorrect. The original station was demolished and a new station built on the site. As part of the permitting process for the new station RRI entered into a

Consent Order a nd Agreement (CO&A) in 2000 with PADEP's Water Quality and Environmental Clean Up programs to remediate several old coal refuse piles on site (a deep coal mine operation was once operated on the property) which were discharging acid mine drainage

into the groundwater and the Conemaugh River.

A groundwater assessment was completed, for the purposes of remediation, by the firm by Dr. Art Rose, in conjunction with the firm Meiser & Earl, Inc. (See report "Results of Monitoring

Acid Groundwater in the Alluvial Aquifer Beneath the Former Seward Coal Refuse Site, Indiana County, Pennsylvania. June 2005). That assessment found that the coal refuse, which had been523

left on the ground surface from the mining operation, had leached a variety of constituents into a

cla y layer, impacting the groundwater.

Based on these findings, and through an approval from Water Quality and the Environmental Clean Up programs, the coal refuse piles were pulled back from the river and mixed with alkaline ash from a nearby waste coal cir culating fluidized bed stations. Some of the coal refuse was removed from the site, while that which remained was thoroughly mixed with alkaline ash and compacted in 18 inch lifts. However, the investigation went on to conclude, even after the

remediation of the coal refuse piles, because of the extent to which constituents had leached from the refuse piles, it would take 50

- 100 years for the constituents could be flushed from the system.

As an update to the original effort, Dr Rose completed a five year u pdate on the effectiveness of the remediation (See: Five Year Update: Chemistry in Monitoring Wells at the Remediated Coal Refuse Area Located at the Seward Generating Station Property. July 2010.). One of the conclusions of the report was:

"In 2009

- 2010, very large decreases in acidity and metals are observed to have occurred compared to concentration in 2003

- 2004 and prior years. In MW

- 7R, the current acidity is only 4 % of the pre

- remediation concentration, and in well MW

- 6R, the current concentration i s about 18% of the pre

- remediation concentration. The flushing from very high values occurred more rapidly than predicted in the models. The current flux of acidity into the Conemaugh River is estimated to be about 10% of the pre

- remediation value. The mod eling predicted that lower concentration would persist for tens of years as the effects of exchangeable acidity and acid minerals Garosite) were removed. The total flow of water from the gravel aquifer to the river is estimated to be about 10 gall min.

Al l of the groundwater data referenced in the EIP report is from the monitoring wells around the former coal refuse piles and not from the former ash sites (These sites were closed under a CO&A. No new ash is being disposed at the site and there were no exce edences of primary MCLs observed in the wells monitoring the groundwater around sites No.1 and No.2).

Accusation:

There are numerous accusations throughout the report that" ash piles" are the source of impacts to the groundwater.

Response:

As noted abo ve, a coal mining operation was once located on the property. The refuse piles left behind from that operation, not the "ash piles", resulted in contamination of the soils below the former refuse piles. The refuse was either removed or remediated so that t he source of the contamination could not continue to impact groundwater. As also noted above, dramatic improvements in groundwater quality have resulted from this effort. However, the constituents that leached from these refuse piles over many years will r equire a considerable time to be flushed from the system.524

Accusation:

"Department of Environmental Protection (P ADEP) has entered into numerous Consent Order and Agreements (COAs) with RRI and its predecessors in interest since at least 1982 to force

re mediation of groundwater contamination from the coal ash piles as well as surface water contamination from Outfall 012, yet contamination persists"

Response:

Requests were made by RRI in 2000, 2003, and again in 2009 to collect the seep (Outfall 012,

whi ch was not from the "coal ash piles" and pump it to the plant. These requests were not approved until June 2010. The Station began pumping the seep to the wastewater basin on July 1, 2010 and Outfall 012 was permanently capped.

Accusation:

"The No.1 Ash Disposal Site was "remediated" by placement of a cap of three feet of flowable fill in accordance with a 2000 Consent Order and Agreement (COA) with PADEP. RRI filed its Notice of Intent to Remediate the site on November 2,2001 pursuant to the COA. Along w ith the remediation, a Deed Restriction was placed on this property prohibiting any person from using any groundwater from the site for "human consumption, irrigation, or other purposes that might cause humans to ingest or be exposed to such groundwater."

Response:

The implementation of a Deed restriction, with the language noted above, is consistent with the Act 2 Program which results in the release from liability for a site. It is not clear why the use of flowable is highlighted. Flowable fill is a low strength concrete that was placed as a cap over the

site in order to minimize infiltration.

Accusation:

"Coal Combustion waste including more recently (after 2004), CCW from fluidized bed

combustion of waste coal which is co

- disposed with coal refuse".

Response:

"CCW from fluidized bed combustion of waste coal" has never been co

- disposed with coal refuse at the site. The alkaline ash was actually purchased (the new Seward station, a fluidized bed station, had not even been built at the time the remedia tion of the refuse piles took place) from two nearby fluidized bed stations. The ash posses two properties that were critical to the remediation of the site: 1. It is highly alkaline in nature and could be blended with the acidic coal refuse that was prese nt at the site from previous mining operations; and 2. The compacted ash results in a material that is less permeable that the refuse, thereby reducing infiltration of precipitation that falls on the material.525

Accusation:

"RRI has discharged pollutants i n excess of permit limits for iron, manganese, aluminum, and pH from Outfall 012, on a monthly basis for the past five years. A surface water monitoring point downstream of the site has recorded at least 27 exceedences of Pennsylvania's Water Quality

Crite ria for Fish and Aquatic Life in the last five years for aluminum, nickel and zinc."

Response:

EIP is comparing our monitoring data to PA's Water Quality Criteria Continuous Concentrations for Fish and Aquatic Life (CCC). This is inappropriate applicatio n of the CCC. The CCC is used in modeling of allowable downstream levels of a pollutant to determine what permit limits are necessary in an NPDES permit. They are not end of pipe limits. It applies in stream after the assimilative capacity of the stream is taken into consideration. Acute (or maximum) criteria applies after a 15 minute mixing period and the chronic (or continuous) applies after 12 hours of mixing in the receiving stream, not at the end of pipe discharge.

Accusation

"In addition, Outfall 01 2, which flows from the coal ash/ coal refuse pile, has been discharging in violation of NPDES permit limits for iron, aluminum, manganese, and pH on a monthly basis for at least five years."

Response:

It was not clear (the seep, referred to as Outfall 0 12 and no longer discharges directly to the river) from where 012 originated. However, it was located in the area of where the former coal refuse pile was remediated

- there is no "coal ash/ coal refuse pile" . Further, concerning the "violation of NPDES p ermit limits", this discharge has been covered by a COA and the permit limits were superseded by the COA. Bangor Ash Disposal Site

Accusation:

Groundwater concentrations in downgradient wells at this landfill exceed primary MCLs.

Response:

This is a fa lse statement. Groundwater monitoring at the site has never indicated an exceedence of any primary MCLs.

Accusation:

"The ash that has been dumped at this landfill has sometimes been more toxic than regulations

allow. A letter from RRI to PADEP in 2007 r eports that of nine composite samples of trona ash (a test ash) disposed of at this site, two samples exhibited high levels of leachable arsenic in excess of Pennsylvania Class II landfill limits. Specifically, the Class II landfill limit for526

leachable ars enic is 0.5mg/L: however leach test results measured arsenic at 1.6 mg/L (more than three times the limit) and 2.02 mg/L (more than four times the limit)."

Response:

The authors failed to reveal the full content of the letter referenced above. The letter went on to describe a comprehensive sampling and analyses program that consisted of two composite samples, each comprised of 12 grab samples. The purpose of this comprehensive sampling effort was to ensure that analytical results were obtained that were f ully representative of the ash generated during the short test program. These results revealed that each of the 12

- grab composites had a leachable arsenic values of 0.033 mg/l and 0.055 mg/l; both below the regulatory limit for the landfill. In fact, rathe r than the results being "more than three times the limit" and "more than four times the limit", the values were actually approximately 7.0% and 11 % of the limit, respectively.

Lastly, the accusation fails to describe the quantity of ash generated during the emissions testing that generated this ash. The testing was actually performed over a matter of days and amounted to only a fraction of 1 % of the ash managed at the landfill.

Accusation:

"There are least [sic} two public water supply wells approxima tely % mile away from the site

Hartzell's Auction Inc. serves three families and Meadowbrook Mobil Home Park serves approximately 98 individuals."

Response:

The accusation infers that the above could be potential receptors. As noted above, there have not been any exceedences of a primary drinking water standard. Further, the locations noted are not located hydraulically downgradient of the site.

Accusation:

"Unpermitted discharges of boron, cadmium, and selenium into Brushy Meadow Creek from

Outfall 002 ... "

Response:

This accusation infers that the operator is illegally discharging constituents from the site. The operator monitors for all constituents required by the discharge permit and is in compliance with the limits applicable to each. In essence , the accusation would apply to any permit at any facility that does not have permit limits for every possible constituent that could be present in the effluent. Absence of monitoring or a permit limit for a parameter does not mean that the discharge is no t authorized by the permit.

Accusation:527

" ... unpermitted discharges of boron, cadmium, hexavalent chromium, and selenium into Brushy Creek from Outfall 001 exceeded the Pennsylvania water quality standard for the protection of aquatic life from pollutan t concentrations that are chronically toxic (Criteria Continuous Concentration or CCC) in samples analyzed in October 2006.

Unpermitted discharges ... from Outfall 002 also exceeded the P A CCC. .. "

Response:

The author is comparing data included in t he NPDES application data taken once every 5 years to P A' s Water Quality Criteria Continuous Concentrations for Fish and Aquatic Life (CCC). This is inappropriate application of the CCC. The CCC is used in modeling of allowable downstream levels of a pol lutant to determine what permit limits are necessary in an NPDES permit. They are not end of pipe limits. It applies in stream after the assimilative capacity of the stream is taken into consideration. An acute (or maximum) criterion applies after a 15 min ute mixing period and the chronic (or continuous) applies after 12 hours

.

Response: Thank you for your comment. For a summary of damage case comments by the major stakeholder groups and EPA’s rebuttal, the commenter is referred to Unit XI in the preamble to this rule. For a summary of stakeholder arguments addressing the Fern Valley Disposal Site in Alleghany County, PA; the Bangor Ash Disposal Site in Northampton County, PA; and the Seward Generating Station in Indiana County, PA, all three EPA

- confirmed potential damage case sites, and for the rationale for the Agency’s damage case designation of these sites, the commenter is referred to the technical support documents on damage cases in the docket of the

final rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09282

- 30 

### Organization 1 

### : North Carolina Department of Environment and Natural Resources


### Commenter 1 : Dexter R. Matthews Commenter Type: State Government
Classification: Substantive



### Comment Excerpt Text: The February 24, 2010 report “Ou t of Control: Mounting Damages from Coal Ash Waste Sites” addresses the following six North Carolina sites that have on

- site coal ash storage:

o Sutton Steam Plant, Progress Energy

– Wilmington, NC

o Lee Steam Plant, Progress Energy

– Goldsboro, NC

o Cape Fear Steam Plant, Progress Energy

– Moncure, NC

o Asheville Steam Electric Plant, Progress Energy

– Arden, NC

o Belews Creek Steam Station, Duke Energy

– Belews Creek, NC528

o Swift Creek Landfill, ReUse Technology, Inc./Full Circle Solutions, Inc.

- Rocky Mount, NC

Surface impoundments : Overall, the levels of data reported are accurate; however, the data reported was from wells located inside the State Compliance Boundary, with the exception of Sutton Steam Plant. (The State Compliance Boundary es tablishes the location at which groundwater standards must be met; exceedance of the state groundwater standard can be allowed within the compliance boundary as long as the groundwater standard is met at the boundary.) In addition, there is no reference in the report to background or naturally occurring concentrations, which may be applicable to several of the listed exceedances. As for groundwater contamination approaching property lines, with the exception of the Sutton Steam Plant data

submitted to DENR has not indicated this. Although corrective action has not been required due

to lack of documentation for non

- compliance, DWQ has sent a letter to both Progress and Duke Energy, directing them to place wells at their Compliance Boundaries to help DENR dete rmine if further action will be required.

As for Sutton Steam Plant, in 1987 a Notice of Non

- Compliance was sent to the Carolina Power and Light Company (now Progress Energy) concerning chloride and total dissolved solids contamination. More recently Prog ress Energy noted exceedances of several constituents and submitted a site assessment plan to the DWQ’s Regional Office. This is currently under review to determine what additional action is required in accordance with State Rules15A NCAC 2L .0106(d).

Bel ews Creek Steam Station Landfills: Three landfills exist at this site, not the five that the document suggested may be on site. The report assumed that Permits 85

- 01 and 85

- 02 are located on the Belews Creek site, when those permits actually refer to permi tted facilities elsewhere in the county.

The document also states that “Information obtained does not indicate whether any of these [three landfill] sites are lined”. Landfill 85

- 03 (Pinehall Road) is an inactive unlined landfill that

has been closed and capped. 85

- 04 (Craig Road Ash) and 85

- 05 (FGD) are active lined landfills.

During efforts by Duke Power to expand the existing Pinehall Road landfill, contamination was found in wells. Assuming that the contamination in the wells at the Pinehall Road la ndfill may be in part attributable to the landfill (as well as the surrounding ponds and areas of ash on the ground), Duke Power and DWM created a corrective action plan to close and cap the landfill. The cap, consisting of a drainage geonet overlain by a 40 mil LLDPE geomembrane and two feet of soil cover over the entire landfill, was designed to cut off infiltration and thus cut off any continuing contamination under and around the landfill.

Some of the original groundwater wells, which are located at e xtreme distances from the landfill and in areas where there was waste on the ground, are not representative of the groundwater moving from the landfill. Duke Power worked with the DWM to come up with meaningful groundwater monitoring locations. The report refers to the closure of a number of monitoring wells. These wells were closed because they did not represent what was occurring at the landfill. The document refers to an exceedance during groundwater monitoring events at both of the lined529

landfills. Crai g Rd Ash landfill began accepting waste August 22, 2007; the FGD landfill began accepting waste February 12, 2008. The exceedances noted were found by the DWM to be background levels.

Swift Creek Structural Fill “Landfill”: The damage assessment for the S wift Creek site appears essentially accurate.

Response: Thank you for the commentary on data included in the February 24, 2010 report Out of Control: Mounting Damages from Coal Ash Waste Sites

, pertaining to six power plants in

North Carolina (Progress Energy’s Sutton Steam Plant, Lee Steam Plant, Cape Fear Steam Plant,

and Asheville Steam Electric Plant ; Duke Energy’s Belews Creek Steam Station , and ReUse Technology, Inc./Full Circle Solutions’ Swift Creek Landfill .) Information about these p ower plants, including the rationale for their designation by the Agency as damage cases is presented in the technical support document to damage cases included in the docket of the final rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09284

- 62 

### Organization 1 

### : Virginia Department of Environmental Quality


### Commenter 1 : Jeffery A. Steers Commenter Type: State Government
Classification: Substantive



### Comment Excerpt Text: there were no Virginia sites listed in the February 2010 report

.

Response: Thank you for your comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09712

- 12 

### Organization 1 

### : Basin Electric Power Cooperative (BEPC)


### Commenter 1 : Claire M. Olson Commenter Type: Electric Utility Company

Classification: Substantive



### Comment Excerpt Text: Review of Antelope Valley Station "Damage Case"

On August 26, 2010, a report entitled "In Harm's Way: Lack of Federal Coal Ash Regulations Endangers Americans and Their Environment" was released by environmental advocacy groups Environmental Integrity Project, Earthjustice and the Sierra Club. The report discusses 39 new "damage cases of contamination" caused by coal combustion waste disposal including the Antelope Valley Station, owned and operated by Basin Electric. The purpose of this document is to provide a critical an alysis of the assertions/conclusions set forth in the above

- referenced
report.

Selected assertions/conclusions from the report maybe inaccurate or misleading and are presented below in italics. Basin Electric's response follows each italicized passage.530

Arsenic levels have risen dramatically at three downgradient groundwater monitoring wells (MP

12A, MP

- 138, MP

- 22) at the CCW landfill from 1984 through 2010 (BEPC, 2009). For example,

in Well MP

- 12A, arsenic rose from generally being below the detection l evel of 0.005 mg/L between 1985 and 1990, to consistently measuring over the federal MCL of 0.01 mg/L from

2000 to 2009.

Important ash leachate indicator parameters such as TDS and sulfate have shown consistent

concentrations in Well MP

- 12A since monitor ing began in 1984. If leachate from ash was degrading groundwater quality, TDS and sulfate would increase as well. As such, it appears the arsenic in groundwater is naturally occurring, since other "leachate fingerprint" parameters such

as TDS and sulfate have not increased.

In Well MP

- 138, arsenic levels rose to nearly 0.02 mg/L in 1986, shortly after CCW disposal began, but then dropped below detection levels from 1993 to 1999. Then, in 2000, the arsenic concentration began rising again and peaked at ov er 0.02 mg/L in 2008. . .

Similar to Well MP

- 12A, TDS and sulfate concentrations in Well MP

- 13B have been consistent or have even decreased throughout time. Since no other "leachate fingerprint" parameters show increasing trends in Well MP

- 12A, it appear s arsenic detections are indicative of naturally occurring temporal variations in groundwater chemistry.

Well MP

- 22 also had the highest boron levels on

- site at over 1.8 mg/L.

Well MP

- 22 is screened in a remnant of the Beulah Bed. TDS, sulfate, and bor on levels have been consistently much higher in Well MP

- 22 than most other wells at the site. Again, the elevated concentrations appear to be representative of naturally occurring spatial variation in regional groundwater quality. Well MW

- 1SP is an upgradi ent well and is screened in a remnant of the Beulah Bed (similar to Well MP

- 22). MW

- 1SP typically has TDS values in the 6000

- 7000 mg/L range, and sulfate concentrations of 2500 mg/L. Well MW

- 1SP also has historic arsenic detections in the range of 0.01 and 0.02 mg/L. Well MW

- 1SP demonstrates that arsenic is naturally occurring in upgradient groundwater at the site.

The first public well is approximately 2.2 miles northeast of the station, and it serves as both an irrigation and drinking water source for r oughly four farms in the area. The second public well is located 4.4 miles southeast of the site, serving a collection of farm houses. Data can be found on North Dakota State Water Commission's Groundwater Data Query on a county

- by

- county basis.

The Nort h Dakota State Water Commission's Groundwater Data Query does not contain references to "public wells". It is unclear as to what the report authors are referring to. Since groundwater flow is to the west, a well located "2.2 miles northeast of the station" would be upgradient of the site and thus could not be affected by the landfill. A well "located 4.4 miles southeast of the site" would similarly be upgradient and could not be affected by the landfill.

The Beulah

- Zap bed, a lignite formation that is used as a source of groundwater for drinking and livestock, runs beneath the landfill site.531

The Beulah Bed was mined (removed) beneath the landfill; the Beulah Bed is simply not present. The landfill was located in this mined out area to take advantage of th e existing mine pit.

Well MP

- 22 is drilled into the aquifer flowing directly beneath the landfill, the Beulah

- Zap bed.

Again, the Beulah Bed is not present directly beneath the landfill; it was removed by the mining operation.

Conclusion

The authors of the report show an apparent lack of understanding of basic environmental science and hydrogeological principles, such as up

- and down

- gradient comparisons of groundwater monitoring data. Alternatively, they may be ignoring these basic principles to adva nce their own agenda. In any case, the report contains numerous inaccuracies and should not be considered as a valid study by EPA during the promulgation new coal ash regulations.

Response: EPA has rejected Basin Electric’s Antelope Valley Station site as a CCR damage case, because the m onofill is located in a mined

- out lignite pit, and minefilling is outside the scope of this rule. Additional information pertaining to this site is presented in the technical support document s to damage cases included in th e docket of the final rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09712

- 13 

### Organization 1 

### : Basin Electric Power Cooperative (BEPC)


### Commenter 1 : Claire M. Olson Commenter Type: Electric Utility Company

Classification: Substantive



### Comment Excerpt Text: Review of Leland Olds Station "Damage Case"

On August 26, 2010, a report entitled "In Harm's Way: Lack of Federal Coal Ash Regulations Endangers Americans and Their Environment" was released by environmental advocacy groups Environmental Integrity Projec t, Earthjustice and the Sierra Club. The report discusses 39 new "damage cases of contamination" caused by coal combustion waste disposal including the Leland Olds Station, owned and operated by Basin Electric. The purpose of this document is to provide

a critical analysis of the assertions/conclusions set forth in the above

- referenced report.

Selected assertions/conclusions from the report may not be based in fact and are presented below in italics. Basin Electric's response follows each italicized passa ge.

"Arsenic exceedances were found in three monitoring wells in 2009: 22ADB (0.0269 mg/L) about 150 feet downgradient from Pond 5, 22

- ABC (highest exceedance at 0.0789 mg/L) about 100 feet downgradient from Pond 2, 3, and4, and 22

- DAA3 (0.0259 mg/L) abo ut 150 feet downgradient from Pond 5."

Well 22

- ABC exhibits concentrations of arsenic causing concern to Basin Electric. Well 22

-532

ABC2 was installed in 1990 at essentially the same location/depth as 22

- ABC to verify the arsenic levels previously observed in 22

- ABC. Arsenic concentrations in well 22

- ABC2 are typically less than 0.005 mg/L and always less than 0.02 mg/L. Since 22

- ABC2 monitors the same hydrogeologic unit as 22

- ABC and concentrations vary by a factor of 10, it brings the data into question or that elevated arsenic concentrations in groundwater are extremely localized. Further, it is possible that 22

- ABC (which was installed in 1982) was improperly installed or is

in direct contact with ash.

"Boron exceedances above an unspecified state ground water standard occurred in five downgradient monitoring wells. .."

It is not clear how an "unspecified" groundwater standard could be exceeded.

"Lead was measured in 2006 in well 22

- DCC at 0.0716 mg/L, 4.7 times higher than the MCL (BEPC, 2009). This we ll's location was not delineated on a map."

Well 22

- DCC is up

- gradient of the ponds, as depicted on maps in NDDoH files. As such, it would appear that lead maybe naturally occurring or from a source other than the ash ponds. Further, lead concentrations (if detected at all) in ash pond water are less than 0.01 mg/L, which is less than concentration observed in the well. Thus, ash pond water could not be the source of the lead. If the pond was leaking, it would actually be improving groundwater quality at well 22

- DCC with respect to lead. Lead was not detected in this well in 2009.

"Selenium was detected in 2004 in all downgradient wells, but not above the MCL of 0.05 mg/L. The highest level of selenium, 0.0244 mg/L was in well 22

- DCC."

As state earlier, 22

- DCC is an up

- gradient well. If selenium is in present up

- gradient wells, it would likely be observed in down

- gradient wells too.

"Three municipal drinking water wells lie within 5 miles of Leland Olds Station. In addition,

individuals who catch and c onsume the fish or extract irrigation water from the Missouri River could potentially be at risk, as selenium and lead are bioaccumulative in both aquatic organisms and vegetation, including farm produce."

The threat to these municipal drinking water well s is vastly overstated, since the city of Stanton wells are hydrogeologically up

- gradient and hydrologically upstream of the plant/pond complex

location. Given the enormous flow of water in the Missouri River and the minute flow of groundwater discharge to the river, any increase in concentrations caused by groundwater discharge would likely be non

- detectible.

Conclusion The authors of the report show an apparent lack of understanding of basic environmental science and hydrogeological principles, such as up

- and down

- gradient comparisons of groundwater monitoring data. Alternatively, they may be ignoring these basic principles to advance their own agenda. In any case, the report contains numerous inaccuracies and should not be considered as a valid study b y EPA during the promulgation new coal ash regulations.533

Response: In its comment on the Leland Olds Station site

, Basin Electric Power Cooperative essentially does not deny the record of arsenic exceedances in two of the site’s groundwater monitoring wells , yet a ccording to In Harm's Way: Lack of Federal Coal Ash Regulations Endangers Americans and Their Environment, EIP’s 2010 report, no state enforcement actions

have been taken. Additio nal information pertaining to this site is presented in the technical support document on damage cases included in the docket of the final rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09765

- 10 

### Organization 1 

### : Electric Power Research Institute (EPRI)


### Commenter 1 : Ken Ladwig Commenter Type: Trade Association

Classification: Substantive



### Comment Excerpt Text: We also performed a brief assessment of the alleged damage cases more recently published by Environmental Integrity Project, Earthjustice, and the S ierra Club. While we were not able to assess these sites in detail, we found several examples of possible errors or misinterpretations that merit further investigation. Prior to accepting these as either proven or potential damage cases, it is critical tha t each case be fully vetted by US EPA with at least the level of technical review as the previous alleged damage cases, and that the results be made available for public input.

Response: EPA assessed all the ‘newly alleged’ damage cases against the Agency’s test of proof criteria. For a summary of stakeholder arguments addressing the confirmed CCR damage case sites and the rationale for the Agency’s damage case designations

, the commenter is referred to the technical support documents on damage cases in the docket of the final rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09765

- 44 

### Organization 1 

### : Electric Power Research Institute (EPRI)


### Commenter 1 : Ken Ladwig Commenter Type: Trade Association

Classification: Substantive



### Comment Excerpt Text:

New Alleged Damage Cases

The EIP/EJ and EIP/EJ/Sierra Club reports identified 70 new alleged damage cases, based primarily on researching state records. US EPA noted in the preamble that they were not able to do independent verification of these new cases. It is critical that each of these cases be fully vetted by US EPA with at least the level of technical review as the previous alleged damage cases, and that the results be made available for public input. The evaluation of environmental impacts at CCP manage ment facilities requires sufficient time and data to adequately define items such as complex hydrogeologic flow systems, groundwater chemistry, other sources of impacts, and sampling and analysis artifacts. This often is contained in additional data or534

con sultant reports prepared subsequent to reported groundwater quality exceedances, and this information may or may not be readily found in state records. We are willing to assist US EPA in collecting additional data for these sites to help determine the exte nt of any impacts.

In our brief review of the EIP/EJ/Sierra Club reports, we have found several examples of possible errors or misinterpretations that merit further investigation:

- It appears there may be several misinterpretations of data listed in Tab le 1 in Out of Control (EIP and EJ, 2010) and Table 2 of In Harm’s Way (EIP, EJ, and Sierra Club, 2010).

- Calculated limits (based on statistical analysis of background data) appear to have been misinterpreted to represent maximum observed concentrations at the Joliet 9 site. Concentrations of cadmium (0.264 mg/L) and selenium (0.325 mg/L) were listed as reported maximum concentrations; however these concentrations appear to actually be calculated Applicable Groundwater Quality Standards (AGQS) for the si te.

- Single occurrences of elevated barium, cadmium, lead and silver were reported as evidence of CCR contamination for the Flint Creek site (Figure 5

- 1; silver plot not shown). These constituents are rarely associated with groundwater releases at CCR si tes. The concentrations were all very low in subsequent samples for the next 12 years. The single occurrences clearly appear to be outliers.

- Similarly, for lead and chromium at two sites, high concentrations in the first samples collected

from new wells were reported as CCR releases, despite the fact that the concentrations immediately decreased to low concentrations and remained low for the next several years (Figure

5

- 2 for the Lee and Cape Fear sites). Anomalous samples are common in groundwater

monit oring (Gibbons, 1994, p. 246; US EPA, 2009, p. 3

- 7), particularly the first few samples when a new well is stabilizing. Any elevated concentration needs to be evaluated in light of other indicators as well as subsequent samples. Statistical analyses are ty pically used to identify potential outliers that are an artifact of sampling and analysis procedures.

[See Original Comment for Figure 5

- 1 on Examples of Single Point Outlier Data for Barium, Cadmium, and Lead Interpreted as Evidence of Groundwater Impact s for the Flint Creek Site.]

[See Original Comment for Figure 5

- 2 on Examples of First Sample Outliers Interpreted as Groundwater Impacts for the Lee and Cape Fear Sites.]

- Off

- site migration claims are frequently not substantiated. In several instance s (16 cases in Out of Control, 19 cases in In Harms Way), groundwater contamination is said to be “moving off

site.” However, there appears to be little or no documentation of actual off

- site movement at these sites, and in fact the reports state many of t hese sites don’t have off

- site wells. Without off

site wells or additional information on flow directions and rates, soil attenuation, mitigation efforts, etc. the potential for off

- site movement is unknown.

- The Karn/Weadock site is implicated as a “...ma jor contributor of arsenic to the Saginaw Bay Area of Concern (AOC)” (p. 26, Out of Control). The AOC is a very large area (1,143 square53 5

miles) of contaminated sediments, including a wide range of metals and organic compounds; PCBs are reportedly the most significant sediment contaminants (US EPA, 2010; Public Sector Consultants, Inc., 2000). Karn

- Weadock is not cited in any of the AOC literature we reviewed. Sources of metal contamination are described as being upriver from the Karn/Weadock facilities,

and include metal casting industries and forge operators.

- Contamination observed in well NE3 at the Flint Creek site is said to have migrated off site (In Harms Way, p. 1), however NE3 is located on site.

- At two of three Belews Creek waste management un its (Craig Road and FGD), iron and manganese, two relatively common naturally occurring constituents in soils, are cited as indicators of CCR impacts (Out of Control). Conversely, typical CCR indicators are low. At the FGD WMU, sulfate is less than 40 mg/L and boron is less than 0.029 mg/L in groundwater monitoring wells. At the Craig Road WMU, boron is less than 0.203 mg/L and sulfate is less than 63 mg/L. Both the FGD and Craig Road facilities are relatively new, and there are other potential sources of c ontamination in the surrounding area.

- The Oak Creek site (In Harms Way) is hydrogeologically complex with more than 150 feet of clay

- rich glacial till overlying dolomite bedrock. The affected wells are screened in the bedrock and have molybdenum concent rations slightly higher than the Wisconsin Public Health Enforcement Standard (ES) of 0.04 mg/L, and no other constituents with concentrations higher than the Public Health ES. These wells are hydrogeologically upgradient of the Oak Creek CCR site, and dir ectly downgradient of a documented Superfund site. The State of Wisconsin is in the process of determining the cause of the apparently elevated molybdenum in the affected wells.

These sites clearly need additional investigation by US EPA to determine if t hey represent potential damage cases. The uncertainties regarding the data from some of these sites notwithstanding, they still fit into the general pattern described for the proven and potential damage cases; the vast majority of alleged impacts occur at unlined facilities. Using the descriptions provided in the two reports, 44 of the 70 sites (63%) are unlined or partially lined, the liner status of 18 (26%) is unknown, and 8 (11%) are lined. Based on our knowledge of the sites, we estimate that a slightl y higher percentage (74%) are unlined or partially lined, 17% are unknown, and 9% are lined.

Response: See response to comment excerpt EPA

- HQ

- RCRA

- 2009

- 0640

- 09765

- 10.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09880

- 16 

### Organization 1 

### : FirstEnergy Corporation


### Commenter 1 : Michael L. Horvath Commenter Type: Electric Utility Company

Classification: Substantive



### Comment Excerpt Text: VIII. Damage Cases not for CCR Landfills or Surface Impoundments

17. At the above mentioned EPA hearing in Pittsburgh we noted that some of the landfills or536

beneficial use projects cited in testimonies as containing high levels of contamination may actually be industrial waste landfills/disposal sites where coal ash from a factory or production facility may have been disposed or mixed with other industrial wastes, and not sites covered under this current rulemaking. We also are aware that several sites identified in a recent report by The Environmental Integrity Project, claiming to contain information about new proven damage

cases, ar e also sites not covered in this rulemaking. IN HARM'S WA Y: Lack of Federal Coal Ash Regulations Endangers Americans and Their Environment, Thirty

- nine New Damage Cases of Contamination from Improperly Disposed Coal Combustion Waste, Environmental Integri ty Project, Earthjustice and Sierra Club, (August 26, 2010). FirstEnergy requests that EPA identify,

for this rule

- making, which sites identified as proven or potential damage cases are in fact not utility CCR waste disposal facilities utilized primarily f or the disposal of CCRs covered under this rulemaking. Information and data about such sites are likely tainted by non

- CCR wastes and should be removed from the Docket for this rulemaking. Consideration of other comingled waste disposal facilities should b e considered as a separate regulatory issue at some later date

.

Response: The Agency has assessed all the ‘newly alleged’ damage cases against EPA’s test of proof criteria. These criteria require , among others, that a CCR management site not have a legacy of receiving wastes other than CCR, nor that it be in receipt of industrial boiler (i.e., non

utility) CCR. For a summary of stakeholder arguments addressing the confirmed CCR damage

case sites a nd the rationale for the Agency’s damage case designations, the commenter is referred to the technical support documents on damage cases in the docket of the final rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09880

- 20 

### Organization 1 

### : FirstEnergy Corporatio n 

### Commenter 1 : Michael L. Horvath Commenter Type: Electric Utility Company

Classification: Substantive



### Comment Excerpt Text:

x. FirstEnergy Little Blue Run Residual Waste Disposal Impoundment

21. At the EPA hearing in Pittsburgh, a number of people commented that they had drinking water well problems and groundwater concerns, and suggested that LBR was the cause. Local well water analyses have been provided to EPA by both FirstEnergy and the Pa. DEP which

demonstrates that LBR has been and remains in compliance with the requirements of our permit and does not pose a threat to the public or the environment. Furthermore, of the people who commented, one person's well is not in the same watershed as LBR, which was not mentioned as part of their testimony . Another person, whose well was sampled and analyzed by a third

- party consultant for FirstEnergy, was told by the consultant that their well had fecal contamination likely associated with poor well installation in an area used by their cattle, and that th is fecal

contamination could not have come from LBR. Yet that information was not mentioned in their testimony.

Also, L BR was named as a damage case by the Environmental Integrity Project, in the report mentioned previously. The report presented unsubstan tiated claims that many coal ash facilities, including L BR, posed significant threats to nearby water sources. Those claims regarding L BR537

are simply not true. Many of the EIP report's claims were for water wells that could not be impacted by L BR, because t hey were up

- gradient or otherwise geologically separated from L BR.

L BR employs a comprehensive water monitoring program to ensure that water sources are not negatively impacted. In addition, we have a long

- standing policy to sample drinking water wells

at the request of nearby residents and provide analysis by an independent lab. We are confident

that L BR is not negatively impacting water sources and EIP's report provides no new information or data to the contrary.

Finally, EIP's claims in an earlier repo rt, dated February 24, 2010, regarding other coal ash disposal sites located in Pennsylvania have been evaluated by the Pa. DEP which concluded "that the allegations regarding groundwater and surface water contamination by Primary MCl's are

unfounded." Rev iew of the Environmental Integrity Project and Earthjustice Report, Commonwealth of Pennsylvania Department of Environmental Protection, Southwest Region (October 13, 2010), Executive Summary, page i. We are completely confident that an independent review of the second EIP report, dated August 26, 2010, will similarly conclude that its unsupported claims regarding L BR are unfounded

.

Response: FirstEnergy’s Bruce Mansfield Little Blue Run has a poor track record of regulatory compliance . For years it has been impact ing neighbor’s drinking water wells and releasing

abundant seepage s that are damaging neighboring residences , leading to severe property value losses. As a result, the facility has had a Settlement Agreement with PADEP for groundwater

contaminat ion already in June 1994. In this Agreement, FirstEnergy was required to provide an alternative water supply to a private residence. FirstEnergy has been also subjected by PADEP to a remedial plan for the impacted springs, and more recently

- to a Consent Decree ( CD,

December 2012) and Impoundment Closure Permit ( April 2014). The CD requires, among others, groundwater assessment monitoring, a variety of measures for groundwater and surface water protection, provision of drinking water to residences impact by groundwater contamination, closure of the impoundment at the end of 2016, and a civil penalty of $800,000. Finally, t he LBR impoundment is to cease receiving CCR by the end of 2016 and conclude closure by 2028. For a summary of the Bruce Mansfield Litt le Blue Run data and the rationale for the Agency’s damage case designation of LBR as a proven damage case, the commenter is referred to the technical support documents on damage cases in the docket of the final rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09885

- 12 

### Organization 1 

### : Progress Energy, Inc.


### Commenter 1 : Caroline Choi Commenter Type: Electric Utility Company

Classification: Substantive



### Comment Excerpt Text: The alleged damage cases presented by environmental groups are not pro ven and cannot be relied upon by EPA in this rulemaking

.

EPA references the allegations of additional damage cases by certain environmental organizations, including assertions made by the Environmental Integrity Project (“EIP”) and538

Earthjustice in a Febru ary 24, 2010 report (75 Fed. Reg. at 35148) and, more recently, an August 26, 2010 report from the same two environmental organizations and the Sierra Club. EPA acknowledges that it has not had time to review these allegations, though it promises to review this information and encourages other stakeholders to also comment on these allegations. As an initial point, it is inappropriate for EPA to rely on the allegations of these environmental groups in any final rulemaking for CCRs before the agency has fully evaluated the allegations and provided an opportunity for public hearing and comment on EPA’s initial conclusions. Indeed, this is precisely what the Bevill amendment requires. Before making any final regulatory determination, EPA is required to submit it s initial recommendation, along with the reasons for this recommendation, in a report to Congress, and to provide an opportunity for public comment and hearings on these initial findings. For EPA to base a new regulatory determination on the mere allegatio n of additional damage cases without first providing the public an opportunity to review and comment on EPA’s initial conclusions regarding the allegations would be

inconsistent with the dictates of the Bevill amendment.

Past experience underscores the im portance of this statutorily

- prescribed vetting process, as many of the former allegations of damage cases identified by environmental groups have been shown to be without merit and have been dismissed by EPA as unsubstantiated and/or incorrect. For exampl e, prior to initiating this rulemaking, EPA gathered or received information on 135 alleged damage cases, many of which were submitted to EPA by the same environmental organizations referenced above. After evaluating these allegations, close to half (62) w ere dismissed “because there was little or no information supporting the concerns identified.” Another six were outside the scope of the rulemaking. Of the remaining 67 allegations, 24 were identified as proven damage cases, but this included the 14 proven cases already identified in the 2000 Regulatory Determination. Less than two

- tenths of the cases “alleged” to have been damage cases have, in the end, been determined by EPA to be “proven” damage cases.

The same over

- counting of damage cases exists in th e more recent damage allegations submitted by EIP, Earthjustice and the Sierra Club. An initial analysis by EPRI of certain of these allegations reveals that there are similar factual errors and/or lack of a factual basis for classifying these sites as dam age cases. The Bevill amendment prohibits EPA from relying on the new allegations of damage cases without first fully examining these allegations and providing the public with an opportunity to evaluate and comment on the agency’s initial findings. Given t hat the vast majority of similar allegations in the past have proven to be without merit, this type of careful review is necessary to ensure that unfounded and/or incorrect charges of new damage cases are not used as the basis for any final decisions

.

Res ponse: EPA has assessed all the ‘newly alleged’ damage cases against the Agency ’s test of proof criteria. Essentially, only information that was submitted to EPA by November 14, 2011 was considered, a cutoff date that coincides with the closing of the comment period of the October 2011 NODA. That NODA included, among others, solicitation for public feedback on damage cases. For a summary of stakeholder arguments addressing the co nfirmed CCR damage case sites and the rationale for the Agency’s damage case designations, the commenter is referred to the technical support documents on damage cases in the docket of the final rule.539



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 09951

- 26 

### Organization 1 

### : Full Circle Solutions, Incorporated


### Commenter 1 : Robert J. Waldrop Commenter Type: Beneficial User

Classification: Substantive



### Comment Excerpt Text: Damage Cases

EPA has requested comment on the report of additional damage cases submitted t o EPA on February 24, 2010 by the Environmental Integrity Project and EarthJustice.

We have reviewed the subject document and are familiar with one of the cases presented.

ReUse Technology, Inc. / Full Circle Solutions, Inc.

- Swift Creek Structural Fil l site

In December 2003, Full Circle Solutions, Inc. purchased the assets of ReUse Technology, Inc. Among the assets was this structural fill project. The report alleges that CCPs were placed directly above a shallow water table, into a wetland and into g roundwater. This is not true. At the time the project began construction, the groundwater elevation was determined and the project designed in accordance with the State of North Carolina guidelines. CCPs were placed above the groundwater elevation. This wa s verified by a qualified hydrogeologist after construction began. In the midst of constructing this project, two hurricanes flooded the area including this property. The underlying soils and the earthen berms surrounding the CCP are dense, low permeabilit y clays. As the result of flooding, stormwater and/or groundwater became trapped in the CCP fill with no effective means of escape.

This project points to the need for careful engineering design, construction and the appropriate level of regulatory oversi ght. Project phasing, sloping of completed fills, and an underlying drainage blanket would have prevented the trapping of flood waters and any contamination of groundwater.

Response: Thank you for providing information to illuminate the circumstances that have caused the Swift Creek CCR site to impact groundwater. We concur with the commenter that when it comes to large scale CCR application projects, “careful engineering design, construction and the appropriate level of regulatory oversight” are indeed ne cessary to prevent groundwater

contamination.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 10483

- 20 

### Organization 1 

### : Utility Solid Waste Activities Group (USWAG) et al.


### Commenter 1 : James R. Roewer Commenter Type: Trade Association

Classification: Substantive



### Comment Excerpt Text:540

C. The Alleged Damage Cases Presented by Environmental Groups Are Not Proven and Cannot Be Relied Upon by EPA in This Rulemaking

EPA references the allegations of additional damage cases by certain environmental organizations, includ ing in particular assertions made by the Environmental Integrity Project (“EIP”) and Earthjustice in a February 24, 2010 report (75 Fed. Reg. at 35148) and, more recently, an August 26, 2010 report from the same two environmental organizations and the

Sier ra Club. EPA acknowledges that it has not had time to review these allegations, though it promises to review this information and encourages other stakeholders to also comment on these allegations. Id.

As an initial point, it is inappropriate for EPA to r ely on the allegations of these environmental groups in any final rulemaking for CCRs before the Agency has fully evaluated the allegations and provided an opportunity for public hearing and comment on EPA‘s initial conclusions. Indeed, this is precisely w hat the Bevill Amendment requires. Before making any final regulatory determination, EPA is required to submit its initial recommendation, along with the reasons for this recommendation, in a Report to Congress, and to provide an opportunity for public com ment and hearings on these initial findings. For EPA to base a new regulatory determination on the mere allegation of additional damage cases without first providing the public an opportunity to review and comment on EPA‘s initial conclusions regarding the allegations would be inconsistent with the dictates of the Bevill Amendment.

Past experience underscores the importance of this statutorily

- prescribed vetting process, as many of the previous allegations of damage cases identified by environmental groups have been meritless and have been dismissed by EPA as unsubstantiated and/or incorrect. For example, prior to initiating this rulemaking, EPA gathered or received information on 135 alleged damage cases, many of which were submitted to EPA by the same env ironmental organizations referenced above. 75 Fed. Reg. at 35147. After evaluating these allegations, close to half (62) were dismissed “because there was little or no information supporting the concerns identified.” Id. Another six were outside the scope of the rulemaking. Id. Of the remaining 67 allegations, 24 were identified as proven damage cases, but this included the 14 proven cases already identified in the 2000 Regulatory Determination. Id. The point is that less than two

- tenths of the cases “alleg ed” to have been damage cases have, in the end, been determined by EPA to be “proven” damage cases.

The same over

- counting of damage cases exist in the case of the more recent damage allegations submitted by EIP, Earthjustice and the Sierra Club. An initi al analysis by EPRI of certain of these allegations reveals that there are similar factual errors and/or lack of a factual basis for classifying these sites as damage cases. As EPRI reports, these groups have identified 70 new alleged damage cases, “based primarily on researching state records.” EPRI Comments on CCR Proposal (Nov. 19, 2010) (“EPRI Comments”) at 43. EPRI‘s summary review of these new allegations reveals the same type of factual errors and/or misinterpretations as contained in past damage cas e allegations presented by these groups. For example, EPRI reports that “[o]ff site migration claims are frequently not substantiated,” pointing out that for 35 of the alleged cases (half of the alleged new cases), environmental groups claim that groundwat er contamination is “moving off

- site.” Id. at 47. In fact, however, the EPRI Report reveals that “there appears to be541

little or no documentation of actual off

- site movement at these sites, and in fact the reports state many of these sites don‘t have off

- si te wells.” Id. The lack of factual foundation and simple factual errors also undermine the veracity of the new allegations. In one case, single occurrences of elevated levels of certain metals were reported as evidence of contamination, when subsequent

sam ples over the next 12 years were all very low, indicating that the “single occurrences clearly appear to be outliers.” Id. at 44. In yet another case, the groundwater well that is relied upon for alleging that contamination has been observed off

- site, is i n fact located on

- site. Id. at 48. These types of factual errors and unfounded assertions underlie many of the new allegations of damage cases made by the above organizations See id. at 43

- 49.

In fact, similar factual inaccuracies were identified by the P ennsylvania Department of Environmental Protection (“PADEP”) with respect to the damage case allegations by EIP and Earthjustice in their February 2010 report entitled “Out of Control: Mounting Damages from Coal Ash Waste Sites.” In that report, EIP and Ea rthjustice identified four facilities located in the southwest region of PADEP as constituting “damage cases.” PADEP explains that “[s]ince the EIP report did not contain standard scientific documentation, the Department has responded

based on a scientific review of each facility‘s data and the Department‘s familiarity of the sites and their groundwater data and impacts.” Commonwealth of Pennsylvania Department of Environmental Protection Southwest Region, Review of the Environmental Integrity Project and

E arthjustice Report: “Out of Control: Mounting Damages From Coal Ash Waste Sites,” (Oct.13, 2010) (attached as Appendix 24). The PADEP “reviewed and responded to each specific allegation point by point” and concluded, after a “methodical, organized and scie ntific review” of its data, that “the allegations regarding groundwater and surface water contamination by Primary MCL‘s are unfounded.” Id.

In short, the Bevill Amendment prohibits EPA from relying on the new allegations of damage

cases without first ful ly examining these allegations and providing the public with an opportunity to evaluate and comment on the Agency‘s initial findings. Given that the vast majority of similar allegations in the past have been meritless, this type of careful review is necess ary to ensure that unfounded and/or incorrect charges of new damage cases are not used as the basis for any final

decisions.

Response: See response to comment excerpt EPA

- HQ

- RCRA

- 2009

- 0640

- 09951

- 26.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 10497

- 16 

### Organization 1 

### : Seminole Electric Cooperative, Inc. (Seminole)


### Commenter 1 : Carl Eldred Commenter Type: Electric Utility Company

Classification: Substantive



### Comment Excerpt Text: IX. The SGS Facility is Not a Damage Case The Environmental Integrity Project (“EIP”) and Earthjustice (“EJ”) identified Seminole’s facility as an alleged damage case in their report of February 24, 2010. The report contains a number of statements concerning Seminole’s facility that are inaccurate and misleading for

several reasons. First, the groundwater data referenced in the report, while above numerical542

primary and secondary drinking water standards, is from samples taken within the facility’s

FDEP

- authorized zone of discharge (ZOD); these standards do not apply within a ZOD unde r FDEP regulations. Moreover, because the SGS facility is an “existing installation” under FDEP regulations, the secondary standards do not apply at all. Second, the referenced data concerning exceedances of primary drinking water standards for lead is mor e than a decade old and was taken from four shallow monitoring wells within the facility’s designated ZOD. As stated before, these standards do not apply within a ZOD under FDEP regulations. Third, Seminole is unaware of any data reflecting the detection o f arsenic above primary drinking water standards in groundwater at the facility. EIP/EJ comments alleging damage to groundwater, surface water, and wetlands are also misleading and inaccurate. Contrary to allegations in the report, the surficial groundwate r aquifer was the only aquifer in which some parameters were detected above background levels. The “deep” aquifer referred to in the EIP/EJ comments is actually a lower portion of the surficial aquifer which is not used as a drinking water source in the ar ea. Allegations regarding surface water contamination are similarly misleading. The surface water samples referenced in the EIP/EJ report were taken from an NPDES

- regulated stormwater system and not from a Florida

Class III surface water. Class III surface water criteria, therefore, are not applicable. Thus, there have been no exceedances of state surface water standards or criteria. Finally, the referenced wetland impacts were limited to stressed vegetation located on Seminole property. Ongoing monitoring activities demonstrate that the on

- site vegetation diversity and density is improving

due to a number of remediation efforts. The data referenced in the EIP/EJ report does not reflect current water quality at the site. Indeed, water quality has improved in and around the CCR landfill as a result of the lining of all landfill stormwater and process ponds from 1997 to1999. A drain system was also installed on three sides of the landfill to collect all impacted groundwater beneath the landfill. FDEP has partic ipated with Seminole in the investigation of environmental conditions at the site and also assisted in the development of the corrective actions that have been taken at the site since the environmental conditions were first discovered. This investigation a nd the activities undertaken have resulted in FDEP’s approval of Seminole’s implementation of an Interim Remedial Action Plan (IRAP). The IRAP requires that the current drain system be operated until impacted groundwater is remediated to levels acceptable to FDEP. In conjunction with this activity, Seminole continues to monitor groundwater in wetlands in and around the CCR landfill

.

Response: EPA has assessed all the ‘newly alleged’ damage cases against The Agency’s test of proof criteria, including the Se minole Electric Cooperative, Inc. site in Florida. For a summary of

the available site evidence and the rationale for the Agency’s designation of this site as a potential damage case , the commenter is referred to the technical support documents on damage

c ases in the docket of the final rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 10498

- 20 

### Organization 1 

### : Florida Electronic Power Coordinating Group, Inc. (FCG)


### Commenter 1 : Carl Eldred Commenter Type: Electric Utility Company

Classification: Substantive



### Comment Excerpt Text:543

IX. Alleged Florida Damage Cases

Some FCG member facilities were identified as alleged “damage cases” in reports by the Environmental Integrity Project (“EIP”) and Earthjustice in 2008 and 2010. Generally, these

comments contain nume rous inaccuracies, omit important facts and data, and ignore relevant FDEP regulatory provisions. Individual FCG member responses to the EIP and Earthjustice allegations are set forth in Attachment “J.”

Response: EPA has assessed all the ‘newly alleged’ damage cases against the Agency’s test of proof criteria, including those under the aegis of the Florida Electronic Power Coordinating Group, Inc. (FCG) sites in Florida. For a summary of the available site evidence and the rationale for the Agency’s damage case designation of FCG’s jurisdiction sites in Florida, the commenter is referred to the technical support documents on damage cases in the docket of the final rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 10498

- 33


### O rganization 1 

### : Florida Electronic Power Coordinating Group, Inc. (FCG)


### Commenter 1 : Carl Eldred Commenter Type: Electric Utility Company

Classification: Substantive



### Comment Excerpt Text:

Lakeland Electric McIntosh Power Plant

Lakeland Electric (Lakeland) has carefully reviewed and analyzed the content of the report identified as the Environmental Integrity Project undertaken on behalf of Earth Justice and Sierra Club, and entitled “In Harm’s Way: Lack of Federal Coal Ash Regulations Endangers Americans

and Their Environment” dated August 26, 2010, which purports to identify and discuss “thirty

nine new damage cases of contamination from improperly disposed coal combustion waste” (EIP Report). This review and analysis leads Lakeland to reach the following re levant findings and

conclusions:

1. The McIntosh Plant should not be identified as a site which constitutes a proven damage case under EPA’s Regulatory Determination. Due to specific facts and circumstances regarding the McIntosh Plant, it is clear that t his site does not meet EPA’s test of proof for classifying a site as a proven damage case. None of the data referenced for this alleged damage case satisfies EPA’s criterion of an “exceedance[s] of a primary drinking water standard that [is] measured in

gr oundwater at a sufficient distance from the waste management unit to indicate that hazardous constituents had migrated to the extent that they could cause human health concerns.” 65 Fed. Reg. 32214, 32224 (May 22, 2000).

2. The McIntosh Plant is in compli ance with applicable State of Florida and Florida Department of Environmental Protection (FDEP) groundwater regulatory standards and requirements. As correctly noted in the EIP Report, Lakeland did enter into a 2001 FDEP Consent Order. Among other things, that Consent Order specified that Lakeland would further investigation and analyze potential groundwater impacts associated with operations of the McIntosh Plant. Associated corrective actions would be required “if necessary.” In keeping with such Consent Order544

directives, Lakeland has completed considerable groundwater

- related data gathering and analyses, and has determined that no primary or secondary or drinking water standards or groundwater clean

- up target levels have been exceeded outside of an FDEP a uthorized zone of discharge (ZOD). Furthermore, Lakeland has demonstrated pursuant to work conducted pursuant to the referenced Consent Order that continued operation of the McIntosh Plant as well as ongoing monitoring of related facilities is not resultin g in applicable groundwater standard exceedances or violations. Lastly, also pursuant to other Consent Order provisions and requirements, Lakeland has prepared and implemented a Best Management Plan (BMP), a permanent Waste Management Plan (WMP) and a modi fied Groundwater Monitoring Plan (GWMP) for the McIntosh Plant so as to ensure that present and future operations will be conducted with minimal impact to groundwater resources.

3. The McIntosh Plant does not present an environmental or public health risk to area groundwater users. The data references and damage

- related allegations contained in the EIP Report disregard the State of Florida and FDEP groundwater regulatory program provisions and requirements referenced above. In addition to its past, present , and future focus on regulatory compliance, Lakeland takes seriously its duty to conduct McIntosh Plant operations so as to not adversely impact City of Lakeland residents and Florida citizens. Contrary to those EIP report allegations, all private and pub lic drinking water wells in the vicinity of the McIntosh Plant show no impacts from McIntosh Plant activities and operations. It is irresponsible and baseless for Earth Justice and The Sierra Club to allege such impacts in the context of the McIntosh Plant discussion contained within the EIP Report.

Lakeland strongly differs with the statements, data, and inferences contained in such EIP Report which purportedly support the addition of the McIntosh Plant to an existing list of national coal

combustion wast e disposal sites identified as “damage cases.” Clearly, that allegation and request for inclusion within such list as contained within the EIP Report is unsubstantiated and in error.

Tampa Electric Company Big Bend Power Station

EPA has requested additio nal information and comment regarding previous listings of potential or actual “damage cases” related to Coal Combustion Residual (CCR) management at coal fired power facilities. EPA has previously reviewed all of the existing identified cases on at least two separate occasions and reached decisions on each of the cases based on its accepted listing criteria. Nevertheless, the Environmental Integrity Project (EIP) and Earthjustice (EJ) have continued to press for expanding the list to include many cases whi ch do not meet the threshold for such a listing. One of the sites listed in two previous reports by these organizations is the Tampa Electric Co. (“Tampa Electric”) Big Bend Power Station. Tampa Electric would like to provide the following to ensure that a ccurate information is made available about the Big Bend Power Station, as well as the company’s continuing commitment to the environment.

Context of EJ/EIP Report

With respect to this report, there are several omissions of pertinent background from the EJ/EIP analysis which must be considered regarding the management of CCRs at the Big Bend Power Station. The comments regarding exceedances of groundwater and surface water standards have545

been repeatedly taken out of context by EJ in its reports. The excee dances noted in the 2007 EJ report were detected during a narrowly focused contamination assessment (CA) which was performed in 2001 and 2002 to determine the potential for offsite groundwater impacts. These results were then utilized in a 2003 Florida Dep artment of Environmental Protection (FDEP) report, entitled” Preliminary Evaluation Of Analytical Data On Coal Combustion Products”. The FDEP report clearly stated that it was preliminary and definitely not intended for use in making regulatory decisions. EJ and EIP have continued to ignore these facts in their use of the report.

Florida Regulatory Program Considerations

Failing to understand the regulatory framework set forth in Florida Statutes Chapter 403 and the groundwater protection standards provid ed in Chapter 62

- 520 Florida Administrative Code, the report has conveniently omitted important considerations of the compliance standards for installations discharging to groundwater in the state. First, the data cited in the 2003 FDEP report

and re

- inter preted by EJ/EIP for the second time was derived from samples taken at locations directly within or adjacent to the CCR management units studied at the Big Bend Power Station. Under the provisions of Florida’s environmental statutes and regulations, existi ng installations discharging to groundwater are allowed a Zone of Discharge (ZOD) extending to the property line of the facility. The Big Bend Power Station is an existing facility, as defined under Florida law. Many of the cited “exceedances” were detecte d well within the Big Bend ZOD and as such, they were not a measure of groundwater compliance by the facility. Furthermore, it should be noted that some of the cited “exceedances” were for Secondary Maximum Contaminant Limits (SMCLs). Under Florida regulat ions, SMCLs are not applicable to existing industrial facilities discharging to groundwater in the state. Therefore, the data was intended to be used solely for planning purposes, with the goal of determining the appropriate corrective actions necessary to reduce the potential for offsite impacts. With respect to cited exceedances of guidance concentrations for surface water at the site these levels were detected in grab samples in a ditch adjacent to a disposal area (DA

- 2) which was later voluntarily cappe d and closed by Tampa Electric, eliminating the potential for any future impacts. Finally, and most importantly, no impacts to offsite drinking water or surface water resources have ever occurred as a result of the operation of this facility.

Tampa Electr ic Remedial Actions

Tampa Electric has discontinued the operation of the DA

- 2 area for disposal of industrial wastes and CCR’s and has completed the permitted closure and capping of this management unit. Tampa Electric has also agreed to a long term Remed ial Action Plan which calls for the lining of the Gypsum Management Area, which was also cited in the EJ/EIP report. These actions were agreed to by Tampa Electric despite the fact that no off

- site damage was demonstrated to have

occurred as a result of th e management of CCR’s at this facility. With the planned improvements to the gypsum management facilities at the Big Bend Power Station, all of the ash, slag and gypsum impoundments and landfills at the plant will have been lined. Tampa Electric is also

im plementing an extensive groundwater monitoring plan, including approximately 45 monitoring wells, to determine the long term success of these corrective actions. Previous monitoring in these wells has demonstrated improvements in onsite groundwater quality as a result of the remedial actions which have already been implemented.546

Summary

Tampa Electric and FDEP have worked together closely to ensure that CCR’s are managed at Big Bend in a manner which is protective of human health and the environment. Tampa Electric’s cooperation with FDEP to formulate and execute a Remedial Action Plan for eliminating impacts to groundwater and surface water resources is proving successful. This plan is nearing completion and will result in all CCR management facilities on the Big Bend site being lined to prevent future impacts to groundwater or surface water at the site. The EJ/EIP effort to list the Big Bend Power Station as a damage case is based on outdated information and ignores the fact that a plan has already been ap proved by FDEP and implemented at the site to protect groundwater quality.

Seminole Electric Cooperative, Inc.’s Seminole Generating Station

The Environmental Integrity Project (“EIP”) and Earthjustice (“EJ”) identified Seminole Electric Cooperative, Inc .’s (“Seminole”) Seminole Generating Station facility as an alleged damage case in their report of February 24, 2010. The report contains a number of statements concerning Seminole’s facility that are inaccurate and misleading for several reasons. First, t he groundwater data referenced, while above numerical primary and secondary drinking water standards, are from samples taken within the facility’s FDEP

- authorized zone of discharge (ZOD); these standards do not apply within a ZOD under FDEP regulations. Mo reover, because the Seminole facility is an “existing installation” under FDEP regulations, the secondary standards do not apply at all. Second, the referenced data concerning exceedances of primary drinking water

standards for lead is more than a decade o ld and was taken from four shallow monitoring wells within the facility’s designated ZOD. As stated before, these standards do not apply within a ZOD under FDEP regulations. Third, Seminole is unaware of any data reflecting the detection of arsenic above p rimary drinking water standards in groundwater at the facility.

EIP/EJ comments alleging damage to groundwater, surface water, and wetlands are misleading and inaccurate. Contrary to allegations in the report, the surficial groundwater aquifer was the

onl y aquifer in which some parameters were detected above background levels. The “deep” aquifer referred to in the EIP/EJ comments is actually a lower portion of the surficial aquifer which is not used as a drinking water source in the area. Allegations regar ding surface water contamination are similarly misleading. The surface water samples referenced in the EIP/EJ report were taken from an NPDES

- regulated stormwater system and not from a Florida Class III surface water. Class III surface water criteria, ther efore, are not applicable. Thus, there have been no exceedances of state surface water standards or criteria. Finally, the referenced wetland impacts were limited to stressed vegetation located on Seminole property. Ongoing monitoring

activities demonstrat e that the on

- site vegetation diversity and density is improving due to a

number of remediation efforts.

The data referenced in the EIP/EJ report does not reflect current water quality at the site. Indeed, water quality has improved in and around the CCR landfill as a result of the lining of all landfill stormwater and process ponds in 1997

- 1999. A drain system was also installed on three sides of the landfill to collect all impacted groundwater beneath the landfill.547

FDEP has participated with Seminole in the investigation of environmental conditions at the site and also assisted in the development of the corrective actions that have been taken at the site since the environmental conditions were first discovered. This investigation and the activities

under taken have resulted in FDEP’s approval of Seminole’s implementation of an Interim Remedial Action Plan (IRAP). The IRAP requires that the current drain system be operated until impacted groundwater is remediated to levels acceptable to FDEP. In conjunction with this activity, Seminole continues to monitor groundwater in wetlands in and around the CCR landfill.

Response: EPA has assessed all the ‘newly alleged’ damage cases against the Agency’s test of proof criteria, including the Seminole Electric Coopera tive, Inc., Big Bend

, and McIntosh sites in Florida. For a summary of the available site evidence and the rationale for the Agency’s designation s of these three sites as a potential damage cases, the commenter is referred to the technical support documents on damage cases in the docket of the final rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 10623_DC

- 037

- 2 

### Organization 1 

### : Maryland Energy Report


### Commenter 1 : John N. Howley Commenter Type: Media

Classification: Substantive



### Comment Excerpt Text: The Damage Cases enumerated by EPA and others, including the recent report In Harm’s Way from the Environmental Integrity Project, Earthjustice and Sierra Club, are properly understood as the proverbial “tip of the iceberg.” [Footnote 7: Environmental Inte grity Project, Earthjustice and Sierra Club; In Harm’s Way: Lack Of Federal Coal Ash Regulations Endangers Americans And Their Environment Thirty

- nine New Damage Cases of Contamination from Improperly Disposed Coal Combustion Waste; August 26, 2010; http:/ /www.environmentalintegrity.org/news_reports/documentsIlNHARMSWAY _FINAL.pdf.] In many states, monitoring and reporting is inadequate. Furthermore, the documented damage represents only the early stages of groundwater contamination plumes that will grow an d spread in the coming decades and centuries.

Response: Thank you for your comment. EPA concurs with the commenter that many of the damage cases alleged in the August 2010 report In Harm’s Way: Lack of Federal Coal Ash Regulations Endangers Americans and Their Environment Thirty

- nine New Damage Cases of Contamination from Improperly Disposed Coal Combustion Waste should be considered as the proverbial “tip of the iceberg.” EPA also agree s that this is so because the documented damage cases represent only t he early stages of groundwater contamination plumes that will grow and spread in the foreseeable future , and that many of the CCR management sites still do not have groundwater monitoring

.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 10631_DC

- 046

- 4 

### Organization 1 

### : Sierra Club


### Commenter 1 : Lyndsay Moseley Commenter Type: Advocacy Group548

Classification: Substantive



### Comment Excerpt Text: And the contamination risk is not merely hypothetical. In addition to the EPA's list of 67 documented damage cases, recent analysis of industry's own data (obtained by FOIA request from state agencies where it was available) demonstrates an alarming trend

- at all of the sites with groundwater monitoring wells, concentrations of heavy metals such as arsenic or lead are

far above federa l standards for drinking water. These results and others are explored in detail in the recently released reports from Environmental Integrity Project, Earthjustice and Sierra Club, bringing the total number of coal ash contamination that have now been iden tified up to 137 sites in 34 states. Continuing to ignore scientific and safety concerns will most certainly come at a much higher cost than most people realize.

Response: See response to comment excerpt EPA

- HQ

- RCRA

- 2009

- 0640

- 10623_DC

- 037

- 2.



### Comment Num ber: EPA

- HQ

- RCRA

- 2009

- 0640

- 10636_DC

- 076

- 2 

### Organization 1 

### : Sierra Club


### Commenter 1 : Leslie G. Fields Commenter Type: Advocacy Group

Classification: Substantive



### Comment Excerpt Text: The EPA, as with many other issues must promulgate regulations for the whole country. The need for this regulation under Subtitle C is acute. According to the report, In Harm 's Way, Lack of Federal Coal Ash Regulations Endangers Americans and Their Environment by the Environmental Integrity Project, Earthjustice and the Sierra Clu b

.

Response: This rule will regulate CCRs under RCRA subtitle D: for further details, see unit IV of the preamble of the final rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 10638_DC

- 078

- 2 

### Organization 1 

### : League of Conservation Voters (LCV)


### Commenter 1 : Sara Chieffo Commenter Type: Advocacy Group

Classification: Substantive



### Comment Excerpt Text: The dangers coal ash pose to public health and the environment have been known for a long time. This coal combustion byproduct is known to contain harmful metals and chemicals like arsenic, lead, and mercury that lead to increased rates of cancer, birth defects, learning disabilities and other illnesses. Currently much of the coal ash waste is stored in ponds, landfills, and abandoned mines that do not have adequate sa feguards. Whether through large scale and highly visible disasters, like the massive coal ash spill in Tennessee in 2008 or the less visible contamination of groundwater, communities, public health, and the environment are unnecessarily being threatened. I n fact a report released just last week by the Environmental549

Integrity Project, Earthjustice, and the Sierra Club, bring the total number of known contamination sites from toxic coal ash pollution to 137 spread across 34 states.

Response: Thank you for yo ur comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 10656_DC

- 095

- 1 

### Organization 1 

### : Environmental Integrity Project (EIP)


### Commenter 1 : Jeff Stant Commenter Type: Advocacy Group

Classification: Substantive



### Comment Excerpt Text: The Environmental Integrity Project (EIP) appreciates this opportunity to present testimony on EPA’s proposed national regulation of coal combustion wastes (CCW). As the largest industrial waste stream in America outside of mining wastes, CCW has concentrated levels of heavy

metals a nd other pollutants that readily leach in toxic levels contaminating groundwater and surface water. The release of In Harms Way: Lack of Federal Coal Ash Regulations Endangers Americans and Their Environment, last week by EIP, Earthjustice and Sierra Club documents this problem at 39 more coal ash sites and demonstrates that in many cases, state agencies have remained silent while private and public water drinking water supplies are threatened by the contamination. Highlights of this report are as follows:

1) Contamination from CCW is pervasive. When combined with the 31 other coal ash sites examined by EIP and EJ in a February Report and sites already acknowledged by EPA to be damaged by coal ash, the list of contaminat ed sites comprises some 137 sites spr ead across 34 states, making this truly a national water pollution problem. At every one of the 35 sites in this report that had groundwater monitoring data, contamination of groundwater was readily
apparent.

2) Levels of contamination are toxic. At every one of the 35 contaminated sites, MCLs for metals were exceeded in underlying groundwater with exceedances ranging as high as 341 times the standard for arsenic at Hatfield’s Ferry in Pennsylvania, 170 times the standard for cadmium and

179 times the stand ard for lead at Little Blue Impoundment in Pennsylvania, 37 times the standard for selenium at Northeastern Landfill in Oklahoma, and antimony at 52 times, beryllium at 30 times, chromium at 17 times and nickel at 22 times the standard at the Industrial Ex cess Landfill in Ohio.

3) Contamination is endangering people. At the five sites in which offsite monitoring of drinking water wells was undertaken, contamination of the wells was confirmed in every case, with four of the five having confirmed exceedances of MCLs in residential wells. Additionally, state records indicate that at least five private drinking water wells are located within 2 miles of 15 of the sites and in 13 of those cases, wells are located in the direction that contamination is flowing

fro m the ash sites. In eight cases, there are 25 or more private drinking water wells Within 2

miles of the site and in two cases there are more than 90 such wells within a mile of the site. People are in harms way.550

4) States are not preventing the contamina tion or requiring it to be remediated. Despite some indication of contamination being acknowledged at 21 of the sites, operators had been required to determine the extent of the contamination at only five of the sites. At no site did we find the
state requ iring operators to clean up the contamination, even when it was acknowledged that the contamination had moved beyond the property lines of the dump sites.

Response: Whereas EPA’s tally of confirmed CCR damage cases is different from that of the commenter, EPA agrees conceptually with the concerns expressed by the commenter concerning the prevalence of exceedances of metal MCLs in many of the inadequately managed CCR management units and the potential risk that this contamination pose s to rural populations that rely on private drinking water wells.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 10705_DEN

- 017

- 2 

### Organization 1 

### : Sierra Club

- Rocky Mountain Chapter


### Commenter 1 : Becky English Commenter Type: Advocacy Group

Classification: Substantive



### Comment Excerpt Text: The Environmental Integrity Project released a study [Footnote 1: http://environmentalintegrity.org/news_reports/documents/INHARMSWAY_FINAL3.PDF] just last week that identifies 39 additional sites in 21 states beyond tho se already known

-- to be contaminating drinking water and surface water. The report, which included Sierra Club research activity, documents that state governments are not adequately monitoring coal combustion waste disposal sites. This is certainly true r ight here in Colorado, where budgetary constraints are often cited by the Colorado Department of Public Health & Environment for inadequate monitoring. The report shows that at every one of the coal ash dump sites equipped with groundwater monitoring wells , concentrations of heavy metals such as arsenic or lead exceed federal health

based standards for drinking water, with concentrations at Hatfield's Ferry site in Pennsylvania reaching as high as 341 times the federal standard for arsenic. Clearly the conc lusion is that EPA must take robust steps to protect the environment from the toxins associated with coal combustion waste. I'd like to point out that EPA's standards are created with only human health in mind, and that of course there is untold and more d evastating havoc being wreaked on the so

called 'lower' or simpler forms of animal and plant life.

Responses: EPA agrees with the inferences made by the commenter concerning the inadequate monitoring of CCR management sites in quite a few state s . EPA decided to regulate the disposal of CCR under subtitle D of RCRA by issuing minimum national criteria. Similar to the subtitle C option, this option would require composite liners, groundwater monitoring, structural stability requirements, corrective action, and closure/post closure care. However, given available statutory authorities, EPA proposed this option to be a self

- implementing rule with no direct federal oversight, with an effective six months after publication in the Federal Register . The

A gency is deferring its final Bevill Regulatory Determination with respect to CCRs that are disposed in CCR landfills and CCR surface impoundments until additional information is available on a number of key technical and policy questions, including the ris ks of CCR disposal based on its arsenic content, such as the appropriate safe daily dose for arsenic and the speciation551

of arsenic in the environment, and the potential impacts of recent Agency regulations on the chemical composition of CCR. In addition, the Agency needs additional information on state programs before it is in a position to make a final Bevill Regulatory Determination.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 10736_DEN

- 048

- 3 

### Organization 1 

### : Earthjustice


### Commenter 1 : Melanie Kay
Commenter Type: Advocacy Group

Classification: Substantive



### Comment Excerpt Text: Third, in view of our proximity to the headquarters of the American Coal Ash Association, it is important to dispel a misconception asserted repeatedly by the ACAA

- that there are no da mage cases caused by coal ash reuse. We ask both EPA and the ACAA to review our report published last February, co

- authored by the Environmental Integrity Project, that describes two sites where the use of ash as structural fill contaminated groundwater. I n addition, EPA itself documented that coal ash used as fill contaminated drinking water in Pines, Indiana and led, in part, to the town's designation as a federal Superfund site.

Response : EPA agrees with the commenter that there are quite a few document ed instances where large

- scale CCR fill projects have resulted in proven damage cases. After weighing in on the issue, the EPA concluded that the size of a fill project is not necessarily the critical factor worthy of consideration in each and every case, but rather a combination of factors such as the leachability of the CCR fill, the permeability of the natural substrate, and the amount of run

- on to be collected at the site. Consequently, EPA does not bar nor regulate CCR structural fill projects

but rath er advises practitioners to thorough ly study the material

- and site properties prior to the

execution of such project s

.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 10796_DA

- 026

- 1 

### Organization 1 

### : Environmental Integrity Project, Earthjustice and Sierra Club


### Commenter 1 : Jeff Stant Commenter Type: Advocacy Group

Classification: Substantive



### Comment Excerpt Text: [Attachment: see original comment for copy of "In Harm's Way"]

Response: Thank you for providing EPA with a copy of the August 2010 report titled In Harm's Way. EPA has assessed the 39 ‘newly alleged’ CCR damage cases included in this report against the Agency’s test of proof criteria, and confirmed that many of them warrant to be designat ed as confirmed damage case. For a discussion of the damage c ase assessment methodology, see Unit XI of the preamble to this rule. For a summary of stakeholder arguments addressing these CCR management sites and the rationale for the Agency’s designation decisions, see the technical support documents on damage cases in the docket of the final rule.552



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 10809_DA

- 039

- 3 

### Organization 1 

### : Commenter 1 : Rogers Dennis Commenter Type: Private Citizen

Classification: Substantive



### Comment Excerpt Text: New Earthjustice/EIP (Environmental Integrity Project) reports show additional coal ash contamination in our state and the entire country

.

Response: Thank you for your comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 11150_CHA

- 137

- 1 

### Organization 1 

### : League of Women Voters of Columbia, South Carolina


### Commenter 1 : Suzanne Rhodes Commenter Type: Advocacy Group

Classification: Substantive



### Comment Excerpt Text: The utilities seem to have organized a fact free campaign to push for the status quo, while repeating “jobs” and “recycling” mantras. They can do better, particularly in light of “In Harms Way” data on water quality, and EPA data on health effects. Many many thanks to the Environmental Integrity Project. I haven’t heard anyone criticize the facts in that report, and I

found the data astoundi ng.

Response: Whereas EPA concur s with the commenter’s appreciation of the August 2010 In Harm’s Way report as a potentially valuable source of damage case data

, both the utilities and quite a number of state regulatory agencies have criticized this report on various grounds. EPA

verif ied the information contained in the report and/or judge d its contents in the context of industry’s and State rebuttals, so as to determine which of those alleged cases qualify as confirmed damage cases.



### Comment Numbe r: EPA

- HQ

- RCRA

- 2009

- 0640

- 11177_CHI

- 008

- 2 

### Organization 1 

### : Duke Energy


### Commenter 1 : Richard Meiers Commenter Type: Electric Utility Company

Classification: Substantive



### Comment Excerpt Text: Certain activist groups are alleging dozens of new damages cases, including some Duke Energy facilities. In its final May 2000 Regulatory Determination concluding that CCRs do not warrant Subtitle C regulation, EPA was aware of fourteen (14) proven damage cases and thirty six (36) potential damage cases. EPA has since listed an additional thirteen (13) proven damage cases and only four (4) more potential damage cases, bringing the total to twenty seven (27) proven damages and forty (40) potential damage cas es, respectively.553

A close examination of the facts reveals many flaws in the recent allegations made by activist groups regarding additional damage cases. Many of the assertions are based on extremely flimsy evidence, with unfounded conclusions. EPA cann ot rely on these assertions in any final rulemaking without conducting its own factual, independent review of the sites and allowing for public notice and comment on their findings.

An EPRI analysis of the EPA damage case report in the 2008 Notice of Data Availability (NODA) shows only a handful of these cases actually involve circumstances where there was

off

- site contamination of an MCL occurred. Of the 54 proven or potential damage cases cited by EPA in the NODA involving groundwater contamination, only three involved off

- site contamination exceeding MCLs. The same is likely true with the alleged new damage cases. In fact, during their press conference, the activists acknowledged that some of these cases do not

involve off

- site contamination, but specula te merely that the damage may migrate off

- site at some point in the future.

Another significant flaw is that the allegations have been made without prior consultation with the very states whose programs the groups allege are deficient. The states are cont esting these allegations and charging that the activist groups have improperly characterized the effectiveness

of their state controls.

Response: EPA has assessed all the ‘newly alleged’ damage cases, submitted by environmental advocacy groups in February and August 2010 ( Out of Control and In Harm’s Way , respectively) and in November 2011 ( Risky Business ) against the Agency ’s test of proof criteria. Based on this

assessment, EPA designated some of the 90 CCR management sites as proven damage case,

others

– as potential damage case, and still others were rejected as CCR damage cases because they failed the scrutiny of the test of proof criteria. For discussion of the damage case assessment methodology, please refer to Unit XI of the preamble to this rule. F or a summary of stakeholder arguments addressing all the assessed CCR management sites and for the rationale for EPA ’s damage case designation decisions, see the technical support documents on damage cases in the

docket of the final rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 11182_CHI

- 013

- 2 

### Organization 1 

### : MidAmerican Energy Holdings Company


### Commenter 1 : Cathy S. Woollums Commenter Type: Electric Utility Company

Classification: Substantive



### Comment Excerpt Text: I urge EPA to consider the facts and rely upon sound science when determining the appropriate regulatory scheme for coal combustion residuals, not fear and rhetoric.

One of MidAmerican’s facilities was recently highlighted as a so

- called new, documented damage site in a report entitled “In Harm’s Way: Lack of Federal Coal Ash Regulation Endangers Americans and Their Environment.” The report and commentary provided during a press conference suggested that the ash disposal facilities are contaminating groundwater with554

arsenic and we “are poisoning t he workers at the plants” with the drinking water supply. Nothing could be further from the truth; sampling of surface water and drinking water wells in the vicinity of the plant and the ash disposal facilities demonstrate that levels of arsenic were eithe r not detectable or were well below the federal drinking water standards. Further, none of the plant drinking water sampling results exceeded the drinking water standards for arsenic, and levels

were in fact not detectable.

Response: In the absence of a reference to a specific CCR management facility, EPA cannot address the commenter’s specific concerns. In general, however, the Agency has assessed all the ‘newly alleged’ damage cases, submitted by environmental advocacy groups in February and August 2010 ( Out of Control and In Harm’s Way , respectively), a gainst EPA’s test of proof criteria. Based on this assessment, the Agency designated some of the 70 CCR management sites as proven damage case, others

– as potential damage case, and still others were rejected as CCR damage cases because they failed the sc rutiny of the test of proof criteria. For discussion of the damage case assessment methodology, please refer to Unit XI of the preamble to this rule. For a summary of stakeholder arguments addressing all the assessed CCR management sites and for

the ration ale for the Agency’s damage case designation decisions, see the technical support documents on damage cases in the docket of the final rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 11218_CHI

- 087

- 1 

### Organization 1 

### : Environmental Integrity Project


### Commenter 1 : Je ff Stant Commenter Type: Advocacy Group

Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:



### Comment Excerpt Text: [Attachment: see original comment for copy of damage case from "In Harm's Way" for Midwest

Generation Joliet Generation Station 9, Lincoln Stone Quarry Landfill]

Response: EPA has assessed all the ‘newly alleged’ damage cases, submitted by environmental advocacy groups in February and August 2010 ( Out of Control and In Harm’s Way , respectively)

and in No vember 2011 ( Risky Business ) against EPA’s test of proof criteria. Based on this assessment, the Agency designated the Midwest Generation Joliet Generation Station 9, Lincoln Stone Quarry Landfill site as a potential damage case. For discussion of the dama ge case assessment methodology, please refer to Unit XI of the preamble to this rule. For a summary of stakeholder arguments addressing Joliet Generation Station 9, Lincoln Stone Quarry Landfill site and for the rationale for the Agency’s damage case desig nation decision, see the technical support documents on damage cases in the docket of the final rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 11283_CHI

- 057

- 1 

### Organization 1 

### : Midwest Generation, LLC


### Commenter 1 : Maria Race Commenter Type: Electric Utility Company

Classification: Substantive555



### Comment Excerpt Text: I am speaking today on behalf of Midwest Generation, owner and operator of a coal ash landfill which is part of our Joliet 9 Generating Station located in Joliet, Illinois. The Jo liet 9 landfill was recently identified in the August 2010 publication entitled “In Harm’s Way” prepared by certain environmental interest groups to support their claims that federal regulation of coal ash is needed, in particular, regulation of coal ash a s a hazardous waste. I have been personally involved with the Joliet 9 landfill since 2001. The true story of Midwest Generation’s Joliet 9 landfill does not support the claim that more federal regulation of coal ash landfills or regulation

as a hazardous waste is needed to protect the public health; rather, it shows that current Illinois regulations are protective of the environment and public health.

So much of what is contained in the “In Harm’s Way” publication is false and misleading that I

will not h ave enough time today to identify and correct all of its errors. However, I will cover the most egregious of their false statements.

- The “In Harm’s Way” document claims that eighteen nearby residential drinking water wells

were contaminated with boron f rom Midwest Generation and that is not true.

- The document claims that there is evidence of off

- site contamination in the direction of the Smiley subdivision and that is not true.

- The document claims that there was an enforcement action taken by the s tate of Illinois and that

is not true.

Because the authors of “In Harm’s Way” elected not to discuss any of the contents of their story with Midwest Generation before publishing it, we did not have any opportunity to correct these mistakes before they wer e published.

The Joliet 9 landfill has been subject to IEPA regulation since the 1970s. State regulations provide extensive requirements and protections against the outward migration of any impacted groundwater from the landfill. These requirements includ e quarterly monitoring and reporting for an extensive network of groundwater monitoring wells within the boundaries of the landfill for numerous constituents that are known to be associated with coal ash, such as boron, arsenic and

manganese.

The “In Harm ’s Way” document ignores these permit requirements and the fact that Midwest Generation has consistently complied with them. We have acted ethically with regard to the local communities. We provided new wells in a deeper aquifer when modeling showed ground water contamination could potentially reach these wells, although sampling of these wells showed that

none of them were contaminated.

We submit that the true story of the Joliet 9 Landfill is not one which supports the call for federal regulation of coal ash disposal sites or regulation as a hazardous waste. Rather, it shows that states can and do effectively regulate and monitor the operations of coal ash landfills. It also shows that in the operation of its Joliet landfill, Midwest Generation has consist ently taken a556

responsible, proactive course of action when dealing with the community so the risks, whether real or not, are addressed.

Response: See response to comment excerpt EPA

- HQ

- RCRA

- 2009

- 0640

- 11218_CHI

- 087

- 1.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 11422_P

- 153

- 3 

### Organization 1 

### : Allegheny Energy, Inc.


### Commenter 1 : David C. Cannon, Jr. Commenter Type: Electric Utility Company

Classification: Substantive



### Comment Excerpt Text: Damage Cases

Two Allegheny sites are referred to in rece ntly issued NGO reports as alleged "damage cases" purportedly warranting treatment of CCR as a Subtitle C waste. They are long

- permitted landfills at our Mitchell and Hatfield's Ferry power stations in Pennsylvania. In both cases the discussions

distort th e facts about disposal operations and effects on drinking water supplies. They seemingly abjure state and federal water laws and regulations and incorrectly invoke drinking water standards where they have no state or federal applicability. They further ign ore the extensive existing regulatory requirements and standards to which Allegheny and other operators are held accountable by EPA, Pennsylvania and West Virginia.

The February 24, 2010 report misconstrues the hydrology of the Mitchell site and contains errors regarding the station operation of wastewater treatment lagoons and the permitted and engineered coal combustion residuals landfill. Likewise, the alleged Hatfield's Ferry damage case, noted in the more recently published report, also misinterprets the hydrology, applies the wrong standards, misidentifies drinking water well locations, ignores existing monitoring wells and incorrectly describes station disposal practices.

Any EPA reliance on these Allegheny site reports would fail to meet the most b asic principles of administrative law and technical support to which EPA is subject. Contrary to these third party allegations, the Pennsylvania regulations have been effective at protecting human health and the environment. Both of these sites have been p ermitted, inspected and monitored by Pennsylvania

under its own rules for decades.

If the other alleged damage cases claimed by the reports are as flawed as those relating to Allegheny and populated by the same factual errors and invalid correlations, EPA must dismiss them as failing to support Subtitle C regulation.

Response: EPA has assessed the two Allegheny Energy’s Pennsylvania CCR management sites (the Mitchell Power Station site and Hatfield's Ferry site) discussed in the February 2010 Out of

Control report

, by comparing them against EPA’s test of proof criteria. Based on the assessment, the Hatfield’s Ferry site is designated as a proven damage case, whereas the Mitchell Power

Station site is designated as a potential damage case. For a summar y of stakeholder arguments557

addressing these two sites and the rationale for their damage case designations by the Agency, see the technical support documents on damage cases in the docket of the final rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 11470_L

- 047

- 2 

### Organization 1 

### : Commenter 1 : Rick Clewett Commenter Type: Private Citizen

Classification: Substantive



### Comment Excerpt Text: Proposal D "would not require permits, nor could EPA enforce the requirements. Instead, states or citizens could enforce the requirements under RCRA citizen suit authority; the states could also enforce any state regulation under their independent state en forcement authority." Leaving the burden of initiating enforcement actions to state agencies and citizens would be an abrogation of EPA's duty to protect the environment and the public. I will use the findings of a just

conducted study by the Sierra Club, Kentucky Waterways Alliance and Global Environmental to make this point.

The study, entitled Slow Motion Spills: Coal Combustion Waste and Water in Kentucky, found that while there are 44 coal ash ponds in Kentucky, anything like adequate information was available for only 8 sites. "Even for those 8 sites, Kentucky did not have monitoring records for all CCW contaminants. In some cases, the Division had even allowed sites whose early records showed dangerous levels of toxic heavy metals to stop monitoring for those pollutants."

Despite this disturbing failure of the state to collect and archive adequate data on water quality near coal ash facilities, the study was able to reach three resounding conclusions:

1. Existing data point to groundwater contami nation caused by coal combustion waste beneath every plant ... studied. For many sites, contamination is intensifying as CCW continues to build up in ponds and landfills. 2. Kentucky's regulatory program is not properly addressing this threat; instead, it 's getting weaker. Even as evidence of contamination mounted in state files, Kentucky reduced monitoring requirements, failed to commence enforcement action, and continued to permit new ponds and landfills without proper controls. 3. Kentucky is not compr ehensively tracking where CCW contamination is going, putting offsite drinking water and communities at risk and allowing CCW discharges to enter our rivers and streams. Because heavy metals found in CCW waste are toxic in extremely low concentrations,

and many of these metals accumulate over time, the combination of information gaps and leaky CCW sites is very dangerous.

I am sure the level of regulation of coal combustion waste is as bad or worse in some other states. I choose to highlight this study of Kentucky's failure to monitor its numerous coal ash ponds and dry fills adequately, let alone to protect its citizens from the damage being done to water quality by leaks from these sites, because the study is current and credible, based on the

state's own records, and because I, my family, and many of my friends live here. It matters to us if Cane Run is endangering the wellbeing of people living in some neighborhoods in Louisville558

or if EKPC's Spurlock facility "discharges to three receiving streams that flow into the Ohio River" and that it has "contaminated underlying groundwater since at least 2005 with arsenic, iron, sulfate and IDS exceeding MCLs and SMCLs," with arsenic reaching "16 times the MCL in

an off

- site well 750 feet northeast of the landfill "

This last statistic comes from a just

- release study done by the Environmental Integrity Project, Earthjustice, and the Sierra Club and entitled" IN HARM'S WAY: Lack Of Federal Coal Ash Regulations Endangers Americans And Their Environmen). This title s ays it all: strong federal regulation of coal combustion waste is essential to the wellbeing of the American people, and it is EPA's Subtitle C Proposal that will provide that regulation. Please put forward a strong,

enforceable rule.

Response: EPA decide d to regulate the disposal of CCR under subtitle D of RCRA by issuing minimum national criteria. Similar to the subtitle C option, this option would require composite liners, groundwater monitoring, structural stability requirements, corrective action, and closure/post closure care. However, given available statutory authorities, EPA proposed this option to be a self

- implementing rule with no direct federal oversight, with an effective six months after publication in the Federal Register . The Agency is def erring its final Bevill Regulatory Determination with respect to CCRs that are disposed in CCR landfills and CCR surface impoundments until additional information is available on a number of key technical and policy questions, including the risks of CCR di sposal based on its arsenic content, such as the appropriate safe daily dose for arsenic and the speciation of arsenic in the environment, and the potential impacts of recent Agency regulations on the chemical composition of CCR. In addition, the Agency ne eds additional information on state programs before it is in a position to make a final Bevill Regulatory Determination.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 11479_L

- 056

- 2 

### Organization 1 

### : Duke Energy


### Commenter 1 : Debbie Nispel Commenter Type: Electric Utility Company

Classification: Substantive



### Comment Excerpt Text: Certain activist groups are alleging dozens of new damages cases, including some Duke Energy facilities. In its final May 2000 Regulatory Determination concluding that CCRs do not warrant Subtitle C regulation, a close examination of the facts reveals many flaws in the recent allegations made by activist groups regarding additional damage cases. Many of the assertions are based on extremely flimsy evidence, with unfounded conclusio ns. EPA cannot rely on these assertions in any final rulemaking without conducting its own factual, independent review of the sites and allowing for public notice and comment on their findings. An EPRI analysis of the EPA damage case report in the 2008 Not ice of Data Availability (NODA) shows only a handful of these cases actually involve circumstances where off

- site contamination occurred of a primary drinking water standard, also known as a primary MCL. Of the 54 proven or potential damage cases cited by EPA in the NODA involving groundwater contamination, only three involved off

site contamination exceeding primary MCLs. The same is likely true with the alleged new damage cases. In fact, during their press conference, the activists acknowledged that some of559

these cases do not involve off

- site contamination, but speculate merely that the damage may migrate off

- site at some point in the future.

Another significant flaw is that the allegations have been made without prior consultation with the very states wh ose programs the groups allege are deficient. The states are contesting these allegations and charging that the activist groups have improperly characterized the effectiveness

of their state controls.

Response: Whereas the commenter criticizes ‘activists’ for merely speculating that at some of the damage case sites (CCR) damage may migrate offsite at some point in the future, by stating that akin to the 54 proven or potential damage cases cited by EPA in the (Oc tober 2011) NODA

that involv e groundwater contamination, only three involved offsite contamination exceeding the primary drinking water standards, and “the same is likely true with the alleged new damage

cases
, ” he also resorts to speculating. As to the cr iticism of the environmental advocacy damage case reports, EPA realized that in quite a few instances the Agency does not see eye to eye with state CCR regulatory program requirements nor with their implementation.

To steer away from speculation, EPA has applied universal test of proof criteria when reassessing both its established damage case s and when assessing the newly alleged damage cases submitted to the Agency by environmental advocacy groups in February and August 2010

and in November 2011 . For fur ther details, the commenter is referred to the discussion of damage cases in Unit XI of the preamble of the final rule, as well as to the technical support documents on damage cases in the docket of the final rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 11483_L

- 061_L

- 062_L

- 063_L

- 064

- 11 

### Organization 1 

### : Boulding Soil

- Water Consulting


### Commenter 1 : Russell Boulding Commenter Type: Other Company

Classification: Substantive



### Comment Excerpt Text: Attachment C (Boulding Statement. Louisville EPA Public Hearing, September 28, 2010).

Kosson et al. 2009 maximum leachate concentration for lead ( 0.035 mg/L for fly ashes and 0.012 mg/L for FGD gypsums

- see summary table from that report included as Attachment A of Evan, 201 0) are lower than maximu m values actually measured in groundwater at ten sites reported in EIP et al. (201 0):

Flint Creek Power plant, AK (0.50 mg/L) Dan River Steam Station, NC (0.0393 mg/L) Leland Olds Station NO (0.0716 mg/L) Gavin Power Plant, OH (0.051 mg/L)

- includes FGD w aste Industrial Excess Landfill, OH (0.70 mg/L) Northeastern Station, OK (0.208 mg/L) Bruce Mansfield Power Station (Little Blue): 2.69 mg/L on site well (77 times higher than maximum in improved leachate tests), 1.8 mg/L off

- site private drinking well. In cludes FGD560

waste Big Stone Power Plant, SO (0.1 086 mg/L) )

- includes FGD waste Johnsonville Fossil Plant, TN (0.39 mg/L)

Other contaminants not included in the Kosson et al. (2009) report where MCLs or other drinking waters were exceeded in groundwater sa mples reported in EIP et al. (201 0) include:

Alpha particles (Federal primary MCL, 15 pCi/L): Gavin Power Plant, OH (1 ,497 pCi/L), Muskingum River Plant, OH (128 pCi/L) Beryllium (MCL 0.002 mg/L): Montville Generating Station, CT (0.004 mg/L), Musking u m River Plant, OH (0.121 mg/L

- 60 times MCL), Gallatin Fossil Plant, TN (0.023 mg/L) Nickel (TN GW standard/former federal MCL 0.1 mg/L): Industrial Excess Landfill, OH (2.2 mg/L), Gallatin Fossil Plant, TN (0.25 mg/L) Silver (NC state GW standard 0.0175 mg/ L): Dan River Steam Station (0.0411 mg/L) Strontium (Federal Lifetime Advisory Level 4 mg/L): Big Stone Power Plant, SO (6.03 mg/L) Vanadium (FL state standard 0.049 mg/L): Northeastern Station, OK (0.465 mg/L), Boardman Plant, OR (0.126 mg/L)

References Cited

Environmental Integrity Project, Earthjustice, and Sierra Club (EIP et al.). 2010. In Harm's Way: Thirty

- nine New Damage Cases of Contamination from Improperly Disposed Coal Combustion Waste. August 26, 2010.

Evans, Lisa. 2010. Failing the Test: Th e Unintended Consequences of Controlling Hazardous Air

Pollutants fro Coal

- Fired Power Plants. Earthjustice.

Kosson, D. et al. 2009. Characterization of Coal Combustion Residues from Electric Utilities Leaching and Characterization Data. EPA

- 600/R

- 09/151 , December 2009.

Response: Thank you for your comment.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 11483_L

- 061_L

- 062_L

- 063_L

- 064

- 8 

### Organization 1 

### : Boulding Soil

- Water Consulting


### Commenter 1 : Russell Boulding Commenter Type: Other Company

Classification: Substantive



### Comment Excerpt Text: The main point I would like to make here is that even these more accurate leaching tests underestimate the potential for lead contamination from coal combustion waste. In Attachment C I have provided a list of nine dispo sal sites in the recent report by the Environmental Integrity Project where measured concentrations of lead in groundwater were higher than the maximum reported in the 2009 EPA report (K o sson et al. 2009). The maximum concentration in an off

- site private d rinking water well at the Big Blue disposal site in Pennsylvania is 51 times higher than the highest leachate value found using the improved leachate testing method, and the maximum561

onsite groundwater concentration is 77 times higher. Furthermore, the late st EIP report presents data on exceedances of federal primary MCLs in groundwater for Alpha particles and beryllium, two elements not addressed in the 2009 EPA report, and also exceedances of other federal or

state health

- based groundwater standards for ni ckel, silver, strontium and vanadium (additional information provided in Attachment C).

Response: The commenter claims that the Kosson et al., (2009) leaching procedure s (known also

as the LEAF protocol ) “ underestimate (s) the potential for lead contaminat ion from coal

combustion waste. ” As elaborated in Unit XII of the preamble to the final rule, LEAF went through validation work with 20 different laboratories and different waste matrices, and as documented in two EPA reports

, good agreement was found between the laboratories for the four leaching methods. 4 In addition, EPA compiled decades of data for ten different case studies to compare field and laboratory leach data. 5 These data also showed LEAF methods to be a good predictor of field leachate beha vior using geochemical speciation modeling for factors such as

oxidation that are difficult to account for in the laboratory . When considered along with the methods validation, the field

- to

- laboratory leachate data comparison provides additional

confidenc e that LEAF methods can more accurately predict environmental release over a range of materials, waste form, pH, liquid

- solid ratio, and other parameters influencing leaching

behavior

.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 11555_L

- 003

- 2 

### Organization 1 

### : Commenter 1 : Barbara L. McKasson Commenter Type: Private Citizen

Classification: Substantive



### Comment Excerpt Text: What is happening in my state of Illinois is a prime example of why we need the U.S.EPA to

4 Garrabrants A.C., D.S. Kosson, H.A. van der Sloot, F. Sanchez and O. Hjelmar (2010) Background information for the Leaching Environmental Assessment Framework (LEAF) Test Methods, EPA

- 600/R

10/170, U.S. Environmental Protection Agency, Air Pollution Prevention and Control Division,

December 2010.

Garrabrants A.C., D.S. Kosson, L. Stefanski, R. DeLapp, P.F.A.B. Seignette, H.A. van der Sloot, P. Kariher and M. Baldwin (2012a) Interlaboratory Validation of the Leaching Environmental Assessment Framework (LEAF) Method 1313 and Method 1316, EPA/600/R

- 12/623, U.S. Environmental Protectio n Agency, Air Pollution Prevention and Control Division, September 2012.

Garrabrants A.C., D.S. Kosson, R. DeLapp, P. Kariher, P.F.A.B. Seignette, H.A. van der Sloot, L. Stefanski and M. Baldwin (2012b) Interlaboratory Validation of the Leaching Environmental Assessment Framework (LEAF) Method 1314 and Method 1315, EPA

- 600/R

- 12/624, U.S. Environmental Protection Agency, Air Pollution Prevention and Control Division, September 2012.

5 Kosson D.S., van der Sloot, H.A., Seignette, P.F.A.B. 2014. Leac hing Test Relationships, Laboratory

to

- Field Comparisons and Recommendations for Leaching Evaluation using the Leaching Environmental Assessment Framework (LEAF), EPA

- 600/R

- 14/061. EPA Office of Research and Development, National Risk Management Research Laboratory, Research Triangle Park, NC, 27711. December.562

implement regulations for coal combustion waste. T he State of Illinois has more contaminated sites from the inappropriate disposal of coal ash than any other state.

A case in point is the situation at the Southern Illinois Power Co

- operative (known locally as SIPC) at Lake of Egypt south of Marion, Illin ois. The holding ponds at SIPC are unlined and leaking into the ground water. The plumes of toxic water have now spread off of SIPC's property and onto people's private land.

According to a report on damage cases of contamination from improperly disposed coal combustion waste released by the Environmental Integrity Project this August, monitoring wells by the SIPC power plant have registered maximum concentrations of cadmium that are 35 times higher than federal acute water quality standards and up to 352 times higher than federal chronic water quality standards. Also, recent data on pond discharges to Saline Creek show high concentrations of aluminum, boron and manganese. This was documented in the report "In Harms Way: Lack of Federal Coal Ash Regulations Endangers Americans and Their Environment", on p. 48.

Actually, only cadmium, boron, iron and sulfate are being routinely monitored at the SIPC site. Other toxics that are often found in coal, such as arsenic, mercury, selenium and chromium are not being monitored at the SIPC site.

In addition, people I know who live in the subdivisions surrounding Lake of Egypt tell me that there are at least twenty trucks a day carrying coal ash from the power plant property to off

- site

areas. One off

- site area is an abandoned strip mine north of the Williamson County Regional Airport where the toxic coal ash is being dumped. There is no monitoring well, no liner and no state regulation or monitoring to keep the toxic substances in this ash from seeping into the ground water and nearby wells.

At a recent meeting on coal ash, which was held at the Marion Public Library (August 26, 2010), a farmer told me about another SIPC dump site. Near Lake of Egypt, the SIPC drained a small lake and is now dumping coal ash there. The farmer said that when it rains, water drains off of that lake onto his adjacent field where he grazes cattle.

Another concern is that the decades old coal ash ponds by SIPC are right by Lake of Egypt, which provides drinking water for approximately 10,00 0 people who live in the subdivisions around Lake of Egypt.

Response: EPA assessed the evidence o n the SIPC/Marion CCR management site and designated it as a potential damage case. This designation is based, among others, on onsite exceedances of several SMCLs: IEPA asked the Utility for and approved a “hydrogeologic assessment plan” to

determine the s ource and extent of elevated iron and cadmium contamination at the site, including an upgrade and extension of the monitoring well system; and apparently SIPC’s is

fail ing to meet the boron permit limits dictated by an adjusted boron water quality standard granted by the Illinois Pollution Control Board in the 1990s for a long segment of the receiving stream. For further details, the commenter is referred to the technical support documents on damage cases in the docket of the final rule.563



### Comment Number : EPA

- HQ

- RCRA

- 2009

- 0640

- 11555_L

- 003

- 4 

### Organization 1 

### : Commenter 1 : Barbara L. McKasson Commenter Type: Private Citizen

Classification: Substantive



### Comment Excerpt Text: I have also been contacted by Wesley Logan, who grew up in Joppa, Illinois, and still has many relatives there. Wesley's father, Bobby Logan, sued LaFarge Cement Company and Electric Energy, Inc. for putting coal ash on Liberty Ridge Road by his house in Joppa, IL. Every time a vehicle drove by on those roads, the ash would fly up in the ai r, and spread to nearby yards and houses. Bobby Logan, his wife and other people on those roads got cancer, serious respiratory problems and other health problems.

These threats to public health from using coal combustion waste in ways that release toxic chemicals into our air and water with virtually no regulations to contain or filter the toxins is totally unacceptable. According to the investigative report titled "In Harm's Way", done by the Environmental Integrity Project, many state governments have f ew or no safeguards to protect the public from the spread of these toxins. Illinois and other states that have lax regulations or no regulations on coal combustion waste are even taking waste from states with stricter standards. Thus, putting the people in Illinois at even greater risk from these toxins

. Response: Thank you for your comment. In this rule, EPA has addressed the commenter’s concerns about the impact of fugitive dust associated with CCR management. The rule also sets

up technical criteria for the location, design, and operation of CCR management units that would address the commenter’s concerns about groundwater impacts associated with such facilities. For

further details on the SIPC/Marion site

, the commenter is referred to the technical suppo rt documents on damage cases and fugitive dust in the docket of the final rule.



### Comment Number: EPA

- HQ

- RCRA

- 2009

- 0640

- 11585_L

- 124

- 2 

### Organization 1 

### : Cumberland Chapter of Sierra Club


### Commenter 1 : Hank Graddy and Betsy Bennett Commenter Type: Advocacy Group

Classification: Substantive



### Comment Excerpt Text:

IN HARMS WAY

Additional documentation supporting these findings and conclusions can be found in other recent
repoerts:

1. August 26, 2010 by EIP, Earth justice and Sierra Club http://action.sierraclub. org/site/DocServer/OOC2_FINAL.pdf?dociD=576139 more sites

- added

to:564

2. 31 .investigated and reported on in Feb 2010, http://www.environmentalintegrity.org/news_reports /news_02_24_10.php

Response: Thank you for your comment. EPA has assessed the alleged damage cases provided in

the February 2010 Out of Control, August 2010 In Harm’s Way and in November 2011 Risky

Business

. For further details, the commenter is referred to Unit XI of the preamble to the rule and to the technical support documents on damage cases in the docket of the final rule.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0163

- 8 

### Organization 1 

### : Ohio Environmental Protection Agency


### Commenter 1 : Pamela Allen Commenter Type: State Government
Classification: Substantive



### Comment Excerpt Text: Four CCR disposal sites demonstrate an indication of an impact on ground water quality based upon ground water monitoring data.

- Conesville Station, Coshocton County, Ohi o. The impact on ground water quality of the fly ash pond is documented in the 1984 Electric Power Research Institute report Monitoring the Fixed

FGD Landfill

- Conesville, Ohio. This site was acknowledged as a potential damage case in the July 9, 2007, U.S . EPA report titled Coal Combustion Waste Damage Case Assessments.

- JM Stuart Station, Adams County, Ohio. At this time, there is evidence indicating the quality of ground water beneath the J.M. Stewart Station has been impacted. Samples collected at the J.M. Stewart Station, well #2, between 1973 and 1986 by Ohio EPA staff indicates a rising level of total dissolved solids, sulfate, calcium, iron and magnesium. Ohio EPA continues to monitor ground water to determine if this trend continues and rises to a level where a full assessment is

warranted.

- WC Beckjord Station, Clermont County, Ohio. Analysis data from samples taken from monitoring wells around the fly ash ponds at the CW Beckjord Station indicate sulfate contamination. These fly ash ponds are near a public well field. This situation was investigated several years ago and remedial actions were implemented. The site continues to monitor ground

water.

- Cardinal Generating Station, Jefferson County, Ohio. Analysis data from samples taken from

mo nitoring wells around the FAR 2 fly ash pond indicate elevated levels of boron and molybdenum in the Morgantown Aquifer due to a release from the fly ash pond. The Station also has an Ohio regulated solid waste FGD landfill. Because of the proximity of the ash ponds to the landfill, the solid waste permit requires that the ground water monitoring, assessment, and corrective action requirements also apply to the ash ponds. The operator is conducting a ground water assessment of the ash pond in compliance wit h the solid waste rules.

Response: Thank you for your comment. EPA essentially concurs with the observations provided by the commenter and has designated the Conesville site as a proven damage case . EPA has also565

designated the Beckjord and Cardinal CCR management sites as potential damage cases. For further details on these three sites, the commenter is referred to the technical support documents on damage cases in the docket of the final rule.

As to the JM Stuart Station site, in its July 2007 Coal Combustion Waste Damage Case

Assessments report (Case #82), the Agency designated this site as a rejected damage case based on input from the Ohio EPA :

“ According to the State’s hydrogeologists, the facility relocated their pr oduction wellfield due to ground water quality impacts of “undetermined origin.” The monitoring data also show a statistical increase over background concentrations. The specific constituents showing increases were not identified, but there are no exceedan ces of primary or secondary MCLs at the site, according to the Ohio EPA representatives. The State’s hydrogeologists also indicated that the impacts observed may be either from the ash ponds or from coal piles located in the area. Because there are no exce edances of primary or secondary MCLs at this site, the evidence is not sufficient to categorize this case as a proven or potential damage case under EPA’s definitions. Therefore, this site is categorized as a case without documented evidence of proven or p otential damage to
human health or the environment.”

EPA completed the reassessment of the JM Stuart site in October 2010, prior to the receipt, in November 14, 2011, of the present Ohio Environmental Protection Agency’s comment to the

docket of the Octob er 2011 NODA (EPA

- HQ

- RCRA

- 2011

- 0392

- 0163 ) . Based on the

information included in this comment the status of the JM Stuart site is amended from a rejected damage case to a potential damage case. The revised status has been recorded in the technical support d ocuments on damage cases in the docket of the final rule.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0163

- 9 

### Organization 1 

### : Ohio Environmental Protection Agency


### Commenter 1 : Pamela Allen Commenter Type: State Government
Classification: Substantive



### Comment Excerpt Text: Ohio EPA has reviewed available information and the following reports alleging CCR disposal facility cases.

- 2010 report IN HARM'S WAY: Lack of Federal Coal Ash Regulations Endangers Americans and Their Environment by Environmental Integrit y Project, Earthjustice and Sierra Club. This report identifies four Ohio sites as having contaminated ground water (Muskingum River Plant, Gavin Plant, Cardinal Generating Station, and the Industrial Excess Landfill)

- 2010 report OUT OF CONTROL: Mountin g Damages from Coal Ash Waste Sites by the Environmental Integrity Project and Earthjustice. This report did not identify any Ohio sites.

- 2011 report TOXIC WATERS RUN DEEP: Coal Ash Open Dumps Still Open for Bus i ness by566

Environmental Integrity Project. This report identifies three Ohio sites as having contaminated ground water (Muskingum River Plant, Gavin Plant, and Cardinal Generating Station).

Ohio EPA does not support these reports' conclusion that two of those sites (Muskingum River

Plant and Gavi n Residual Waste Landfill) have demonstrated an indication of an impact on ground water quality. Ohio EPA identifies the third site, Cardinal Generating Station, as having a release to ground water. As noted above, the ash pond at Cardinal is being fully a ddressed under Ohio EPA's solid waste ground water assessment and corrective measure rules. The report identifies a fourth site known as the Industrial Excess Landfill in Uniontown, Ohio. This U.S. EPA Superfund landfill disposed of various industrial wast es and is not representative of Ohio CCR disposal sites.

Response: EPA has designated both the Muskingum River Plant and the Gavin Residual Waste Landfill sites as potential damage cases. The Agency concurs with the commenter that the Industrial Excess Landfill in Uniontown, Ohio, a Superfund site, has recieved various indus trial wastes in addition to CCR; EPA , therefore, designated this site as a rejected CCR damage case. For further details on these three sites, the commenter is referred to the technical support documents on damage cases in the docket of the final rule.



### C omment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0190

- 2 

### Organization 1 

### : Full Circle Solutions, Inc.


### Commenter 1 : Robert Waldrop Commenter Type: Beneficial User

Classification: Substantive



### Comment Excerpt Text: In Section VI of the Notice of Data Availability, EPA has requested comment on the report of additional damage cases submitted to EPA on February 24, 2010 by the Environmental Integrity Project and EarthJustice. We originally provided comment on this report in our comments dated November 15, 2010. However, since this report was included in the NODA, we will repeat our

comments below.

We have reviewed the subject document and are familiar with one of the cases presented.

ReUse Technology, Inc. I Full Circle Solutions, Inc.

- Swift Creek Structural Fill site

In December 2003, Full Circle Solutions, Inc. purchased the assets of ReUse Technology, Inc. Among the assets was this structural fill project.

The report alleges that CCPs were placed directly above a shallow water table, into a wetland and into groundwat er. This is not true. At the time the project began construction, the groundwater elevation was determined and the project designed in accordance with the State of North Carolina guidelines. CCPs were placed above the groundwater elevation. This was verifi ed by a qualified hydrogeologist after construction began.

In the midst of constructing this project, two hurricanes flooded the area including this property.567

The underlying soils and the earthen berms surrounding the CCP are dense, low permeability clay s. As the result of flooding, stormwater and/ or groundwater became trapped in the CCP fill with no effective means of escape.

This project points to the need for careful engineering design, construction and the appropriate level of regulatory oversight. It is important to understand that the project was designed and construction started prior to North Carolina promulgating comprehensive regulations for construction of CCP structural fills. Project phasing, sloping of completed fills, and an underlying dr ainage blanket would have prevented the trapping of flood waters and any contamination of groundwater.

Response: See response to comment excerpt EPA

- HQ

- RCRA

- 2009

- 0640

- 09951

- 26.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0191

- 2 

### Organization 1 

### : Michigan Department of Environmental Quality (MDEQ)


### Commenter 1 : Liane Shekter Smith Commenter Type: State Government
Classification: Substantive



### Comment Excerpt Text: Each report names a separate site in Michigan as a damage case. The first report alleges that the Karn and Weadock Landfills, located in Bay County, Michigan, are a proven damage case, and the second report alleges that the JR Whiting surface impoundments in Monroe County, Michigan, are a proven damage case.

The MDEQ provided comments in November 20 10 that listed eight proven damage cases in Michigan, but did not include either of these sites on the list, as the MDEQ does not consider either site to meet the definition of a "proven damage case."

The Karn and Weadock Landfills are former surface imp oundments now licensed as landfills under Michigan's Solid Waste Management Act. The landfills are owned and operated by Consumers Energy and are located in Essexville, Michigan on reclaimed state bottomlands that are directly adjacent to the Saginaw River and Saginaw Bay. Fill activities at this site have been ongoing since the 1940's. The water

- bearing unit at the site is comprised of former buried Saginaw River and Saginaw Bay sediments. Michigan's Water Resources Commission deemed

this unit in 1986 as a usable aquifer. The MDEQ has on

- going concerns with regard to protecting surface water quality adjacent to the landfills and has requested an investigation of the nature of the releases to surface waters of the state. Specifically, the focus of recent stu dies has been to further characterize and understand the groundwater and surface water pathway at both landfill sites. Consumers Energy continues to study the arsenic groundwater issue and has an authorization from the MDEQ to vent groundwater to Saginaw R iver and Saginaw Bay. Based on continued quarterly sampling, both the Karn and Weadock Landfills are in compliance with

the arsenic site

- specific Groundwater Surface Water Interface (GSI) criterion of 540 ug/1. The 997 ug/1 arsenic level detected at Transe ct 5 during the Phase II Study in 2005 has not been duplicated by continued sampling. The arsenic levels are variable at both landfill sites and continued monitoring will further characterize the groundwater and venting conditions at both568

the Karn and Wead ock Landfills. Therefore, while the MDEQ has requested continued study of this site, we are not undertaking enforcement actions at this site, have not required corrective action, and do not believe this facility is an example of a proven damage case at thi s time.

The JR Whiting surface impoundments, also owned and operated by Consumers Energy, are not considered by the MDEQ to be a proven damage case. The allegations in the August 26, 2010 report are based upon a 1983/84 sediment study of lake bottom sedi ments near the disposal site. Coal ash disposal at this site began in 1950, and was not regulated as solid waste until the enactment of Michigan's Solid Waste Management Act in 1978. The impoundments were first licensed in 1979, and ground and surface wate r discharge monitoring at this site since that time have shown the facility to be in compliance with environmental standards. The MDEQ does not consider this facility to be an example of a proven damage case. In addition, this allegation has

been evaluated by both the U.S. EPA and the contractor Science Applications International Corporation (SAIC), in a Technical Memorandum to Mr. Dennis Ruddy of the U.S. EPA dated April 20, 2000, which concluded insufficient evidence exists to confirm fossil fuel combusti on wastes area source of contamination at the Whiting site. The U.S. EPA Report further evaluated the site: Coal Combustion Waste Damage Case Assessments dated July 9, 2007, which listed this site, (termed the Erie, Ohio site) under the category of Rejecte d Damage Cases.

While the MDEQ does not dispute that disposal of Coal Combustion Residuals (CCR) in unlined impoundments and landfills may lead to environmental damage, it does not consider the facilities cited in these reports to meet the criteria of pr oven damage cases.

Response: Thank you for your comment. Having reassessed the Karn and Weadock Landfills site and the JR Whiting site against EPA’s test of proof criteria, the Agency designated the former as a potential damage case and designated the latter as a proven damage case. For further details on these two sites, the commenter is referred to the technical support documents on damage cases in

the docket of the final rule.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0197

- 1 

### Organization 1 

### : Oklahom a Department of Environmental Quality (DEQ)


### Commenter 1 : Scott Thompson Commenter Type: State Government
Classification: Substantive



### Comment Excerpt Text: The NODA identified two reports of alleged damage cases prepared by the Environmental Integrity Project, EarthJustice, and the Sierra Club: Out of Control: Mounting Damages from Coal Ash Waste Sites released February 24, 2010 and In Harm's Way: Lack of Fed eral Coal Ash Regulations Endangers Americans and their Environment released August 26, 2010. Out of Control does not identify any Oklahoma facilities and as such, we are not providing comment on that report. In Harm's Way identified one alleged damage cas e from an Oklahoma facility, and we disputed many of the conclusions drawn about that site in our November 17, 2010 comment letter for EPA's initial CCR rulemaking (see Docket ID EPA

- HQ RCRA

- 2009

- 0640

- 8288).

Response: Thank you for your comment.569



### Commen t Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0197

- 6 

### Organization 1 

### : Oklahoma Department of Environmental Quality (DEQ)


### Commenter 1 : Scott Thompson Commenter Type: State Government
Classification: Substantive



### Comment Excerpt Text:

Table 29. On

- site Groundwater Data Exceeding Federal Primary Maximum Contaminant Levels (MCLs) or RCRA Open Dumping MCLs. [from Docket ID EPA

- HQ

- RCRA

- 2009

- 0640

- 6315, hereafter referred to as "the Report"]

This table, adapted from Out of Control and In Harm's Way identifies one Oklahoma fac ility, American Electric Power Northeastern Station in Oologah, OK, as an alleged open dump because of groundwater contamination: We disputed this allegation in our November 17, 2010 comment letter for EPA's initial CCR rulemaking (see Docket ID EPA

- HQ

- RCR A

- 2009

- 0640

- 8288) and will not readdress this again here.

Response: Thank you for your comment.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0198

- 12 

### Organization 1 

### : Electric Power Research Institute (EPRI)


### Commenter 1 : Ken Ladwig Commenter Type: Trade Association

Classification: Substantive



### Comment Excerpt Text: 3 Damage Cases

NODA Section VI notices three reports related to damage cases. Our overall comment is that sufficient information and analysis are needed before the damage cases are used in a regulatory

context. More site

- specific information is required to place each site in the proper context in terms of disposal practices at the site, long

- term monitoring trends, and current status of the site.

This information is critical to assure th at the assessments do not rely solely on old or incomplete data, informal or media reports, or partial datasets. Information that should be considered in evaluating the relevance of these alleged damage cases or that raises questions about their

reliabilit y is described below.

Response: In agreement with the commenter, EPA has assessed all the ‘newly alleged’ damage cases against the Agency’s test of proof criteria. For further details the commenter is referred to Unit XI of the preamble to the final rule and to the comment support documents on damage cases

in the docket of the final rule.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0198

- 5 

### Organi zation 1 

### : Electric Power Research Institute (EPRI)570



### Commenter 1 : Ken Ladwig Commenter Type: Trade Association

Classification: Substantive



### Comment Excerpt Text: 3.2 Alleged Damage Case Reports

NODA Sections VI

- 1 and VI

- 3 notice two reports containing 70 additional alleged damage cases: “Out of Control: Mounting Damages From Coal Ash Waste Sites” authored by Environmental Integrity Project and Earthjustice, and “In Harm’s Way: Lack of Federal Coal Ash Regulations Endangers Americans and Their Environment” authored by Environmental Integrity Project, Earthjustice, and Sierra Club. We previously addressed these two reports in our comments on the EPA Proposal (EPRI, 2010a), and we incorporate those comments by reference

here.

As stated in our previous comment s, each of these new alleged cases should be fully vetted with at least the level of critical technical review as the previous alleged damage cases in EPA (2007). The evaluation of environmental impacts at CCR management facilities requires sufficient time and data collection to adequately define factors such as complex hydrogeologic flow systems, upgradient vs. downgradient monitoring wells, groundwater chemistry, other sources of impacts, and sampling and analysis artifacts.

In our previous comments on t he alleged cases, we provided a few examples of possible errors or misinterpretations in these two reports that we think exemplify the need for further investigation. For example, in two cases, single outliers in historical data were cited as justification for designating sites as damage cases. We do not maintain that the cases we cited are the only ones with potential data interpretation issues, nor do we maintain that all of the alleged sites in the two reports are without merit. However, we do believe it is important to dig deeply enough into these cases to assess their merits on an individual basis, and then to determine their relevance in the current rulemaking. As we have stated in the past, we are willing to work with EPA to gather

additional informat ion as deemed appropriate

.

Response: In agreement with the commenter’s statement that “each of these new alleged cases should be fully vetted with at least the level of critical technical review as the previous alleged damage cases in EPA (2007)

, ” EPA has assessed all the ‘newly alleged’ damage cases against the Agency’s test of proof criteria. For further details the commenter is referred to Unit XI of the preamble to the final rule and to the comment support documents on damage cases in the docket

of the final rule.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0200

- 1 

### Organization 1 

### : Little Blue Regional Action Group


### Commenter 1 : Roni Kampmeyer Commenter Type: Advocacy Group

Classification: Substantive



### Comment Excerpt Text:571

I am the Chair of a 500 plus non

- profit organization called Little Blue Regional Action Group. We represent the tri

- state (PA, OH, WV) area that has been impacted by for almost 40 years by First Energy's Little Blue Run Dam coal ash impoundment. That impact has grown most severe

since the most recent expansion of the site that occurred in 2004. I am also a former member of the Greene Township (host municipality of LBR) planning commission. Currently, I also hold the the Coal Chair position on the Executive Committee of the Sierra Club Allegheny Group.

I personally assisted the Environmental Integrity Project's research team at the PA DEP Solid Waste office in Pittsburgh, saw the First Energy reports to the DEP, saw the DEP inspection reports and saw the DEP's lack of enforcement of vio lations, unauthorized discharges, spikes of arsenic and other heavy metals and toxins known to be found in coal ash at on and off site monitoring wells. I am witness to the damage, hazards and life disturbing events taking place in

on the WV side where an unauthorized discharge (admitted in writing by First Energy to the PA and WV DEP) continues to go unabated. I am witness to odors and particulate in residential drinking wells of Greene Township residents, corroded pipes, mold from seepage into basements, and the cancer, thyroid, heart and lung disease that runs rampant in our community. I have seen the impoundment flood its boundaries in rainy seasons, seen slurry shooting into the air from discharge lines, seen slurry spilling unchecked all over the groun d from broken lines, had my eyes and throat burn from ambient particulate, replaced personal property damaged by fugitive coal ash from ash storms on the impoundment. I am witness to a pre

- 2004 emergency evacuation route that indicates those routes being f lood in the event of a dam breach block the escape of humans. These are all reasons for the EPA to rule on coal ash as hazardous and enforce upon the state's neglect.

Response: EPA is well aware of the Little Blue Run Impoundment’s record of regulatory infringements. Many of these issues have been the result of inadequate design of the impoundment, namely, the lack of a liner. For further details about this site the commenter is referred to the comment support documents on damage cases in the docket of the final rule.

EPA decided to regulate the disposal of CCR under subtitle D of RCRA by issuing minimum national criteria. Similar to the subtitle C option, this option would req uire composite liners, groundwater monitoring, structural stability requirements, corrective action, and closure/post closure care. However, given available statutory authorities, EPA proposed this option to be a

self

- implementing rule with no direct fede ral oversight, with an effective six months after publication in the Federal Register . The Agency is deferring its final Bevill Regulatory Determination with respect to CCRs that are disposed in CCR landfills and CCR surface impoundments until additional i nformation is available on a number of key technical and policy questions, including the risks of CCR disposal based on its arsenic content, such as the appropriate safe daily dose for arsenic and the speciation of arsenic in the environment, and the
poten tial impacts of recent Agency regulations on the chemical composition of CCR. In addition, the Agency needs additional information on state programs before it is in a position to make a final Bevill Regulatory Determination.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0201

- 10 

### Organization 1 

### : Commonwealth of Pennsylvania, Department of Environmental Protection (DEP)572



### Commenter 1 : Michael Krancer Commenter Type: State Government
Classification: Substantive



### Comment Excerpt Text:
[ATTACHMENT: See Attachment A3 for original report with PDEP Northeast Region review of damage cases from Out of Control:

-- UGI Hunlock Power Station

-- RRI Energy, Inc., Portland Generating Station Note: full text of report is provided below]

Commonwealth of Pennsylvani a Department of Environmental Protection Northeast Region Review of the Environmental Integrity Project and Earthjustice Report: Out of Control: Mounting Damages From Coal Ash Waste Sites Thirty

- one New Damage Cases of Contamination From Improperly Dispose d Coal Combustion

Waste Sites

February 24, 2010

UGI Hunlock Power Station RRI Energy, Inc., Portland Generating Station

October 25, 2011

Table of Contents

I. UGI Hunlock Power Station..................1

II. RRI Energy, Inc. Portland Station...........7

Executive Summ ary

This report is in response to the document prepared by the Environmental Integrity Project and Earthjustice (Out of Control: Mounting Damages from Coal Ash Waste Sites) dated February 24, 2010. Specifically, this report addresses the two facilities lo cated in the Northeast Region of PADEP (UGI Hunlock Power Station and RRI Portland Generating Station).

The Department reviewed and responded to each specific allegation point by point for each of the above referenced facilities. The Department’s response s are based on the methodical, organized and scientific review of the data contained in our regional files (groundwater data is submitted and reviewed by the Department on a quarterly basis.) Since the EIP report did not

contain standard scientific documen tation, the Department has responded based on a scientific review of each facility’s data and the Department’s familiarity of the sites and their groundwater data and impacts.573

Based on the review of the information in the report for each of the Northeast Region’s facilities, the Department concludes that the allegations regarding groundwater and surface water contamination by Primary MCL’s are unfounded.

• DAMAGE CASE CLAIMS ARE REFERENCED VERBATIM FROM THE REPORT

• THE MCL FOR ARSENIC WAS 50 UG/L UNTIL 2004 WHEN EPA REDUCED IT TO 10

UG/L FOR DRINKING WATER SUPPLIES

I. UGI Hunlock Power Station, UGI Development, Luzerne County

1. Damage Case Claim

The coal ash surface impoundment at this site has contaminated the underlying groundwater with

concentrat ions of arsenic, iron, and manganese that are several to hundreds of times the primary

MCLs.

• Dissolved arsenic has been found at 3 to 12 times primary MCLs in multiple downgradient

wells.

• Iron has been measured at up to 131 times the secondary MCL and

• Manganese has been measured at up to 314 times the secondary MCL in downgradient water.

• The evidence of ash contamination is reinforced by alkalinity that doubles and pH that increases by a unit in groundwater that moves from upgradient wells t o downgradient wells.

DEP Response

The site operated as a coal

- fired generating station from 1929 until May of 2010. Prior to the 1950’s ash was not disposed of in a controlled manner. Upon construction of basins in the 1950’s, ash was sluiced from the pulverized coal

- fired boiler to two storage impoundments and dewatered for removal from the site. In May 2010 UGI switched from the coal

- fired unit to a propane system. Since then, the facility has been preparing for closure of the basins.

The Department has been working with UGI since January 2008 to assess groundwater contamination at the site. Improvements to the groundwater monitoring system were made in 2007 and 2009. The monitoring system now provides meaningful data as to the potential sources

of c ontamination. Operational changes during the transition period from coal to propane, then closure, include: April 2009 ash placement was limited to only one basin; May 22, 2010 the coal

fired unit ceased operations and UGI ceased sluicing ash into the basi n; May 2011 UGI began ash removal as part of closure. The groundwater monitoring system detected changes to water quality with each of these steps. While arsenic, iron, and manganese concentrations remain elevated, decreasing concentrations of arsenic and iron have been noted. The Department does not expect groundwater conditions to stabilize until after closure activities have been completed.574

The closure plan (currently under DEP review) has been developed to include the removal of coal ash and a grading plan with stormwater controls that will limit or prevent surface water runon and limit stormwater infiltration into the closed basin. As indicated by the data. There is groundwater contamination from past site activities; However, there are no groundwater drinking water supplies in the vicinity of the facility. The level of contamination does not pose a significant threat to the River, or warrant immediate corrective action other than site closure and continued monitoring of the ash basins.

2. Damage Case Claim

In the ten years of monitoring, total arsenic levels have reached as high as 1.40 to1.60 mg/L in

MW

- 5, a downgradient monitoring well at this site. Low dissolved components and high turbidity in these measurements indicate the arsenic is largely fl oating in suspension in the groundwater. However, numerous measurements of dissolved arsenic have been found at other downgradient monitoring points at levels exceeding the federal primary MCL for arsenic of 10 μg/L and often by several times. In all, diss olved arsenic concentrations have exceeded the primary MCL 59 times at downgradient points from 1999 to 2009.

Every 1of 22 samples taken from MW

- 7 for the last three years has exceeded the primary MCL.

Some 22 of the 59 total exceedances have also been at concentrations more than three times higher than the primary MCL, including at least seven samples of dissolved arsenic in MW

- 6 from September 2002 through September 2008 that ranged from 6 to 12 times the primary MCL (maximum concentration was 0.119 mg/L in Sept. 2008). This compares to no exceedances of the primary MCL by dissolved arsenic at any of four upgradient monitoring wells. In fact, since monitoring at the site began, arsenic has only been measured above a detection limit once at an upgradient w ell (0.006 mg/L in December 2000 at MW

- 4).

Iron and manganese concentrations have also jumped noticeably in wells impacted by the ash and to a lesser extent apparently by runoff from coal storage areas.

DEP Response

The DEP believes that the excessive t otal arsenic concentration in MW

- 5 is a reflection of turbidity created by sample collection techniques. The facility, in cooperation with DEP, upgraded sampling equipment and techniques in mid

- 2007 through mid

- 2009 to improve sampling protocols. In MW

- 5, the average concentration of dissolved arsenic is 5.6 μg/L (MCL = 10) and total arsenic is 22.82 μg/L. Since cessation of sluicing coal ash in May 2010, the average concentration of dissolved arsenic is 3.6 μg/L and total arsenic is 8.25 μg/L.

Data since September 2007 show total arsenic in four downgradient wells (2 network, 2 assessment ) exceeding the MCL with an approximate average of 29μg/L; dissolved arsenic exceeded MCLs in the four downgradient wells with an average concentration of 26 μg/L.

Howev er, two of the four wells have levels that fluctuate above and below the MCL. This fluctuation is expected to continue at least until closure has been completed. Until final closure, monitoring will continue to determine if closure is effective or addition al action is necessary to575

remedy groundwater contamination.

3. Damage Case Claim

Iron concentrations have been found as high as 39.2 mg/L in the original downgradient ash monitoring wells (measured in MW

- 7 in April 2009). This is 436 times higher than th e highest iron concentration measured in the sole original upgradient well (0.090 mg/L in MW

- 4) and 131 times higher than the secondary MCL for iron (0.30 mg/L). Since PADEP required additional monitoring wells to be installed to assess the contamination, iron has been found at upgradient

MW

- 9 next to the coal storage area at concentrations ranging as high as 2.870 mg/L. This is far over the standard but still dwarfed by maximum iron concentrations at downgradient ash wells (which are 13

- 14 times higher).

DEP Response

Decreasing iron concentrations have been observed in some monitoring wells from the recent site operational changes identified above. Ultimately it is expected that concentrations will continue a downward trend as closure is implemented and g roundwater flows stabilize.

4. Damage Case Claim

Manganese concentrations have continually exceeded the secondary MCL (0.050 mg/L) in downgradient ash wells. Highest manganese measurements have occurred more recently in MW

7 ranging from 12.9 to 15.7 mg /L (some 314 times the standard) and the highest manganese was measured at upgradient MW

- 4. However, manganese has been measured next to the coal storage area in upgradient MW

- 9 at levels as high as 13.0 mg/L in September 2009. PADEP staff

indicates that M W

- 9 may be seeing some mounding effects from groundwater flowing laterally from the ash impoundments.

DEP Response

Removal of the coal began in mid

- 2010. Concentrations of manganese remain elevated from the removal activities, but it is expected that the levels will decrease after the coal has been removed.

MW

- 9 has had insufficient groundwater during the last two quarters of 2010 to collect a full round of samples indicating that the groundwater mounding effect seen in the past may no longer

exist. Until closure is completed and groundwater flows, stabilize, concentrations are expected to

fluctuate.

5. Damage Case Claim

Similarly, concentrations of barium, boron and lithium are also noticeably higher downgradient of the ash impoundment than at upgradien t monitoring points, although none are exceeding any

health

- based standards.

DEP Response576

Downgradient concentrations of barium, lithium and boron are elevated above background. Wells with reported concentrations of lithium exhibited a significant percen tage of non

- detect values; barium concentrations are consistent in downgradient wells at concentrations significantly less than the health based standard. Elevated boron is localized to one well, possibly related to the coal storage. Until closure is compl eted and groundwater flows stabilize, concentrations are expected to fluctuate.

6. Damage Case Claim

In addition, the pH of upgradient water, including water influenced by the coal storage areas, is less than the pH of water downgradient of the ash impou ndment usually by at least one pH unit (an order of magnitude). Lab pH readings between 5.0 and 6.0 Standard Units are found with few exceptions at upgradient points compared to a lab pH of 6.0 to 7.0 Standard Units and sometimes higher for all wells downg radient of the ash. In addition, the average alkalinity at downgradient wells is approximately twice that measured at upgradient wells. In fact, when wells that are marginally downgradient or upgradient are removed from the comparison, average alkalinity i ncreases by 5

- 6 times as water moves from upgradient to downgradient monitoring points. This chemistry indicates the chemical interaction of CCW with site groundwaters. While the monitoring data in downgradient wells appears to change as the flow patterns of coal ash slurry have changed within the impoundment, the evidence of this interaction is most pronounced presently at MW

- 7, which is the closest well to where surface water discharges from the impoundment into a small canal that in turn discharges to th e Susquehanna River.

DEP Response

Wells in proximity to the coal storage and basin area show higher pH than the more isolated upgradient well MW

- 4. After ending active ash sluicing, wells across the site thought to intercept higher groundwater flow zone s (MWs 7, 10, 11, and 15) exhibited very similar pH values. It is expected that as closure is implemented, there will be less impact from coal combustion

activities.

7. Damage Case Claim

Assessment wells document that the contamination is migrating off

- s ite into the Susquehanna River. All 11 monitoring wells at the Hunlock site (four original wells and seven added to assess the contamination in 2009) are screened in the shallow alluvium measuring groundwater that is moving into the Susquehanna River.

DEP Response

It is the goal of the closure plan to eliminate all sources of groundwater contamination, and migration to the Susquehanna River.

8. Damage Case Claim

While UGI Hunlock maintains there is natural clay lining the impoundment, this clay may hav e577

been excavated entirely in parts of the impoundment resulting in ash being placed as much as eight feet under the water table allowing for ready migration of contaminants from the site.

DEP Response

Wells are located to monitor this area. UGI character ized the site and did 273 borings to determine the depth of ash in and around the basins, location of the clay liner, and depth to natural soil. Borings indicated areas where the clay was over

- excavated and the closure of the

site will address that conditi on.

9. Damage Case Claim

One of the assessment wells, MW

- 11, is approximately 240 feet downgradient of the waste boundary and very close to the Susquehanna River. Every one of six samples taken from downgradient MW

- 11 has measured arsenic exceeding the primary MCL by two to three times (0.024 to 0.0342 mg/L) since samples were first taken from this well in April 2009. Furthermore, surface water samples taken from Outfall 005, which discharges from the impoundment to the Susquehanna River, contained total arsenic concentrations of 0.0111 mg/L in May 2009 and 0.0249 mg/L in December 2009. The dissolved concentration in the December sample was 0.0149 mg/L. These levels are well under surface water quality standards that protect aquatic life. Nevertheless, de pending upon how many other sources of arsenic are discharging to the Susquehanna, given the authorized volume of this discharge is 1500 gallons per minute (2.16 million gallons per day), such concentrations of arsenic from a discharge this large, combined with arsenic in contaminated groundwater discharging from the impoundment to the River, may contribute to an arsenic loading problem in downstream surface waters.

DEP Response

With the cessation of sluicing of coal ash into the basins, MW

- 11 has exhibi ted decreasing concentrations of arsenic. Due to the ongoing closure activities the concentrations have fluctuated. It is expected that fluctuations will continue until after closure is completed and groundwater stabilizes, since December 2009, total and d issolved arsenic have been less than the 10ug/L MCL.

10. Damage Case Claim

Due to concentrations of arsenic, iron and manganese exceeding background concentrations in upgradient MW

- 4 and Statewide health standards, PADEP ordered a groundwater assessment to be conducted at this site by UGI Utilities on January 10,

2008, pursuant to 25 Pa. Code Chapters 299.144(a)(5) & 289.266. Seven additional monitoring wells were installed to sample groundwater per this assessment starting in April 2009. The facility is planning to close in May 2010 although PADEP has found a plan for closing the site submitted in November 2007 on behalf of UGI Utilities to be inadequate. Presently PADEP staff is assessing monitoring data to determine if they have sufficient wells in s ufficient locations to fully determine groundwater impacts in order to determine the scope of abatement necessary578

under closure.

DEP Response

Ongoing assessment requirements include data review incorporated with site activities and

correlation with cont aminant source (coal storage and/or ash). An additional assessment well was installed in early 2010. The coal

- derived electric generation ended on May 22, 2010, and the coal ash areas will undergo closure. The closure plan will address impacts to surface a nd groundwater. As discussed above, cessation and associated lack of slurrying into the basins has resulted in concentration changes, both decreases and increases, but with site stabilization and closure, we expect to see decreasing trends.

II. Portland Generating Station’s Bangor Quarry Ash Disposal Site, RRI Energy, Inc., Northampton County

1. Damage Case Claim

Groundwater concentrations in downgradient wells at this landfill exceed primary and secondary MCLs and groundwater standards for arsenic, alu minum, fluoride, boron, iron, manganese, sulfate, and total dissolved solids (TDS), and the landfills consultant concedes that the landfill is responsible for the degradation.

DEP Response

Portland is required to monitor groundwater quarterly and annual ly at the impoundment and landfill. Monitoring has been occurring for more than 14 years. There are a total of seven monitoring wells around the disposal area and consist of two upgradient wells (BMW

- 7 &

BMW

- 4) and five downgradient wells (BMW

- 3D, BMW

- 6S, BMW

- 6D, fill run

- off Leachate &

BMW

- 2D). In addition, there are three surface water sampling points (SWMP

- A (upgradient),

SWMP

- B (intermediate) & SWMP

- C (downgradient). Based upon groundwater monitoring data, the facility is functioning as designed and is currently not required to perform groundwater

assessment or abatement activities.

Our review of the groundwater data and split sampling data (2003

- 2009) suggest the groundwater has been impacted for the following listed parameters:

• Manganese exceeds s econdary drinking water standards (SDWR), a non

- health based standard of 50 μg/L in all monitoring wells including the up

- gradient wells.

• Sulfate exceeds secondary drinking water standards (SDWR), a non

- health based standard of 250 μg/L in all monitor ing wells including the upgradient wells.

• Arsenic has never exceeded EPA established Maximum Contaminant Levels (MCLs) of 10 μg/L.

• Lead and Selenium are found to be well below MCLs.579

2. Damage Case Claim

Surface water discharges from the landfill are sending concentrations of boron, cadmium, hexavalent chromium, and selenium into Brushy Meadow Creek that are notably higher than Pennsylvanians Water Quality Criteria Continuous Concentration for Fish and Aquatic Life (CCC). In some instances the exce edances are extreme. For example, boron was measured from Outfall 001 at 86.6 mg/L, more than 54 times the states CCC of 1.600 mg/L. Selenium was measured at 41.3 μg/L from this Outfall, almost nine times the PA CCC of 4.6 μg/L (adjusted for

a hardness of 400). These discharges were not authorized by RRIs NPDES permit for this site.

DEP Response

Our review of the surface water data indicates the concentration of the above

- listed parameters is already elevated in the upgradient surface water sample that i s located above the Bangor Ash Disposal Site facility boundary. Thus, it is incorrect to conclude that the Brushy Meadow Creek is being impacted from the runoff discharge it receives from the Bangor Ash Disposal Site facility. Also, based on our comparison and review of split sampling data (2003

- 2009) for the sampling points SWMP

- A, SWMP

- B & SWMP

- C the concentrations are quite similar. The higher concentrations for the listed parameters at the upgradient surface water location suggest that the water is impa cted upstream and not impacted by discharges at the Bangor Ash site.

3. Damage Case Claim

The ash that has been dumped at this landfill has sometimes been more toxic than regulations allow. Trona test ash was disposed of on

- site despite having failed two of nine leachability tests

for arsenic.

A letter from RRI to PADEP in 2007 reports that of nine composite samples of trona ash (a test ash) disposed of at this site, two samples exhibited high levels of leachable arsenic in excess of Pennsylvania Class I I landfill limits. Specifically, the Class II landfill limit for leachable arsenic is 0.5 mg/L; however leach test results measured arsenic at 1.61 mg/L (more than three times the limit) and 2.02 mg/L (more than four times the limit).

DEP Response

The ma ximum concentration of a contaminant, based on chemical analysis for its leachate for a

Class II Residual Waste landfill is 50 times the waste classification standard for that contaminant (§288.523(a)(1)). For arsenic, the Class II limit would be 2.5 mg/L. None of the trona ash samples exceeded this limit.

4. Damage Case Claim

A GAI Consultants 2006 Annual Evaluation Summary of this site, describing results collected from downgradient monitoring wells during 2006, states: Analytical results for dissolved iron, dissolved manganese, pH (field), pH (lab), sulfate, and total dissolved solids exceed the USEPA580

[MCLs]. Furthermore, results from GAI Consultants trend analysis of data collected after July 1, 1995, and prior to January 1, 2007, state: “Upward trend s for dissolved arsenic, dissolved boron, and dissolved potassium and downward trends for pH (field) and pH (lab) are unique to downgradient monitoring wells and may be the result of actions occurring at Bangor.”

DEP Response

The GAI Consultants 2006 re port suggests an upward trend for pH and sodium at both upgradient and downgradient wells. However, the report further suggests that the upward trend is due to seasonal variation and not attributed from the ash disposal at the facility. Our review of

the r eport and the data also derive the same conclusion.

The report also suggests an upward trend for sulfate in the upgradient wells only indicates that the ash disposal facility is not impacting the downgradient wells as these do not show an upward

trend. Ou r review and analysis also derive the same conclusion.

The upward trend for pH, dissolved arsenic, and dissolved boron do indicate an impact in downgradient monitoring wells. However, these concentrations do not exceed the MCLs as stated in the prior comm ent.

5. Damage Case Claim

Monitoring well BMW

- 6D exceeded in pH (field and lab) during the last quarter of 2006. These exceedances have occurred before in the years 2001 through 2002. The predicted time for drinking water standard exceedances ranges from 1 year for dissolved arsenic to 1127 years for

dissolved barium.

DEP Response

The GAI Consultants 2006 report suggests an upward trend for pH and sodium at both upgradient and downgradient wells. However, the report further suggests that the upward tre nd is due to seasonal variation and not attributed from the ash disposal at the facility. Our review of the report and the data also derive the same conclusion.

The report also suggests that an upward trend for sulfate in the upgradient wells only indicat es that the ash disposal facility is not impacting the downgradient wells as these do not show an upward trend. Our review and analysis derive the same conclusion.

The upward trend for pH, dissolved arsenic, and dissolved boron do indicate an impact in

do wngradient monitoring wells. However, these concentrations do not exceed the MCLs as stated in the prior comment.

6. Damage Case Claim

The 2005 trend analysis from July 1, 1995, to January 1, 2006, found upward trends in downgradient wells for dissolved arsenic, dissolved boron, chloride, pH (lab), and dissolved581

potassium.

DEP Response

The GAI Consultants 2006 report suggests an upward trend for pH and sodium at both upgradient and downgradient wells. However, the report further suggests that the upwar d trend is due to seasonal variation and not attributed to the ash disposal at the facility. Our review of the report and the data derive the same conclusion.

The report also suggests that an upward trend for sulfate in the upgradient wells only indicate that the ash disposal facility is not impacting the downgradient wells as these do not show an upward trend. Our review and analysis derive the same conclusion.

The upward trend for pH, dissolved arsenic, and dissolved boron do indicate an impact in downg radient monitoring wells. However, these concentrations do not exceed the MCLs as stated in prior comment.

7. Damage Case Claim

Unpermitted discharges of boron, cadmium, hexavalent chromium, and selenium into Brushy

Meadow Creek from Outfall 001 exceeded the Pennsylvania water quality standard for the protection of aquatic life from pollutant concentrations that are chronically toxic (Criteria Continuous Concentration or CCC) in samples analyzed in October 2006:

• Boron was measured at 8.6 mg/L, more tha n 54 times the PA CCC of 1.6 mg/L.

• Cadmium was measured at 1 μg/L, exceeding the PA CCC of 0.64 μg/L (adjusted for a hardness of 400).

• Hexavalent chromium was measured at 11 μg/L, exceeding the PA CCC of 10 μg/L.

• Selenium was measured at 41.3 μ g/L, almost nine times the PA CCC of 4.6 μg/L (adjusted for a hardness of 400).

Unpermitted discharges of boron, cadmium, and selenium into Brushy Meadow Creek from Outfall 002 also exceeded the PA CCC in samples analyzed in November 2006. Specifically:

• Boron was measured at 1.780 mg/L, exceeding the PA CCC of 1.6 mg/L.

• Cadmium was measured at 1 μg/L, exceeding the PA CCC of 0.64 μg/L (adjusted for a hardness of 400).

• Selenium was measured at 10 μg/L, exceeding the PA CCC of 4.6 μg/L by more th an double.

DEP Response582

Our review of the surface water data indicates the concentration of the above

- listed parameters is already found to be elevated in the upgradient surface water sample that is located above the Bangor Ash Disposal Site facility bo undary. Thus, it is incorrect to conclude that the Brushy Meadow Creek is being impacted from the run

- off discharge it receives from Bangor Ash Disposal Site. Surface discharges are regulated through a NPDES permit, and Reliant has not

been in violation of their permit.

8. Damage Case Claim

Exceedances of PA MCLs in groundwater on

- site have occurred in 2001, 2002, 2005, and 2006, with an upward trend detected between 1995 and 2006. Exceedances of PA CCC were documented in unpermitted discharges to surfac e waters in 2006. No regulatory actions required.

DEP Response

The above

- referenced exceedances are for Secondary Drinking Water Regulations (SWDR) that

set non

- mandatory water quality standards for 15 contaminants. These are established only as guideli nes to assist public water systems in managing their drinking water for aesthetic considerations, such as taste, color and odor. These contaminants are not considered to present a risk to human health at the SMCL, and exceedances do not require regulatory action. The exceedances in the surface water are also present in the upgradient surface water sample. Unless demonstrated that the intermediate and downgradient surface water samples show change in parameter concentration that are indicative of impact from the site, no action would be initiated against the facility.

9. Damage Case Claim

Constituents are leaching from the disposal site into groundwater, as well as being discharged

off

- site into Brushy Meadow Creek through Outfalls 001 and 002.

DEP Respons e

Refer to comments in items 4, 7, and 8 above. Based upon groundwater and surface water monitoring data, the facility is not leaching constituents from the disposal site and is currently not required to perform groundwater assessment or abatement activit ies.

10. Damage Case Claim

There are least two public water supply wells approximately 3⁄4

- mile away from the site;
Hartzell’s Auction Inc. serves three families and Meadowbrook Mobile Home Park serves approximately 98 individuals.

DEP Response

There a re three, Public Water Supply Wells (PWS) that are less than a mile from the Ash Disposal Facility. However, all 3 wells are upgradient from the Ash Disposal Area and not583

affected by the ash disposal site.

Response: Thank you for the information pertaini ng to the UGI Hunlock Power Station and

the RRI Energy, Inc., Portland Generating Station in Pennsylvania. EPA has assessed all the newly alleged damage cases submitted in the August 2010 report In Harm’s Way . Based on the

assessment of the se two Pennsylv ania sites against EPA’s test of proof criteria, the Agency designated these sites as potential damage cases. For a summary of stakeholder arguments addressing these two sites and the rationale for the Agency’s decision, see the technical support

documents on damage cases in the docket of the final rule.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0201

- 11 

### Organization 1 

### : Commonwealth of Pennsylvania, Department of Environmental Protection (DEP)


### Commenter 1 : Michael Krancer Commenter Type: State Government
Classification: Substantive



### Comment Excerpt Text: [ATTACHMENT: See Attachment A4 for original report with PDEP Southwest Region review of damage cases from In Harm's Way:

-- Little Blue Run Disposal Impoundment

-- Hatfield’s Ferry Power Station CCB Landfi ll Note: full text of report is provided below]

Commonwealth of Pennsylvania Department of Environmental Protection Southwest Region

Review of the Environmental Integrity Project, Earthjustice and Sierra Club Report: In Harm’s Way: Lack of Federal Coal A sh Regulations Endangers Americans and Their

Environment Thirty

- nine New Damage Cases of Contamination From Improperly Disposed Coal Combustion Waste

August 26, 2010

Little Blue Run Disposal Impoundment Hatfield’s Ferry Power Station CCB Landfill

Januar y 3, 2011 Revised October 27, 2011

Executive Summary

This report is in response to the document prepared by the Environmental Integrity Project (EIP), Earthjustice and the Sierra Club, In Harm’s Way: Lack of Federal Coal Ash Regulations584

Endangers America ns and Their Environment, dated August 26, 2010. Specifically, this report addresses the two facilities located in the Southwest Region of the Department of Environmental Protection (DEP); FirstEnergy’s Little Blue Run Disposal Impoundment, and Allegheny

E nergy’s Hatfield’s Ferry Power Station disposal site.

DEP reviewed and responded to each specific allegation point by point for the Little Blue Run facility and the Hatfield’s Ferry Power Station disposal site. DEP’s responses are based on the methodical, organized and scientific review of the data contained in our regional files (groundwater data is submitted and reviewed by DEP on a quarterly and annual basis). Around the Little Blue Run disposal impoundment, DEP requires FirstEnergy to monitor 48 ground water wells and 21 surface water points. Around the Hatfield’s Ferry disposal facility, DEP requires 14 wells and 4 surface water points to be sampled by Allegheny Energy. Groundwater and surface water are analyzed with the parameters found in Appendix C. Since the EIP report did not contain standard scientific documentation, DEP has responded based on a scientific review of each facility’s data and DEP’s familiarity of the site and the groundwater and surface water data and impacts.

Based on the review of the information in the report for this facility, DEP concludes that the allegations regarding groundwater and surface water contamination above Primary Drinking Water Maximum Contaminant Levels (MCLs) are unfounded.

• DAMAGE CASE CLAIMS ARE REFERENCED VE RBATIM FROM THE REPORT

• THE MCL FOR ARSENIC WAS 50 μG/L UNTIL 2004 WHEN EPA REDUCED IT TO 10 μG/L FOR DRINKING WATER SUPPLIES

Table of Contents

I. Little Blue Run Surface Impoundment .......................................... 1

II. Hatfield’s Ferry Power Station CCB Landfill.......... ......................... 30

Appendix A Historical DEP Arsenic Data ............................................ 46

Appendix B Reed Well Summary...................................................... 49

Appendix C Form 14R, DEP Groundwater and Surface Water Monitoring Parameters

................................................... 51

FirstEnergy

– Little Blue Run Surface Impoundment

1. Damage Case Claim

– Page 161, 162

Determination: Demonstrated damage to off

- site groundwater and off

- site surface water (in domestic wells and in Marks Run and other surface waters).585

“Off

- site” means property that is currently bey ond the property boundary or was originally beyond the property but has since been bought out by FirstEnergy or Penn Power.

DEP Response

The report defines off

- site in differing terms. According to the first part of the definition, the report could be re ferring to property and groundwater at some indefinite distance from the impoundment, claiming that it has been contaminated by FirstEnergy. With regard to the second
definition of ‘off

- site,’ it is illogical that ‘off

- site’ is actually within the current property boundary of a facility.

In addition, specific parameters, and specific locations, including names and addresses of residents with domestic wells around the impoundment and Marks Run that have been allegedly contaminated, are not listed in the EIP report and therefore cannot be verified. However, based on analysis collected by DEP over the last eight years, the parameter of interest, arsenic (As), has
not been detected. It is also not clear what the reference to “other surface waters” means or what other parts of the watershed of Marks Run (water wells, domestic wells, springs or surface water) the statement is referencing.

The following table is a list of private water supply sample results collected by DEP over the last six years from around the impoundment.

[See original comment for Table 1

– DEP Private Well Sampling Data.]

2. Damage Case Claim

- Page 161

Probable Cause(s). Leaching, seepage, and discharge of coal combustion waste (CCW) contaminants from Little Blue impoundment into groundwat er and surface waters. The additional head pressure created by the expansion of the CCW impoundment in 2006 may also be forcing contaminated water further away from the impoundment.

DEP Response

There is no technical data presented in the EIP report to s upport the claim that additional head pressures created by the 2006 expansion could be forcing contaminated water away from the impoundment in either groundwater or surface water. DEP acknowledges that the flow in several preexisting springs located betwee n the impoundment and Lawrenceville, WV, has increased in the recent past and the springs appear to be impacted by the impoundment based on the elevated presence of secondary parameter, such as calcium, chloride and sulfate. FirstEnergy has initiated

a rem ediation plan for the affected springs and is currently in the process of installing facilities by which to provide for their collection and conveyance for management as wastewater in the impoundment.

3. Damage Case Claim

- Page 161

Discharges to groundw ater and surface water from the 1,300

- acre ‘Little Blue’ surface586

impoundment have exceeded MCLs for arsenic and other parameters in multiple off

- site residential drinking wells (prompting several property buyouts by FirstEnergy), exceeded Pennsylvania Wate r Quality Criteria (PA WQC), including the Criteria Continuous Concentration (CCC) and Criteria Maximum Concentration (CMC), in Mark’s Run and other

off

- site surface water sources, and pervasively exceeded federal Maximum Contaminant Levels (MCLs) at many on

- site groundwater monitoring wells.

DEP Response

EIP’s statement is unfounded and misleading. First, there have been no confirmed concentrations

in off

- site residential drinking water wells located near the impoundment in excess of an MCL. Second, EIP improperly concludes that any private water well sampled by FirstEnergy or the DEP is impacted by the impoundment. This conclusion ignores the facts that many of the wells are hydrogeologically separate from the impoundment and/or may be impacted by other sources, including naturally occurring sources such as coal seams and brines, and other man

- made sources such as past mining or oil and gas operations. Finally, surface water discharges are monitored and reported under the NPDES permit program, and the fac ility is in compliance with those permits.

4. Damage Case Claim

- Page 162

For this site, ‘Off

- site’ means property that is currently beyond the property boundary or was originally beyond the property boundary but has since been bought out by FirstEnergy or Penn Power. This determination was made using the best available data.

DEP Response

As stated in DEP Response No. 1, the definition for ‘off

- site’ in the EIP report is ambiguous and could refer to an undefined distance from the impoundment. With rega rd to the second definition
of ‘off

- site’, it is illogical to claim that ‘off

- site’ is actually within the current property boundary of a facility.

5. Damage Case Claim

- Page 162

‘On

- site moving off

- site’ means the well is on

- site but more than 150 feet from the closest part of the impoundment.

DEP Response

This definition says that a well is on

- site and off

- site at the same time, which is not technically possible.

6. Damage Case Claim: “For example”

- Page 162

Arsenic has been measured in at least two off

- site residential drinking wells above the MCL of 0.01 mg/L, including a reading of 0.0146 mg/L in one family’s well in 2008, and a reading of587

0.021 mg/L at another family’s well.

DEP Response

EIP’s statements are misleading and incorrect. One sa mple collected from a private water supply well in late 2008 did contain arsenic at a concentration of 0.013 mg/L (not 0.0146 mg/L); however, the water from the well was noted to be turbid at the time of sample collection. According to discussions with Fir stEnergy, the homeowner, who had just purchased the property, was aware that his well water was muddy and the sample collector suggested that the property owner have his well casing inspected by a water well installer because a poorly sealed surface casing could allow sediment to wash into the well creating turbid water, especially after snow melts and rain. Upon receipt of the analytical results, FirstEnergy’s consultant indicated the elevated metals concentrations were likely the result of the sediment pr esent in the sample. With the property owner’s permission, the consultant collected another sample from the water well early in 2009 to test this hypothesis by collecting samples for both total and dissolved metals. The sample collected in 2009 was much cl earer and the analytical results concentrations of metals were much lower compared to the 2008 sample. Total arsenic was reported at 0.0025 mg/L and dissolved arsenic at <0.0025 mg/L

– well below the MCL. The DEP also collected a sample from this well two months later and confirmed these results. Both total and dissolved arsenic were reported as less than <0.003 mg/L the detection limit. In addition, the location and elevation of this water well clearly indicates the well is located upgradient from the impo undment. The property owner was informed of these findings in a letter from FirstEnergy’s

consultant.

Arsenic was reported at a concentration of 0.021 mg/L in a sample collected from a private water well by the DER (now DEP) in 1993. (The MCL for arsenic at that time was 0.050 mg/L.) FirstEnergy’s consultant collected 13 additional samples from this water well from 1994 through 2001. Arsenic was included in the analysis of 6 of these samples. Most of the samples did not contain arsenic at a concentration g reater than the laboratory detection limit, and the greatest concentration reported was 0.005 mg/L. In addition, this well did not contain other concentrations of constituents that would suggest any impacts from the impoundment. Arsenic is

found in soils o f Western Pennsylvania; its presence does not confirm impacts from the impoundment.

7. Damage Case Claim “For example”

- Page 162

MCLs for cadmium, barium, fluoride, lead, and turbidity were also exceeded in off

- site residential drinking wells, as were S econdary MCLs (SMCLs) for aluminum, chloride, iron, manganese, pH, sulfate, and total dissolved solids (TDS).

DEP Response

This statement is unsubstantiated. There is no reference to specific names, locations or sample dates for the alleged ‘off

- site’ re sidential drinking water well contamination. As stated above according to EIP’s definition, offsite can be measured from any distance from the impoundment. Chemical analyses of the wastes pumped to the impoundment show that the primary MCL588

constituents of lead, cadmium and barium are only found in trace amounts and could not be the cause of high concentrations in the groundwater.

8. Damage Case Claim: “For example”

- Page 162

In off

- site surface water, arsenic has exceeded the PA WQC of 0.01 mg/L at least eight times at three locations between 2003 and 2010, with concentrations trending upwards, including a reading of 0.028 mg/L (2.8 times the criteria) in 2010. Thallium, cadmium, hexavalent chromium, lead, antimony, selenium, and boron also exceeded PA WQ C in off

- site surface water, as did many pollutants with secondary WQC.”

DEP Response

The reference that “off

- site” surface water contains arsenic at concentrations as high as 0.028 mg/L is incorrect. That concentration was reported for surface water sam ple point SW

- 5, which is a sample of the supernatant (wastewater) within the disposal impoundment which is treated and discharged through an NPDES permit and is not “off

- site” surface water. Only one “off

- site” monitoring point, spring S 31 was found to co ntain 0.011 mg/L arsenic. This is not surprising because the spring emanates from a coal seam which has naturally occurring arsenic. See response to Claim #19 for additional discussion of S

- 31.

9. Damage Case Claim “For example”

- Page 162

In on

- site gro undwater that flows off

- site, arsenic exceeded the 0.010 mg/L at least 24 times in 14 wells in 2006, 2009, and 2010, including concentrations of 0.030, 0.033, and 0.036 mg/L in three different wells. Fluoride, lead, and turbidity MCLs were also exceeded, a s well as SMCLs for several other pollutants. On

- site groundwater monitoring wells also had exceedances of SMCLs for chloride, iron, manganese sulfate, and turbidity.

DEP Response

FirstEnergy began regularly analyzing water samples for arsenic in 2006 an d has collected a total of 924 individual samples at the site’s 42 permitted monitoring wells to date. Arsenic was reported in groundwater samples collected in eight monitoring wells in 2006; however, many of these detections were not replicated in subsequ ent samples from the same wells. Based on DEP’s review of the data, the reported arsenic detections appear to be laboratory errors and are statistically anomalous.

Based on the past four and one

- half years of arsenic data, only one onsite groundwater

moni toring well (MW

- 16A) appears to contain elevated concentrations of arsenic. This well does show impacts from the impoundment as would be expected by its close proximity to the disposal area (approximately 150 ft). FirstEnergy continues to monitor this well as part of its obligation under the facility’s permit and has implemented studies to determine the reason(s) for the elevated arsenic in this well and, if necessary, determine what steps may be taken to address it. It should be noted, however, that monito ring wells immediately downgradient of MW

- 16A do not contain arsenic above MCLs. Therefore, groundwater leaving the Little Blue Run Impoundment589

downgradient of the dam does not exceed MCLs. In regards to the other parameters that EIP

indicates exceed MCLs and SMCLs, EIP fails to acknowledge that these parameters occur naturally in the environment. Furthermore, EIP made no attempt to assess if a monitoring well contains water representative of background water quality, shows brine impacts from historic oil

a nd gas exploration and production in the area, or contains concentrations of parameters associated with coal seams. Instead EIP continues to indicate that any detectable concentration of a parameter must be attributable to the impoundment, which is not the case.

10. Damage Case Claim: “For example”

- Page 162

On

- site surface waters that flow off

- site were contaminated with arsenic at 0.013 mg/L, 1.3 times the WQC of 0.01 mg/L, antimony at 0.012 mg/L, more than double the CCC of 0.0046 mg/L.

Selenium was a lso double the PA WQC at on

- site surface water monitoring point SW

- 3. In addition, aluminum exceeded secondary standards in on

- site surface water that flows off

- site.

DEP Response

EIP makes claim that surface waters exceed WQC but fails to indicate that WQC are not applicable because these “surface water” monitoring points include supernatant within the impoundment and are managed through permitted industrial discharges from the facility. (The CCC for antimony is 1.1 mg/L, not 0.0046 mg/L as indicated in EIP’s report.) In addition, comparing the results of these points to secondary standards (interpreted as a reference to secondary drinking water standards), is inappropriate and misleading. Industrial NPDES discharges do not need to comply with primary or secondary drinking water standards. The discharge standard is developed through the NPDES permit. In addition, there is no reference to any specific surface water sampling locations ‘on

- site’ which have alleged elevated levels of arsenic, antimony or alumi num. The only specific reference in this claim is to selenium at SW

- 3.

11. Damage Case Claim

– Page 162

FirstEnergy’s Little Blue Run (‘Little Blue’) surface impoundment, the largest impoundment east of the Mississippi River, is an unlined CCW disposal a rea with a permitted area of 1,694.6 acres that contains flue gas desulfurization (FGD) sludge and fly ash.

DEP Response

Little Blue Run is the largest surface impoundment east of the Mississippi River containing coal combustion waste. The total permit a rea is 1,694.6 acres of which approximately 1,000 acres are utilized for waste disposal.

12. Damage Case Claim

– Page 162

This CCW surface impoundment has potential environmental and public health impacts in three states, as the impoundment spans Pennsyl vania and West Virginia, and its earthen dam retaining wall is immediately across the Ohio River from Ohio.590

DEP Response

The site is in West Virginia and Pennsylvania. Little Blue Run is not an earthen dam retaining wall, but rather an engineered rock a nd earthen dam permitted and inspected by DEP’s Bureau of Dam Safety.

13. Damage Case Claim

- Page 162

Coal ash slurry from the Bruce Mansfield Power Plant is transported via a seven and a half mile pipe to Little Blue.”

DEP Response

This statement is correct.

14. Damage Case Claim

- Page 162

Data gathered from private residential well testing results, discharge monitoring reports, Notice of Violations (NOVs), inspection reports, and correspondence files revealed the following

evidence of CCW contamin ation:

“Off

- site” groundwater

– off

- site groundwater contamination has been pervasive, including drinking water wells 0.5 mile away or further from the Little Blue impoundment. See Chart 1. These exceedances appear to have increased since the expansion of the impoundment in 2006.

Evidence of contaminated off

- site drinking water includes arsenic readings in excess of the MCL (0.01 mg/L) in at least eight “off

- site” groundwater wells.

DEP Response

DEP disagrees with the statement that ‘pervasive’ ‘off

- site ’ groundwater contamination has occurred from the impoundment. The report’s definition of ‘off

- site’ could construe a property and groundwater at which a contaminant was detected as attributable to FirstEnergy despite its

location at a distance or location beyond the influence of the impoundment or as paradoxically being within the current property boundary of the facility. There are no specific private water supplies referenced in the report nor dates or times the alleged contaminated water supply was

samp led. All groundwater monitoring wells are located on

- site.

Regarding Chart 1, the data presented cannot be verified due to the following deficiencies:

A. For every parameter listed in the “Contaminant” column that corresponds to a groundwater monitoring or drinking well, the specific well number(s) or location(s) is not listed. There is also no reference to whether the well(s) is hydrologically upgradient, downgradient or side gradient of the impoundment. The “Exceedances” numbers cannot be correlated to a specific monitoring point.

B. In the “Medium” column, groundwater monitoring wells and drinking wells are591

undifferentiated, and the “Highest Exceedance Number” is not assigned to one or the other, making it ambiguous and appearing that it is attributed to both a drinking water well and a monitoring well.

C. When the “Medium” column changes to Surface Water, the chart continues to list “# Wells” instead of number of surface water points.

In response to alleged exceedances increasing since the 2006 expan sion of the impoundment, there is no time trend data presented to substantiate the claim. Nor are the eight monitoring wells with alleged arsenic contamination identified. Therefore, none of the data in the chart can be substantiated. In fact, between 2004 and 2010, the Department has collected 53 drinking water samples from 40 residents around the impoundment and there has not been a single detection of arsenic in the water. (See Table 1 in the Response to Damage Case Claim 1).

15. Damage Case Claim

– Pag e 162

Two of these wells were residential drinking water wells, with one well containing arsenic at 0.021 mg/L (more than twice the MCL), and another family’s well containing arsenic concentrations that increased from 0.013 to 0.0146 mg/L between 2008 and 2009.

DEP Response

EIP’s statements are misleading and incorrect. One sample collected from a private water supply well in late 2008 did contain arsenic at a concentration of 0.013 mg/L (not 0.0146 mg/L); however, the water from the well was noted to b e turbid at the time of sample collection. According to discussions with FirstEnergy, the homeowner, who had just purchased the property, was aware that his well water was muddy and the sample collector suggested that the property owner have his well casin g inspected by a water well installer because a poorly sealed surface casing could allow sediment to wash into the well creating turbid water, especially after snow melts and rain. Upon receipt of the analytical results, FirstEnergy’s consultant indicated the elevated metals concentrations were likely the result of the sediment present in the sample. With the property owner’s permission, the consultant collected another sample from the water well early in 2009 to test this hypothesis by collecting samples f or both total and dissolved metals. The sample collected in 2009 was much clearer and the analytical results concentrations of metals were much lower compared to the 2008 sample. Total arsenic was reported at 0.0025 mg/L and dissolved arsenic at <0.0025 mg /L

– well below the MCL. DEP also collected a sample from this well two months later and confirmed these results. Both total and dissolved arsenic were reported as less than <0.003 mg/L the detection limit. In addition, the location and

elevation of this w ater well clearly indicates the well is located upgradient from the impoundment. The property owner was informed of these findings in a letter from FirstEnergy’s

consultant.

Arsenic was reported at a concentration of 0.021 mg/L in a sample collected from a private water well by the DER (now DEP) in 1993. (The MCL for arsenic at that time was 0.050 mg/L.) FirstEnergy’s consultant collected 13 additional samples from this water well from 1994 through 2001. Arsenic was included in the analysis of 6 of these s amples. Most of the samples did not592

contain arsenic at a concentration greater than the laboratory detection limit, and the greatest concentration reported was 0.005 mg/L. In addition, this well did not contain other

concentrations of constituents that wou ld suggest any impacts from the impoundment. Arsenic is found in soils of Western Pennsylvania, its presence does not confirm impacts from the impoundment.

Additionally, the reference that a private water well contained arsenic concentrations that

increas ed from 0.013 to 0.0146 mg/L from 2008 to 2009 is wrong. From DEP’s review of groundwater data we cannot determine EIP’s source of the 0.0146 value. As stated previously, the 2008 concentration was attributable to sediment entering the well, possibly via a poorly sealed surface casing. The soil and rock beneath the Reed residence contain naturally occurring

arsenic.

16. Damage Case Claim

– Page 162

MCLs were also exceeded in off

- site groundwater wells for cadmium, barium, fluoride, lead, and turbidity. In addition, many SMCLs were exceeded in off

- site groundwater. As a result, FirstEnergy has monitored drinking water wells at several nearby homes, and subsequently purchased those homes due to well contamination.

DEP Response

DEP deems this statement to b e misleading. EIP fails to consider what parameter concentrations may represent background conditions and does not consider that some of the data may represent outliers. For instance, cadmium only was reported at concentrations that exceed its MCL in 9

sam ples out of 414 samples analyzed for cadmium collected from monitoring wells. Four of these 9 samples were collected from wells that contain groundwater representative of background conditions; therefore, cadmium was present in the groundwater prior to dev elopment of the facility. Barium concentrations for samples collected from supernatant in the impoundment itself were well below the MCL, indicating that the impoundment could not be a source of barium in monitoring wells. Fluoride concentrations are great est in a well with groundwater that represents background water quality. This is the only well that contains fluoride

at concentrations in excess of its MCL. Several other wells contain fluoride concentrations that are slightly above the SMCL for fluoride. Fluoride is the result of the solution of naturally occurring fluoride present within freshwater limestone units in the bedrock of the disposal area. Lead is not present in the impoundment at appreciable quantities and cannot be the source of lead

detecte d in the monitoring wells. Turbidity in the monitoring wells is not a function of the impoundment but representative of the construction and development of the well. Several of the wells installed around the disposal area have low yields and therefore go d ry during purging, causing the sample collected to contain some sediment, accounting for the turbidity.

Several SMCLs are exceeded in groundwater samples collected from the monitoring wells. Many of these parameters are representative of background water quality, including iron and

manganese.

EIP implies that FirstEnergy monitors drinking water wells because of exceedances of MCLs593

and SMCLs for groundwater in monitoring wells. FirstEnergy monitors drinking water wells as required by the residual waste per mit. In addition, FirstEnergy has a longstanding policy to sample anybody’s drinking water well upon request. DEP has not found any private drinking water wells to contain constituents that exceed primary MCL’s.

17. Damage Case Claim

- Page 162

Off

- Site Surface water

– off

- site surface water contamination includes exceedances of both continuous/chronic (CCC) and maximum acute (CMC) limits set forth in Pennsylvania Water Quality Criteria (WQC). These exceedances occurred both at FirstEnergy’s off

- site moni toring points in streams and creeks, including Mark’s Run and Little Blue Run, and at seeps located at private residences. See Chart 1 (for brevity, several pollutants in off

- site surface water that exceeded MCLs but did not have an associated WQC were not charted). Many criteria have exceeded WQC only after the expansion of the impoundment in 2006.

DEP Response

The claims regarding ‘off

- site surface water’ are unsubstantiated. Specific dates and locations of the alleged exceedances are not listed in the EIP report. The EIP’s definition of ‘off

- site’ allows that surface water samples cited as contaminated could have been collected miles away from the impoundment, making the source of pollutants questionable at best. Regarding Chart 1, the data presented ca nnot be verified due to the following deficiencies:

A. For every parameter listed in the “Contaminant” column that corresponds to a groundwater monitoring or drinking well, the specific well number(s) or location(s) is not listed. There is also

no refere nce to whether the well(s) is hydrologically upgradient, downgradient or side gradient of the impoundment. The “Exceedances” numbers cannot be correlated to a specific monitoring point.

B. In the “Medium” column, groundwater monitoring wells and drinking wells are undifferentiated, and the “Highest Exceedance Number” is not assigned to one or the other, making it ambiguous and appearing that it is attributed to both a drinking water well and a monitoring well.

C. When the “Medium” column changes to Surfac e Water, the chart continues to list “# Wells” instead of number of surface water points.

18. Damage Case Claim

- Page 163

For example, arsenic levels have steadily increased, only exceeding WQC at one point in Pennsylvania, S

- 17 (a surface water seep ab out 1,490 feet from the closest part of Little Blue) in 2003, with a reading of 0.016 mg/L.

DEP Response

Seep S

- 17 has only been monitored for arsenic beginning in 2006 and has not shown an increase594

in arsenic concentrations as EIP implies. Of the 18 qua rterly samples from seep S

- 17 analyzed for arsenic, only two detections were reported

– 0.016 mg/L in the second quarter of 2006 and 0.013 mg/L in the third quarter of 2007. The remaining 16 samples from seep S

- 17 did not

contain arsenic at concentrations above the laboratory detection limit, indicating that these “hits” were anomalies. Furthermore, this spring is not used as a potable water supply but is rather collected in a pipe, treated and discharged per the NPDES permit for the facility.

19. Damage C ase Claim

- Page 163

Between 2008 and 2010, arsenic was found in two additional surface water points, including

exceedances at S

- 31 (a monitoring point in Mark’s Run, in a residential neighborhood in West Virginia) and at SW

- 5 (a spring over 2,000 feet fr om Little Blue), with arsenic concentrations of 0.024 and 0.028 mg/L.

DEP Response

Arsenic has been detected at concentrations just over its MCL in three of 18 quarterly samples collected from seep S

- 31 between 2006 and present. EIP fails to note that s eep S

- 31 emanates from the Brush Creek coal and it is not surprising that there have been occasions of elevated arsenic due to arsenic being present within the coal. Seep S

- 31 dries up periodically, which is an indication that the impoundment is not a cont inuous source of water to the seep. Seep S

- 31 also contains iron and manganese concentrations that are higher than levels found in the impoundment, indicative of offsite influences. In addition, the pH at seep S

- 31 is substantially lower than the impoundme nt and is an indication that some of its flow is related to a coal seam which lowers the pH.

Arsenic has been detected at concentrations that exceed its MCL in several samples collected

from SW

- 5. EIP misidentified sampling point SW

- 5 as a spring over 2,0 00 feet from the impoundment. SW

- 5 is a sample of the supernatant (wastewater) collected directly from the disposal impoundment. Samples from the impoundment have contained arsenic concentrations ranging from <0.0046 mg/L to 0.0489 mg/L, and are collected, treated and discharged pursuant to the facility’s NPDES permit.

20. Damage Case Claim

- Page 163

Other off

- site surface water exceedances included an exceedance of the CMC for hexavalent chromium, a lead reading of 0.15 mg/L, far exceeding the CCC of 0. 01094 mg/L, at an off

- site unpermitted seep, and pervasive boron contamination at least seven wells.

DEP Response

The validity of this claim cannot be verified. The report’s definition of “off

- site” could construe a property and groundwater at which a co ntaminant was detected as attributable to FirstEnergy despite its location at a distance or location beyond the influence of the impoundment or as paradoxically being within the current property boundary of facility. With regard to the alleged

exceedances of hexavalent chromium and lead, there are no references to where this data was595

collected. In addition, the comment regarding pervasive boron in seven wells is confusing. It appears this statement is referring to Chart 1. If so, the medium listed for the b oron samples is surface water, but the sample locations are noted as wells. Technical correlations cannot be made from the information referenced. Additionally, CMC and CEC levels are used for regulating drinking water sources and not appropriate reference s for permitted facility groundwater monitoring wells.

21. Damage Case Claim

- Page 163

Cadmium, thallium, selenium, and boron also exceeded WQC in off

- site creeks, springs, and

seeps.

These off

- site surface water exceedances occurred in at least 17 dow ngradient surface water sources, including: SW

- 5, a surface water source (type marked “other” and likely a seep) in Pennsylvania; S

- 9A (a spring in Pennsylvania); S

- 10

- MC (a stream in Pennsylvania); S

- 16

- MC (a stream in Pennsylvania); S

- 17 (a spring in Pen nsylvania); S

- 28 ( a spring in West Virginia): S

30 (a spring in West Virginia); S 31 (a spring in West Virginia); S

- 34 (a spring in West Virginia); S

- 35 (a spring in West Virginia); LR

- 1 (a spring in West Virginia); LR

- 2 (a spring in West Virginia); Mark’ s Run (a stream in West Virginia); a seep at a private residence in West Virginia; and two springs at two private residences in Pennsylvania.

DEP Response

This information is unsubstantiated. There are 16, not 17 “off

- site” surface points referenced.

One of them, SW

- 5, is referenced as a seep and mislabeled on the Google Earth map, and is actually the permitted location of a sampling point of the liquid within the impoundment. No specific analytical data related to alleged exceedances of cadmium, thallium , selenium, and boron is provided for any of the 16 referenced water sources. Therefore , no correlation can be

made.

22. Damage Case Claim

- Page 163

- 164

[See original comment for Chart 1. OFF

- SITE CONTAMINATION FROM LITTLE BLUE.]

DEP Response

With re gard to Chart 1, the data presented cannot be verified due to the following deficiencies:

A. For every parameter listed in the “Contaminant” column that corresponds to a groundwater monitoring or drinking well, the specific well number(s) or location(s) i s not listed. There is also no reference to whether the well(s) is hydrologically upgradient or downgradient of the facility. The “Exceedances” numbers cannot be correlated to a specific monitoring point, nor is the specific data provided.

B. In the “Medi um” column, groundwater monitoring wells and drinking wells are undifferentiated, and the “Highest Exceedance Number” is not assigned to one or the other,596

making it ambiguous and appearing that it is attributed to both a drinking water well and a

monitorin g well.

C. When the “Medium” column changes to Surface Water, the chart continues to list “# Wells” instead of number of surface water points.

D. This table provides no substantiated data and cannot be verified. As a matter of scientific standards, a sum mary table (such as alleged in Chart 2) would also reference sampling numbers and have a compendium of data to verify the summary.

23. Damage Case Claim

- Page 165

On

- site groundwater moving off

- site”

– on

- site groundwater contamination includes extensiv e arsenic contamination, with at least 24 MCL exceedances in at least 14 different wells that were more than 150 feet away from the closest part of Little Blue. All of these samples were taken between 2006 and 2010, after FirstEnergy’s expansion of Little Blue. See Chart 2.

DEP Response

The reference to this allegation is Chart 2 in the EIP report. Though a general time frame (2006

- 2010) is given in the chart for “extensive arsenic contamination,” specific verifiable information (such as specific well loc ations and sampling dates) is not provided.

DEP has collected 52 water samples at 40 residential wells over the past six years (see Table 1) from around the impoundment, none of which show evidence of arsenic contamination.

It could be that the report i s labeling the groundwater monitoring network installed to provide early detection of impacts and located immediately adjacent to the impoundment as “off

- site.”

24. Damage Case Claim

- Page 165

Fluoride and turbidity MCLs were exceeded 27 and 41 times, r espectively.

DEP Response

This claim is unsubstantiated. Of the 68 alleged exceedances referenced, only two data points are reported on Chart 2 (one for turbidity and one for fluoride). Also, there is no reference to which two monitoring wells those data refer. Turbidity is a secondary contaminant related to the appearance of drinking water, not a health

- based standard.

Fluoride has an MCL of 4 mg/L and a SMCL of 2 mg/L. Fluoride concentrations are greatest in a well with groundwater that represents back ground water quality. This is the only well that

contains fluoride at concentrations in excess of its MCL. Several other wells contain fluoride concentrations that are slightly above the SMCL for fluoride. Fluoride is the result of the solution

of naturall y occurring fluoride present within freshwater limestone units in the bedrock of the disposal area. Turbidity in monitoring wells is not a function of the impoundment, but597

representative of the construction and development of the well. Several of the wells installed around the disposal area have low yields and therefore go dry during purging, causing the sample collected to contain some sediment and result in turbid samples.

25. Damage Case Claim

- Page 165

In 1996, lead exceeded the Federal Action Level of 0.015 mg/L with readings of 2.69 mg/L (538 times the MCL) and 1.41 mg/L (282 times the MCL). There were also numerous violations of SMCLs for turbidity, chloride, iron, manganese, and sulfate, and pH was cited for showing an increasing trend at one well in 2003.

DEP Response

These claims are unsubstantiated. In regard to the alleged lead exceedances, there is no identification of which wells were sampled or their physical location in reference to the impoundment. Therefore, it is impossible to make co nclusions regarding hydrologic connection to the impoundment. In addition, two data points over a 30

- year monitoring period of 4 times per year do not constitute a trend. Lead is not present in any appreciable amount in the waste within the impoundment and therefore elevated lead in an off

- site well is likely from another source, such as the home’s plumbing or soil.

Specific monitoring points are not given for alleged violations of secondary parameters, and no data is given regarding an alleged increasing trend of pH for one well in 2003.

26. Damage Case Claim

- Page 165

“On

- site” surface water moving off

- site

– on

- site surface water contamination moving off

- site includes exceedances of PA WQC for arsenic, antimony, hexavalent chromium, selenium,

thallium , and boron, with the boron exceedances occurring at least 15 times at 9 downgradient monitoring points: Outfall (001 (discharge to Hayden Run Creek); Outfall 021 (discharge to a stream, Little Blue Run, that discharges to the Ohio River); Outfall 023 (col lected seeps/springs to Mill Creek); Outfall 025 (collected seeps/springs to Mill Creek); Outfall 026 (collected seeps/springs to Mill Creek);” “SW

- 3 (a seep in Pennsylvania just below the earthen dam); SW

- 4 (a seep in Pennsylvania just below the earthen d am); S

- 15 (a spring in Pennsylvania about 1,300 feet from the impoundment); and S

- 18 (a spring in Pennsylvania). See Chart 2.

DEP Response

Of the 9 downgradient surface water monitoring points called out for alleged boron exceedances, 5 are permitted ind ustrial waste discharge points authorized in the facility’s NPDES permit. Depending on the receiving stream, each outfall may have a discharge limit for boron that is different than Pennsylvania Water Quality Criteria as specified in the NPDES discharge pe rmit. This is not clarified in the report. PA WQC are not an appropriate comparison as stated previously.

In addition, there are deficiencies with Chart 2 that make technical correlations impossible598

between the allegations and corresponding data.

27. Dam age Case Claim

- Page 165

[See original comment for Chart 2. ON

- SITE CONTAMINATION MOVING OFF

- SITE.]

DEP Response

With regard to Chart 2, the data presented cannot be verified due to the following deficiencies:

A. For every parameter listed in the “Con taminant” column that corresponds to a groundwater monitoring or drinking well, the specific well number(s) or location(s) is not listed. There is also no reference to whether the well(s) is hydrologically upgradient, downgradient or side gradient

of the f acility. The “Exceedances” numbers cannot be correlated to a specific monitoring point.

B. When the “Medium” column changes to Surface Water, the chart continues to list “# Wells” instead of number of surface water points. The entire chart is confusing an d no correlations can be made between the alleged claims or surface water groundwater contaminations. DEP’s review of the groundwater and surface water data for the facility does not support the table.

28. Damage Case Claim

- Page 165

On

- site groundwater

– despite the fact that most of the on

- site monitoring points and wells are ‘moving off

- site’ (meaning they are more than 150 feet from the boundary of the impoundment),

on

- site groundwater also had exceedances of MCLs, including multiple turbidity MCL

ex ceedances and a manganese SMCL exceedances. See Chart 3 (for brevity, no SMCL exceedances were included on this chart, although there were many).”

DEP Response

The claims regarding “on

- site contamination” are unsubstantiated. Specific dates and location s of the alleged exceedances are not listed in the EIP report and DEP cannot confirm their validity. Turbidity in monitoring wells is not a function of the impoundment, but representative of the construction and development of the well. Several of the well s installed around the disposal area have low yields and therefore go dry during purging, causing the sample collected to contain some sediment and result in turbid samples.

29. Damage Case Claim

- Page 166

“On

- site” surface water

– on

- site surface water showed an exceedance of the CCC for selenium

at SW

- 3 (a seep in Pennsylvania just below the earthen dam) (exceedances of nonpriority pollutants under PA WQC, such as aluminum, boron, and barium, were not tracked at on

- site points). See Chart 3.”

[See ori ginal comment for Chart 3. ON

- SITE CONTAMINATION.]599

DEP Response

EIP misidentifies sampling point SW

- 3 as a seep below the dam. SW

- 3 is a sampling point at the stilling basin and is a permitted discharge from the impoundment. Comparing this sampling point to WQC is not appropriate. (See NPDES discharge notes previous.) With regard to Chart 3, the data presented cannot be verified due to the following deficiencies:

A. For every parameter listed in the “Contaminant” column that corresponds to a groundwater monitoring or drinking well, the specific well number(s) or location(s) is not listed. There is also no reference to whether the well(s) is hydrologically upgradient or downgradient of the facility. The “Exceedances” numbers cannot be correlated to a speci fic monitoring point.

B. When the “Medium” column changes to Surface Water, the chart continues to list “# Wells” instead of number of surface water points.

C. This table provides no substantiated data and cannot be verified. As a matter of scientific

st andards, a summary table (such as alleged in Chart 2) would also have a list of sampling points and a compendium of data to verify the summary.

30. Damage Case Claim

- Page 166

In addition, a monitoring well that appears to be monitoring surface water of the impoundment itself (SW

- 7) measured exceedances of the PA CCC for arsenic (0.010 mg/L) twice in 2009

- 2010, with readings of 0.023 and 0.025 mg/L, and it also measured at least six exceedances of the boron PA CCC (1.6 mg/L), with a high reading of 15.7 mg/L.

DEP Response

EIP is comparing concentrations measured from within the disposal impoundment (prior to

discharge) to Fish and Aquatic Life Criteria. This is inappropriate and misleading.

31. Damage Case Claim

- Page 166

Outfall 507 measured an ex ceedance of the hexavalent chromium PA CCC (0.016 mg/L), with a reading of 0.026 mg/L in 1998. In addition, thallium measured 0.015 mg/L in 1998 at Outfall 507, exceeding the PA CCC (0.013 mg/L) and the Health Criteria (0.00024 mg/L).

DEP Response

Permit ted NPDES outfalls at Little Blue Run are numbered 021 to 026. The analytical data

related to Outfall 507 has no reference.

32. Damage Case Claim

- Page 166

“At Risk Population.” At least 22 private wells have already been contaminated with CCW600

pollutant s above the primary or secondary MCLs, including the township building’s well.

DEP Response

This statement is unsubstantiated. As previously stated, there are no names, dates, specific locations, or specific parameters for 22 private water supplies alleg ed to be contaminated by the impoundment in the report, except an obscure reference to a township building’s well. DEP has no data supporting claims that any private wells have been contaminated. DEP did sample the Greene Township well on October 10, 1993. The well is not hydrologically connected to the Little Blue Run impoundment and no parameters associated with the impoundment were detected at elevated levels. Iron and manganese were present at levels greater than their respective SMCL’s. Based on its ge neral elevation and depth, this well penetrates several coal seams/carbonaceous layers that are the likely source of the elevated paramters.

33. Damage Case Claim

– Page 166

“FirstEnergy has already purchased several of these contaminated properties and /or supplied the residents thereof with an alternate drinking water supply.”

DEP Response

DEP acknowledges properties have been purchased by FirstEnergy over the past 35 years for expansion of the impoundment. FirstEnergy has supplied alternative drinkin g water supplies or a treatment system to a few residents where samples showed that the wells’ water quality may have been changing (indicative of past oil and gas exploration). These include two homeowners who were offered water treatment systems because of brine water in their water wells

– there was no indication of impacts from the impoundment. Another homeowner was provided a treatment system when a slight increase of sulfate was noted over time, even though no parameters

exceeded a MCL or SMCL. Shortl y after the system was installed, sulfate concentrations returned to its original concentration. This well was noted to contain water quality that would be expected in a drinking water well that intersects a coal seam.

34. Damage Case Claim

- Page 166

Be cause Greene Township has no public water supplies, every single resident

– 2,705 people, according to 2000 census data

– is drinking private well water. In addition, there are many affected citizens in West Virginia, although comprehensive well data was u navailable for this region. Water degradation may also be migrating across the Ohio River into Ohio, but the community there is on public water.

DEP Response

This claim is unsubstantiated. There is no data presented in the report to demonstrate that any West Virginia citizens’ drinking well supply is contaminated by the impoundment. Recent testing by DEP of several private water wells on September 3, 2010, in Lawrenceville, WV (Cooper and McCaughlin) indicated non

- detect from Primary MCL’s (including arse nic). In601

addition, there is no technical data presented or modeled that demonstrates that the regional water table flows beneath the Ohio River and discharges on the other side from the impoundment.

35. Damage Case Claim

– Page 166

Incident and Date Dama ge Occurred/Identified.

The Pennsylvania Department of Environmental Protection (PADEP) has long documented the contamination flowing from the Little Blue surface impoundment. From at least 1989 to the present day, FirstEnergy (and previously, Penn Power) has been exceeding permit limits and both State and federal drinking water and surface water standards due to the irresponsible disposal of CCW in the Little Blue impoundment.

DEP Response

DEP cannot verify the validity of this claim. The specific monit oring wells, surface water points, and analytical data, and the dates and times of sample collection, by which to substantiate this claim are not presented. The permitted groundwater monitoring wells and surface points are sampled on a quarterly basis and are currently within the permit limits established in the PA Residual Waste Regulations. In addition, the site is also currently in compliance with its NPDES permits.

36. Damage Case Claim

- Page 166

Admitted Damage

On February 16, 2010, PADEP sent a le tter to FirstEnergy regarding high arsenic levels at 10 groundwater and surface water monitoring points, stating, ‘According to the data, elevated levels of Arsenic were detected in Monitoring Wells MW

- 13A, MW

- 15B, MW

- 16C, MW 17A, MW

20B, MW

- 23B, SW

- 5, SW

- 7, S

- 17, and S

- 31’ (PADEP, 2010) (emphasis added). In a response letter dated February 24, 2010, FirstEnergy acknowledged the arsenic levels and further stated: ‘As you will recall, the DEP prepared a similar letter dated December 20, 2007 regarding

detect able concentrations of arsenic reported in four monitoring points during the third quarter 2007 sampling event’ (FirstEnergy, 2010). FirstEnergy’s environmental consultants re

- tested arsenic levels to determine whether interference had been causing arsenic spikes, but found that

the re

- tested ‘results were comparable.’

DEP Response

DEP issued a letter to FirstEnergy on December 20, 2007, that noted elevated arsenic in six monitoring points located adjacent to the impoundment well within FirstEnergy proper ty. FirstEnergy’s response demonstrated elevated arsenic concentrations in monitoring points that have shown impacts from the impoundment were comparable to concentrations in background monitoring wells. FirstEnergy continued to monitor the concentrations to see if any trends developed. DEP issued a letter to FirstEnergy on February 16, 2010, that noted elevated arsenic602

concentrations in 10 monitoring points immediately adjacent to the impoundment. FirstEnergy

demonstrated that no trends in arsenic were rea dily identifiable at that time and continued to monitor arsenic concentrations to determine the reason(s) for the elevated arsenic levels and, if necessary, the steps to be taken to address the issue. While the arsenic levels receded, elevated

levels conti nued to be detected in monitoring wells MW 13A, MW

- 15B, MW

- 16C, MW

- 17A,

MW

- 20B and MW

- 23B, and surface water point SW

- 5, SW

- 7 and SW

- 31. On January 3, 2011, FirstEnergy was formally informed of its obligation to conducted groundwater assessment
pursuant to 25 Pa. Code Section 289.256. FirstEnergy’s plan in that regard was originally submitted on March 2, 2011, and revised at DEP’s request on July 6, 2011. The cause for the elevated levels of arsenic is being studied.

37. Damage Case Claim

- Page 167

In 20 09, USEPA and FirstEnergy ranked Little Blue as a ‘High’ hazard dam on the National Inventory of Dams, meaning that a failure of the dam ‘will probably cause loss of human life.’ (USEPA, 2009).”

DEP Response

This statement is correct.

38. Damage Case Cl aim

- Page 167

In 2009, an Annual Operations report prepared by environmental consultants for FirstEnergy states: Sharp increases in sulfate, chloride, sodium, and specific conductance at MW

- 6 indicate early signs of supernatant impacts. This well is loca ted along Lewis Road on the southwestern side of the impoundment, and has served as a background well. Due to the placement of CCB in this portion of impoundment, this well is now located within several feet of the impoundment. Shallow impacted groundwater may be migrating along the soil

- bedrock interface or through weathered bedrock in the vicinity of this well and may be short circuiting to deeper zones. Because this well is one of the original monitoring wells installed at the Site (1974), it does not

me et current standards for well construction and will be replaced with a new well to prevent the migration of impacted water to deeper zones.”

DEP Response

These statements are true. MW

- 6 is an original monitoring well, that because of its age (1975),

was not constructed to today’s standards. Other monitoring wells have been replaced as the elevation of Coal Combustion Waste or impoundment water rose to approach or inundate the

well. MW

- 6 was properly abandoned and a new well MW

- 6 was installed at a slightl y higher elevation to replace the original MW

- 6. Well MW

- 6 was constructed to monitor the same zone as the abandoned well. Results of samples collected from the new Well MW

- 6 indicate the water quality in the monitored zone reflects background conditions.

39. Damage Case Claim

- Page 167603

(CEC, 2009). The same 2009 report states that on the ridge east of the impoundment, ‘Monitoring wells MW

- 3A and MW

- 14AR continues[sic] to show increasing concentrations of sulfate, chloride, and sodium indicating possible early signs of supernatant impact.’ FirstEnergy’s consultants go on to state:

On the western side of the impoundment, early signs of supernatant impacts may be evident along Johnsonville Road. At MW

- 7A and MW

- 7B, sulfate, chloride, calcium and specific conductance all showed distinct increasing trends in 2008, indicating possible supernatant impacts. . . Similarly, increasing sulfate concentrations and analysis of the Piper diagrams at

wells MW

- 24 and DW69 indicate possible supernatant impacts. Spring S

- 30 continues to display increases in sulfate, chloride, sodium, calcium, magnesium and specific conductance, further suggesting signs of supernatant impacts. In addition, newly identified springs in Lawrenceville at locations down gradient of springs S

- 30 and S

- 31 appear to display impacts from the impoundment.”

DEP Response

This statement is true. It should be noted that the impacts from the impoundment are primarily elevated concentrations of sulfate, sodium, calcium, chloride, and magnesium. Of these

c ompounds, only sulfate and chloride have established SMCLs, which are non

- enforceable Federal guidelines regarding cosmetic effects or aesthetic effects of drinking water. Furthermore, FirstEnergy has acknowledged its responsibility with respect to the Law renceville springs and is in the process of resolving that concern. FirstEnergy has initiated remediation of the affected springs and is currently installing facilities by which to provide for their collection and conveyance for management as wastewater in the impoundment.

40. Damage Case Claim

- Page 167

The 2007 Annual Report prepared by FirstEnergy’s environmental consultants labels each of the following as a ‘supernatant impacted well’: MW

- 1; MW

- 2R; MW

- 3B; MW

- 9BR; MW12B;

MW

- 12C; MW

- 13A; MW

- 13B; MW

- 15B ; MW

- 16A; MW 17

- A; MW

- 17B; MW

- 22B; MW

23A; MW

- 24; SW 3; SW

- 4; SW

- 5; S

- 9A; S

- 15; and S

- 17 (CEC, 2007).”

DEP Response

This statement is correct. Wells deemed to be ‘supernatant impacted’ are those with elevated sulfate, calcium, magnesium, chloride and sod ium attributable to the impounded liquid based on the wells’ location immediately adjacent to the impoundment. The elevated constituents are secondary contaminants and not health

- related.

41. Damage Case Claim

- Page 167

In 2003, FirstEnergy’s environmen tal consultants sent a letter to PADEP expressly labeling Monitoring Wells 3B, 13A, and 13B ‘Supernatant

- Affected Wells’ (CEC, 2003).604

DEP Response

This is a true statement. Wells MW

- 3B, 13A, and 13B contain concentrations of parameters that show they are supernatant

- impacted wells. Wells MW

- 13A and 13B also contain impacts from

brine. These wells are located in on

- site areas and do not represent a violation.

42. Damage Case Claim

- Page 167

In the 1996 Consent Order and Agreement, Penn Power (the owner of Little Blue prior to FirstEnergy) and PADEP admit that ‘Existing groundwater monitoring data indicate light groundwater impact from Little Blue Run supernatant. . . relative to background. All quantifiable impacts are of secondary maximum contaminant le vel (‘SMCL’) or indicator parameters, including Sodium, Calcium, Chloride, and Sulfate’ (PADEP, 1996).

DEP Response

It is true that impacts to groundwater are primarily those of sulfate, sodium, calcium, and chloride and are seen in the monitoring wells closely associated with the impoundment. Of these compounds, only sulfate and chloride have established SMCLs, which are non

- enforceable Federal guidelines based on aesthetic effects on drinking water.

43. Damage Case Claim

- Page 167

In 1994, FirstEnerg y was required to provide a water supply to a private residence, and a PADEP letter to Penn Power admits that the impoundment contaminated and made unusable a private well (PADEP, 1994a):

‘This result indicates a continuing upward trend in levels of sodiu m, chloride and sulfate which has persisted since 1991. . . .This trend represents a measurable increase in the concentration of these contaminants and therefore is defined as groundwater degradation. Since the groundwater gradient is probably from the imp oundment supernatant at elevation of 1050’ toward the [XXXX] well water elevation at approximately 985’, it is very probable that the impoundment is responsible for this adverse effect on the water supply. This letter is notice from the Department

that the operator, Pennsylvania Power Company, is responsible for adversely affecting the water supply of Mr. [XXXX].’”

DEP Response

This claim, while accurate, is incomplete. DEP’s follow

- up investigation confirmed the findings

associated with the 1994 letter. Concentrations of sodium, chloride and sulfate in the water well referenced in the EIP report showed an increase between November 1993 and March 1994. FirstEnergy’s consultant overpumped this well while collecting samples for analysis. The laboratory analy ses showed the water quality in this well improved and confirmed that the well had exhibited increases in parameter concentrations after the homeowner used household bleach

to treat his well for bacterial contamination late in 1993.605

44. Damage Case Claim

- Page 168

A 1994 letter from PADEP to the environmental consulting firm states, ‘[t]his impoundment is affecting groundwater over a large area with multiple aquifers.’ (PADEP, 1994b) (emphasis added).”

DEP Response

It is true that the impoundment has a ffected groundwater quality in several different aquifers; however, these impacts were expected based on the fact that the impoundment was designed and constructed as an unlined impoundment in the early 1970s. These impacts are well understood and are comp rehensively monitored per requirements in the facility’s permit. The impacts are for secondary contaminants and are not health

- related.

45. Damage Case Claim

- Page 168

As early as 1989, PADEP admitted that chloride measured at 3,530 mg/L (more than 14 t imes the SMCL of 250) in groundwater is ‘abnormally high,’ that calcium levels were elevated in three groundwater wells, that both ‘can be traced to leaching of surface water through the waste’ at the impoundment, and that ‘elevated’ levels of calcium ‘can be associated with the waste disposed at Little Blue.’ (PADEP, 1989) (emphasis added).

DEP Response

DEP’s letter dated March 21, 1989 noted monitoring wells MW

- 1, MW

- 2, MW

- 4A, MW

- 9A,

and MW

- 11A contained high concentrations of chloride. The letter also noted that calcium appeared elevated in well MW

- 1, MW

- 2, and MW

- 9A. Monitoring wells MW

- 1, MW

- 2, and

MW

- 9A contain impacts from both supernatant and brine. Wells MW

- 4A and MW

- 11A contain impacts solely attributable to brine. The impact of the brine control s the chloride in these wells. Whereas, the elevated calcium in wells MW

- 1, MW

- 2, and MW

- 9A is an indication of supernatant impacts along with sulfate concentrations. These impacts are well understood and are comprehensively monitored per requirements in t he facility’s permit.

46. Damage Case Claim

- Page 168

Other Incidents

In 2009, dry conditions on the surface of the impoundment covered nearby residents’ homes in a layer of coal ash fugitive dust, prompting an NOV (PADEP, 2009).”

DEP Response

First Energy notified DEP of a potential dusting problem at the impoundment and initiated actions to quickly address the dusting. DEP immediately responded by issuing an NOV, assessing a civil penalty and mandating that corrective actions be taken. DEP required First Energy to modify its permitted nuisance control plan and submit regular documentation on606

inspections and corrective actions to reduce dusting potential. FirstEnergy responded to the NOV

and corrected the situation.

47. Damage Case Claim

- Page 168

In 2007, a PADEP site inspector ‘noted a white discharge from spring S

- 2 on the hillside east of the dam face. Photos were taken of the discharge. There was a rotten egg odor in the vicinity of the open channel next to the main access road’ (PADEP, 2007).

DEP Response

The discharge from spring S

- 2 located along the dam face is collected along with other discharges from the dam into the stilling basin (SW

- 3) and is ultimately discharged through a permitted NPDES point. At the time the white discharge was n oted, the outfall at the stilling basin was in compliance.

48. Damage Case Claim

- Page 168

Twenty gallons of lime slurry discharged into the Ohio River from the Little Blue impoundment in June 1994, although the constituents in the discharge are unknown (Penn Power, 1994a).

In January 1994, 800 gallons of scrubber sludge discharged to the Ohio River from the impoundment, although the constituents in the discharge are unknown. There was also a seepage into Mill Creek in March 1994, the size and constitue nts of which are unknown (Penn Power, 1994B).

DEP Response

These statements are correct. Violations were noted and corrected per the regulations.

49. Damage Case Claim

- Page 168

A thick layer of coal ash dust was released from the surface of the Littl e Blue impoundment as fugitive dust from January 30 to February 4, 1993, and PADEP issued a Notice of Violation for violations of Sections 6.1(a), 6.1(b), and 8 of the Air Pollution Control Act, and Sections 123.1 and 123.2 of 25 Pa. Code SS 123.1(a) and 1 23.2 (PADEP, 1993).

DEP Response

FirstEnergy responded to the NOV and corrected the situation.

50. Damage Case Claim

– Page 168

A 1991 inspection report noted a milky

- white discharge from the distilling pond and from NPDES Outfall 001, and marked ‘non

- compliance’ with regard to ‘Operation in accordance with approved plans’ and for ‘Leachate treatment facilities being operated properly.’ (PADEP,607

1991a). The pH was measured from 8.7 to 9.4. Id. A Notice of Violation issued cited violations

of sections 302 (b)(3), 610(4) of the Pennsylvania Solid Waste Management Act and sections 301 and 307(c) of the Clean Streams Law (CLS) (PADEP, 1991c). The NOV (PADEP, 1991) stated

that a:

[W]ater discharge coming from Little Blue Run development area fly ash disposal l andfill was discolored and the bottom of the distilling basin was covered with a white sediment. Water samples were taken at the NPDES Permit No. PA0027260, Outfall 001 discharge point. The analysis from these samples showed total suspended solids at 194 m g/L (maximum limit 60 mg/L) and pH 10.5 (maximum limit pH 9), both over the NPDES permit discharge limits and in
violation of the above mentioned sections of the PSWMA and the CSL.”

DEP Response

The company responded to the NOV, addressing and correcting the situation. Outfall 001 is no longer a permitted discharge point. The currently permitted outfalls are numbered 021

- 026.

51. Damage Case Claim

- Page 168

On August 30, 1991, 100 gallons of CCW slurry from Little Blue spilled into the sewer (PADEP,

1 991b).

An unpermitted discharge violation was reported by Penn Power to PADEP in July 1991 (PADEP, 1991d).

A 1989 Consent Assessment of Civil Penalty stated ‘[L]eakage at the closed valves of the supernatant/river return pumps resulted in a discharge to Outfall 001. Water samples taken at Outfall 001 discharge point showed suspended solids of 194 mg/L and a pH of 10.5, both which exceed the NPDES permit limits of 60 mg/L for suspended solids and 9 pH.’ PADEP assessed a $4,000 penalty for this discharge in to Mill Creek, but Penn Power paid only $2,500 with a Consent Agreement from PADEP (Penn Power, 1989).

DEP Response

The company responded to the NOV, addressing and correcting the situation.

52. Damage Case Claim

- Page 169

Regulatory Actions

PADEP’s regulatory actions have not been aimed at a comprehensive solution to address the ongoing contamination and seepage from Little Blue; rather, PADEP’s actions have been aimed at patching small seeps throughout the years. Selected PADEP actions for the Littl e Blue impoundment include:” “February 16, 2010: PADEP sent a letter to FirstEnergy requesting re

sampling of ten groundwater and surface water monitoring points with high arsenic levels and stating, ‘According to the data, elevated levels of Arsenic were detected in Monitoring Wells608

MW

- 13A, MW 15B, MW

- 16C, MW 17A, MW

- 20B, MW

- 23B, SW

- 5, SW

- 7, S

- 17, and S

- 31’ (PADEP, 2010).

DEP Response

The actions taken with regard to the presence of arsenic in groundwater monitoring wells and seeps has been timely, appro priate and consistent with the requirements of the PA Residual Waste Regulations. DEP issued a letter to FirstEnergy on December 20, 2007, that noted elevated arsenic in six monitoring points located adjacent to the impoundment well within FirstEnergy prop erty. FirstEnergy’s response demonstrated elevated arsenic concentrations in monitoring points that have shown impacts from the impoundment were comparable to concentrations in background monitoring wells. FirstEnergy continued to monitor the

concentration s to see if any trends developed. DEP issued a letter to FirstEnergy on February 16, 2010, that noted elevated arsenic concentrations in 10 monitoring points immediately adjacent to the impoundment. FirstEnergy demonstrated that no trends in arsenic were r eadily identifiable at that time and continued to monitor arsenic concentrations to determine the reason(s) for the elevated arsenic levels and, if necessary, the steps to be taken to address the issue. While the arsenic levels receded, elevated levels con tinued to be detected in monitoring wells MW

- 13A,

MW

- 15B, MW

- 16C, MW

- 17A, MW

- 20B and MW

- 23B, and surface water points SW

- 5, SW

- 7

and SW

- 31. On January 3, 2011, FirstEnergy was formally informed of its obligation to conduct groundwater assessment pursuant t o 25 Pa. Code Section 289.256. FirstEnergy’s plan in that regard was originally submitted on March 2, 2011, and revised at DEP’s request on July 6, 2011. The cause for the elevated levels of arsenic is being studied.

53. Damage Case Claim

– Page 169

Marc h 12, 2009: PADEP issued an NOV for a dusting event that covered many residents’ properties with a layer of coal ash on March 4, 2009 (PADEP, 2009).

DEP Response

The company responded to the NOV, addressing and correcting the situation, and a $24,500

pe nalty was paid. In addition, DEP required a modification of the permit requiring more frequent inspections by FirstEnergy to reduce dusting potential.

54. Damage Case Claim

- Page 169

October 21, 2008: PADEP sent FirstEnergy a letter stating: ‘The Depart ment’s results indicate that sodium and chloride levels are elevated indicating that the surface water point has been impacted by leachate from the impoundment,’ and required FirstEnergy to select one of three remediation options (PADEP, 2008). As of mid

- 2 010, it is still not clear what remediation option, if any, FirstEnergy has undertaken at Little Blue.”

DEP Response

During the third quarter of 2008, additional seepage was noted near spring S

- 30. Increased flow609

and parameter concentrations increased as a result of sludge placement along Lawrenceville Road, which caused surface water to pond against road fill materials. FirstEnergy reacted quickly to place material and graded the disposal area to drain the water away from the road. Soon afterwards, the f

low at spring S

- 30 had decreased back to one to two gallons per minute and parameter concentrations decreased considerably. The spring is back to background conditions.

55. Damage Case Claim

- Page 169

Sept. 19, 2003: PADEP inspection report cites FirstE nergy because ‘fly ash sludge’ was ‘disposed outside the permit area’ in violation of Pennsylvania law; an NOV was issued on September 23, 2003 (PADEP, 2003).”

DEP Response

The company responded to the NOV, addressing and correcting the situation.

56. D amage Case Claim

- Page 169

June 21, 1994: Settlement with PADEP for groundwater contamination; penalty amount N/A (PADEP, 1994a).

Jan. 30

– Feb. 4, 1993: PADEP issued an NOV for fugitive dust violations, no penalty paid (PADEP, 1993).

Sept. 3, 1991: PA DEP issued an NOV for discoloration of discharge; no penalty paid (PADEP, 1991c).

July 31, 1989: PADEP issued an NOV for suspended solids and pH exceedances, $2,500 penalty paid (Penn Power, 1996).”

DEP Response

The company responded to the NOVs, addres sing and correcting the situations.

57. Damage Case Claim

- Page 169

FirstEnergy was required to post a $22,219,252 bond for financial assurance in 2006. (PADEP, 2006 (2)).

DEP Response

This statement is correct. This was part of the permit requirement s.

58. Damage Case Claim

- Page 169

It is important to note that, through a Memorandum of Understanding entered into in 2006 (when610

the impoundment was expanded) by PADEP and the West Virginia DEP, PADEP is the lead permitting and enforcement agency for L ittle Blue, including those parts of Little Blue that lie in West Virginia (WVDEP, 2006).

DEP Response

This statement is correct. DEP is the lead, but WV DEP reserved the right to require additional permitting or corrective actions.

59. Damage Case Clai m

- Page 169

In addition, PADEP allowed First Energy to obtain a solid waste permit without ‘mandatory trigger abatement levels’ for boron. ‘Trigger levels’ were also removed and replaced with only monitoring requirements for arsenic, cadmium, chromium, c opper, lead, magnesium, mercury, selenium, silver, zinc, ammonia

- nitrogen, bicarbonate, calcium, chemical oxygen demand, chloride, iron, manganese, pH, potassium, sodium, specific conductance, sulfate, TDS, alkalinity, total organic carbon, and turbidity b y the PADEP. Compare (PADEP, 1997b with PADEP, 1997c). This was supposedly done ‘because the conditions of the site do not reflect the need for abatement.’ (PADEP, 1997a).

DEP Response

This statement is incorrect. The DEP issued the permit dated April 5, 2006 based on the fact that FirstEnergy met all applicable regulations in 25 Pa. Code Section 288. In regard to the “trigger levels,” the September 14, 2002, revision to the PA Residual Waste Regulations removed the requirement for “Mandatory Abatement Tr igger Levels.” They were replaced in the Ground Water Comparison Standard outlined in 25 Pa, Code Chapter 250. The impoundment permit reflects the current regulatory requirements.

60. Damage Case Claim

– Page 169

Wastes Present

Flue gas desulfurization sludge, fly ash.

DEP Response

This statement is correct.

61. Damage Case Claim

– Page 169

Active or Inactive Waste Management Unit.

Active

FirstEnergy disposes of about 1

– 3 million gallons of coal ash a day into Little Blue.”611

DEP Response

This st atement is incorrect. FirstEnergy disposes 1

- 3 million gallons of scrubber sludge/fly ash slurry into the impoundment daily. 62. Damage Case Claim

- Page 170

Type(s) of Waste Management Unit

‘High’ hazard 900

- 1,300

- acre coal ash surface impoundment wit hout a liner. The liner requirement was waived upon promulgation of PA coal ash regulations in 1992, and again with the expansion of the impoundment in 2006, for which FirstEnergy secured a ‘demonstration’ permit. The CCW in Little Blue is kept from spilli ng into the Ohio River by a 400 foot high earthen dam, the largest of its type in the eastern United States.

DEP Response

This statement is misleading. The high hazard designation is a dam safety permit designation and not a waste management determinatio n. Also, the dam is an engineered soil core and rock dam.

63. Damage Case Claim

- Page 170

Hydrogeologic Conditions

Groundwater monitoring at the Little Blue impoundment identified eight aquifers:

o Shallow Bedrock: Middle Glenshaw Aquifer; Lower Glens haw Aquifer; Freeport Aquifer; Worthington Aquifer;

o Intermediate Bedrock: Kittanning Aquifer; Clarion Aquifer;

o Deep Bedrock: Homewood Aquifer; and

o Surficial/Unconsolidated: The Regolith and Alluvium Aquifer

(Penn Power, 1997b, see also PADEP, 199 6). ‘Groundwater flow patterns at Little Blue Run are a complex, three

- dimensional field because of the high relief and complex stratigraphy of the area.’ Id. The company admitted, ‘These units are not highly permeable,but are more permeable

than other uni ts in the stratigraphic series’ (Penn Power, 1997b).

The company also stated, ‘the facility could potentially affect water supplies in the Mill Creek Valley to the east, the Lawrenceville area to the west, and Coffey Road to the south’ (Penn Power, 1997b)

.

The depth in the Glenshaw Aquifer, the ‘top most saturated stratigraphic unit across the site,’ ranged from 944.7 to 1093.47 ft MSL (Penn Power, 1997c). There are also several small mines612

below the impoundment in the Lower Kittanning and Freeport seams, which were backfilled with soil or fly ash cement during the impoundment’s construction. (Penn Power, 1997b).”

DEP Response

These statements are generally correct.

64. Damage Case Claim

- Page 170

“Also of note is that Penn Power identified and admitt ed discharging to three surface water receptors in the vicinity of Little Blue, and stated that groundwater from the impoundment ‘discharges to springs, which enter Mill Creek, Little Blue Run, and the Ohio River’ (Penn Power, 1997c). The impoundment disch arges to Mill Creek about 100 yards before the
confluence of Mill Creek and the Ohio River. Id.”

DEP Response

It is true that water from the impoundment discharges to the Ohio River and Mill Creek via springs and surface water. EIP fails to note that the se discharges are permitted NPDES monitoring and discharge points. Potentially impacted springs that flow into Mill Creek are permitted under the NPDES program even though their flows are typically less than a few gallons per minute. Two larger springs alo ng the hillside of Mill Creek that have shown impacts are captured and pumped back to the impoundment in accordance with a Consent Order & Agreement and are ultimately discharged under the NPDES permit. Likewise, a large spring located just to the northwes t of the dam in West Virginia is collected and routed into the impoundment’s NPDES discharge pipe that conducts flow to the Ohio River.

65. Damage Case Claim

– Page 170

“Sandstone lies 600 feet below the base of the impoundment (Rose, 2004).

DEP Respons e

This statement is correct.

66. Damage Case Claim

- Page 170

Additional Narrative

As of 1996, the 2,460 megawatt Bruce Mansfield plant could generate as much as four million gallons of coal ash a day, all of which is pumped through a seven mile pipeli ne into the Little Blue surface impoundment (PADEP, 1996). ‘Constructed between 1973 and 1977, Little Blue Run comprises approximately 1,300 acres in a steep

- walled valley.’ Id. ‘A 9 million cubic yard earth and rockfill dam, the largest embankment dam of its type in the Eastern United States, serves as the enclosure for the waste disposal facility.’ Id. The impoundment spans two states and its waste permit authorizes a dump area of 1,694.9 acres. (PADEP, 2006a).613

The site was expanded in 2006, and, includi ng the buffer areas owned by FirstEnergy, currently occupies over 18% of the landmass of Greene Township (not to mention the many acres in West Virginia). In order to expand the 1,300

- acre impoundment, FirstEnergy secured a ‘demonstration’ permit to determ ine whether specific uses of coal ash solids and geo

- tube technology could stabilize the waste site and extend the life of the unit so as to avoid having to expand into greenfield sites. Despite this statement and despite its already increased size, a new

200

- to 1,200

- acre expansion (the ‘Little Blue East’ site) is being proposed adjacent to the current impoundment (Bauder, 2010c).

DEP Response

This statement is generally correct, except that the permit area is 1694.9 acres, the disposal area is approxim ately 1,000 acres and the waste is not coal ash but a slurry of scrubber sludge and

ash.

67. Damage Case Claim

- Page 171

Little Blue has a Clean Water Act National Pollutant Discharge Elimination System (NPDES) and Pennsylvania Clean Streams Law permit, Permit No. PA0027481, and a Solid Waste Permit, No. 300558. However, PADEP has granted this site a waiver of the Pennsylvania Residual Waste Regulations that require liners, leachate collection systems, and siting restrictions (PADEP, 1996). The impoundme nt was thereby also exempted from the requirement to retrofit

for a 25

- year 24

- hour flood (Id.),”

DEP Response

The facility has been granted waivers and/or exceptions to certain regulatory requirements in accordance with applicable law. All of these deci sions have been fully documented and subject to the applicable public notice and comment requirements.

68. Damage Case Claim

- Page 171

Bottom ash has also been spread on roads for ‘dust suppression’ since at least 1987 (Penn Power, 1997a; PADEP, 1987).

DEP Response

DEP has no information on this; however, Greene Township and other municipalities routinely

use bottom ash for antiskid material.

69. Damage Case Claim

- Page 171

As part of its expansion efforts, FirstEnergy is currently asking residents living near Little Blue to sign wavers authorizing FirstEnergy to be excused from setbacks in Pennsylvania regulations (Bauder, 2010a).614

DEP Response

FirstEnergy has initiated the process of permitting a new facility for the disposal of the Coal

Combustio n Byproducts generated at the Bruce Mansfield Plant, which can be deemed an ‘expansion’ of the existing facility for regulatory purposes. The Phase I portion of the application was received on July 25, 2011, and is currently undergoing the required environ mental assessment review. The design and permitting of this facility will at a minimum meet the requirements as set forth by the current Pennsylvania Residual Waste Regulations for landfills including, without limitation, disposal in a dry landfill with a Class I composite liner system and leachate collection and detection systems. As part of the residual waste regulations, a permittee may be granted waivers from certain set

- back criteria if the resident within the set

- back distance agrees to the decreased distance and signs a waiver, which is then submitted to DEP as part of a permit application authorized in Section 25 Pa. Code 288.422 of the residual waste regulations.

Allegheny Energy Supply Company

- Hatfield’s Ferry

Power Station CCB Landfill

1. Dam age Case Claim

– Page 174

Demonstrated damage to groundwater moving off

- site and to off

- site surface water and aquatic life (in Little Whitely Creek and tributaries).

DEP Response

The report fails to provide the documentation and data to demonstrate tha t the disposal of fly ash at Hatfield is damaging the groundwater, surface water, or aquatic life.

2. Damage Case Claim

– Page 174

An unlined CCW landfill located off

- property from the Hatfield’s Ferry Power Station has contaminated groundwater, polluted surface water, and damaged aquatic ecosystems since at

least 2001.

DEP Response

This statement is vague. The Hatfield’s Ferry Power Station CCB Landfill is located on the property owned by Allegheny Energy and is contiguous with the power station.

The original disposal area for the Hatfield’s Ferry Power Station was constructed on an abandoned, unreclaimed strip mine from the pre

- regulation era. In response to the new Residual Waste Regulations promulgated in 1992, Allegheny Energy conducted a comprehen sive groundwater and surface water assessment and investigation at the disposal site. For compliance with these regulations, new groundwater wells were installed and updated surface water sampling points were established. After the investigation was comple ted, DEP concluded that the615

past unreclaimed surface mining and the resultant acid mine drainage (and not ash disposal) within the watershed of the landfill had negatively impacted the aquifers beneath the landfill. All landfill construction and disposal a ctivities are now in accordance with applicable DEP regulations.

Allegheny Energy was granted a permit for expansion on May 4, 2009. The design for the expansion area and the leachate storage area includes an extensive groundwater monitoring

network and d ouble synthetic liners. The EIP report has not presented any supporting data that coal combustion waste has contaminated groundwater, surface water, or damaged aquatic life.

3. Damage Case Claim

– Page 174

Federal groundwater Maximum Contaminant Levels ( MCLs) standards for arsenic, aluminum, boron, chromium, manganese, molybdenum, sulfate, and total dissolved solids (TDS) have been

exceeded since at least 2001.

DEP Response

This claim is unsubstantiated. The report does not identify any specific sample times, dates, or monitoring locations to support the claim that CCW has contaminated the groundwater with the referenced parameters. Past surface mining activities in the watershed in which the landfill is located have had a negative impact on groundwater and surface water.

4. Damage Case Claim

– Page 174

Concentrations of groundwater contaminants mirror those in CCW leachate samples from the landfill collected at the same time. The horizontal extent of contamination has not yet been

defined.

DEP Respons e

There is no data presented in the report to support this claim. Allegheny Energy’s comprehensive groundwater and surface water assessment and investigation at the disposal site demonstrated that groundwater is impacted by past surface mining activities and that there is no impact on the groundwater from the disposal of CCW.

5. Damage Case Claim

– Page 175

For example, since at least 2005, arsenic has repeatedly exceeded the MCL in three wells hundreds of yards south and east of the landfill, with total concentrations as much as 342 times

the MCL and dissolved concentrations more than 11 times the MCL.

DEP Response

There are no specific sampling data or monitoring wells listed relative to this claim. MCLs are standards for comparison for groundwater us ed for human consumption. Arsenic has been616

detected above the MCL in several upgradient wells and, as previously stated, the groundwater has been affected by past unreclaimed surface mining and the resultant acid mine drainage (AMD) that occurred in the ar ea currently occupied by the landfill.

6. Damage Case Claim

– Page 175

Allegheny Energy’s wetland treatment system for CCW leachate is ineffective at treating several parameters indicative of CCW leachate

– notably aluminum, boron, manganese, molybdenum, sulfate, thallium, and TDS

– resulting in violations of permit limits and continued harmful discharges to the receiving stream in violation of Pennsylvania Water Quality Criteria (WQC)

for boron.

DEP Response

The EIP Report provides no data or sampling dates by which to validate its assertion regarding the effectiveness of the site’s wetland treatment system. The discharge from the wetland treatment system and the sedimentation pond are combined into one pipe at Outfall 007. Based on the receiving stream , DEP’s regional Water Quality program determined that the parameters requiring numeric effluent limitations are: aluminum, iron, thallium, and manganese. There are no discharge limits for boron, molybdenum, sulfate, or total dissolved solids. The wetland treatment system has successfully treated all the listed constituents in the claim except for boron. A consultant retained by Allegheny Energy to study the feasibility of treatment options concluded that the current wetland system is the best treatment opt ion for boron.

7. Damage Case Claim

– Page 175

In addition, a stream habitat and macroinvertebrate survey of four streams emanating from the landfill property shows that two streams closest to the CCW landfill are impaired by CCW

leachate from the landfi ll.

DEP Response

This statement is misleading. The low benthic counts were a result of the stream size, bank erosion, and habitat disturbance and not to leachate or other activities related to the Hatfield’s Ferry Power Station CCB Landfill.

8. Damage C ase Claim

– Page 175

“The Hatfield’s Ferry CCW landfill was permitted as a 40

- acre unlined disposal site in May, 1984. From 1984 until 2001, CCW leachate and shallow groundwater that contacted CCW was directed, without any treatment, to an earthen impound ment, and then discharged into an unnamed tributary of Little Whiteley Creek. The Pennsylvania Department of Environmental Protection (PADEP) determined that the CCW leachate discharges were the causes of

exceedances of the effluent limitations in the NPDE S permit for the landfill. Allegheny Energy began operating a passive wetland treatment system for CCW leachate in Spring 2001.”617

DEP Response

This statement is unsubstantiated. The claim does not list any specific dates, times or parameters

for which the re were exceedances of effluent limitations in the NPDES permit for the landfill.

Between the years 1984 to 2001, the referenced earthen impoundment was a settling and treatment basin and in accordance with PADEP regulations, was determined to be the only necessary treatment. In addition, with DEP's approval, Allegheny Energy added magnesium hydroxide into the leachate to precipitate aluminum, iron and manganese. This operation was conducted for a period of time prior to the installation of the wetlands, w hich now treats and

removes these constituents.

9. Damage Case Claim

– Page 175

The wetland treatment system was designed to remove or reduce concentrations of iron, aluminum, manganese, and total suspended solids and to control pH

– but was not specific ally designed to treat other problematic constituents in CCW leachate.

DEP Response

This statement is misleading. The passive wetland treatment system at the disposal site is a state

of

- the

- art use of passive technologies to treat the discharge of the ac tive landfill. The system was designed to remove iron, aluminum and manganese from landfill leachate. The control of pH and treatment of many other parameters occurs in the system.

10. Damage Case Claim

– Page 175

The PADEP issued a Consent Order and Agr eement on March 2008 because of continued violations of aluminum, manganese, and thallium NPDES effluent limits from November 2003 to August 2007 associated with the wetland treatment system. Maximum concentrations during that period, compared to the NPDES permit limits, are:

• Aluminum

– @ 3.459 mg/L concentration versus a daily maximum permit limit of 1.2 mg/L permit limit; @ 0.962 mg/L monthly average concentration versus a 0.6 mg/L permit limit for monthly average (April 2007).

• Manganese

– @ 2.623 m g/L concentration versus a daily maximum limit of 2.4 mg/L (Feb. 2004); @ 1.45 mg/L monthly average concentration versus a 1.2 mg/L limit for monthly average (January 2004).

• Thallium

– a 0.0062 mg/L concentration versus a daily maximum limit of 0.0042 m g/L; a 0.0028 mg/L monthly average concentration versus a 0.0021 mg/L limit for monthly average (August 2005).

DEP Response618

This statement is generally correct. Violations were noted and a consent order and agreement was developed to address and correct these issues. Allegheny Energy is implementing the

corrective actions outlined in the order. Exceedances of the thallium limit were due to the limit being set at 0.0001 mg/L above the analytical methods minimum detection limit (MDL). The laboratory doing the analytical work for Allegheny Energy has switched to a different analytical

method which adheres to a lower MDL. There has not been an exceedance of thallium since this change. All previous thallium exceedances were attributed to analytical variability due to the closeness of the permit limit to the analytical MDL.

11. Damage Case Claim

– Page 175

The PADEP in

- stream Human Health Water Quality Criteria for thallium is 0.00024 mg/L, which is an order of magnitude less than the 0.0021 mg/L monthly avera ge and 0.0042 mg/L daily maximum concentrations allowed in the NPDES permit.

DEP Response

As set forth in Table 5 in 25 Pa. Code Section 93.8c, the Human Health and Fish and Aquatic Life Criteria for toxic substances that DEP’s Water Quality program uses in developing effluent limitations in NPDES Permits and other purposes is based on three standards with respect to

thallium. These are:

The numbers listed in the damage claim (2.1 μg/L monthly average and 4.2 μg/L daily maximum concentrations) are based on the fact that there is no human consumption of the receiving waters to which the point source discharges. Application of a human health based Water Quality Criterion to a stream in which there is no human consumption is incorrect and misleading.

[See o riginal comment for TABLE 5

- WATER QUALITY CRITERIA FOR TOXIC SUBSTANCES.]

12. Damage Case Claim

– Page 175

The wetland treatment system discharge is likely a large percentage of the total flow volume of the unnamed tributary of Little Whiteley Creek, w ith little dilution afforded in its receiving waters. This raises concern that the concentrations violating the permit limits from 2003 to 2007, if not the permit limits themselves, might allow for thallium to be discharged in concentrations causing regula r exceedances of the human health criterion for thallium (0.00024 mg/L) in the unnamed tributary.

DEP Response

The thallium standard being used for comparison is inappropriate. The report also incorrectly implies the sedimentation pond and the wetlands a re one treatment system because of their common discharge

– Outfall 007. As designed, they are two separate treatment facilities. The sedimentation pond is one system designed to treat runoff and leachate from the landfill. The wetland is a second, separat e system designed to treat leachate. The sedimentation pond619

discharge is the largest contributor to the total flow of the unnamed tributary, not the wetlands as

stated in the claim.

13. Damage Case Claim

– Page 175

Although the 2008 Consent Order address ed NPDES permit exceedances for thallium, the CCW landfill permit does not require that thallium be analyzed in groundwater, in CCW leachate, or at surface water monitoring points. Thallium testing (weekly) is only required for NPDES monitoring associated with the discharge from the wetland treatment system.

DEP Response

This is a correct statement. Thallium is not analyzed in the groundwater or surface water because it is not required by the regulations.

14. Damage Case Claim

– Page 175

Monitoring res ults for the discharges from CCW leachate collection sumps to the treatment system and surface water monitoring stations were reviewed for April/May 2002 data, one year after the treatment system was installed, and for April/May 2006. The results show that discharges to the unnamed tributary of Little Whiteley Creek from the wetland treatment system are still indicative of inadequately treated CCW leachate.”

DEP Response

The EIP Report does not present data by which to substantiate this claim. The wetland system is a permitted NPDES treatment system and is regulated as such. Discharge Monitoring Reports indicate that the facility’s discharge complies with the limitations imposed by the NPDES Permit on the discharges to the unnamed tributary of Little White ley Creek.

15. Damage Case Claim

– Page 176

Background concentrations of CCW parameters in Little Whiteley Creek approximately 200 feet upstream from its confluence with the unnamed tributary that originates at the landfill, the unnamed tributary prior t o reaching Little Whiteley Creek, and the combined flow downstream in Little Whiteley Creek, were compared in the chart below”. [note: single data entries provided for each of these locations for April/May 2002, April/May 2006 and May 2008 for boron,

calci um, magnesium, manganese, molybdenum, sulfate, TDS and alkalinity] “The results showed concentrations exceeding the PA WQC chronic concentration (Criteria Continuous Concentration, or CCC) for boron (1.6 mg/L) in the receiving stream (the unnamed tributary ) by 2.6 to 5.3 times which became worse in 2006 and 2008 despite treatment of the leachate in the wetland system.”

DEP Response

There are no WQC chronic concentrations established by DEP’s Water Quality program for the620

unnamed tributary because it is in termittent. It is therefore not appropriate to use the PA WQC as a comparison. NPDES permit effluent limits are established on WQC based on the quality of Little Whiteley Creek, which is perennial.

16. Damage Case Claim

– Page 176

In addition, all three years of boron measurements in this stream also exceeded the U.S. Environmental Protection Agency’s (USEPA) Child Health Advisory for boron (3 mg/L), with the 2006 and 2008 concentrations more than twice as high as this Advisory and also exceeding

the Life

- time Advisory for boron of 6 mg/L.

DEP Response

This statement is misleading. Comparisons regarding boron concentrations to the EPA Health Advisories are inappropriate. USEPA Health Advisories are non

- enforceable, guidance

- based

concentrations based on non

- cancer health effects for different exposures in drinking water sources. The unnamed tributary to Little Whiteley Creek is not a source of public drinking water.

17. Damage Case Claim

– Page 176

There were also high and increasing concentrations of m olybdenum, sulfate, and TDS (for which there are no PA WQC) in this receiving stream, and there were elevated concentrations of all of these pollutants, including boron, in Little Whitely Creek downstream of the confluence with the unnamed tributary.”

DEP Response

This statement is incorrect. With the exception of manganese, the water quality data shows similar concentrations of all the pollutants in Little Whitely Creek upstream of the confluence with the unnamed tributary from the landfill, and therefor e exists in the stream prior to the treated leachate discharge. Acid mine drainage that discharges into Little Whiteley Creek upstream of the confluence also negatively impacts surface water.

18. Damage Case Claim

– Page 176

Finally there are increasing concentrations of calcium and magnesium which are highly soluble parameters frequently found in coal ashes.

DEP Response

The EIP Report provides no data or sampling dates by which to substantiate this claim. Calcium and magnesium are commonly found in ab undance in the soils and groundwater of western Pennsylvania and are not solely related with coal combustion waste.

19. Damage Case Claim

– Page 176621

While there are no numeric water quality criterion for molybdenum in Pennsylvania surface waters, the con centrations in the unnamed tributary from the landfill readily exceed USEPA’s Health Advisory for ingestion of molybdenum in drinking water. All three years of molybdenum

measurements exceed both the Child 10

- day (0.080 mg/L) and Lifetime Health Advisory ( 0.040 mg/L) limits, with the 2006 and 2008 concentrations exceeding the Child Health Advisory by 6 times and the Lifetime Health Advisory by more than 12 times.

DEP Response

This claim is incorrect due to its basis on comparisons to inappropriate standar ds. There is no PA WQC for molybdenum, and health advisories are non

- enforceable guidance values that are not applicable for comparison to surface water quality data. The unnamed tributary is not utilized as a drinking water supply.

20. Damage Case Claim

– Page 176

In addition, there are four perennial streams that emanate from shallow groundwater around the

CCW landfill and flow off

- site into larger streams that have a protected use for aquatic life.

DEP Response

This claim is partially correct. There are four streams that flow to larger streams (two to Little Whitely Creek and two to the Monongahela River) and that have a protected use for aquatic life; but only two emanate from shallow groundwater. One of the remaining two emanates from a

sedimentati on pond constructed along the landfill's haul road, and the other from the permitted landfill's combined sedimentation pond and treatment wetland discharge point

– Outfall 007.

21. Damage Case Claim

– Page 176

A 2006 habitat and stream survey shows that CCW leachate from Phases 1 and 2 of the landfill have degraded the two streams closest to the landfill.

DEP Response

This statement is incorrect. First, the survey was conducted in 2001, not 2006. The stream habitat scores were in the suboptimal category for reasons that included: slight to moderate embeddedness, insufficient desirable in

- stream cover, moderately eroded stream banks and less than optimal frequency of pool area. The impact of the fly ash landfill was not identified as reason for the subopt imal scores.

22. Damage Case Claim

– Pages 176

- 177

Of the four streams, the stream sections with the healthiest benthic macroinvertebrate community structure were the downstream portions of the unnamed tributary to the southwest (discharges to

Little Whi tely Creek north of the unnamed tributary that the landfill flows into) and the unnamed tributary to the southeast (discharges to the Monongahela River)

– both being the farthest from622

the landfill. The entire unnamed tributary stream section that receives treated (and historically untreated) leachate for the landfill is impaired, containing only organisms that are tolerant to pollution and having a concreted bottom from an unknown chemical compound.

DEP Response

DEP disagrees with the conclusion stated in this claim. Contrary to the report’s implication that the worst conditions are due to the proximity of the streams to the landfill, the low benthic community counts were attributed to small stream size, substrate conditions, and available

habitat.

23. Damage Case Claim

– Page 177

The unnamed tributary nearest Phase 2 of the landfill and along the landfill haul road was also severely impaired, having only organisms that are tolerant to pollution. GAI Consultants, Inc.,

concluded that both unnamed tribut aries nearest the CCW landfill are indicative of polluted

water or disturbed habitat.

DEP Response

This statement is incorrect. The GAI report states: “The macroinvertebrate community observed in Tributary B [the tributary emanating from an existing sedi mentation pond along the haul road] was larger and more diverse than in the other streams samples. Nevertheless, both numbers of taxa and individuals were moderately low. The upstream sampling location, immediately below the pond outflow, was dominated by organisms that are tolerant or water quality and habitat perturbations. The downstream sampling location supported a more balanced and diverse community that included organisms that are relatively intolerant of water quality and habitat

disturbance. The li mitations observed in the benthic macroinvertebrate community in Tributary B are attributed primarily to the substrate condition.” [GAI, Benthic Macroinvertebrate and Habitat Survey Ash Disposal Facility Expansion Site Hatfield's Ferry Generating Station G reene County, Pennsylvania, Sept. 2001, p. 29] This section of the report stated that the unnamed tributary from the landfill contained organisms that were tolerant to water quality disturbances to their habitats and that the area is affected by acid mine drainage.

24. Damage Case Claim

– Page 177

Surface water and stream assessment results show that discharges from the landfill violate PADEP regulations setting general water criteria for protecting surface waters. Those criteria do not allow “point or no n

- point source discharges in concentrations or amounts sufficient to be inimical or harmful to the water uses to be protected or to human, animal, plant, or aquatic life” or for a substance to “to settle or form deposits.”

DEP Response

DEP has reviewed the findings of the above

- referenced stream assessment and there are no violations with respect to degraded water quality or condition of the stream bed.623

25. Damage Case Claim

– Page 177

In addition, Allegheny Energy monitors discharges from each CCW lea chate collection sump annually as a condition of its landfill permit.

DEP Response

This statement in incorrect. DEP requires quarterly sampling of general chemistry parameters and annual sampling for metals.

26. Damage Case Claim

– Page 177

The data sh ow what parameters and concentrations were likely discharged continually into the unnamed tributary for the beginning of the landfill’s operation in 1984 to 2001, before the wetland treatment system was installed.

DEP Response

There is no data presented in the report to substantiate this claim.

27. Damage Case Claim

– Page 177

When the leachate sump data are compared to the upstream Little Whiteley Creek upstream reference sample, the concentrations are substantially higher for every parameter at the su mps, as follows: [note: table provided showing April/May 2002, April/May 2006 and May 2009 results in mg/L for boron, calcium, magnesium, manganese, molybdenum, sulfate, TDS and alkalinity].

DEP Response

This statement is generally correct. The leachate from the ash would be expected to have higher levels of certain parameters prior to treatment as compared to Little Whitely Creek. Leachate in the sump is pretreated water and discharge meets NPDES limits.

28. Damage Case Claim

– Page 177

For reference, if PA WQC were compared to the leachate sump water (to which PA WQC would not apply), concentrations of boron would be exceeding the CCC by at least a factor of 10 in every single reading in the table below. [noted data]

DEP Response

This statement is fu ndamentally flawed and incorrect. The report compares PA WQC to leachate sump water and then states PA WQC data would not apply in this situation. The leachate generated at the site is treated and discharged in accordance with the site’s NPDES permit. The effluent limits established in the NPDES Permit were developed to achieve the required criteria624

and are protective of the designated water uses of the receiving streams. The facility’s discharge is in compliance with its NPDES permit.

29. Damage Case Clai m

– Page 177

Allegheny Energy conducts groundwater monitoring on a semi

- annual basis; however, it only samples metals once per year.

DEP Response

This claim is incorrect. Groundwater and surface water monitoring, as required by the regulations and perm it, occurs on a quarterly basis for general chemistry parameters and annually

for metals.

30. Damage Case Claim

– Page 177

- 178

With the exception of molybdenum, the groundwater results are generally similar to the CCW leachate sump data and samples of th e tributary downstream from the leachate treatment wetland discharge

– indicating that the groundwater has been substantially affected by CCW leachate. A summary of CCW parameter results for the April/May 2006 and the May 2009 groundwater monitoring event for shallow mine spoil aquifer and rind aquifer wells downgradient of CCW at Phases 1 and 2 is as follows:” [note: a table of data for five wells, including single data entries for 2006 and 2009, for boron, calcium, magnesium, manganese, molybdenum, sulfat e, TDS, and alkalinity is provided].

DEP Response

This statement is ambiguous. Allegheny Energy conducted an extensive groundwater assessment

in the mid

- 1990's as required by the Residual Waste Regulations. The results of the groundwater
assessment prese nted detailed data documenting that the unreclaimed, former strip mine that previously operated at the site on which the original landfill was constructed produces mine drainage that is negatively affecting the groundwater.

31. Damage Case Claim

– Page 1 78

Concentrations of boron exceeded the U. S. Environmental Protection Agency’s (USEPA) Health Advisory; manganese exceeded the SMCL in four of five shallow wells in two aquifers;

and sulfate and TDS exceeded the SMCLs in all five of the wells.

DEP Respo nse

There is no analytical data or time frames presented in the report to support this claim. US EPA Health Advisory Standards in groundwater are non

- enforceable, recommended standards, and manganese, sulfate and TDS are secondary constituents and not hea lth related parameters. These constituents are associated with the coal mining that was conducted in the area.625

32. Damage Case Claim

– Page 178

Groundwater results for five Benwood Limestone aquifer wells for the same years (the deepest aquifer on

- site, MW

- 201C, MW202C, MW203C, MW

- 5C, and MW

- 208C) were not tabulated above but they contained no boron concentration greater than 0.268 mg/L; no sulfate concentration greater than 171 mg/L; and the highest TDS concentration was 1,766 mg/L

– all three parameters at average concentrations substantially less than those in the overlying rind and shallow mine spoil aquifers.

DEP Response

DEP acknowledges that the lower aquifers at the site have a lesser concentration of boron and

sulfate. This circumstance is consi stent with the conclusions reached in the groundwater assessment performed by Allegheny Energy in the 1990’s. Groundwater, particularly the shallow “mine spoil” aquifer, shows the effect of past unreclaimed surface mining in the watershed of the

landfill.

33. Damage Case Claim

– Page 178

Allegheny Energy has concluded that shallow groundwater flow directions mimic the ground surface. The only wells installed in the mine spoil aquifer, MW

- 206A and MW

- 207A, are located just south of the Phase 1 and 2 dispos al areas but north of the Phase 3 and the former Hartley mine ash disposal area, and are used as “upgradient” wells for the landfill monitoring program. Although Allegheny Energy has concluded, according to their hydrogeologic characterization, that ground water in the mine spoil aquifer flows south

- to

- north and intermixes with the rind aquifer to the north (wells MW

- 202B, MW

- 203B, and MW

- 204B), wells MW

206A and MW

- 207A are actually situated downgradient of Phase 3 of the landfill and at least in part, down gradient from Phases 1 and 2 of the landfill.

DEP Response

This claim is generally correct. However, monitoring wells MW

- 200A and MW

- 207A have been abandoned in preparation for Phase 3 construction in accordance with the May 4, 2009,

modification to Soli d Waste Management Permit No. 300558.

34. Damage Case Claim

– Page 178

Allegheny Energy, also the generator of the coal ash placed in the Hartley mine on the south side of the CCW landfill, stated in an August 20, 1997 revision to an application to modif y the permit for the landfill, that the elevated concentrations of boron in MW

- 206A and MW

- 207A were “due to the fact that fly ash has been co

- disposed with mine spoil in the upgradient area, in addition to the permitted disposal area.

DEP Response

Boron is a prominent surface coal mining indicator parameter in groundwater. The coal refuse626

and mine spoil present at the site is the most likely source of boron. A causal relationship

between the elevated concentrations of boron in MW

- 206A and MW

- 207 and co

- d isposal of fly

ash cannot be inferred.

35. Damage Case Claim

– Page 178

Molybdenum, a classic coal ash indicator metal, has been found in on

- site wells near the CCW landfill and downgradient from the former Hartley mine coal ash disposal site

– in addit ion to being in surface waters leaving the permitted landfill and in leachate. The concentration of molybdenum in MW

- 1, located downgradient of the mine disposal site, was 0.190 mg/L in September 1998 and 0.0115 mg/L in MW

- 207A in August 1997.

DEP Respons e

DEP disagrees that the molybdenum detected in monitoring wells MW

- 1 and MW

- 207A is a result of residual waste disposal operations at the Hatfield’s Ferry Power Station CCB Landfill. Monitoring wells MW

- 1 and MW

- 207A are located downgradient from abandon ed surface mines, including the former Hartley mine which is primarily filled with coal refuse, on which the landfill was constructed. EIP’s claim is based on a statistically insignificant, and possibly anomalous, single data point in each well.

36. Damag e Case Claim

– Page 178

Given that the groundwater at MW

- 206A and MW

- 207A has been contaminated with ash constituents, there is no unaffected upgradient background well with which to compare downgradient landfill well results.

DEP Response

The monitorin g results at the referenced wells are indicative of impacts attributable to abandoned surface mining and the resultant acid mine drainage that predated ash disposal. This is consistent with the conclusion drawn in the groundwater assessment of the facility that was conducted in the 1990's. Monitoring wells MW

- 200A and MW

- 207A have been replaced by monitoring wells

MW

- 212A, MW 213A and MW

- 215A in accordance with the May 4, 2009, modification to Solid Waste Management Permit No. 300558.

37.Damage Case Claim

– Page 178

MW

- 206A and MW

- 207A are situated where groundwater flows radially to the west, north, and east from the crest of the landfill property, in addition to being downgradient from a portion of the strip mine were ash was placed. Neither the easterly nor westerly groundwater flow component is completely monitored.

DEP Response

Monitoring wells MW

- 206A and MW

- 207A have been abandoned and replaced with wells MW

-627

212A, MW

- 213A, and MW

- 215A. Groundwater elevation data maps from the replacement wells

have been reviewed and approved by DEP. All groundwater flow regimens are properly monitored in accordance with the Residual Waste Regulations.

38. Damage Case Claim

– Page 178

- 179

As a condition of the Phase 3 landfill expansion, six additional aquifer moni toring wells, were installed downgradient of a new lined leachate storage impoundment northeast of Phases 1 and 2, near the landfill haul road, and south of Phase 3 near the former Hartley Mine coal ash disposal

area.

DEP Response

This statement is corre ct.

39. Damage Case Claim

– Page 179

None of the new wells were located east or west of Phase 3 in the indicated direction of groundwater flow that mimics the ground surface, according to Allegheny. A summary of the

data collected in December 2009 for th e new wells shows that the highest contamination in the new wells is downgradient of Phase 1 and 2 of the landfill and the new lined leachate collection sump for Phase 3 as follows:” [note: a data table is provided showing analytical results from

December 2009 for wells MW

- 212A, MW

- 213A, MW

- 215A, MW

- 216A, MW

- 217A and MW

218A along with an undefined standard for aluminum, arsenic, boron, calcium, chromium, magnesium, manganese, molybdenum, sulfate, TDS and alkalinity].

DEP Response

This statement is vague and misleading. The siting of the monitoring wells to which this claim refers was based on a comprehensive analysis of surficial and subsurface structural geologic data at the site. In addition, several of these wells were located to meet the regulatory r equirements of proper upgradient and downgradient monitoring around the new leachate storage impoundment as opposed to additional landfill wells. Several of the wells around the new leachate storage impoundment are screened in mine spoil and their water qu ality correspondingly reflects mining

related impacts.

The data table referenced in this claim is irrelevant because it only lists data for one sampling event (December 2009). No attempt is made to plot or analyze the trends over time and the

undefined s tandards lack measurement units for each parameter.

40. Damage Case Claim

– Page 179

Samples collected from well MW

- 213A, downgradient of coal ash in the Hartley Mine and more than a thousand yards south of Phases 1 and 2 of the landfill and from MW

- 217 A, and MW

218A, more than 500 yards east of waste placement areas in the landfill, show that arsenic concentrations well above the MCL have been measured beyond the site in downgradient628

groundwater since at least 2005.

DEP Response

This statement is misl eading. The claim that “multiple samples” showed arsenic in well MW

213A is inconsistent with the contents of the data table. There is ‘one’ sampling event from the referenced well in which arsenic is reported. This cannot be the basis for a trend. Alleghe ny Energy conducted an extensive groundwater assessment and documented that the abandoned surface mining on the site and surrounding area had already negatively impacted groundwater Also, MW

- 213A is an upgradient well for the disposal area and MW

- 217A and MW

- 218A are downgradient wells for the new leachate storage impoundment. Groundwater wells M

- 217A and

MW

- 218A were constructed to monitor the first water

- bearing zone beneath the new Phase 3 Leachate Storage Impoundment. These wells were screened in the m ine spoil, and the resulting water quality reflects acid mine drainage from the surface mining that occurred at the site.

41. Damage Case Claim

– Page 179

Total arsenic concentrations exceeded the MCL in 19 of 19 sampling events from 2005 to 2010

for the se three wells; dissolved arsenic concentrations in MW

- 213A exceeded the MCL 17 of 19 events; and dissolved arsenic in MW

- 217A and MW

- 218A exceeded the MCL 19 of 19 events. The range of arsenic concentrations in these wells from September 15, 2005 to the M arch 3, 2010 sampling event is as follows:” [note: a data table is provided showing a range of arsenic results, both total and dissolved, for wells MW

- 213A, MW

- 217A and MW

- 218A along with the MCL standard].

DEP Response

DEP disagrees that the arsenic det ected in the cited monitoring wells is a result of residual waste disposal operations at the Hatfield’s Ferry Power Station CCB Landfill. The original disposal area at the site was constructed on an abandoned, unreclaimed strip mine that operated prior to adoption of the Residual Waste Regulations in 1992. Pursuant to those regulations, Allegheny Energy conducted a comprehensive groundwater and surface water assessment and investigation at the disposal site. Accordingly, new groundwater wells were installed and updated surface water sampling points were established. The assessment concluded that the past unreclaimed surface mining and resultant acid mine drainage (and not ash disposal) within the watershed of the landfill had negatively impacted the aquifers beneath the landfill. In addition, the referenced monitoring wells are partly screened in old mine spoil and well MW

- 214A is an upgradient well

that documents an off

- site source for arsenic.

42. Damage Case Claim

– Page 179

The concentrations of CCW par ameters in MW

- 217A and MW

- 218A and their locations show an easterly groundwater flow direction beyond the landfill a flow direction that was not monitored until 2005. This easterly flow is still not monitored for the newest phase of the landfill (Phase 3). Further, there are no wells downgradient from MW

- 217A and MW

- 218A defining the horizontal extent of the contamination towards the Monongahela River from Phases 1 and 2.629

DEP Response

The original disposal area at the Hatfield’s Ferry Power Station CCB Landfill was constructed on an abandoned, unreclaimed strip mine from the pre

- regulation era. In response to the new Residual Waste Regulations promulgated in 1992, Allegheny Energy conducted a comprehensive groundwater and surface water assessment and inv estigation at the disposal site. To be in compliance with these regulations, new groundwater wells were installed and updated surface water sampling points were established. The assessment concluded that the past unreclaimed surface mining and the resultan t acid mine drainage (not ash disposal) within the watershed of the landfill had negatively impacted the groundwater beneath the landfill.

Wells MW

- 216A, MW

- 217A, and MW

- 218A monitor the new Leachate Storage Impoundment (LSI) and are designed to monitor t he groundwater zone associated with the impoundment to provide early detection for this specific structure. Surface monitoring point SP

- 1, located downgradient of wells MW

- 217A and MW

- 218A, also monitors the new LSI. The surface

elevation of SP

- 1 is close to the well depth elevations for MW

- 217A and MW

- 218A.

43. Damage Case Claim

– Page 179

- 180

There are 7 private drinking water wells and one public drinking water well within a two

- mile radius of the Hatfield’s Ferry CCW disposal areas. Well log locations were obtained from Pennsylvania’s Groundwater Database (PAGWIS). This data set is updated on a county by county basis once every six months and only includes well records with latitude and longitude coordinates assigned to the well. Because many private w ells in Pennsylvania may be registered with a township but not necessarily the Commonwealth, this data is likely incomplete.

DEP Response

Pursuant to the Residual Waste Regulations, Allegheny Energy was required to identify public and private water suppl ies within a one

- quarter mile radius of the perimeter of the disposal area. Based on the private water supply survey conducted by GAI/Allegheny Energy in 2005, three individual property owners indicated they have private water supplies (three wells and one spring) on their property. Public water supply information provided by the DEP Bureau of Water Supply indicated that Masontown Borough has a surface water intake along the Monongahela River approximately one

- quarter mile away from the landfill. The intake water is treated prior to being distributed to residents.

44. Damage Case Claim

– Page 180

Violations of NPDES permit limits were first cited in November 2003, exceedances of the PA WQC for boron have been recorded since at least 2001, and exceedances o f MCLs and health advisories in groundwater have been measured from at least as far back as April 2001.

DEP Response630

This claim is unsubstantiated. The report does not cite any specific data values for any NPDES violations. The Hatfield’s Ferry Power Sta tion CCB Landfill is permitted, operated, and monitored in accordance with all State and Federal requirements applicable to NPDES permitting. All compliance and monitoring records are provided to the DEP and the site is in compliance. The reference to MCLs is irrelevant in the context of permitted industrial waste discharges as they would apply to instream concentrations at a drinking water source. Health advisories are estimates of acceptable drinking water levels for chemical substances based on

health ef fects information. Health advisories are not legally enforceable Federal standards, but serve as technical guidance to assist Federal, State and local officials.

45. Damage Case Claim

– Page 180

PADEP entered into a Consent Order and Agreement (COA) with Allegheny Energy in March 2008 because of NPDES permit violations. Specifically, from November 2003 to August 2007, Allegheny Energy violated permit effluents limits for aluminum, manganese, and thallium in its discharge to an unnamed tributary of Little Whiteley Creek from its wetland treatment system. The COA required that Allegheny Energy submit a corrective action plan within 180 days to achieve permit limitations in all affected outfalls. The COA also allows Allegheny Energy two years to implement cor rective actions for the wetland discharges once the proposed corrective action is approved or once the Phase 3 landfill expansion is issued, whichever is later.

DEP Response

This statement is generally correct. Pursuant to the COA executed between Alleg heny Energy and DEP, a corrective action plan was submitted on September 24, 2008, and is currently being implemented. The thallium limit violations were attributed to the proximity of the effluent limit to the method detection limit (MDL) of the analytica l procedure. Allegheny Energy has subsequently employed a more sensitive analytical method with a lower MDL. There have been

no further thallium limit violations since that time.

46. Damage Case Claim

– Page 180

- 181

PADEP received a corrective action pla n from Allegheny Energy on September 24, 2008, which stated that the permit exceedances were due to leachate overflows from the sedimentation basin due to force main malfunctions, stormwater containing fly ash during heavy rains, and the inherent “analytic al result variance” of the thallium analytical method itself. None of the corrective actions were blamed on the inability of the wetland treatment system to treat CCW. The substance and effectiveness of Allegheny Energy’s measures to stop continued violati ons of NPDES permit limits are still unclear.

DEP Response

The submitted corrective action plan is currently being implemented.

47. Damage Case Claim

– Page 181631

Fly ash, bottom ash, pyrites, wastewater treatment sludges, pond sediments, refractory mate rials, and sandblasting media from Hatfield’s Ferry Power Plant. In addition, flue gas desulfurization (FGD) sludges from the plant have been disposed in the landfill beginning in approximately

2007.

DEP Response

The list of wastes approved in the permit is generally correct. FGD wastes were not produced at the station until the scrubbers were installed in 2009 and were not disposed at the Hatfield’s Ferry Power Plant CCB Landfill prior to the certification of the construction of the Step 1 portion

of the Phase 3 expansion area in January 2011.

48. Damage Case Claim

– Page 181

The Hatfield’s Ferry plant began operating in 1969, and PADEP issued the first CCW landfill permit for the site on May 7, 1984. The landfill permit authorized the disposal of CCW within a

40

- acre unlined area designated as Phase 1 and Phase 2. Allegheny Energy also disposed of CCW in the Hartley strip mine, located on adjoining property to the south.

CCW Landfill Phases 1 and 2 were constructed with a leachate collection system to gather water infiltrating through the CCW and an under

- drain system to remove groundwater from the coal ash. The underdrain system was designed to “collect and segregate springs and seep flow from the former strip mine area from the CCB (coal combustion b yproduct) leachate.” Leachate and shallow groundwater collected from Phases 1 and 2 are discharged into a tributary to Little Whiteley Creek after treatment in the wetland treatment system which consists of one equalization basin, four geosynthetic clay li ned wetland cells, five rock drain cells, and a sedimentation pond. In 1998, the PADEP re

- permitted the site, expanding it to 187 acres, allowing additional waste streams to be disposed there, expanding the monitoring system, and authorizing operation of t he landfill through March 2008.”

DEP Response

The statement is generally correct, with the clarification that the sedimentation pond into which the wetland treatment system discharges is not considered to be a component of the wetland
treatment system.

49. Damage Case Claim

– Page 181

The Hatfield’s Ferry Plant added FGD units (scrubbers) in 2007, resulting in 1.8 million tons of CCW being sent annually to the landfill. PADEP approved the Phase 3 expansion on May 4, 2009 with a design that includes a ge ocomposite liner for the expansion. The footprint of Phase 3 is 110 acres, almost 17 acres of which will overlie unlined portions of Phase 1 and 2.

DEP Response

This statement is incorrect. The scrubbers did not come on

- line until the fall of 2009. FGD632

d isposal at the Hatfield’s Ferry Power Plant CCB Landfill did not occur prior to the certification

of the construction of the double

- lined, Step 1 portion of the Phase 3 expansion area in January

2011.

50. Damage Case Claim

– Page 181

Four aquifers have b een identified at the landfill: a mine spoil aquifer located to the south of Phases 1 and 2; a rind aquifer consisting of weathered bedrock; a deeper Uniontown Sandstone aquifer; and an even deeper Benwood Limestone aquifer. Groundwater flow directions wit hin the mine spoil and rind aquifers are generally the same direction as the ground surface topography

– discharging to the west, north, and east along the top of bedrock and along a covered stream valley that discharges to the Monongahela River south Phas es 1 and 2. Groundwater within the Uniontown and Benwood formations generally flows to the northwest towards bedrock outcrop areas and eventually mixes with mine spoil and rind aquifer groundwater. Shallow groundwater flow in the bedrock is due to natural stress fractures in the bedrock and from secondary fractures from strip mining. The groundwater flow rates are reportedly very high, especially near stream valleys and bedrock outcrop areas

– with maximum seepage velocities of 149 feet per ear for the mine spoil aquifer, 735 feet per year for the rind aquifer, 735 feet per year for the Uniontown Sandstone aquifer, and 137 feet per year for the Benwood Limestone aquifer. The landfill site is a recharge area for each underlying aquifer.

DEP Response

These s tatements are generally correct.

51. Damage Case Claim

– Page 182

Four streams around the landfill perimeter originate from shallow groundwater that emanates at springs or wetlands. Those streams are located to the north, northeast, southeast, and southw est

- indicating that groundwater flow emanates radically from the landfill that is located on higher ground elevations. All of the streams are perennial streams classified as Warm Water Fisheries (WWF) under PADEP regulations and have a protected use for aquatic life.

DEP Response

The four referenced unnamed tributaries are defined as WWF pursuant to 25 Pa. Code Chapter 93. Their location has no specific relation to the flow of groundwater. The September 2001 GAI
Consultants’ Benthic Macroinvertebrate an d Habitat Survey footnoted in the EIP report only mentions that the tributaries are all headwater streams whose upper watersheds extend into the landfill area. The report does not indicate their locations or origins are in any way tied to a radial

flow of groundwater.

Appendix A

Historical Arsenic Data633

[See original comment for table, Historical Arsenic Data collected from all permitted monitoring points around Little Blue Run Impoundment.]

[See original comment for table, Historical Arsenic Data colle cted from all permitted monitoring points around the Little Blue Run Impoundment.]

Appendix B

Private Well Information

Reed Well Summary

Summary of John Reed’s Alleged Contaminated Well

As background information, John Reed bought a piece of property w ith a partially constructed home that came with a preexisting ground water well for drinking consumption. The well is next to the home and both are located approximately 2100 feet south west (up gradient) to the closest part of the impoundment. It is not k nown if Mr. Reed ever occupied the dwelling.

On October 2, 2008, the Reeds requested that FirstEnergy collect and analyze a sample from her son’s well. FirstEnergy’s consultant, Civil and Environmental Consultants (CEC) collected the sample. The initial r esults showed an arsenic level of 13 μg/l total (“unfiltered”), and the sample was turbid. The drinking water standard is 10 μg/l.

The following year, on March 17, 2009, CEC collected another groundwater sample from John
Reed’s well. The results came back showing arsenic at 2.5 μg/l (total) and <2.5 μg/l (dissolved)(non

- detect). Both results are below the drinking water standard.

On April 14, 2009, CEC sent a letter to John Reed summarizing the results.

“It is CEC’s opinion that the elevated arsenic conc entration identified during the October 2008 sampling event is likely attributable to the presence of sediment (soil particles) in this water sample. The water sample collection in October 2008 was noted to have high turbidity, which is

a measure of the de gree to which water loses its transparency due to the presence of suspended solids. The more total suspended solids in the water sample, the higher the turbidity and the cloudier the water appears. Because the water sample collected in October 2008 was ana lyzed for only total metals, both the amount of arsenic dissolved in the groundwater and contained in the soil particles was reported.”

It was CEC’s opinion (with which DEP concurs) that the one elevated arsenic concentration

detected in October 2008 can be attributed to naturally occurring arsenic found in the soil and particulate matter in the well.

Around the beginning of May 2009, DEP was contacted by Barbara Reed and asked to collect and analyze another groundwater sample from her son’s well. A field visit was arranged and the634

requested sample was collected on May 15, 2009. The sample was collected from the same well as CEC and analyzed for general chemistry, total and dissolved metals. DEP’s results came back showing arsenic (<3.0 μg/l total and <3.0 μg/l dissolved) both non detect. The results were sent

to Barbara Reed.

It is DEP’s opinion that, based on all the data collected from John Reed’s well, the geology and location of his well in the watershed, the impoundment is not influencing his groundw ater well and arsenic is not a constituent in Mr. Reed’s well above the safe drinking water standard.

ADDITIONAL FACT

FirstEnergy and DEP regularly sample a private water well owned by Mr. Stipec whose residence is located approximately 900 feet northwes t of John Reed’s well and approximately the same linear distance from the impoundment as John Reed’s well. All the data ever collected from the Stipec well has been non detect for arsenic and all other primary drinking water standards.

Appendix C

[See o riginal comment for Form 14R, Groundwater and Surface Water Monitoring Parameters.] Response: Thank you for the information pertaining to the Little Blue Run Disposal Impoundment and the Hatfield’s Ferry Power Station CCB Landfill in Pennsylvania. EPA has assessed all the newly alleged damage cases submitted in the August 2010 report In Harm’s Way . Based on the assessment of the se two Pennsylvania sites against EPA’s test of proof criteria, the Agency designated the m as potential damage cases. For a summary of stakeholder arguments addressing these two sites and the rationale for the Agency’s damage case designation

decision s , see the technical support documents on damage cases in the docket of the final rule.



### Comm ent Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0201

- 12 

### Organization 1 

### : Commonwealth of Pennsylvania, Department of Environmental Protection (DEP)


### Commenter 1 : Michael Krancer Commenter Type: State Government
Classification: Substantive



### Comment Excerpt Text:
[ATTACHMENT: See Attachment A5 for original report with PDEP Southwest Region review of damage cases from Out of Control:

-- Mitchell Power Station

-- Phillips Power Station/Landfill

-- Seward Generating Station

-- Fern Valley Disposal Site Note: full text of report i s provided below]

Commonwealth of Pennsylvania635

Department of Environmental Protection Southwest Region

Review of the Environmental Integrity Project and Earthjustice Report: Out of Control: Mounting Damages From Coal Ash Waste Sites Thirty

- one New Damag e Cases of Contamination From Improperly Disposed Coal Combustion

Waste Sites

February 24, 2010

Mitchell Power Station Phillips Power Station/Landfill Seward Generating Station Fern Valley Disposal Site

October 13, 2010

Revised October 27, 2011

Execut ive Summary

This report is in response to the document prepared by the Environmental Integrity Project and Earthjustice (Out of Control: Mounting Damages From Coal Ash Waste Sites) dated February 24, 2010. Specifically, this report addresses the four faci lities located in the Southwest Region of the Department of Environmental Protection (DEP): Mitchell Power Station, Phillips Power Station/Landfill, Seward Generating Station, and Fern Valley Disposal Site.

DEP reviewed and responded to each specific alle gation point by point for each of the above

referenced facilities. DEP’s responses are based on the methodical, organized and scientific review of the data contained in our regional files (groundwater data is submitted and reviewed by DEP on a quarterly b asis.) Since the EIP report did not contain standard scientific documentation, DEP has responded based on a scientific review of each facility’s data and DEP’s familiarity of the sites and their groundwater data and impacts.

Based on the review of the inf ormation in the report for each of the Southwest Region’s facilities, DEP concludes that the allegations regarding groundwater and surface water contamination by Primary MCL’s are unfounded.

• DAMAGE CASE CLAIMS ARE REFERENCED VERBATIM FROM THE REPORT

• THE MCL FOR ARSENIC WAS 50 μG/L UNTIL 2004 WHEN EPA REDUCED IT TO 10 μG/L FOR DRINKING WATER SUPPLIES

Table of Contents

I. Mitchell Power Station.................................1636

II. Phillips Power Station/Landfill.......................8

III. Seward Generating Station..........................13

IV. Fern Valley Disposal Site.............................22

I. Mitchell Power Station, Allegheny Energy, Washington County

1. Damage Case Claim

– Page 65

In 1998, Allegheny Power initiated groundwater investigations at its Mitchell Power Plant CCW wastewater lagoons with t he expectation that no impacts would be found and that no ongoing monitoring would be required.

DEP Response

In 1998, Allegheny Power initiated a groundwater investigation pursuant to the 1992 Residual Waste Regulations which required that a groundwater monitoring system be installed at the facility. This requirement applied regardless of the groundwater quality documented in the investigation.

2. Damage Case Claim

- Page 65

However, the investigation found degradation of groundwater downgradient from t he two lagoons by multiple parameters. Most significantly, concentrations of arsenic were measured at twice the federal primary MCL and concentrations of boron reached more than twice the EPA Child Health Advisory of 3.0 mg/l.

DEP Response

This statemen t is unsupported. The EIP Report does not provide a list of the monitoring well(s), sample dates, or analytical data that show arsenic levels were at twice the Federal Primary MCL of 10 μg/L or at twice the EPA Child Health Advisory of 3,000 μg/L(3.0 mg/L) for boron. DEP

notes that EPA Health Advisories are non

- enforceable, guidance

- based concentrations based on

non

- cancer health effects for different exposures in drinking water sources, which cannot serve as the basis for regulatory actions. Comparisons re garding boron concentrations in groundwater at the site to EPA Health Advisories are inappropriate.

The Department's review of the groundwater monitoring data indicates that during the fourth quarter of 1999 arsenic was detected at 58.1 μg/L in downgradie nt well MW

- 6. DEP deemed this result to be an anomalous reading on the basis that 30 of the following 38 quarters of sampling at this well show arsenic levels below the current MCL of 10 μg/L. The other 8 values, obtained between 1999 and 2002, ranged betw een 10.2 and 40.1 μg/L. During the time when the other 8 values were obtained, the EPA Drinking Water Standard for arsenic was 50 μg/L. In regard to637

boron, the highest reading was 6.4 mg/L in a downgradient well MW

- 5 during the third quarter

of 2003. Since that time, there has been a steadily decreasing trend in boron down to a level of 4.0 mg/L for second quarter 2011. The most stringent Pennsylvania Statewide Health Standard for boron is 6.0 mg/L. Boron is not listed on the National Primary Drinking Water List and is therefore not regulated by EPA.

3. Damage Case Claim

– Page 65

Groundwater monitoring data for the year 2007 shows that maximum levels of arsenic and boron are twice as high as the maximum levels found in 1998.

DEP Response

This claim is unsupported in the report. It is not stated to which monitoring wells or quarters of 2007 this statement refers. DEP's review of the data submitted in 1999 (the first year of quarterly data submitted) and 2007 confirmed the following:

• The arsenic level in upgradient well MW

- 4 was 5.3 μg/L during the third quarter of 1999 and rose to 12.4 μg/L the second quarter of 2007.

• The corresponding downgradient well (MW

- 6) had an arsenic level of 58.1 μg/L in the fourth quarter of 1999 that decreased to a low of 2.3 μg/L during the third quarter of 2007.

• The highest arsenic level in 1999 was 58.1 μg/L in MW

- 6 and the highest arsenic level in 2007 was detected in downgradient monitoring well MW

- 5 at 16.8 μg/L.

• The highest boron level in upgradient monitoring well MW

- 4 was 0.16 mg/L during the fourth quarter of 1999.

• The highest boron level in MW

- 4 for third quarter of 2007 was 0.30 mg/L.

DEP's review of the historical groundwater data submitted by the company as required by the permit observed no upward t rends in arsenic or boron.

4. Damage Case Claim

– Page 65

Determination

Demonstrated damage to groundwater moving off

- site toward the Monongahela River.

DEP Response

DEP disagrees with this statement due to the lack of supporting data presented in the Report.

5. Damage Case Claim

– Page 65638

Test of Proof

In 1997, Allegheny Power initiated preliminary groundwater investigations in the vicinity of the two CCW lagoons in response to a Pennsylvania Department of Environmental Protection (PADEP) letter r equiring submission of the groundwater monitoring plan. The intent of the preliminary investigations was to demonstrate that groundwater monitoring was not necessary. However, the initial groundwater investigation found that groundwater was being degradate d by the impoundments.

DEP Response

Allegheny Power initiated a groundwater investigation pursuant to the 1992 Residual Waste Regulations which required that a groundwater monitoring system be installed at the facility. This requirement applied regardles s of the groundwater quality documented in the investigation. The comprehensive drilling program and investigation demonstrated that groundwater at the station had been affected by deep mining of the Pittsburgh Coal seam upgradient of the site.

Elevated le vels of secondary parameters such as iron and manganese and sporadic low level hits of the primary parameter arsenic were detected which can be attributed to the acid mine drainage (AMD) created by past mining of the Pittsburgh Coal seam. Low levels of bor on were also

detected and can be attributed to AMD.

6. Damage Case Claim

– Page 65

Arsenic was below the detection limit in upgradient wells, but above the primary MCL in the two downgradient wells of Lagoon #2 (0.011 and 0.013 mg/L).

DEP Response

The monitoring wells and dates from which these arsenic values were taken are not listed. Over a 12 year monitoring period at the station, these are the only numerical values provided for arsenic in the Report. There has been no upward trend documented betwee n 1999 and 2011.

7. Damage Case Claim

– Page 65

Boron was detected at 1.9 mg/L and 3.7 mg/L at the two downgradient wells of Lagoon #2.

DEP Response

Over a 12

- year period from 1999 to 2011, these two values for boron are the only data points provided in the Report. Over this time period, nearly 230 groundwater samples were collected from the facility’s groundwater monitoring system and analyzed. DEP acknowledges that boron is present in the groundwater beneath the facility; which is attributable to pas t mining (acid mine drainage) of the Pittsburgh Coal seam upgradient of the facility. Boron is not regulated by EPA under the National Primary Drinking Water Regulations.

8. Damage Case Claim

– Page 65639

Elevated levels of molybdenum and nickel were detect ed in some downgradient wells.

DEP Response

This statement is correct. The average level of molybdenum of nearly 230 samples in an upgradient or downgradient well was approximately 25 μg/L. Of those same 230 samples, the highest nickel reading was 31.5 μ g/L. Molybdenum and nickel are not parameters for which

EPA has established a health

- based, primary drinking water standard.

9. Damage Case Claim

– Page 65

Compared to surface water samples of the Monongahela River along the shoreline near the lagoons, t welve parameters were reported at consistently higher concentrations in the groundwater samples; specific conductance, total alkalinity, chemical oxygen demand, ammonia, chloride, sulfate, total dissolved solids, calcium, iron, potassium, manganese and sod ium.

DEP Response

This statement is unsupported. The groundwater monitoring wells, surface water points and analytical data are not listed to validate this claim nor are the sampling periods referenced in the Report. The Department’s ongoing review and t racking of the groundwater data concludes that the facility has been and remains in compliance for the referenced parameters.

10. Damage Case Claim

– Page 65

As a result of Allegheny Energy’s evidence of groundwater degradation by the lagoons, a groundwa ter monitoring plan was implemented with an upgradient well two downgradient wells for each lagoon.

DEP Response

Allegheny Power initiated a groundwater investigation pursuant to the 1992 Residual Waste Regulations which required that a groundwater monit oring system be installed at the facility. This requirement applied regardless of the groundwater quality documented in the investigation.

11. Damage Case Claim

– Page 65

Analyses of quarterly monitoring data for samples collected from the two monitorin g wells downgradient of Ash Lagoon #2 in 2007 (GW

- 4 and GW

- 5) found the following:

• Boron levels were more than twice the EPA’s Child Health Advisory of 3.0 mg/L and much higher than boron levels in upgradient wells or at surface water monitoring points.

• Arsenic concentrations have been 1 to 2 times the primary MCL of 0.010 mg/L at downgradient wells and exceeded the highest concentrations for arsenic at upgradient points.640

• Levels of nickel, molybdenum, and manganese have also been noticeably highe r at downgradient than upgradient points.

DEP Response

The Report's description of groundwater monitoring wells GW

- 4 and GW

- 5 are incorrect. The correct designation for these wells is MW

- 4 and MW

- 5. The Report states that both these wells are downgradien t of Lagoon No. 2, when in fact Well MW

- 4 is upgradient and Well MW

- 5 is downgradient of Lagoon No. 2. The following correspond to the bullet points in the EIP Report

for this claim:

• Boron is not a federally regulated parameter by EPA. In 2007 the highe st boron level in upgradient monitoring well MW

- 4 was 0.3 mg/L and the highest reading in downgradient monitoring well MW

- 5 was 6.8 mg/L.

• The references to arsenic are incorrect. The highest arsenic reading in downgradient MW

- 4 was in second quarter 200 7 at 12.4 μg/L. The highest arsenic reading in downgradient MW

- 6 was 7.3 in second quarter 2007. This date corresponds with the geologic findings that document the Pittsburgh Coal seam has had an upgradient influence on the facility.

• Molybdenum and nick el in groundwater are not regulated by EPA. The typical level of molybdenum of the nearly 230 samples in an up or downgradient well was approximately 25 μg/L. Of the same 230 samples, the highest nickel reading was 31.5 μg/L. Manganese is also present in t he up and downgradient monitoring at varying levels. Manganese is a secondary drinking water parameter for which the corresponding standard was adopted for aesthetic rather

than health

- related purposes.

12. Damage Case Claim

– Pages 65 and 66

Allegheny Energy does not monitor groundwater around the ash landfill that lies west of Mitchell Power Plant. Review of a topographic map of the landfill shows that surface drainage from the landfill flows towards Lagoon 1, and the position of the landfill with resp ect to Lagoon #2 creates the possibility that the upgradient monitoring wells from both lagoons could be affected by groundwater flowing from the ash fill.

DEP Response

These are unsupported and incorrect statements. Allegheny Energy does have an approve d groundwater monitoring system around the FGD disposal facility referenced above. Groundwater has been monitored for over 10 years. Topographically, surface water from around the landfill flows in a general direction towards the power station but is diver ted around by surface water controls. The Report makes an assumption regarding groundwater flow that is based on a topographic map and not a groundwater flow map, which is based on subsurface data.

13. Damage Case Claim

– Page 66641

The Utility Solid Waste Activities Group does not dispute the data presented above, but argues the groundwater data should be evaluated relative to Pennsylvania Statewide Health Standards of medium specific concentrations (MSCs) for non

- residential, non

- use aquifers which have no t been exceeded. This argument missed the point that degradation from groundwater moving off

site has occurred, and that this damage would not have been identified if PADEP had not required groundwater monitoring.

DEP Response

All groundwater data is eva luated relative to Pennsylvania Statewide Health Standards of MSCs

for non

- residential, non

- use aquifers according to the 25 Pa. Code Chapter 250 Land Recycling Regulations as required by applicable law. As previously stated, there have been elevated

secon dary (non

- health based) parameters and occasionally low levels of some primary constituents, but no trends have been established. It has been demonstrated through a comprehensive groundwater assessment that past deep mining in the Pittsburgh Coal seam

upgr adient of the facility has impacted the groundwater around the power station.

14. Damage Case Claim

– Page 66

Incident and Date Damage Occurred/Identified

In 1998, an evaluation of groundwater in the vicinity of the two CCW residual waste and storage

im poundments found downgradient degradation of groundwater by arsenic above MCLs and boron above EPAs Child Health Advisory Standard. A review of quarterly groundwater monitoring data for the year 2007 shows that levels of arsenic and boron are twice as high as found in the initial evaluation in 1998.

DEP Response

This claim is unsupported in the Report. It is not stated to which monitoring wells or quarters of 2007 this statement refers. DEP's review of the data submitted in 1999 (the first year of quarter ly data submitted) and 2007 confirmed the following:

• The arsenic level in upgradient well MW

- 4 was 5.3 μg/L during the third quarter of 1999 and rose to 12.4 μg/L the second quarter of 2007.

• The corresponding downgradient well (MW

- 6) had an arsenic l evel of 58.1 μg/L in the fourth quarter of 1999 that decreased to a low of 2.3 μg/L during the third quarter of 2007.

• The highest arsenic level in 1999 was 58.1 μg/L in MW

- 6 and the highest arsenic level in 2007

was detected in MW

- 5 at 16.8 μg/L.

• The highest boron level in upgradient monitoring well MW

- 4 was 0.16 mg/L during the fourth quarter of 1999.642

• The highest boron level in MW

- 4 for third quarter of 2007 was 0.30 mg/L.

• Boron is not regulated by EPA under the National Primary Drinking Water Regulations.

DEP's review of the historical groundwater data submitted by the company as required by the permit observed no upward trends in arsenic or boron.

15. Damage Case Claim

– Pages 66 and 67

Regulatory Actions

In 2001, PADEP issued a Notice of Violation to Allegheny Power for failure to minimize fugitive dust emissions from the landfill northwest of the power plant. Requirements for ongoing monitoring of fugitive dust were discontinued in 2004.

DEP Response

The company addressed the Notice of Violation in 2001 through improved dust suppression

methods.

16. Damage Report Claim

– Page 67

Waste Present

Flyash, bottom ash (landfill), and CCW residuals in sludge and process water.

DEP Response

This is a correct statement.

17. Damage Report Cla im

– Page 67

Type or Types of Waste Management Unit

Mitchell Power Plant operates a 70

- acre, unlined CCW landfill with a capacity of 5.6 million cubic yards, located northwest of the power plant. In addition, Mitchell Power Plant operates 2

wastewater tr eatment lagoons located near the power plant that contains CCW. Both lagoons were constructed with concrete sides and compacted in

- situ soil base that is covered with one foot of bottom ash. The lagoons discharge water under NPDES permits. The lagoons disc harge water under a NPDES permit.

DEP Response

This information is correct.

The lagoons also have an associated groundwater monitoring system.643

18. Damage Case Claim

– Page 67

Active or Inactive Waste Management Unit

Active

DEP Response

This is a co rrect statement.

19. Damage Case Claim

– Page 67

Hydrogeologic Conditions

Ash landfill: mostly bedded sedimentary rock (alternating sandstone, limestone and shale within soil) and some Monongahela River alluvium with over bank deposits. Ash lagoons:

Mon ongahela River alluvium and over bank deposits.

DEP Response

This is a generally correct statement.

20. Damage Case Claim

– Pages 67

Probable Cause or (Causes)

Seepage and groundwater flowing through the lagoons. There is a possibility that upgradient monitoring wells for the lagoon receive contaminants from the ash landfill to the west.

DEP Response

This is an incorrect statement. The Report presents no hydrogeologic data to support that seepage and groundwater are flowing through the lagoons. There is no data presented in the Report to support the statement that the lagoons receive contaminants from the FGD landfill as well.

II. Phillips Power Plant, Orion Power Midwest, Allegheny and Beaver Counties

1. Damage Case Claim

– Page 68

In the late 198 0’s, two coal ash ponds at the Phillips Power Plant contaminated several public water wells operated by the Cresswell Heights Joint Authority with high levels of total dissolved solids (TDS) which were ruining residents’ hot water heaters. Legal action ini tiated by the Pennsylvania Department of Environmental Protection (PADEP) in 1990 led to decommissioning the Ash Ponds and paying a $50,000 fine.644

DEP Response

DEP acknowledges that an issue existed regarding total dissolved solids (TDS) in the 1980’s at two ponds at the Phillips Power Station that affected the performance of hot water heaters of residents served by the Cresswell Heights Joint Authority. DEP notes, however, that TDS is not a primary, health

- related drinking water parameter. The decommissi oning of the ash ponds was due to the closing of the power station and was not required by legal action.

2. Damage Case Claim

– Page 68

Groundwater contamination was later identified at the Ash Landfill west of the Phillips Power

Plant at sufficient leve ls to require ongoing groundwater monitoring after the landfill was closed

in the 1990s.

DEP Response

This statement is misleading. In accordance with 1992 Residual Waste Regulations, all landfills including the Phillips Landfill, associated with the po wer station were required to install groundwater wells and perform a hydrogeological assessment.

Results of the assessment indicated that some of the groundwater was impacted by secondary

non

- health related parameters, such as iron, manganese, fluoride, a nd chloride. The regulations required ongoing monitoring for all permitted landfills regardless of the groundwater quality documented during the assessment. Phillips Landfill stopped receiving ash from the power station prior to 1990.

3. Damage Case Claim

– Page 68

Ten years later, samples from wells located where the groundwater is moving off

- site regularly exceed secondary Drinking Water Standards (DWS) for TDS, chloride, fluoride, manganese and

aluminum.

DEP Response

As previously stated, the origina l groundwater assessment documented the presence of secondary

non

- health based parameters in the groundwater.

4. Damage Case Claim

– Page 68

Demonstrated off

- site damage to public drinking water supply (ash ponds)

Demonstrated damage to groundwater movi ng off

- site (ash landfill)

DEP Response

As previously stated, Total Dissolved Solids is not a primary health

- related drinking water645

parameter, and the original groundwater assessment documented the occurrence of secondary

non

- health related parameters in the groundwater wells around the landfill.

5. Damage Case Claim

– Page 68

Test of Proof

In the late 1980s, several water supply wells of the Cresswell Heights Joint Municipal Water Supply in Beaver County, PA were contaminated with high levels of total dissolved solids (TDS) from two coal ash ponds at the Phillips Power Plant in adjacent Allegheny County. High TDS levels, far exceeding secondary MCLs, ruined hot water heaters and Municipal Water Supply customers had to frequently replace their hot water heaters, (as often as once per year). The Municipal Water Supply undertook considerable monitoring to document the damage being done to its wells. This contamination of public water wells prompted PADEP to file a complaint against the Duquesne Light Compa ny (DLC) claiming violations of total suspended solids (TSS) limits at an NPDES outfall and that the unlined ash ponds at the Phillips Plant were adversely impacting the groundwater aquifer used by the Cresswell Heights Joint Water Authority for public dri nking water. A Consent Order and Agreement was signed on October 1990 that provided several options for DLC to remediate the source of contamination and included a $50,000 penalty for discharge violations (PAEHB, 1990).

DEP Response

DEP acknowledges that an issue existed regarding TDS in the 1980’s at two ponds at the Phillips Power Station that affected the performance of the hot water heaters of residents served by the Cresswell Heights Joint Authority. DEP reiterates that TDS is not a primary, health

- r elated drinking water parameter.

6. Damage Case Claim

– Page 68

The two coal ash ponds were closed and the ash was reportedly removed from the site (USWAG, 2008). Closure of the coal ash ponds appears to have addressed problems with the Cresswell Height s public water supply.

DEP Response

This statement is correct.

7. Damage Case Claim

– Page 68

In addition to the two coal ash ponds, the Phillips Plant placed coal ash and FGD sludge in a

landfill west of the Plant from 1969 to 1991. This landfill cove red about 157 acres, of which about 50 acres were used for coal combustion waste (CCW) disposal.

DEP Response646

This is a correct statement.

8. Damage Case Claim

– Page 68

In 1975, DLC received Solid Waste Disposal Permit No. 300440 from PADEP, which inc luded requirements for an underdrain system to collect leachate from the landfill. As part of the decommissioning of the power plant, a landfill closure plan was submitted to PADEP in 1994 (SET, 1994).

DEP Response

This is a correct statement.

9. Damag e Case Claim

– Page 68

A groundwater assessment was conducted to determine whether the landfill was adversely affecting groundwater. As a result of the groundwater assessment, PADEP required groundwater monitoring to continue after final cover and grading of the landfill.

DEP Response

The Residual Waste Regulations require that groundwater monitoring be conducted for all permitted disposal areas regardless of water quality.

10. Damage Case Claim

– Pages 68 and 69

A review of quarterly groundwater monit oring data from 2006 and 2007 found the following (EarthJustice, 2008):

• Groundwater discharging from the closed landfill has noticeably higher levels of chloride, sodium, and fluoride, and generally higher manganese, aluminum, sulfates, TDS and Specific

Conductance.

• Levels of chloride frequently exceeded secondary drinking water standards (DWS) and high levels of sodium (exceeding 200 mg/L) were usually found in such samples.

• Levels of manganese, aluminum, and fluoride (2.0 mg/L) exceeded secondary DWS in many samples as well as many exceedances of the secondary DWS for TDS of 500 mg.

DEP Response

DEP acknowledges that a numerical difference existed between upgradient and downgradient

concentrations of chloride and sodium for the 2006

- 2007 time pe riod stated. The data indicates a downward trend in the sodium concentrations in the downgradient wells and that the chloride concentration remained relatively constant. The comprehensive groundwater assessment that was conducted pursuant to the 1992 Resid ual Waste Regulations concluded that chloride and sodium647

are not characteristic of the waste deposited at the site and suggested that historic oil and gas drilling activities in the area surrounding the landfill was a possible source of the chloride and

so dium observed in the downrgradient wells. In all cases, the identified parameters are classified as secondary MCL contaminants for which the corresponding standard was adopted for aesthetic

rather than health

- related purposes.

11. Damage Case Claim

– Pag e 69

The Utility Solid Waste Activities Group argues that because no primary drinking water standards have been exceeded, this site should not be considered a damage case (USWAG, 2008). However, a public drinking water supply was damaged without any excee dance of primary drinking water standards.

DEP Response

DEP concurs with the statement that no primary drinking water standards have been exceeded at this site. DEP reiterates that TDS is not a primary, health

- related parameter and that the impact

was l imited to hot water heaters.

12. Damage Case Claim

– Page 69

Incident and Date Damage Occurred/Identified

DEP Response

DEP acknowledges that an issue existed regarding TDS in the 1980’s at two ponds at the Phillips Power Station that affected the perfo rmance of the hot water heaters of residents served by the Cresswell Heights Joint Authority. DEP notes, however, that TDS is not a primary, health

related drinking water parameter. Further, an assessment is performed to determine impacts; therefore, they are not “unanticipated.”

13. Damage Case Claim

– Page 69

Regulatory Actions

In 1990 a Consent Order and Agreement between Pennsylvania Department of Environmental Protection (PADEP) and Duquesne Light Company (DLC) was signed ordering DLC to stop

contami nation from the coal ash ponds and pay a $50,000 fine (PAEHB, 1990).

DEP Response

This is a correct statement.

14. Damage Case Claim

– Page 69

As part of the closure plan for the Phillips Ash Landfill, PADEP required quarterly groundwater648

monitoring due to evidence of groundwater degradation.

DEP Response

This statement requires clarification. Regardless of the groundwater quality, all residual waste disposal facilities are required by the 1992 Residual Waste Regulations to conduct quarterly groundwat er monitoring. DEP reiterates that the only elevated parameters identified in this report

are non

- health related secondary contaminants for which the corresponding standard was adopted for aesthetic reasons.

15. Damage Case Claim

– Page 70

Type(s) of Wast e Management Unit

Two Coal Ash Ponds: Phillips Power Plant site plans dated December 2004 show two closed ash ponds (“No. 1” has a capacity of 13.5 million gallon, and “No. 2” has a capacity of 9 million gallons). Coal ash and FGD Landfill: Covers about 1 57 acres, 50 acres of which were used for CCW from 1969 to 1991 (SET, 1994). About 75% of the landfill is in Allegheny County; 25% in Beaver County (BCPC, 1994).

DEP Response

This is a correct statement.

16. Damage Case Claim

– Page 70

Active or Inactiv e Waste Management Unit

Inactive. Phillips Power Plant was acquired from Duquesne Light Company in late 1990s and fully decommissioned in 2002. The two coal ash ponds were decommissioned in the early 1990s

and the coal ash and FGD landfill was decommissio ned in the late 1990s.

DEP Response

This is a correct statement.

17. Damage Case Claim

– Page 70

Hydrogeologic Conditions

The coal ash ponds were in Ohio River alluvium and overbank deposits.

DEP Response

This is a generally correct statement.649

18. D amage Case Claim

– Page 70

Probable Causes(s)

Leaching of coal ash and FGD wastes in groundwater

DEP Response

DEP reiterates that the only elevated parameters identified in this report are non

- health related secondary contaminants for which the correspo nding standard was adopted for aesthetic reasons, and that the data collected does not display an upward trend in the concentration being reported.

III. Seward Generating Station, Indiana County

1. Damage Case Claim

– Page 71

The Seward Generating Stat ion’s unlined coal ash and coal refuse pit, as well as its Closed Ash Sites No. 1 and No. 2, have leached and continue to leach many pollutants into the underlying aquifer at levels that far exceed both Pennsylvania and federal primary MCLs, and upgradient

concentrations.

DEP Response

This statement is misleading and incorrect. The original Seward Power Station has been

demolished and a new Co

- Gen plant built on site. As part of the permitting process for the Co Gen plant, RRI entered into a Consent Order and Agreement (CO&A) in 2000 with DEP’s Water Quality and Environmental Cleanup programs to remediate several old coal refuse piles on site which were discharging acid mine drainage into the groundwater and adjacent river.

Through an approval from Water Quality and the Environmental Cleanup programs, the coal refuse piles were pulled back from the river and mixed with alkaline ash from nearby power stations. The coal refuse was thoroughly mixed with the alkaline ash on a 1

- to

- 1 weight basis and then compa cted in 18

- inch layers. The new Co

- Gen plant was constructed on the ash

- refuse mix, thus limiting infiltration.

Groundwater modeling was performed, for purposes of remediation, by the consultant on the

area from where the coal refuse was removed and it wa s calculated to take 50

- 100 years for complete remediation of the groundwater to occur. To monitor the progress of the remediation, a series of up and downgradient monitoring wells were installed around the former coal refuse

area.

All of the groundwater data referenced in the EIP Report for this facility is from the monitoring wells around the former coal refuse piles and not from any fly ash disposal sites.

In accordance with a CO&A with the Waste Management Program in 1982, the company closed

Ash Sites No. 1 and No. 2 and is required to monitor groundwater and submit the results to DEP650

on an annual basis. No new fly ash is being disposed at the Seward Generating Station.

The only elevated parameters detected in the groundwater wells around closed Ash S ites No. 1 and No. 2 have been secondary and non

- health related (relating to the taste, odor or appearance of the water).

2. Damage Case Claim

– Page 71

Department of Environmental Protection (PADEP) has entered into numerous Consent Order and Agreements (COAs) with RRI and its predecessors in interest since at least 1982 to force remediation of groundwater contamination from the coal ash piles as well as surface water contamination from Outfall 012, yet the contamination persists.

DEP Response

This sta tement is misleading. It was demonstrated through modeling that, based on the chemical characteristics of the acidic coal refuse combined with the alkaline ash, a gradual improvement of the groundwater is expected and could take more than 50 years.

The CO &A related to closed Ash Sites No.1 and No. 2 only required the cessation of disposal, capping and installing groundwater monitoring wells, which have only shown elevated secondary parameters.

In regards to the statement pertaining to surface contaminatio n at Outfall 012, no parameters, parameter levels, or specific dates are listed in the report to substantiate this claim. This outfall is related to the remediation project and not closed Ash Sites No.1 and No.2.

3. Damage Case Claim

– Page 71

Groundwate r levels of antimony consistently exceeded the primary MCL of 0.006 mg/L, including a concentration of 0.1 mg/L (nearly 17 times the standard) at monitoring well MW

- 7 in the third quarter of 2008. Cadmium exceeded the primary MCL of 0.005 mg/L at 4 differe nt monitoring wells, MW 5R, MW

- 6R, MW

- 7, and MW

- 8R, including a MW

- 7R reading of 0.041, over eight times the standard, in the second quarter of 2009.

DEP Response

As part of the remediation project for the coal refuse piles, DEP required that wells be in stalled to monitor the improvement over time. Monitoring wells MW

- 5R, MW

- 6R, MW

- 7, and MW

- 8R were installed for this purpose. The groundwater data referenced in this statement is related to the past coal refuse disposal and not to closed Ash Sites No.1 and No.2.

4. Damage Case Claim

– Page 71

In addition, 13 of 16 quarters for which we have downstream surface water data from 2005 to 2009 contained at least one exceedance of Pennsylvania’s Water Quality Criteria for Fish and651

Aquatic Life. There were 27 ex ceedances for aluminum, nickel, and zinc, including an aluminum exceedance of 5.3 mg/L (compared to a Criteria Maximum Concentration of .075 mg/L) and a nickel concentration of 30 μg/L (compared to a Criteria Continuous Concentration of 4.05 μg/L).

DEP R esponse

The report does not reference any data related to the claim that 13 of 16 quarters of surface water quality data between 2005 and 2009 exceeded a Water Quality Standard. In accordance with the CO&A with the Waste Management Program in 1982, the co mpany closed Ash Sites No. 1 and No. 2 and was required to monitor groundwater and submit the results to DEP on an annual basis. No new fly ash is being disposed at the Seward Generating Station. As part of the remediation of the coal refuse piles, the com pany was required to establish up and downgradient surface monitoring points on the adjacent stream. The background data collected prior to the removal of the coal refuse indicated that piles were impacting the stream. All of the references in

this stateme nt to impacted surface water quality data are related to the past coal refuse disposal

and not to closed Ash Sites No. 1 and No. 2 as inferred.

5. Damage Case Claim

Also, pollutants including iron, manganese, pH, and aluminum are being discharged from t he “remediated” coal ash and coal refuse pile directly into the Conemaugh River through NPDES permitted Outfall 012 in violation of permit limits.

DEP Response

This statement is incorrect. There is not a remediated coal ash pile on site. There was an

aba ndoned coal refuse pile that has been removed and the groundwater is in the process of being remediated. In regard to Outfall 012, the data to substantiate the claim is not presented.

6. Damage Case Claim

– Page 71

Determination

Demonstrated off

- site da mage to surface water

DEP Response

This statement is misleading. The groundwater investigation conducted for the remediation of the coal refuse pile indicated that the adjacent stream had been impacted by the coal refuse pile and not by closed Ash Sites No. 1 and No. 2.

7. Damage Case Claim

– Page 71

Demonstrated on

- site damage to groundwater moving off

- site

DEP Response652

This is a vague and incorrect statement. The groundwater data referenced in the report is the result of past coal refuse disposal on site.

8. Damage Case Claim

- Page 71

Test of Proof

The No. 1 Ash Disposal Site was forced to be closed due to pollutants leaching from the ash pile. RRI’s Final Remedial Investigation Report of the No. 1 Ash Disposal Site (2006) confirms that the ash pi le was the source of groundwater contamination: “The source of inorganic constituents above naturally occurring concentrations is ash within the No. 1 Ash Disposal Site. Leachate containing inorganic constituents is produced through surface water infiltrat ion and contact with groundwater in isolated areas.” Aluminum, iron, and manganese were identified as the

constituents of concern.

DEP Response

This claim is incorrect. Ash Disposal Site No. 1 was closed when the power station shut down. The site was cap ped and monitoring wells were installed. Based on the groundwater results, the aluminum, iron, and manganese “constituents of concern” are secondary and non

- health based. Natural attenuation over time is expected to remediate these constituents.

9. Damage Case Claim

- Pages 71 and 72

In addition, groundwater monitoring results continue to exceed Primary and Secondary Drinking Water Standards (MCL). These exceedances have been consistently documented since at least 2004. For example, groundwater monitoring data for only one year (the first two quarters of 2009 and the last 2 quarters of 2008) show that:

• Primary MCL exceedances were documented in downgradient monitoring wells for many pollutants:

o Antimony exceeded the federal primary MCL of 0.006 mg/L at least nine times, including a concentration of 0.1 mg/L at MW

- 7.

o Arsenic was two times higher than the federal primary MCL of 0.01 mg/L at least twice with concentrations of 0.02 mg/L measured at monitoring well MW

- 6R.

o Cadmium exceeded the federal primary MCL of 0.005 mg/L in at least 4 different monitoring wells, MW

- 5R, MW

- 6R, MW

- 7, and MW

- 8R, including a concentration of 0.041 mg/L at MW

7R.

o Chromium exceeded the federal primary MCL at least four times, including a concentration of 0.33 mg/L, more than triple the primary MCL of 0.1 mg/L, at MW

- 8R.653

o Lead exceeded the primary MCL/Treatment Technique Action Level of 0.015 at least five times at various wells, including a concentration of 0.05 mg/L at MW

- 8R.

o Selenium was detected above the pri mary MCL limit of 0.05 mg/L four times at MW

- 6R, MW 7R, and MW

- 8R.

o Turbidity was recorded consistently above 5 NTU, including a reading of 75.3 NTU at MW

7R.

• Secondary MCLs were exceeded at very high levels in all downgradient wells in almost every

q uarter for a host of parameters. These include:

o Aluminum levels were as high as 426 mg/L (MW

- 8R) and 403 (MW

- 7R), despite a secondary MCL of 0.05 mg/L.

o Chloride was frequently measured well above 500 mg/L, double the secondary MCL of 250 mg/L.

o Iro n levels were over 7,100 times the secondary MCL of 0.03 mg/L, with concentrations as high as 2,120 mg/L (MW

- 8R) and 2,140 mg/L (MW

- 8R).

o Manganese has a secondary MCL of 0.05 mg/L, yet was frequently reported at over 30 mg/L, including two readings over 100 mg/L at MW

- 5R.

o Nickel was typically found at double the Superfund Removal Action Level (RAL) of 0.6 mg/L,

with three of four MW

- 8R readings exceeding 3 mg/L.

o Sulfate also frequently exceeded the secondary MCL of 250 mg/L at every well, including concentrations of 8,260 at MW

- 7R and 8,390 mg/L at MW

- 8R.

o Total dissolved solids were continually found to exceed the secondary MCL of 500 mg/l, including a reading of 12,000 mg/L at MW

- 8R.

o Zinc exceeded the secondary MCL of 5 mg/L at MW

- 7R and MW

- 8 R several times with readings of over 7 and 8 mg/L.

DEP Response

These statements are misleading. ll of the groundwater data referenced in this section

appears to have been obtained from the DEP Regional Office files, relates to measuring the performan ce of the remediation of the coal refuse piles that were disposed on site decades ago

and do not correlate to the closed Ash Sites No. 1 and No. 2. In accordance with the CO&A with the Waste Management Program in 1982, the company closed Ash Sites No. 1 an d No. 2 and was required to monitor groundwater and submit the results to DEP on an annual basis. No new fly ash is being disposed at the Seward Generating Station. Remediation of these coal refuse654

piles has occurred to stop/reduce contamination.

10. Dama ge Case Claim

– Page 72

Surface water monitoring downstream of the ash sites contained 27 exceedances of Pennsylvania’s Water Quality Criteria for Fish and Aquatic Life, with one or more exceedances occurring in 13 of the 16 quarters in downstream surface water data from 2005 to 2009. Exceedances were identified for aluminum, nickel, and zinc, including an aluminum exceedance of 5.3 mg/L (compared to a Criteria Maximum Concentration of 0.75 mg/L), a nickel concentration of 30 μg/L (compared to a Criteria C ontinuous Concentration of 4.05 μg/L), and a zinc concentration of 93 μg/L (compared to a hardness

- adjusted Criteria Continuous Concentration of 48.5 μg/L).

DEP Response

These statements are misleading. All of the surface data referenced in this section relates to the refuse piles that have been removed and remediated, not to fly ash. In accordance with the CO&A with the Waste Management Program in 1982, the company closed Ash Sites No. 1 and No. 2 and was required to monitor groundwater and submit the re sults to DEP on an annual basis. No new fly ash is being disposed at the Seward Generating Station.

11. Damage Case Claim

– Page 72

In addition, Outfall 012, which flows from the coal ash/coal refuse pile, has been discharging in violation of NPDES permi t limits for iron, aluminum, manganese, and pH on a monthly basis for at least five years.

DEP Response

This statement is partly incorrect. Outfall 012 is associated with reclamation of the old coal refuse pile. It is incorrect to say Outfall 012 flows from the “coal ash/coal refuse pile.

12. Damage Case Claim

– Page 73

Incident and Date Damage Occurred / Identified

Groundwater monitoring and discharge monitoring reports have shown high concentrations of numerous pollutants discharging from this site consistently for many years. PADEP forced RRI’s predecessor in interest to close the No. 1 Ash Disposal site through a 1982 Consent Order and Agreement to stop the leaching of inorganic constituents from the ash into groundwater that had been occurring be fore that date. Recent groundwater monitoring data indicate that gross exceedances of primary and secondary MCLs and higher concentrations of ash constituents at downgradient than upgradient monitoring points continue to occur.

DEP Response655

This statemen t is misleading and incorrect. The only exceedances in the groundwater from around closed Ash Site No. 1 have been secondary, non

- health based parameters. All references in the EIP report to exceedances to primary MCL’s relate to the removed and reclaimed coal refuse area where groundwater exhibited these characteristics because of the coal refuse which is in the process of being remediated.

13. Damage Case Claim

- Page 73

RRI has discharged pollutants in excess of permit limits for iron, manganese, alumi num, and pH from Outfall 012, on a monthly basis for the past five years. A surface water monitoring point downstream of the site has recorded at least 27 exceedances of Pennsylvania’s Water Quality Criteria for Fish and Aquatic Life in the last five years for aluminum, nickel, and zinc. In addition, this downstream point regularly recorded higher concentrations of sulfate, total dissolved solids and many other pollutants than concentrations of these pollutants recorded upstream of the site in this period.

DEP Response

These statements are misleading. All references to outfalls and surface water data correspond to monitoring around the removed and reclaimed coal refuse piles and not the closed Ash Disposal

Sites No. 1 and No. 2.

14. Damage Case Claim

- Pa ge 73

Regulatory Actions

In 1982, the Pennsylvania Department of Environmental Protection (PADEP) entered into a Consent Order and Agreement with RRI (then Penelec) in which RRI was ordered to close the Seward No. 1 Ash Site, cease ash disposal at Seward , and pay a $308,000 fine for violations of the Solid Waste Management Act .

DEP Response

This statement is correct.

15. Damage Case Claim

- Page 74

The No. 1 Ash Disposal Site was “remediated” by placement of a cap of three feet of flowable

fill in ac cordance with a 2000 Consent Order and Agreement (COA) with PADEP. RRI filed its Notice of Intent to Remediate the site on November 2, 2001 pursuant to the COA. Along with the remediation, a Deed Restriction was placed on this property prohibiting any pers on from using any groundwater from the site for “human consumption, irrigation, or other purposes that might cause humans to ingest or be exposed to such groundwater.

DEP Response656

EIP’s description of the closure of Ash Disposal Site No. 1 is correct.

1 6. Damage Case Claim

- Page 74

In addition, RRI has been subject to several COAs to cease discharging pollutants from Outfall 012 although these actions have not proven successful because the discharges have not been

addressed.

DEP Response

This stateme nt is misleading. All references to outfalls and surface water data correspond to monitoring around the removed and reclaimed coal refuse piles and not the closed Ash Disposal

Sites No. 1 and No. 2.

17. Damage Case Claim

– Page 74

Wastes Present

Coal co mbustion waste including more recently (after 2004), CCW from fluidized bed

combustion of waste coal which is co

- disposed with coal refuse.

DEP Response

This statement is misleading. Coal combustion waste is not being co

- disposed with coal refuse.

Alkali ne ash from the onsite Co

- Gen facility has been used to help to neutralize the effect of the acidic refuse disposed of onsite years ago. The ‘old’ coal refuse piles have been removed. There has been no traditional disposal of fly ash at Seward since Ash Si tes No. 1 and No. 2 were

closed.

18. Damage Case Claim

– Page 74

Type(s) of Waste Management Unit

Coal ash has been disposed of on

- site since 1954, but the predecessors of RRI never secured a permit for this earlier disposal of ash.

DEP Response

This statement is misleading. In 1954 formal permits for disposal of ash were not required, prior to the Solid Waste Management Act.

19. Damage Case Claim

– Page 74

The ash has not been contained in either landfills or surface impoundments.

DEP Response657

Thi s statement is vague, misleading and incorrect. The ash disposed and contained in closed Ash Disposal Sites No. 1 and Site No. 2 has not been “moved” since it was deposited. Ash is not and has never been deposited in a surface impoundment. Closed Ash Dispo sal Sites No. 1 and Site No. 2 have been capped and closed with a groundwater monitoring system.

20. Damage Case Claim

– Page 74

There are two unlined “closed” former ash disposal sites, as well as the co

- disposed coal ash and coal refuse site, atop of w hich the “repowered” Seward Generating Station, an FBC plant which also burns waste coal instead of traditional pulverized coal, was rebuilt in 2004.

DEP Response

This statement is misleading. The “repowered” Seward Generating Station was built on coal

r efuse and beneficially used ash. Closed Ash Sites No. 1, No. 2, and the coal refuse site, which has been remediated, are located on different areas of the facility.

21. Damage Case Claim

There is no evidence of liners beneath any of these ash disposal pi ts.

DEP Response

This statement is incorrect. The ash produced at the previous Seward Generating Station was not deposited in pits. Both Ash Sites No. 1 and No. 2 were constructed with acompacted soil/clay

base.

22. Damage Case Claim

- Page 74

Active o r Inactive Waste Management Unit

Inactive

DEP Response

This statement is correct.

23. Damage Case Claim

- Page 74

Hydrogeologic Conditions

Description as of 1999 (before construction of the Seward Power Plant and its start

- up in 2004):

Over most of t he site where the water table is 4 to 10 feet below the natural ground, the water table is within the silt loam. Closer to the river the depth to the water table below the co

- disposed coal ash and coal refuse pile, is at 6 to 19 feet, which is typically in the sandy loam beneath the658

silt loam.

DEP Response

This statement is generally correct.

24. Damage Case Claim

- Page 74

At some of these wells the water table is in the gravelly, sandy loam beneath the sandy loam. The

saturated thickness of the alluvi al aquifer is approximately 12 feet near the River and up To 20 feet near the railroad tracks at the upgradient, west side of the site. The water table gradient averages 2 percent with groundwater flow generally perpendicular to the river several reports

c onfirm that groundwater at the site discharges directly to the Conemaugh River.

DEP Response

The wells referred to in these statements were installed as part of the remediation of the coal refuse piles on site. There are separate groundwater monitoring wells related to closed Ash Sites

No. 1 and No. 2.

25. Damage Case Claim

- Page 74

Probable Cause(s)

Pollutants from the No. 1 ash disposal site have leached into groundwater.

DEP Response

The only elevated constituents identified in the wells around Ash Site No.1 have been secondary

non

- health related such as iron and manganese. No primary constituents have been detected.

26. Damage Case Claim

- Page 74

As recently as 2006, the remedial investigation report found that, in some areas on

- site, “the

up per portion of the water table is within ash.” In addition, leachate from the co

- disposed coal ash and coal refuse site beneath the current plant is being discharged to surface water through the plant’s Outfall 012 as well as leaching into the groundwater. This contamination then discharges directly to the Conemaugh River, which is classified as a Warm Water Fishery that is impaired

for metals.

DEP Response

This statement is misleading. The contamination and leachate migrating into the groundwater

and sur face water is from the old coal refuse and not disposal of fly ash in closed Ash Sites No. 1 and No. 2 at the facility.659

27. Damage Case Claim

- Page 74

Additional Narrative

Hydrogeology reports prepared for RRI in 1999, 2001, and 2005 all confirm that l eachate from the refuse pile has polluted groundwater and surface waters, namely the Conemaugh River, with pollutants including pH, iron, aluminum, manganese, and sulfate. Specifically, a 1999 hydrogeological report states that groundwater “in the aquifer beneath the ash pile show[s] very high acidities and dissolved solids” and “discharges into the Conemaugh River and is responsible for reduced water quality in the river.”

DEP Response

These statements are correct. All the contamination of groundwater an d surface water by primary constituents (arsenic, cadmium, etc.) identified at the power station is from past coal refuse disposal and not fly ash in closed Ash Sites No. 1 and No. 2.

28. Damage Case Claim

– Page 75

Aluminum, antimony, arsenic, cadmium, chloride, chromium, iron, lead, manganese, nickel, selenium, sulfate, total dissolved solids, turbidity and zinc were all present above Pennsylvania/federal primary MCLs (or, for nickel, above the Superfund RAL) in downgradient groundwater wells in 2008 or 2009 and higher in downgradient than upgradient wells. Sodium, calcium, barium, boron, fluoride, and magnesium were also detected in higher concentrations in downgradient monitoring wells than upgradient monitoring wells.

DEP Response

All of the groundw ater data referenced in this section relates to the wells that were installed around the coal refuse piles to monitor remedial progress and do not monitor closed Ash Sites

No. 1 and No. 2.

29. Damage Case Claim

Many of these constituents have also been r egularly detected at higher concentrations at a river monitoring site downstream of the site (CR

- 2) than at one identified as upstream (CR

- 1).

DEP Response

All of the surface water data referenced in this report relates to the up and down gradient

condi tion in the stream adjacent to the remediated coal refuse piles and not closed Ash Sites No.

1 and No. 2.

IV. Fern Valley Disposal Site, Allegheny County660

1. Damage Case Claim

- Page 76

The Fern Valley CCW Landfill, on the west side of the Monongahela R iver across from Elizabeth PA, received coal ash from the Elrama Power Plant from 1989 to 2003. Arsenic levels 2.8 times higher than primary MCL (0.010 mg/L) were first noted in groundwater monitoring in 1995, and peaked in 2001 when the arsenic concentrat ion was 36 times the primary MCL in one downgradient well and 29 times the primary MCL in another. Concentrations of boron, chloride, sulfate and total dissolved solids (TDS) in monitoring wells regularly exceeded health

- based levels or secondary MCLs.

DE P Response

This statement is vague and misleading. The EIP Report does not identify the monitoring wells or specify the monitoring events to which this statement refers. DEP notes that the Fern Valley Disposal Site was constructed downgradient of an aband oned surface coal mine and adjacent to an old, unlined municipal waste landfill (Clairton Landfill). In 1995 a groundwater assessment was conducted and DEP concluded that activities conducted in the past at both the Clairton

Landfill and the abandoned mine have had a negative impact on groundwater and surface water upgradient and sidegradient of the facility as evidenced by background groundwater monitoring.

2. Damage Case Claim

- Page 76

Leachate from the CCW landfill has degraded surface quality with hi gh levels of arsenic, boron, chloride, sulfate and TDS compared to upstream surface waters.

DEP Response

There is no analytical data presented to substantiate this statement. The leachate being treated is discharged under an NPDES permit. The effluent li mits established in the NPDES Permit account for the fact that the receiving stream into which the treated leachate flows discharges to the Monongahela River. The facility’s discharge is in compliance with its NPDES permit.

3. Damage Case Claim

- Page 76

In 2001 and 2002, selenium levels downstream of the landfill were six to ten times the Pennsylvania surface water quality standard for the protection of aquatic life.

DEP Response

Water quality monitoring data submitted to DEP for this site indicates th at selenium was present at monitoring point SW

- 2; the downgradient surface water monitoring point for the site. The level in 2001 was 23 μg/L (Total) and 11 μg/L (Total) in 2002. The EPA Primary Drinking Water Standard for selenium is 50 μg/L.

4. Damage C ase Claim

- Page 76661

While concentrations of arsenic have not exceeded water quality standards for aquatic organisms, they have been several times higher than the primary MCL in several measurements, and sulfate and TDS concentrations have commonly exceede d secondary MCLs by two or three

times downstream of the landfill. These concentrations have been measured 200 feet downstream of the primary NPDES discharge point for the landfill before flowing into a culvert that drains directly into the Monongahela Riv er.

DEP Response

There is no supporting documentation presented with respect to this claim. The report does not provide specific analytical data for the arsenic, sulfate, and TD Sclaimed to have been collected downstream of the primary NPDES point. In ad dition, the effluent limits established in the NPDES Permit account for the fact that the stream flows into the Monongahela River. The discharge is in compliance with its NPDES permit.

5. Damage Case Claim

- Page 76

The NPDES permit for the landfill has never included limits for arsenic, selenium, or other toxic pollutants that were known to be in surface water and groundwater discharges from the landfill.

DEP Response

This statement is correct albeit misleading. The NPDES permit for the site requires t hat the discharges be monitored for flow, suspended solids, oil and grease, aluminum, iron, and pH. During the repermitting process for this facility relative to the 1992 Residual Waste Regulations, an extensive benthic invertebrate survey was conducted on the stream adjacent to the site. That survey established that the surface mining upgradient and the Clairton Landfill sidegradient of the site has had an impact on the benthic quality. The NPDES effluent limits and parameters

were established based on the fact that the receiving stream discharges into the Monongahela

River.

6. Damage Case Claim

- Page 76

Determination

Demonstrated damage to groundwater and surface water moving off

- site.

DEP Response

This statement is unsubstantiated. The data has not been presented in the report to validate this

claim.

7. Damage Case Claim

- Page 76

Test of Proof662

Arsenic has been a troublesome contaminant in the groundwater at the landfill as have boron, sulfate, chloride, and TDS. (Data from GAI, 2002 and GAI 2002

- 2007)

? Total arsenic was identified in downgradient MW

- 20 in June 1995 at 0.028 mg/L, 2.8 times the primary MCL.

DEP Response

This statement is misleading. The MCL for arsenic in 1995 was 50 μg/L, 1.8 times higher than the reported concentration. Spora dic low levels of arsenic have been identified in upgradient wells and it has been documented to have come from acid mine drainage upgradient of the landfill. In addition, with over 10 years of groundwater data collected, this is the only data point

presen ted with an elevated level of arsenic for MW

- 20. No statistical analysis or trends have

been demonstrated.

8. Damage Case Claim

– Page 76

• Between 1995 and 2002 detects of total arsenic were sporadic in various monitoring points (or wells) with a peak i n March 2001 when concentrations in four downgradient wells ranged from 0.121 to 0.636 mg/L, twelve to thirty

- six times the primary MCL.

DEP Response

This claim is misleading and unsubstantiated. Acid mine drainage has affected the groundwater upgradient of the facility which contributes to arsenic detection in the groundwater. In regards to this damage case claim, the specific wells and sample dates have not been referenced. Water quality monitoring data submitted to DEP for this site confirms that the a rsenic hits have been sporadic and that no trends have been established.

9. Damage Case Claim

– Page 76

• Total arsenic concentrations at MW

- 12, a purported upgradient well, between 1997 to 2006 either exceeded the primary MCL (0.015 to 0.24 mg/L) or wer e below the detection limit that was above the primary MCL.

DEP Response

DEP does not accept this statement as supporting EIP’s contention that arsenic present in the groundwater is attributable to the Fern Valley Disposal Site. The EIP Report does not p resent a data tabulation of the monitoring events to which this statement refers. DEP notes that the Fern Valley Disposal Site was constructed downgradient of an abandoned surface coal mine and adjacent to the old, unlined Clairton Landfill. As explained i n the response to Damage Case Claim No. 12 below, monitoring well MW

- 12 is upgradient to the disposal area. EIP’s assertion that the MCL exceedances are proof that the facility has impacted groundwater quality is invalid.

10. Damage Case Claim

– Page 76663

• From 1997 to 2006 boron in MW

- 12 regularly exceeded 1 mg/L. Throughout this period, 1 mg/L was equal to EPA’s health advisories for boron. Although EPA relaxed those advisories to 3 mg/L in 2009, 1 mg/L is at or above health based standards for boron in drinking water used by other regulatory agencies such as the European Union (1.0 mg/L), World Health Organization (0.5 mg/L) and Minnesota Department of Health (1.0 mg/L). During the same time period concentrations of chloride, sulfate and TDS also regula rly exceeded the secondary MCL in this

well.

DEP Response

This statement is misleading. Monitoring well MW

- 12 is an upgradient well and has been affected by acid mine drainage. As stated by the EIP, the measured levels of upgradient boron

are less than t he current EPA’s advisory level of 3 mg/L. It should be noted that EPA health

advisories are non

- enforceable, guidance

- based concentrations based on non

- cancer health effects for different exposures in drinking water sources. The drinking water standards

e stablished by the World Health Organization and the Minnesota Department of Health are irrelevant to this discussion as this facility is not required to address those limits. Chloride, sulfate and TDS are secondary drinking water parameters which address a esthetic issues and are

not health based.

11. Damage Case Claim

– Page 77

? From March 2006 to September 2007 chloride, sulfate and TDS concentrations in downgradient MW21 (near the NPDES discharge point) increased dramatically. Chloride

increased from a round 20 mg/l (levels measured since 1996) to 396 mg/l, well above the secondary DWS of 250 mg/l. Sulfate increased fivefold to 1010 mg/l, four times the secondary

DWS. TDS increased four

- fold to 2440 mg/, almost five time the secondary DWS. These values

o f chloride, sulfate and TDS are among the highest values measured at any monitoring well since

1996.

DEP Response

DEP does not accept that the assertion made in this claim represents a valid proof of groundwater impacts attributable to the Fern Valley Di sposal Site. DEP does not dispute that the data reported for the selected parameters between the selected dates show an apparent upward trend, but maintains that the limited data set on which EIP’s claim is based does not accurately reflect the

overall tre nd in the data for these parameters. As evident from the graphical representation below of groundwater monitoring data submitted to DEP over a longer time frame (1st Quarter 2004 to 2nd Quarter 2011), there is no discernible trend in the data collected fro m Monitoring Well MW

21. Furthermore, the effect of offsite sources of these parameters precludes a definitive statement as to the extent of the disposal site’s contribution to any individual data point.

[See original comment for chart, Monitoring Well MW

- 21.]

DEP reiterates that the elevated parameters identified are non

- health related secondary664

contaminants for which the corresponding standard was adopted for aesthetic reasons.

12. Damage Case Claim

– Page 77

Interpretation of groundwater monitoring data at the site is hampered by apparent mischaracterization of several monitoring wells as “upgradient” when a closer examination of the hydrogeology of the site indicates that they are probably receiving groundwater inflow from

the CCW landfill. For exam ple, “upgradient” MW

- 12 is located on the ridge between Fern Valley and the Monongahela River. This well is installed at a surface elevation of about 980 feet, 300 feet south of the lower constructed wetland, on the side of a sub

- drainage into Fern Valley. It is completed at a depth whose elevation is between 838 feet and 853 feet, about 50 feet below the elevation of the original Fern Valley stream level. In other words, ash has been placed at elevations starting at least 50 feet above the level of the wel l screen. Water elevations in this well average 919 feet, about even with the elevation of the original Fern Valley stream level and

below the level of the ashfill. MW

- 12 is completed in the Morgantown Sandstone at structural

elevations below the nearest d rainage in Fern Valley and above the Monongahela. The Morgantown Sandstone outcrops in the floor of Fern Valley and on the side of the ridge above the Monongahela River. Structural dip of the unit is toward the river. (Norris, 2002). The

information on ele vations and the likely mounding effect of groundwater moving outward from the landfill clearly do not support the identification of MW

- 12s an upgradient well, nor has the data gathered from this well which suggests it is picking up contaminants draining fr om the

landfill.

A review of the Fern Valley Disposal Site maps (DPL, 1996) and the recent satellite photographs of the final fill area, reinforces the concern that none of the designated “upgradient” monitoring wells (MW12, MW15 and MW5A) can be reliably considered upgradient. The closeness of these wells to the margins of the ash disposal area and the elevations of groundwater in the wells below the level of the filling created the potential for groundwater flow through the fill to the

wells from the inc eption of filling.

DEP Response

DEP evaluated the existing groundwater monitoring system at the Fern Valley Disposal Site during the First Quarter of 2010 and concluded that wells MW

- 12, MW

- 15 and MW

- 5A are positioned upgradient of the disposal area. The following describes that analysis:

1.

• The water level in upgradient well MW

- 15 went down about 115 feet between September 1993 and October 1995 and then started back up and, as of the March 2010 reading, has risen about 66

feet to an elevation of abo ut 955 feet;

• The water level in upgradient well MW

- 5A has not changed more than a foot or so since the first reading in September 1993. The March 2010 reading was at an elevation of about 857 feet.

• The water level in downgradient wells MW

- 6 and MW

- 7 varied on the order of 10 feet or so665

between September 1993 and April 1997, but since that time the water levels have varied by no

more than a few feet. In March 2010 the water levels were at about elevations 745 feet and 734 feet respectively.

• The wate r levels in downgradient wells MW

- 20 and MW

- 21 have only varied a few feet since the first reading in June 1995 and as of March 2010 were at about elevations 751 feet and 754 feet respectively.

In comparing the water elevations in the seven wells, the upg radient wells have higher water level elevations that the downgradient wells. The difference in elevation between the upgradient wells and the downgradient wells is about 100 feet for MW

- 12 and MW

- 5A and about 200 feet for MW 15. This data supports the con clusion that the upgradient wells are in fact in upgradient positions.

Upgradient Wells 1st Quarter 2010 Static Water Elevations

MW

- 5A

- 857’

MW

- 15

– 955’

MW

- 12

– 856’

Downgradient Wells 1st Quarter 2010 Static Water Elevations

MW

- 6

– 745’

MW

- 7

– 73 4’

MW

- 20

– 751’

MW

- 21

– 754’

2. There is a statement in the text regarding “...the likely mounding effect of groundwater moving outward from the landfill...”. The landfill was built with a low permeability layer overlying the rock rubble in the lower portio n of the valley to cap the very permeable material. A bottom ash blanket drain was installed on top of the low permeability layer and original ground. This drain would direct any water in it downslope and to the mouth of the valley to be discharged

and wou ld prevent mounding of groundwater in the valley. The drain would tend to maintain groundwater flow that is similar to the flow regime that existed before the landfill was built. Therefore, due to engineered and constructed drainage features there should n ot be groundwater mounding underneath the landfill site.

3. The topographic position of the monitoring wells is either inside the valley, on the valley walls (MW

- 12 and MW

- 5A) or on the ridge surrounding the valley (MW

- 15). It would be expected that groun dwater flow would mimic the original topography of the valley so that the highest groundwater levels should be found beneath the ridge surrounding the site. The groundwater666

levels should be less on the hillsides head of the valley and be lower going down v alley to the mouth. This would result in groundwater flow from the ridges to the valley bottom and then down valley to the mouth. Therefore, based on the original topography of the valley, the upgradient wells are in upgradient positions and the downgradie nt wells are in downgradient positions.

Based upon the above, it is apparent that the monitoring wells designated as upgradient wells at the Fern Valley Disposal Site are, in fact, upgradient of the site.

13. Damage Case Claim

– Page 77

An analysis of l eachate data from the site as of 2002 concluded the following (Norris, 2002):

• Leachate that develops in the field and is collected in the underdrain system of the site routinely or episodically exceed use or health

- based standards such as primary and se condary MCLs or health advisories for some constituents. These include pH, total dissolved solids, sulfate, chloride, iron, manganese, arsenic, boron, and selenium. Others that were untested, or tested at inappropriate detection limits (e.g., Pb), may also be present above such standards. Field leachate concentrations frequently exceed, sometimes many

- fold, the lab

- test leachate concentrations.

DEP Response

This statement is not substantiated. No specific analytical leachate data or monitoring time

frames , (quarters or years) are provided to support this claim. Furthermore, an impact attributable to the Fern Valley Disposal Site cannot be inferred on the basis of leachate quality. The facility’s leachate is collected and managed in compliance with the site ’s NPDES permit, the parameters and limitations of which were established based on discharge to the Monongahela River.

14. Damage Case Claim

– Page 77

? The discharge of leachate from the Fern Valley CCW landfill were allowed by the NPDES permit without chemical treatment (except for pH) and without monitoring or discharge limits for any chemical constituents except pH, aluminum, iron, oil and grease. The pH of the discharge would routinely exceed standards if not continuously treated and does so when tre atment systems have failed.”

DEP Response

No specific analytical leachate data or monitoring time frames (quarters or years) are provided to support this claim. The facility’s leachate is collected and managed in compliance with the site’s NPDES permit, the parameters and limitations of which were established based on discharge to the Monongahela River.

15. Damage Case Claim

– Page 77

The discharges from the CCW disposal site that are anticipated or already observed by the667

operator exceed, or may exceed , use

- based or health

- based standards such as primary and secondary MCLs or health advisories for some constituents. These include, at least, total dissolved solids, sulfate, iron, aluminum, arsenic, lead, boron, and selenium.

DEP Response

DEP deems this claim to be speculative and without merit. No specific analytical leachate data or monitoring time frames (quarters or years) are provided to support this claim. The facility’s leachate is collected and managed in compliance with the site’s NPDES permit, the parameters and limitations of which were established based on discharge to the Monongahela River.

16. Damage Case Claim

– Pages 77 and 78

Surface water quality (SW

- 2) has significantly degraded downstream from the CCW landfill compared to upstream wa ter quality (SW

- 1). SW

- 2 is located well beyond the waste boundary of the landfill on a tributary 200 feet downstream of NPDES Outfall 001, the principal spillway for the leachate pond. This sampling location is also right before the tributary enters a cul vert that empties into the Monongahela River. From around 1997 to 2006 chloride, sulfate and TDS levels generally ranged two to five times higher at SW

- 2 than at upstream sampling locations (SW

- 1

and SW

- 3), and sulfate and TDS concentrations at SW

- 2 common ly exceeded the secondary MCL by two or three times.

DEP Response

DEP does not agree that the basis for this claim is attributable to the Fern Valley Disposal Site. Data submitted to DEP indicates that chloride, sulfate and TDS levels in the downstream s urface water monitoring point (SW

- 2) between 1997 and 2006 fluctuates above and below the secondary MCLs. As previously noted and documented, the upstream surface water has been affected by past strip mining of coal and an old unlined municipal waste dispo sal facility adjacent to the site. The untreated leachate from the tow of municipal waste landfill flows directly into the stream, which flows adjacent to the Fern Valley Disposal Site.

17. Damage Case Claim

– Page 78

Arsenic concentrations were measured in three samples at SW

- 2 in 2001 and 2002 at levels from 2 to 9 times the primary MCL.

DEP Response

DEP does not agree that the basis for this claim is attributable to the Fern Valley Disposal Site. As previously noted and documented, the upstream surfa ce water has been affected by past strip mining of coal and the old, unlined Clairton Landfill located adjacent to the site. The untreated leachate from the tow of Clairton Landfill flows directly into the stream which flows adjacent to the Fern Valley Dis posal Site.

18. Damage Case Claim

– Page 78668

Selenium was measured at SW

- 2 at 0.047 mg/L in March 2001 and 0.028 mg/L in February 2002, 10 times and 6 times higher respectively than the Pennsylvania water quality criteria for the protection of aquatic lif e from chronic toxicity effects of selenium (0.0046 mg/L). These concentrations were also many times over arsenic and selenium levels measured upstream of the

landfill which were below levels of detection.

DEP Response

Water quality monitoring data submi tted to DEP for this site indicates that selenium was present at monitoring point SW

- 2, the downgradient surface water monitoring point for the site. The level in 2001 was 23 μg/L (Total) and 11 μg/L (Total) in 2002. The EPA Primary Drinking

Water Standard for selenium is 50 μg/L. Characterization of these analystical results as ‘many times’ over the measured upstream levels is meaningless given the absence of upstream

detection.

19. Damage Case Claim

– Page 78

The degradation of surface water quality dow nstream from the CCW landfill has had an adverse impact on aquatic organisms. A benthic study commissioned by the operator in 1995 found that for two key environmental indexes, mean species diversity and equitability, the downstream location (SW 2) was deg raded relative to the upstream sampling location near SW

- 1 (Norris, 2002).

DEP Response

DEP does not agree that the basis for this claim is attributable to the Fern Valley Disposal Site. As previously noted and documented, the upstream surface water has been affected by past strip mining of coal and an old, unlined municipal waste disposal facility adjacent to the site discharges untreated leachate upstream of surface sampling point SW

- 2.

20. Damage Case Claim

– Page 78

Norris (2002) noted a number of serious deficiencies in the NPDES permit and monitoring system for discharge from the Fern Valley CCW landfill:

• More than 90 percent of the water discharging from this site does not pass through controlled or

monitored outlets.

• Neither the storm wate r system, nor the underdrain and runoff system for the CCW disposal area convey close to the amount of water they should.

• The storm drain system does not even convey to its mouth all of the water that enters it allowing water to infiltrate into the land fill and add to the leachate load.

• For water that does discharge from the controlled outlets, there are no discharge limits for669

arsenic, selenium, lead and other toxic pollutants known to be present at concentrations of concern, and there are many more toxic pollutants that may be present but have never been

monitored.

DEP Response

DEP disagrees with the statements made in this claim. The Fern Valley Disposal Site meets all applicable Environmental Regulations regarding erosion and sedimentation contro ls, leachate management and NPDES requirements.

21. Damage Case Claim

– Page 78

Incident and Date Damage Occurred/Identified

Higher arsenic, boron, chloride, sulfate, and TDS levels exceeding health and use

- based standards have been measured in downgrad ient groundwater and downstream of the landfill from

at least 1995 onward.

DEP Response

This statement is vague and misleading. The EIP Report does not identify the monitoring wells or specify the monitoring events to which this statement refers. DEP not es that the Fern Valley Disposal Site was constructed downgradient of an abandoned surface coal mine and adjacent to an old, unlined municipal waste landfill. In 1995 a groundwater assessment was conducted and

DEP concluded that activities conducted in the past at both the municipal waste landfill and the abandoned mine have had a negative impact on groundwater and surface water upgradient and sidegradient of the facility as evidenced by background groundwater monitoring.

Response: Thank you for the infor mation pertaining to the Mitchell Power Station, the Phillips Power Station/Landfill, the Seward Generating Station, and to the Fern Valley Disposal s ites in Pennsylvania. EPA has assessed all the newly alleged damage cases submitted in the August

2010 In Harm’s Way report . Based on the assessment of the se four Pennsylvania sites against

EPA’s test of proof criteria, the Agency designated the Mitchell Power Station, the Phillips Power Station/Landfill, and the Seward Generating Station sites as potential damage cases . EPA

also designated the Fern Valley Disposal Site as a proven damage case. For a summary of stakeholder arguments addressing these four sites and the rationale for the Agency’s damage case designation decision s , see the technical support docu ments on damage cases in the docket of

the final rule.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0201

- 13 

### Organization 1 

### : Commonwealth of Pennsylvania, Department of Environmental Protection (DEP)


### Commenter 1 : Michael Krancer Commenter Type: State Government
Classification: Substantive670



### Comment Excerpt Text: [ATTACHMENT: See Attachment A6 for original report with PADEP's Overview of Deficiencies and Errors Contained in Reports Issued by The Environmental Integrity Project Regarding Coal Combustion Waste Dispos al Impoundments in Pennsylvania Note: full text of report is provided below]

Overview of Deficiencies and Errors Contained in Reports Issued by The Environmental Integrity Project Regarding Coal Combustion Waste Disposal Impoundments in Pennsylvania

Penns ylvania Department of Environmental Protection Bureau of Waste Management

November 1, 2011

The Environmental Integrity Project (“EIP”) issued three reports which contain claims that certain coal combustion waste impoundments throughout the United States are causing groundwater and surface water contamination. The reports are entitled and dated:

“Out of Control: Mounting Damages from Coal Ash Waste Sites.” February 24, 2010.

“In Harm’s Way: Lack of Federal Coal Ash Regulations Endangers Americans and The ir Environment,” August 26, 2010.

“EPA’s Blind Spot: Hexavalent Chromium in Coal Ash.” February 1, 2011.

DEP’s Licensed Professional Geologists in the Southwest and Northeast Regional Offices have reviewed EIP’s claims concerning the Pennsylvania facilit ies, and have prepared detailed point

by

- point responses to EIP’s findings. This summary describes the errors in EIP’s reports in a more general format.

Several fundamental research flaws characterize EIP’s claims, which undermine the scientific validity of these reports. These recurring flaws are summarized immediately below, and are then illustrated with several examples drawn from EIP’s reports for the specific facilities.

1. Faulty assumptions and pre

- conceived conclusions show EIP’s bias. Scientist s use a common expression: "Garbage in, leads to garbage out," meaning that if a researcher begins with faulty assumptions or data, all results from the research will be just as faulty. Pre

- conceived assumptions underlying a researcher’s conclusions (e.g., that coal combustion waste results in groundwater contamination) will cause a researcher to rely upon weak data and ignore contrary

evidence.

- Yet, EIP often ignores sampling and other data which indicate that its assumptions and data are wrong. EIP ma kes misleading comparisons, referring to regulatory standards interchangeably and inaccurately, for example, by comparing impoundment discharge samples to drinking water

standards.671

2. EIP’s groundwater studies which ignore groundwater direction are poor s cience. A valid scientific study must consider the direction that groundwater is flowing in the subsurface. In this way, researchers can tell if a sample is showing contaminants originating from a site or moving

towards it from other locations. Contaminant s in groundwater moving towards an impoundment are either naturally occurring or from other sources.

- Yet, EIP's reports often simply assume that all sampling results must be caused by coal combustion waste, disregarding critical facts such as the direc tion of groundwater flow and aquifer characteristics. These assumptions show either bias or a disregard of scientific accuracy.

3. EIP’s data is often not credible because the results cannot be reproduced by other scientists. To be credible, scientific r esearch data must be "reproducible," that is, if one runs a test a second or third time, similar results will be obtained. This is a critical safeguard to ensure that a single test was not performed incorrectly, or skewed by outside influences.

- Yet, EI P often draws conclusions from a single sample, which in many cases was inconsistent with prior and later sampling. EIP's claims therefore lack credibility, because they cannot be confirmed or were actually refuted by other data.

4. EIP’s research is larg ely not transparent or verifiable. A critical element in valid scientific study is that the source of one's information be disclosed, so that others can verify the data's

accuracy.

- Yet, EIP’s reports often refer only vaguely to the sources of its data, without identifying the specific locations, dates or sampling source. EIP's conclusions are therefore not credible, because its claims are impossible to verify.

I. FAULTY ASSUMPTIONS AND PRE

- CONCEIVED CONCLUSIONS SHOW EIP’S BIAS.

Scientists use a comm on expression: "Garbage in, leads to garbage out," meaning that if a researcher begins with faulty assumptions or data, all results from the research will be just as faulty. Pre

- conceived assumptions underlying a researcher’s conclusions (e.g., that coal

c ombustion waste results in groundwater contamination) will cause a researcher to rely upon weak data and downplay or ignore contrary evidence.

- Yet, EIP often ignores sampling and other data which indicate that its assumptions and data are wrong. EIP mak es misleading comparisons, referring to regulatory standards interchangeably and inaccurately, for example, by comparing impoundment discharge samples to drinking water

standards.

Examples of these deficiencies include:

A. Bruce Mansfield Power Plant’s L ittle Blue Run Surface Impoundment

1. EIP's February 24, 2010 report, p. 162 ("For example") claims:672

Arsenic has been measured in at least two off

- site residential drinking wells above the MCL of 0.01 mg/L, including a reading of 0.0146 mg/L in one famil y's well in 2008, and a reading of 0.021 mg/L at another family's well.

In fact, although one sample collected from a private water supply well in late 2008 did contain arsenic at a concentration of 0.013 mg/L (not 0.0146 mg/L); the homeowner was aware th at his well water was muddy. Another sample from the water well early in 2009 and the analytical results concentrations of metals were much lower compared to the 2008 sample. Total arsenic was reported at 0.0025 mg/L and dissolved arsenic at <0.0025 mg/L

- well below the MCL. The DEP also collected a sample from this well two months later and confirmed these results. Both total and dissolved arsenic were less than <0.003 mg/L the detection limit. In addition, the

location and elevation of this water well cl early indicates the well is located up gradient (background) from the impoundment.

Further, while arsenic was reported at a concentration of 0.021 mg/L in a sample collected from a private water well in 1993, six later samples from this well were analyze d for arsenic. The greatest concentration found was 0.005 mg/L, and most of the samples were non

- detect. In addition, this well did not contain other concentrations of constituents that would suggest any impacts from the impoundment. Arsenic is found in so ils of Western Pennsylvania, its presence does not confirm impacts from the impoundment.

2. EIP's February 24, 2010 report, p. 166 ("On Site") claims:

On

- site surface water showed an exceedance of the CCC for selenium at SW

- 3 (a seep in Pennsylvania just below the earthen dam.

In fact, EIP misidentifies sampling point SW

- 3 as a seep below the dam. SW

- 3 is a sampling point at the stilling basin and is a permitted discharge from the impoundment. Comparing this sampling point to WQC is not appropriate.

3. EIP's February 24, 2010 report, p. 161, "Summary" claims: ‘

Discharges to groundwater and surface water from the 1,300

- acre 'Little Blue' surface impoundment have exceeded MCLs for arsenic and other parameters in multiple off

- site residential drinking we lls (prompting several property buyouts by FirstEnergy), exceeded Pennsylvania Water Quality Criteria (PA WQC), including the Criteria Continuous Concentration (CCC) and Criteria Maximum Concentration (CMC), in Mark's Run and other off

site surface water s ources, and pervasively exceeded federal Maximum Contaminant Levels (MCLs) at many on

- site groundwater monitoring wells.

In fact, there have been no confirmed concentrations in off

- site residential drinking water wells located near the impoundment in exce ss of an MCL. Second, EIP improperly concludes that any private water well sampled by FirstEnergy or the DEP is impacted by the impoundment. This conclusion ignores the facts that many of the wells are hydrogeologically separate from the impoundment and/or may be impacted by other sources, including naturally occurring sources such as coal seams and brines, and other man

- made sources such as past mining or oil and gas673

operations. Finally, surface water discharges are monitored and reported under the NPDES

p ermit program and the facility is in compliance with those permits.

4. EIP’s February 24, 2010 report, p. 163 claims:

Between 2008 and 2010, arsenic was found in two additional surface water points, including

exceedances at S

- 31 (a monitoring point in M ark's Run, in a residential neighborhood in West Virginia) and at SW

- 5 (a spring over 2,000 feet from Little Blue), with arsenic concentrations of 0.024 and 0.028 mg/L.

In fact, EIP misidentified sampling point SW

- 5 as a spring over 2,000 feet from the

im poundment. SW

- 5 is a sampling point for the wastewater collected directly from the disposal impoundment. Further, EIP fails to note that seep S

- 31 emanates from the Brush Creek coal, and arsenic is often found in coal seeps.

5. EIP's February 24, 2010 re port, p. 162 claims:

In on

- site groundwater that flows off

- site, arsenic exceeded the 0.010 mg/L at least 24 times in 14 wells in 2006, 2009, and 2010, including concentrations of 0.030, 0.033, and 0.036 mg/L in three different wells. Fluoride, lead, and turbidity MCLs were also exceeded, as well as SMCLs for several other pollutants. On

- site groundwater monitoring wells also had exceedances of SMCLs for chloride, iron, manganese sulfate, and turbidity.

In fact, FirstEnergy began regularly analyzing wate r samples for arsenic in 2006. Although arsenic was found in some samples, many of these detections were not replicated in subsequent samples from the same wells.

FirstEnergy has implemented studies to determine the reason(s) for the elevated arsenic in Well 16A and, if necessary, determine what steps may be taken to address it. Monitoring wells immediately downgradient of MW

- 16A do not contain arsenic above the MCLs. Therefore, groundwater leaving the Little Blue Run Impoundment downgradient of the dam d oes not exceed

MCLs.

The other parameters that EIP indicates exceed MCLs and SMCLs occur naturally in the environment. EIP made no attempt to assess if a monitoring well contains water representative of background water quality, shows brine impacts from h istoric oil and gas exploration and production in the area, or contains concentrations of parameters associated with coal seams.

6. EIP's February 24, 2010 report, p. 166 claims:

In addition, a monitoring well that appears to be monitoring surface water of the impoundment itself (SW

- 7) measured exceedances of the PA CCC for arsenic (0.010 mg/L) twice in 2009

- 2010, with readings of 0.023 and 0.025 mg/L, and it also measured at least six exceedances of the boron PA CCC (1.6 mg/L), with a high reading of 15 .7 mg/L

In fact, EIP is comparing concentrations measured from SW

- 7 which is sampled from within the674

disposal impoundment (prior to discharge) to Fish and Aquatic Life Criteria.

7. EIP's February 24, 2010 report, p. 162, claims:

MCLs were also exceede d in off

- site groundwater wells for cadmium, barium, fluoride, lead, and turbidity.

In fact, no samples have found any private drinking water wells to contain constituents that exceed primary MCL's. Only a tiny percent of groundwater monitoring well samp les have shown elevated cadmium, barium, fluoride or lead, and evidence indicates these are likely background conditions, and not the result of the impoundment. Turbidity is a function of mud and sediment

in a well.

B. Allegheny Energy

– Mitchell Power S tation

1. EIP's February 24, 2010 report claims:

In 1997, Allegheny Power initiated preliminary groundwater investigations in the vicinity of the two CCW lagoons.... However, the initial groundwater investigation found that groundwater was being degraded by the impoundments.

In fact, the groundwater investigation demonstrated that groundwater at the station had been affected by deep mining of the Pittsburgh Coal Seam upgradient of the site, and not by the impoundments. Some parameters were elevated due to acid mine drainage from past mining of

the coal seam.

2. EIP's February 24, 2010 report claims:

Boron was detected at 1.9 mg/l and 3.7 mg/l at the two downgradient wells of Lagoon No. 2.

In fact, while data presented to the Department shows that there have been rare detections of boron, these levels have been attributable to the past deep mining of the Pittsburgh Coal Seam upgradient of the site.

3. EIP's February 24, 1010 report claims:

As a result of Allegheny Energy's evidence of groundwater degr adation by the lagoons, a groundwater monitoring plan was implemented with an upgradient well two downgradient wells for each lagoon.

In fact, the groundwater monitoring plan was implemented for all similar facilities as required by the Residual Waste Reg ulations, and not "as a result of Allegheny Energy's evidence."

4. EIP's February 24, 2010 report claims:

Analyses of quarterly monitoring data for samples collected from the two monitoring wells675

downgradient of Ash Lagoon No. 2 in 2007 (GW

- 4 and GW

- 5) found the following:

• Boron levels were more than twice the EPA's Child Health Advisory of 3.0 mg/l and much higher than boron levels in upgradient wells or at surface monitoring points.

• Arsenic concentrations have been 1 to 2 times the primary MCL o f 0.010 mg/l at downgradient wells and exceeded the highest concentrations for arsenic in upgradient points.

• Levels of nickel, molybdenum, and manganese have also been noticeably higher at downgradient than upgradient points.

In fact, nothing in the r eport substantiates EIP's claims. Monitoring has been ongoing for more than 10 years and no upward trends have been established. Moreover, arsenic was detected in the upgradient (background) wells, showing that the origin is from past mining of the Pittsbu rgh

Coal Seam.

5. EIP's February 24, 2010 report claims:

Allegheny Energy does not monitor groundwater around the ash landfill that lies west of Mitchell Power Plant. Review of a topographic map of the landfill shows that surface drainage

from the landf

ill flows towards Lagoon No. 1, and the position of the landfill with respect to Lagoon No. 2 creates the possibility that the upgradient monitoring wells from both lagoons could be affected by groundwater flowing from the ash fill.

In fact, Allegheny Ene rgy does have an approved groundwater monitoring system around the FGD disposal facility referenced above. Groundwater has been monitored for over 10 years. The Report makes an assumption regarding groundwater flow that is based on a topographic map and

no t a groundwater flow map which is based on subsurface data. Topographically, surface water from around the landfill flows in a general direction towards the power station but is diverted around it by surface water controls.

C. RRI Energy

– Seward Generati ng Station

1. EIP's February 24, 2010 report (Summary) claims:

The Seward Generating Station's unlined coal ash and coal refuse pit, as well as its Closed Ash Sites No. 1 and No. 2, have leached and continue to leach many pollutants into the underlying aquifer at levels that far exceed both Pennsylvania and federal primary MCLs, and upgradient

concentrations.

In fact, the original Seward Power Station has been demolished and a new Co

- Gen plant built on site. No new fly ash is being disposed at the Sewar d Generating Station. As part of the permitting process for the Co

- Gen plant, RRI entered into a Consent Order and Agreement (CO&A) in 2000 to remediate several old coal refuse piles on site which were discharging acid mine drainage into the groundwater an d adjacent river.676

All of the groundwater data referenced in the EIP report for this facility is from the monitoring wells around former coal refuse piles and not from any fly ash disposal sites. The only elevated parameters detected in the groundwater wel ls around the permitted flyash sites No. 1 and No. 2 has been secondary and non

- health related (relating to the taste, odor or appearance of the water).

2. EIP's February 24, 2010 report claims:

Groundwater levels of antimony consistently exceeded the p rimary MCL of 0.006 mg/L, including a concentration of 0.1 mg/L (nearly 17 times the standard) at monitoring well MW

- 7 in the third quarter of 2008. Cadmium exceeded the primary MCL of 0.005 mg/L at 4 different monitoring wells, MW

- 5R, MW

- 6R, MW

- 7, and MW

- 8R, including a MW

- 7R reading of 0.041, over eight times the standard, in the second quarter of 2009.

In fact, the groundwater data referenced in this statement is related to the past coal refuse disposal and not fly ash.

3. EIP's February 24, 2010 repo rt claims:

In addition, 13 of 16 quarters for which we have downstream surface water data from 2005 to 2009 contained at least one exceedance of Pennsylvania’s Water Quality Criteria for Fish and Aquatic Life. There were 27 exceedances for aluminum, nick el, and zinc, including an aluminum exceedance of 5.3 mg/L (compared to a Criteria Maximum Concentration of .075 mg/L) and a nickel concentration of 30 Ug/L (compared to a Criteria Continuous Concentration of 4.05 Ug/L).

In fact, all of the references in this statement to impacted surface water quality data are related to the past coal refuse disposal and not to any fly ash disposal. As part of the remediation of the coal refuse piles, the company was required to establish up gradient and down gradient sur face monitoring points on the adjacent stream. The upgradient (background) data collected prior to the removal of the coal refuse indicated that coal refuse piles were impacting the stream.

4. EIP's February 24, 2010 report claims: Demonstrated off

- site damage to surface water.

In fact, the groundwater investigation indicates that it is not fly ash which has impacted the adjacent stream, but the coal refuse pile currently under remediation.

5. EIP's February 24, 2010 report claims:

In addition, groun dwater monitoring results continue to exceed Primary and Secondary Drinking Water Standards (MCL). These exceedances have been consistently documented since at least

2004.

In fact, all of the groundwater data referenced in the section relates to coal ref use piles that were disposed on site decades ago and do not correlate to flyash disposal. Remediation of these coal refuse piles has occurred to reduce and cease contamination, and data shows that contaminant levels are decreasing.677

6. EIP's February 24, 2 010 report claims:

Surface water monitoring downstream of the ash sites contained 27 exceedances of Pennsylvania's Water Quality Criteria for Fish and Aquatic Life, with one or more exceedances occurring in 13 of the 16 quarters in downstream surface wat er data from 2005 to 2009.

In fact, all of the surface data referenced in this section relates to the refuse piles that are undergoing remediation, not fly ash.

7. EIP's February 24, 2010 report claims:

Coal combustion waste including more recently ( after 2004), CCW from fluidized bed

combustion of waste coal which is co

- disposed with coal refuse.

In fact, alkaline ash has been used to help to neutralize the effect of the acidic refuse disposed of on site years ago. There has been no traditional disp osal of fly ash at Seward since Ash Sites No.

1 and No. 2 were closed.

D. Allegheny Energy

– Hatfield’s Ferry Power Station

1. EIP’s August 26, 2010 report, p. 174 claims:

An unlined CCW landfill located off

- property from the Hatfield’s Ferry Power Sta tion has contaminated groundwater, polluted surface water, and damaged aquatic ecosystems since at

least 2001.

In fact, a comprehensive groundwater and surface water assessment and investigation at the disposal site concluded that the past unreclaimed sur face mining and the resultant acid mine drainage (and not ash disposal) within the watershed of the landfill had negatively impacted the aquifers beneath the landfill. The EIP report has not presented any supporting data that coal

combustion waste has cont aminated groundwater, surface water, or damaged aquatic life.

2. EIP's August 26, 2010 report, p. 175 claims:

In addition, a stream habitat and macroinvertebrate survey of four streams emanating from the landfill property shows that two streams closest to the CCW landfill are impaired by CCW

leachate from the landfill.

In fact, the low benthic counts were a result of the stream size, bank erosion, and habitat

disturbance and not activities related to the landfill.

3. EIP's August 26, 2010 report, p. 17 9 claims:

Samples collected from well MW

- 213A, downgradient of coal ash in the Hartley Mine and more than a thousand yards south of Phases 1 and 2 of the landfill and from MW

- 217A, and MW

-678

218A, more than 500 yards east of waste placement areas in the lan dfill, show that arsenic concentrations well above the MCL have been measured beyond the site in downgradient groundwater since at least 2005.

In fact, only a single sample from MW

- 213A shows elevated levels of arsenic, rather than “samples” as EIP claims . Further, MW

- 213A is an upgradient well for the disposal area, and therefore would show background contaminants rather than any impact from the disposal area. This is consistent with an extensive groundwater assessment indicating that abandoned surface

mi ning in the area has had an unrelated negative impact on groundwater. Finally, MW

- 217A and

MW

- 218A were installed to monitor downgradient conditions from the leachate impoundment. These wells are screened in mine spoil, and document contaminants resulting from the nearby abandoned strip mine.

4. Damage Case Claim

– p. 175

The wetland treatment system was designed to remove or reduce concentrations of iron, aluminum, manganese, and total suspended solids and to control pH

- but was not specifically designe d to treat other problematic constituents in CCW leachate.

In fact, the passive wetland treatment system at the disposal site is a state

- of

- the

- art use of passive technologies to treat the discharge of the active landfill. The system was designed to

remov e iron, aluminum and manganese from landfill leachate. The control of pH and treatment of many other parameters occurs in passive wetland treatment technology.

5. EIP's August 26, 2010 report, p. 176, claims:

Finally there are increasing concentrations of calcium and magnesium which are highly soluble parameters frequently found in coal ashes.

In fact, calcium and magnesium are commonly found in abundance in the soils and groundwater of western Pennsylvania and are not solely related with coal combustio n waste.

6. EIP's August 26, 2010 report, pp. 176

- 177 claims:

Of the four streams, the stream sections with the healthiest benthic macroinvertebrate community structure were the downstream portions of the unnamed tributary to the southwest (discharges t o Little Whitely Creek north of the unnamed tributary that the landfill flows into) and the unnamed tributary to the southeast (discharges to the Monongahela River)

- both being the farthest from

the landfill.

In fact, while the report implies that the wo rst conditions are due to the proximity of the streams to the landfill, the low benthic community counts were actually due to the small stream size, substrate conditions, and available habitat.

7. EIP's August 26, 2010 report, p. 175 claims:679

The PADEP in

- stream Human Health Water Quality Criteria for thallium is 0.00024 mg/L, which is an order of magnitude less than the 0.0021 mg/L monthly average and 0.0042 mg/L daily maximum concentrations allowed in the NPDES permit.

In fact, the applicable regulatory standard for waters from which there is no human consumption, per regulation, is 0.013 mg/l (on a continuous basis) and 0.065 mg/l (maximum). See 25 Pa. Code Section 93.8c, Table 5. EIP's reference to human health based Water Quality is misleading.

8. E IP's August 26, 2010 report, p. 176 claims:

In addition, all three years of boron measurements in this stream also exceeded the U.S. Environmental Protection Agency's (USEPA) Child Health Advisory for boron (3 mg/L), with

the 2006 and 2008 concentrations more than twice as high as this Advisory and also exceeding

the Life

- time Advisory for boron of 6 mg/L.

In fact, the unnamed tributary to Little Whitely Creek is not a source of public drinking water, so comparisons to EPA Health Advisories is misleading and inappropriate.

9. EIP's August 26, 2010 report, p. 177, claims:

For reference, if PA WQC were compared to the leachate sump water (to which PA WQC would not apply), concentrations of boron would be exceeding the CCC by at least a factor of 10 in

ev ery single reading in the table below.

In fact, the report first states that comparisons to Water Quality Criteria are not appropriate, and then proceeds to make this comparison.

E. PPL Martins Creek Power Plant

1. EIP's report, "EPA's Blind Spot: Hex avalent Chromium in Coal Ash," p. 7, item 21 claims that PPL Martins Creek as exceeding California's drinking water goal for hexavalent chromium by

5000 times.

In fact, analytical data showed no valid data to indicate total chromium exceeded a standard. Therefore stating hexavalent chromium may exceed a presumed standard or is present is without basis. The EIP used invalid data to report chromium in groundwater exceeding a drinking water standard and further assumed all chromium tested is comprised of 100 % hexavalent chromium with no basis for that assumption.

2. EIP's February 1, 2011 report, p. 7, item 21 claims that an unlined pond at PPL Martins Creek has groundwater contamination above 100 ug/l.

In fact, the data does not support the claim of chrom ium present in groundwater at the site. Ninety five percent of the groundwater monitoring results for this disposal impoundment are reported non

- detect for total or dissolved chromium.680

F. Portland Generating Station's Bangor Quarry Ash Disposal Site, RRI Energy, Inc., Northampton County

1. EIP's February 24, 2010 report claims:

Surface water discharges from the landfill are sending concentrations of boron, cadmium, hexavalent chromium, and selenium into Brushy Meadow Creek that are notably higher than

P ennsylvania's Water Quality Criteria Continuous Concentration for Fish and Aquatic Life (CCC).

In fact, the surface water data indicates the concentration of these parameters is already found to be elevated in the upgradient surface water samples located above the disposal site's boundary. The higher concentrations for the listed parameters at the upgradient surface water location suggest that the water is impacted upstream and not impacted by discharges at the Bangor Ash

site.

2. EIP's February 24, 2010 report claims:

The ash that has been dumped at this landfill has sometimes been more toxic than regulations allow. Trona test ash was disposed of on

- site despite having failed two of nine leachability tests

for arsenic.

A letter from RRI to PADEP in 200 7 reports that of nine composite samples of Trona ash (a test ash) disposed of at this site, two samples exhibited high levels of leachable arsenic in excess of Pennsylvania Class II landfill limits. Specifically, the Class II landfill limit for leachable arsenic is 0.5 mg/L; however leach test results measured arsenic at 1.61 mg/L (more than three times the limit) and 2.02 mg/L (more than four times the limit).

In fact, the maximum concentration of a contaminant, based on chemical analysis for its leachat e for a Class II Residual Waste landfill is 50 times the waste classification standard for that contaminant (§ 288.523(a)(1)). For Arsenic, the Class II limit would be 2.5 mg/L, not the 0.5 mg/L that EIP claims. None of the Trona ash samples exceeded this limit.

3. EIP's February 24, 2010 report claims:

A GAI Consultants 2006 Annual Evaluation Summary of this site, describing results collected from downgradient monitoring wells during 2006, states: Analytical results for dissolved iron, dissolved mangan ese, pH (field), pH (lab), sulfate, and total dissolved solids exceed the USEPA [MCLs]. Furthermore, results from GAI Consultants' trend analysis of data collected after July 1, 1995 and prior to January 1, 2007 state: Upward trends for dissolved arsenic, dissolved boron, and dissolved potassium and downward trends for pH (field) and pH (lab) are unique to downgradient monitoring wells and may be the result of actions occurring at Bangor.

In fact, the 2006 report EIP relies upon to show an upward trend fo r pH and sodium goes on to conclude that the upward trend is due to seasonal variation and is not attributed to the ash disposal at the facility. The report also states that any upward trend in sulfate levels is shown in681

wells upgradient to the facility, a nd is not being caused by the ash disposal facility.

4. EIPs February 24, 2010 report claims:

Unpermitted discharges of boron, cadmium, hexavalent chromium, and selenium into Brushy Meadow Creek from Outfall 001 exceeded the Pennsylvania water quality standard for the protection of aquatic life from pollutant concentrations that are chronically toxic (Criteria Continuous Concentration or CCC) in samples analyzed in October 2006. ... Unpermitted discharges of boron, cadmium, and selenium into Brushy Meadow Creek from Outfall 002 also exceeded the PA CCC in samples analyzed in November 2006.

In fact, the data shows that these parameters are already elevated in upgradient surface water samples, which shows that the disposal facility is not the cause of thes e contaminants. Surface discharges are regulated through a NPDES permit, and Reliant has not been in violation of their permit.

5. EIP's February 24, 2010 report claims:

Exceedances of PA CCC were documented in unpermitted discharges to surface waters in 2006. No regulatory actions required.

In fact, the exceedances in the surface water are also present in the upgradient surface water sampling. The above referenced exceedances are for Secondary Drinking Water Regulations (SWDR) that set non

- mandatory water quality standards for 15 contaminants. These contaminants are not considered to present a risk to human health at the SMCL, and exceedances do not require regulatory action.

6. EIP's February 24, 2010 report claims:

There are least two public wat er supply wells approximately 3⁄4

- mile away from the site;

Hartzell's Auction Inc. serves three families and Meadowbrook Mobile Home Park serves approximately 98 individuals.

In fact, there are three Public Water Supply Wells (PWS) that are less than a mil e from the Ash Disposal Facility. However, all three wells are upgradient from the Ash Disposal Area and not affected by the ash disposal site. The well at Hartzell's Auction (ID # 3480835) is not a public water supply. The two other PWS wells at Meadow Br ook Mobile Home Park (ID # 3480008) are also upgradient.

G. Phillips Power Plant Landfill, Duquesne Light Co.

1. EIP's February 24, 2010 report claims:

A groundwater assessment was conducted to determine whether the landfill was adversely affecting gr oundwater. As a result of the groundwater assessment, PADEP required groundwater monitoring to continue after final cover and grading of the landfill.682

In fact, the Residual Waste Regulations required groundwater monitoring for all permitted disposal areas regardless of water quality.

2. EIP's February 24, 2010 report claims:

As part of the closure plan for the Phillips Ash Landfill, PADEP required quarterly groundwater monitoring due to evidence of groundwater degradation.

In fact, regardless of the gr oundwater quality, the 1992 Residual Waste Regulations required quarterly monitoring.

H. Fern Valley Landfill, Orion Power Holdings, Inc.

1. EIP's February 24, 2010 report claims:

A review of the Fern Valley Disposal Site maps (DPL, 1996) and the recen t satellite photographs of the final fill area, reinforces the concern that none of the designated "upgradient" monitoring wells (MW12, MW15 and MW5A) can be reliably considered upgradient.

In fact, in comparing the water elevations in the seven wells, t he upgradient wells have higher water level elevations than the downgradient wells. The difference in elevation between the upgradient wells and the downgradient wells is about 100 feet for MW

- 12 and MW

- 5A and

about 200 feet for MW

- 15. This data supports t he conclusion that the upgradient wells are in fact in upgradient positions.

Upgradient Wells 1st Quarter 2010 Static Water Elevations

MW

- 5A

- 857'

MW

- 15

- 955'

MW

- 12

- 856'

Downgradient Wells 1st Quarter 2010 Static Water Elevations

MW

- 6

- 745'

MW

- 7

- 734'

MW

- 20

- 751'

MW

- 21

- 754'

Further, based on the original topography of the valley, the upgradient wells are in upgradient positions and the downgradient wells are in downgradient positions. Based upon the above, the683

upgradient wells at the Fern Valley Landfill are, in fact, upgradient of the site.

II. EIP’S GROUNDWATER STUDIES, WHICH IGNORE GROUNDWATER DIRECTION,

ARE POOR SCIENCE.

A valid scientific study must consider the direction that groundwater is flowing in the subsurface. In this way, researchers can tell if a sample is showing contaminants originating from a site or moving towards it from other locations. Contaminants in groundwater moving towards an impoundment are either naturally occurring or from other sources.

Yet, EIP's reports often simply assume that all sampling results must be caused by coal combustion waste, disregarding facts such as the direction of groundwater flow and aquifer characteristics. These assumptions show either bias or a lack of scientific knowledge.

Example s of these deficiencies include:

A. Bruce Mansfield Power Plant’s Little Blue Run Surface Impoundment

1. EIP's February 24, 2010 report, p. 161, claims:

Discharges to groundwater and surface water from the 1,300

- acre 'Little Blue' surface impoundment have exceeded MCLs for arsenic and other parameters in multiple off

- site residential drinking wells ....

In fact, there have been no confirmed concentrations of these parameters in off

- site residential drinking water wells located near the impoundment in e xcess of an MCL. Many of the wells are hydrogeologically separate from the impoundment and/or may be impacted by other sources, including naturally occurring sources such as coal seams and brines, and other man

- made sources such as past mining or oil and g as operations. Surface water discharges are monitored and reported under the NPDES permit program and the facility is in compliance with those permits.

2. EIP's February 24, 2010 report, p. 161

- 2 claims there is:

Demonstrated [arsenic] damage to off

- sit e groundwater and off

- site surface water (in domestic wells and in Marks Run and other surface waters)

In fact, EIP fails to identify the data is it relying on, making verification impossible.

However, based on analysis of private water supplies around the impoundment collected by DEP over the last six years, arsenic has not been detected. (See Table 1.)

[See original comment for Table 1

– DEP Private Well Sampling Data.]

3. EIP's February 24, 2010 report, p. 166, claims:684

On February 16, 2010, PADEP sent a letter to FirstEnergy regarding high arsenic levels at 10 groundwater and surface water monitoring points, stating, “According to the data, elevated levels of Arsenic were detected in Monitoring Wells MW

- 13A, MW

- 15B, MW

- 16C, MW

- 17A, MW

20B, MW

- 23B, SW

- 5, SW

- 7, S

- 17, and S

- 31.”

In fact, the referenced sampling data shows that elevated arsenic concentrations showing impacts from the impoundment were comparable to concentrations in background monitoring wells. More recently, arsenic levels have contin ued to drop.

4. EIP's February 24, 2010 report, p. 167, claims:

In 1994, FirstEnergy was required to provide a water supply to a private residence, and a PADEP letter to Penn Power admits that the impoundment contaminated and made unusable a private

well (PADEP, 1994):

This result indicates a continuing upward trend in levels of sodium, chloride and sulfate which has persisted since 1991. . . . This trend represents a measurable increase in the concentration of

these contaminants and therefore is defined as groundwater degradation. Since the groundwater gradient is probably from the impoundment supernatant at elevation of 1050' toward the [XXXX] well water elevation at approximately 985', it is very probable that the impoundment is responsible for this ad verse effect on the water supply. This letter is notice from the Department that the operator, Pennsylvania Power Company, is responsible for adversely affecting the water supply of Mr. [XXXX].

In fact, later data demonstrated that this preliminary conclu sion was simply wrong. Concentrations of sodium, chloride and sulfate in the water well referenced in the EIP report showed an increase between November 1993 and March 1994, because FirstEnergy's consultant used improper sampling techniques. Later laborato ry analyses showed the water quality in this well improved and confirmed that the well had exhibited increases in contaminants after the

homeowner used household bleach to treat his well for bacterial contamination late in 1993.

B. Allegheny Energy

– Hatf ield’s Ferry Power Station

1. EIP's August 26, 2010 report, p. 176, claims:

A 2006 habitat and stream survey shows that CCW leachate from Phases 1 and 2 of the landfill have degraded the two streams closest to the landfill.

In fact, the survey (conduc ted in 2001 not 2006) makes clear that the suboptimal stream habitat scores were due to such things as insufficient desirable in

- stream cover, moderately eroded stream banks and less than optimal frequency of pool area

- none of which are due to the fly as h

landfill.

2. EIP's August 26, 2010 report, p. 178, claims:

MW

- 206A and MW

- 207A are situated where groundwater flows radially to the west, north, and685

east from the crest of the landfill property, in addition to being downgradient from a portion of

the strip mine where ash was placed. Neither the easterly nor westerly groundwater flow component is completely monitored.

In fact, sampling wells MW 206A and MW

- 207A have been abandoned and replaced with wells

MW

- 212A, MW

- 213A, and MW

- 215A. All groundwater f low regimens are properly monitored in accordance with the regulations.

3. EIP's August 26, 2010 report, p. 179, claims:

The concentrations of CCW parameters in MW

- 217A and MW

- 218A and their locations show an easterly groundwater flow direction beyond t he landfill, a flow direction that was not monitored until 2005. This easterly flow is still not monitored for the newest phase of the landfill (Phase 3). Further, there are no wells downgradient from MW

- 217A and MW

- 218A defining the

horizontal extent of t he contamination towards the Monongahela River from Phases 1 and 2.

In fact, the original disposal area for Hatfield was constructed on an abandoned, unreclaimed strip mine from the pre

- regulation era. A comprehensive groundwater and surface water

assessm ent and investigation at the disposal site concluded that the past unreclaimed surface mining and the resultant acid mine drainage (not ash disposal) within the watershed of the landfill had negatively impacted the groundwater beneath the landfill.

C. Fer n Valley Landfill, Orion Power Holdings, Inc.

1. EIP's February 24, 2010 report claims:

The Fern Valley CCW Landfill, on the west side of the Monongahela River across from Elizabeth PA, received coal ash from the Elrama Power Plant from 1989 to 2003. Ar senic levels 2.8 times higher than primary MCL (0.010 mg/L) were first noted in groundwater monitoring in 1995, and peaked in 2001 when the arsenic concentration was 36 times the primary MCL in one downgradient well and 29 times the primary MCL in another. Concentrations of boron, chloride, sulfate and total dissolved solids (TDS) in monitoring wells regularly exceeded health

- based levels or secondary MCLs.

In fact, the Fern Valley landfill was constructed down gradient of an abandoned surface coal

mine an d adjacent to an old unlined municipal waste landfill (Clairton Landfill). In 1995 a groundwater assessment was conducted and the Department concluded that both of these past activities have had a negative impact on groundwater and surface water upgradient and sidegradient of the landfill, as evidenced by background groundwater monitoring.

2. EIP's February 24, 2010 report claims:

Arsenic has been a troublesome contaminant in the groundwater at the landfill as have boron, sulfate, chloride, and TDS. (Dat a from GAI, 2002 and GAI 2002

- 2007)

Total arsenic was identified in downgradient MW

- 20 in June 1995 at 0.028 mg/L, 2.8 times the686

primary MCL.

In fact, sporadic low levels of arsenic have been identified in upgradient wells, and this has been

shown to hav e come from acid mine drainage upgradient of the landfill. In addition, with over 10 years of groundwater data collected, this is the only data point presented with an elevated level

of arsenic for MW

- 20. No statistical analysis or trends have been demonst rated.

3. EIP's February 24, 2010 report claims:

The degradation of surface water quality downstream from the CCW landfill has had an adverse impact on aquatic organisms. A benthic study commissioned by the operator in 1995 found that for two key enviro nmental indexes, mean species diversity and equitability, the downstream location (SW

- 2) was degraded relative to the upstream sampling location near SW

- 1 (Norris, 2002).

In fact, an abandoned municipal landfill discharges untreated leachate upstream of s urface sampling point SW

- 2, and is the likely cause of this finding.

D. Portland Generating Station's Bangor Quarry Ash Disposal Site, RRI Energy, Inc., Northampton County

1. EIP's February 24, 2010 report claims:

Surface water discharges from the land fill are sending concentrations of boron, cadmium, hexavalent chromium, and selenium into Brushy Meadow Creek that are notably higher than Pennsylvania's Water Quality Criteria Continuous Concentration for Fish and Aquatic Life (CCC).

In fact, the surface water data indicates the concentration of these parameters is already found to be elevated in the upgradient surface water samples located above the disposal site's boundary. The higher concentrations for the listed parameters at the upgradient surface wa ter location suggest that the water is impacted upstream and not impacted by discharges at the Bangor Ash

site.

2. EIP's February 24, 2010 report claims:

The ash that has been dumped at this landfill has sometimes been more toxic than regulations

allow. Trona test ash was disposed of on

- site despite having failed two of nine leachability tests

for arsenic.

A letter from RRI to PADEP in 2007 reports that of nine composite samples of Trona ash (a test ash) disposed of at this site, two samples exhibited h igh levels of leachable arsenic in excess of Pennsylvania Class II landfill limits. Specifically, the Class II landfill limit for leachable arsenic is 0.5 mg/L; however leach test results measured arsenic at 1.61 mg/L (more than three times the limit) and 2.02 mg/L (more than four times the limit).687

In fact, the maximum concentration of a contaminant, based on chemical analysis for its leachate

for a Class II Residual Waste landfill is 50 times the waste classification standard for that contaminant (§ 288.5 23(a)(1)). For Arsenic, the Class II limit would be 2.5 mg/L, not the 0.5 mg/L that EIP claims. None of the Trona ash samples exceeded this limit.

3. EIP's February 24, 2010 report claims:

A GAI Consultants 2006 Annual Evaluation Summary of this site, describing results collected from downgradient monitoring wells during 2006, states: Analytical results for dissolved iron, dissolved manganese, pH (field), pH (lab), sulfate, and total dissolved solids exceed the USEPA [MCLs]. Furthermore, results from GA I Consultants' trend analysis of data collected after July 1, 1995 and prior to January 1, 2007 state: Upward trends for dissolved arsenic, dissolved boron, and dissolved potassium and downward trends for pH (field) and pH (lab) are unique to downgradient monitoring wells and may be the result of actions occurring at Bangor.

In fact, the 2006 report EIP relies upon to show an upward trend for pH and sodium goes on to conclude that the upward trend is due to seasonal variation and not attributed to the ash disposal at the facility. The report also states that any upward trend in sulfate levels is shown in wells upgradient to the facility, and is not being caused by the ash disposal facility.

4. EIP's February 24, 2010 report claims:

Unpermitted discharg es of boron, cadmium, hexavalent chromium, and selenium into Brushy Meadow Creek from Outfall 001 exceeded the Pennsylvania water quality standard for the protection of aquatic life from pollutant concentrations that are chronically toxic (Criteria

Continu ous Concentration or CCC) in samples analyzed in October 2006. ... Unpermitted discharges of boron, cadmium, and selenium into Brushy Meadow Creek from Outfall 002 also exceeded the PA CCC in samples analyzed in November 2006.

In fact, the data shows that these parameters are already elevated in upgradient surface water samples, which shows that the disposal facility is not the cause of these contaminants. Surface discharges are regulated through a NPDES permit, and Reliant has not been in violation of thei r permit.

5. EIP's February 24, 2010 report claims:

Exceedances of PA MCLs in groundwater on

- site have occurred in 2001, 2002, 2005, and 2006, with an upward trend detected between 1995 and 2006. Exceedances of PA CCC were documented in unpermitted dis charges to surface waters in 2006. No regulatory actions required.

In fact, the exceedances in the surface water are also present in the upgradient surface water sampling. The above referenced exceedances are for Secondary Drinking Water Regulations (SWD R) that set non

- mandatory water quality standards for 15 contaminants. These contaminants are not considered to present a risk to human health at the SMCL, and exceedances do not require regulatory action.688

6. EIP's February 24, 2010 report claims:

Ther e are least two public water supply wells approximately 3⁄4

- mile away from the site;

Hartzell's Auction Inc. serves three families and Meadowbrook Mobile Home Park serves approximately 98 individuals.

In fact, there are 3 Public Water Supply Wells (PWS) th at are less than a mile from the Ash Disposal Facility. However, all 3 wells are upgradient from the Ash Disposal Area and not affected by the ash disposal site.

III. EIP’S DATA IS NOT CREDIBLE BECAUSE THE RESULTS CANNOT BE

REPRODUCED BY OTHER SCIENTISTS

.

To be valid, scientific research data must be "reproducible," that is, if one runs a test a second or third time, similar results will be obtained.

This is a critical safeguard to ensure that a single test was not performed incorrectly, or skewed by outside influences.

But in many of its claims, EIP draws conclusions from a single sample, which was not reproduced with confirmatory sampling and which in many cases was inconsistent with prior and later sampling.

EIP's claims therefore often lack cre dibility, because they can't be confirmed or were actually refuted by other data.

Examples of these deficiencies include:

A. Bruce Mansfield Power Plant’s Little Blue Run Surface Impoundment

1. EIP’s February 24, 2010 report, p. 162 ("For example") clai ms:

Arsenic has been measured in at least two off

- site residential drinking wells above the MCL of 0.01 mg/L, including a reading of 0.0146 mg/L in one family's well in 2008, and a reading of 0.021 mg/L at another family's well.

In fact, although one sam ple collected from a private water supply well in late 2008 did contain arsenic at a concentration of 0.013 mg/L (not 0.0146 mg/L); the homeowner was aware that his well water was muddy. Another sample from the water well early in 2009 and the analytical

r esults concentrations of metals were much lower compared to the 2008 sample. Total arsenic was reported at 0.0025 mg/L and dissolved arsenic at <0.0025 mg/L

- well below the MCL. The DEP also collected a sample from this well two months later and confirmed these results. Both total and dissolved arsenic were less than <0.003 mg/L the detection limit. In addition, the location and elevation of this water well clearly indicates the well is located up gradient (background) from the impoundment.689

Further, whil e arsenic was reported at a concentration of 0.021 mg/L in a sample collected from another private water well in 1993, six later samples from this well were analyzed for arsenic. The greatest concentration found was 0.005 mg/L, and most of the samples were non

- detect. In addition, this well did not contain other concentrations of constituents that would suggest any impacts from the impoundment. Arsenic is found in soils of Western Pennsylvania; its presence does not confirm impacts from the impoundment.

2. EIP’s February 24, 2010 report, p. 166 (“On Site”) claims:

On

- site surface water showed an exceedance of the CCC for selenium at SW

- 3 (a seep in Pennsylvania just below the earthen dam.)

In fact, EIP misidentifies sampling point SW

- 3 as a seep below th e dam. SW

- 3 is a sampling point at the stilling basin and is a permitted discharge from the impoundment. Comparing this sampling point to WQC is not appropriate.

3. EIP’s February 24, 2010 report, p. 162 claims:

In on

- site groundwater that flows off

- sit e, arsenic exceeded the 0.010 mg/L at least 24 times in 14 wells in 2006, 2009, and 2010, including concentrations of 0.030, 0.033, and 0.036 mg/L in three different wells. Fluoride, lead, and turbidity MCLs were also exceeded, as well as SMCLs

for several other pollutants. On

- site groundwater monitoring wells also had exceedances of SMCLs for chloride, iron, manganese sulfate, and turbidity.

In fact, FirstEnergy began regularly analyzing water samples for arsenic in 2006. Although

arsenic was found in som e samples, many of these detections were not replicated in subsequent samples from the same wells.

FirstEnergy has implemented studies to determine the reason(s) for the elevated arsenic in these wells and, if necessary, determine what steps may be taken to address it. Arsenic levels in all drinking water wells sampled by the Department have been “non

- detect” for arsenic.

The other parameters that EIP indicates exceed MCLs and SMCLs occur naturally in the environment. EIP made no attempt to assess if a m onitoring well contains water representative of background water quality, shows brine impacts from historic oil and gas exploration and production in the area, or contains concentrations of parameters associated with coal seams.

B. Allegheny Energy

– Mitc hell Power Station

1. EIP’s February 24, 2010 report claims:

Analyses of quarterly monitoring data for samples collected from the two monitoring wells downgradient of Ash Lagoon No. 2 in 2007 (GW

- 4 and GW

- 5) found the following:

• Boron levels were mo re than twice the EPA's Child Health Advisory of 3.0 mg/l and much higher than boron levels in upgradient wells or at surface monitoring points.690

• Arsenic concentrations have been 1 to 2 times the primary MCL of 0.010 mg/l at downgradient

wells and excee ded the highest concentrations for arsenic in upgradient points.

• Levels of nickel, molybdenum, and manganese have also been noticeably higher at downgradient than upgradient points."

In fact, monitoring has been ongoing for more than 10 years and no u pward trends have been

established for these or other contaminants.

C. RRI Energy

– Seward Generating Station

1. EIP’s February 24, 2010 report claims:

The No. 1 Ash Disposal Site was forced to be closed due to pollutants leaching from the ash pile.

I n fact, Ash disposal site No. 1 was closed when the power station shut down. The site was capped and monitoring wells were installed.

2. EIP's February 24, 2010 report claims:

RRI has discharged pollutants in excess of permit limits for iron, manganese, aluminum, and pH from Outfall 012, on a monthly basis for the past five years. A surface water monitoring point downstream of the site has recorded at least 27 exceedances of Pennsylvania’s Water Quality Criteria for Fish and Aquatic Life in the last five years for aluminum, nickel, and zinc. In addition, this downstream point regularly recorded higher concentrations of sulfate, total dissolved solids and many other pollutants than concentrations of these pollutants recorded upstream of the site in this pe riod.

In fact, EIP's information does not reflect any impact from the flyash disposal sites No. 1 and No. 2. EIP has relied on data relating to the remediation activities associated with several old coal refuse piles, not these flyash disposal sites.

3. EIP’s February 24, 2010 report claims:

Also, pollutants including iron, manganese, pH, and aluminum are being discharged from the “remediated” coal ash and coal refuse pile directly into the Conemaugh River through NPDES permitted Outfall 012 in violatio n of permit limits.

In fact, EIP's report presents no data to substantiate its claims about Outfall 012. Nor is there a remediated coal ash pile on site.

D. Allegheny Energy

– Hatfield’s Ferry Power Station

1. EIP’s August 26, 2010 report, p. 179, clai ms:691

None of the new wells were located east or west of Phase 3 in the indicated direction of groundwater flow that mimics the ground surface, according to Allegheny.

In fact, the locations of these monitoring wells were based on a comprehensive analysis of proper upgradient and downgradient monitoring around the new leachate storage impoundment. The data table accompanying this claim lists data for one sample event (December 2009), and no conclusions can be drawn from an isolated sample.

2. EIP’s Augus t 26, 2010 report, p. 179 claims:

Samples collected from well MW

- 213A, downgradient of coal ash in the Hartley Mine and more than a thousand yards south of Phases 1 and 2 of the landfill and from MW

- 217A, and MW

218A, more than 500 yards east of waste pl acement areas in the landfill, show that arsenic concentrations well above the MCL have been measured beyond the site in downgradient groundwater since at least 2005.

In fact, only a single sample from MW

- 213A shows elevated levels of arsenic, rather than “samples” as EIP claims. Further, MW

- 213A is an upgradient well for the disposal area, and therefore would show background contaminants rather than any impact from the disposal area. This is consistent with an extensive groundwater assessment indicating t hat abandoned surface mining in the area has had an unrelated negative impact on groundwater. Monitoring wells MW

217A and MW

- 218A are for the new leachate storage impoundment, and are screened in mine spoil from past surface mining activities.

E. PPL Mar tins Creek Power Plant

1. EIP’s February 1, 2011 report, p. 7, item 21 claims:

An unlined pond at PPL Martins Creek has groundwater contamination above 100 ug/l.

In fact, analytical data from 1997 to the present for groundwater monitoring wells at Basi n 1 does not indicate groundwater contamination. DEP files include correspondence documenting invalidation of the referenced result. Ninety five percent of the groundwater monitoring results for this disposal impoundment reported non

- detect for total or di ssolved chromium.

IV. EIP’S RESEARCH IS NOT TRANSPARENT OR VERIFIABLE.

A critical element in valid scientific study is that the source of one's information be disclosed, so that others can verify the data's accuracy.

However, EIP’s reports often refer only vaguely to the sources of its data, without identifying the specific locations, dates or sampling source.

EIP's conclusions are therefore not credible, because its claims are impossible to verify.

Examples of these deficiencies include:692

A. Bruce Mansfield Power Plant's Little Blue Run Surface Impoundment

1. EIP's February 24, 2010 report, p.161 (“Summary”) claims:

Discharges to groundwater and surface water from the 1,300

- acre “Little Blue” surface impoundment have exceeded MCLs for arsenic an d other parameters in multiple off

- site residential drinking wells (prompting several property buyouts by FirstEnergy), exceeded Pennsylvania Water Quality Criteria (PA WQC), including the Criteria Continuous Concentration (CCC) and Criteria Maximum Concen tration (CMC), in Mark's Run and other off

site surface water sources, and pervasively exceeded federal Maximum Contaminant Levels (MCLs) at many on

- site groundwater monitoring wells.

In fact, there have been no confirmed concentrations in off

- site reside ntial drinking water wells located near the impoundment in excess of an MCL. Although EIP concludes that any private water well sampled by FirstEnergy or the DEP is impacted by the impoundment, this conclusion ignores the facts that many of these wells are hydrogeologically separate from the impoundment and/or may be impacted by other sources, including naturally occurring sources such as coal seams and brines, and other man

- made sources such as past mining or oil and gas operations. Third, the Department h as never found any drinking water wells to be contaminated by MCL’s (primary drinking water contaminants). Finally, surface water discharges are monitored and reported under the NPDES permit program and the facility is in compliance with those permits.

2. EIP's February 24, 2010 report, p. 162, claims:

MCLs for cadmium, barium, fluoride, lead, and turbidity were also exceeded in off

- site residential drinking wells, as were Secondary MCLs (SMCLs) for aluminum, chloride, iron, manganese, pH, sulfate, and t otal dissolved solids (TDS).

In fact, EIP's report does not cite specific names, locations or sample dates for the alleged "off

site" residential drinking water well contamination. Further, the primary constituents of lead, cadmium and barium are only fou nd in trace amounts in the waste and could not be producing high concentrations in the groundwater.

3. EIP's February 24, 2010 report, p. 162 ("Off

- Site Surface water") refers to "Chart 1" and

claims:

Off

- site surface water contamination includes exceed ances of both continuous/chronic (CCC) and maximum acute (CMC) limits set forth in Pennsylvania Water Qualify Criteria (WQC).

In fact, none of the claims are substantiated. Specific dates and locations are not listed in the EIP report. The report’s “Char t 1” is filled with deficiencies which make verification impossible:

a. For every parameter listed in the “Contaminant” column that corresponds to a groundwater monitoring or drinking well, the specific well number(s) or location(s) is not listed. There is also no reference to whether the well(s) is hydrologically upgradient or downgradient of the facility.693

The “Exceedances” numbers cannot be correlated to a specific monitoring point, nor is the specific data provided.

b. In the “Medium” column, groundwa ter monitoring wells and drinking wells are undifferentiated, and the “Highest Exceedance Number” is not assigned to one or the other, making it ambiguous and appearing that it is attributed to both a drinking water well and a monitoring well.

c. This tab le also fails to reference sampling numbers, nor does it have a compendium of data to verify the summary.

4. EIP's February 24, 2010 report, p. 163, claims:

Cadmium, thallium, selenium, and boron also exceeded WQC in off

- site creeks, springs, and

seeps.

In fact, no specific analytical data related to alleged exceedances of cadmium, thallium, selenium, and boron is provided for any of the referenced water sources. Therefore no

verification can be conducted.

5. EIP's February 24, 2010 report, p. 165, cl aims:

On

- site groundwater moving “off

- site”

- on

- site groundwater contamination includes extensive arsenic contamination, with at least 24 MCL exceedances in at least 14 different wells that were more than 150 feet away from the closest part of Little Bl ue. All of these samples were taken between 2006 and 2010, after FirstEnergy’s expansion of Little Blue. See Chart 2.

In fact, EIP’s chart contains no specific verifiable information (such as specific well locations and sampling dates). The Department's s ampling of 28 residential wells over the past six years from around the impoundment show no MCL exceedences of arsenic.

6. EIP’s February 24, 2010 report, p. 165, claims:

In 1996, lead exceeded the Federal Action Level of 0.015 mg/L with readings of 2.6 9 mg/L (538 times the MCL) and 1.41 mg/L (282 times the MCL). There were also numerous violations of SMCLs for turbidity, chloride, iron, manganese, and sulfate, and pH was cited for showing an increasing trend at one well in 2003.

In fact, EIP’s report c ontains no identification of the wells sampled for lead exceedances, or their physical location in reference to the impoundment. Therefore, it is impossible to make conclusions regarding hydrologic connection to the impoundment. Lead is not present in any appreciable amount in the waste within the impoundment and therefore elevated lead in an off

site well is likely from another source, such as the home’s plumbing or soil.

7. EIP's February 24, 2010 report, p. 166 (“At Risk Population”) claims:694

At least 22 private wells have already been contaminated with CCW pollutants above the primary or secondary MCLs, including the township building’s well.

In fact, this statement is simply irresponsible. There are no names, dates, specific locations, or specific pa rameters for the 22 private water supplies alleged to be contaminated by the impoundment in the report, except an obscure reference to a township building’s well. The Department has no data supporting claims that any private wells have been contaminated.

H owever, the Department did sample the Greene Township well on October 10, 1993. The well is not hydrologically connected to Little Blue Run and no parameters associated with the impoundment were detected at elevated levels.

8. EIP’s February 24, 2010 repo rt, p. 166, claims:

Because Greene Township has no public water supplies, every single resident

- 2,705 people, according to 2000 census data

- is drinking private well water. In addition, there are many affected citizens in West Virginia, although compr ehensive well data was unavailable for this region. Water degradation may also be migrating across the Ohio River into Ohio, but the community there is on public water.

In fact, this statement is total speculation by EIP, and there is no data presented in the report to demonstrate that any West Virginia citizens' drinking well supply is contaminated by the impoundment. Recent testing by the Department of several water private water wells on September 3, 2010 in Lawrenceville, WV (Cooper and McCaughlin) ind icated non

- detect for Primary MCL’s (including arsenic).

9. EIP’s February 24, 2010 report, p.166 (“Incident and Date”) claims:

The Pennsylvania Department of Environmental Protection (PADEP) has long documented the contamination flowing from the Little Blue surface impoundment. From at least 1989 to the present day, FirstEnergy (and previously, Penn Power) has been exceeding permit limits and both State and federal drinking water and surface water standards due to the irresponsible disposal of CCW in the Little Blue impoundment.

In fact, none of the specific monitoring wells, surface water points, and analytical data, nor dates and times are presented to substantiate this claim. The groundwater monitoring well surface points are sampled on a quarterly ba sis and are within the permit limits established in the PA Residual Waste regulations. The site is also in compliance with its NPDES discharge permits.

B. Allegheny Energy

- Mitchell Power Station

1. EIP's February 24, 2010 report claims:

However, the investigation found degradation of groundwater downgradient from the two lagoons by multiple parameters. Most significantly, concentrations of arsenic were measured at twice the federal primary MCL and concentrations of boron reached more than twice the EP A Child Health Advisory of 3.0 mg/l.695

In fact, nowhere in the Report is there a list of the monitoring well(s) or sample date(s) or analytical data that show arsenic levels were detected at twice the federal primary MCL of 10 ug/l. Further, nowhere in the Report is the supposed monitoring well, date of sampling, or analytical data for the claim that boron reached more than twice the EPA Child Health Advisory of 3.0 mg/l. In fact, the Department's review of the data indicates no upward trends in arsenic or

b oron levels.

2. EIP’s February 24, 2010 report claims:

Groundwater monitoring data for the year 2007 shows that maximum levels of arsenic and boron are twice as high as the maximum levels found in 1998."

In fact, the data to make this claim is not pres ented in the Report. Indeed, the Department's review of the historical groundwater data submitted by the company, as required by the permit, shows no upward trends in arsenic or boron levels.

3. EIP’s February 24, 2010 report claims:

Demonstrated damage to groundwater moving off

- site toward the Monongahela River.

In fact, the Report contains no data which supports EIP's claims.

4. EIP’s February 24, 2010 report claims:

Elevated levels of molybdenum and nickel were detected in some downgradient wells.

In fact, there are no monitoring well(s) or sample date(s) or value(s) listed in the Report to substantiate this statement. The Department’s tracking of the groundwater data shows that the facility has been and remains in compliance for the referenced pa rameter.

5. EIP’s February 24, 2010 report claims:

Compared to surface water samples of the Monongahela River along the shoreline near the lagoons, twelve parameters were reported at consistently higher concentrations in the groundwater samples; specif ic conductance, total alkalinity, chemical oxygen demand, ammonia, chloride, sulfate, total dissolved solids, calcium, iron, potassium, manganese, manganese and

sodium.

In fact, the groundwater monitoring wells, surface water points and analytical data ar e not listed to make this claim nor are the sampling periods referenced in the Report. The Department's ongoing review and tracking of the groundwater data concludes that the facility has been and remains in compliance for the referenced parameter.

6. EIP ’s February 24, 2010 report claims:696

Seepage and groundwater flowing through the lagoons. There is a possibility that upgradient monitoring wells for the lagoon receive contaminants from the ash landfill to the west.

In fact, EIP presents no hydrogeologi c data to support that “seepage and groundwater” are flowing through the lagoons. There is no data presented in the Report to support the statement that the lagoons receive contaminants from the FGD landfill as well.

C. RRI Energy

- Seward Generating Stat ion

1. EIP’s February 24, 2010 report claims with regard to the No. 1 Ash Disposal site:

Recent groundwater monitoring data indicate that gross exceedances of primary and secondary MCLs and higher concentrations of ash constituents at downgradient than upgradient monitoring points continue to occur.

In fact, the only exceedances in the groundwater from around Ash Site No. 1 have been secondary, non

- health based parameters. Overall, contaminant levels have shown improvement

due to site remediation activi ties of the coal refuse piles.

D. Hatfield’s Ferry Power Station

1. EIP’s August 26, 2010 report, p. 174, claims:

Demonstrated damage to groundwater moving off

- site and to off

- site surface water and aquatic life (in Little Whitely Creek and tributaries )"

In fact, the report fails to provide documentation or data to demonstrate that the disposal of fly ash at Hatfield is damaging the groundwater, surface water, or aquatic life.

2. EIP's August 26, 2010 report, p. 174, claims:

Federal groundwater Maxi mum Contaminant Levels (MCLs) standards for arsenic, aluminum, boron, chromium, manganese, molybdenum, sulfate, and total dissolved solids (TDS) have been

exceeded since at least 2001.

In fact, the report does not identify any specific sample times, dates , or monitoring locations to support the claim that CCW has contaminated the groundwater with the referenced parameters.

3. EIP’s August 26, 2010 report, p. 174, claims:

Concentrations of groundwater contaminants mirror those in CCW leachate samples fr om the landfill collected at the same time. The horizontal extent of contamination has not yet been

defined.

In fact, there is no data presented in the report to support this claim, and DEP's review of the groundwater assessment has concluded that there i s no impact on the groundwater from the697

disposal of CCW. The assessment showed that any impact originated from past unreclaimed surface coal mining activities on site.

4. EIP’s August 26, 2010 report, p. 177, claims:

The data show what parameters and co ncentrations were likely discharged continually into the unnamed tributary for the beginning of the landfill's operation in 1984 to 2001, before the wetland treatment system was installed.

In fact, there is no data presented in the report to substantiate this claim.

E. Phillips Power Plant Landfill, Duquesne Light Co.

1. EIP's February 24, 2010 report claims that there is:

Demonstrated off

- site damage to public drinking water supply (ash ponds)

Demonstrated damage to groundwater moving off

- site (ash la ndfill)

In fact, EIP identifies no upward trends over the past ten years for these secondary parameters which only affect the aesthetics of the water, and are not health related drinking water
parameters.

2. EIP’s February 24, 2010 report claims:

A re view of quarterly groundwater monitoring data from 2006 and 2007 found the following (EarthJustice, 2008):

• Groundwater discharging from the closed landfill has noticeably higher levels of chloride, sodium, and fluoride, and generally higher manganese, a luminum, sulfates, TDS and Specific

Conductance.

• Levels of chloride frequently exceeded secondary drinking water standards (DWS) and high levels of sodium (exceeding 200 mg/L) were usually found in such samples.

• Levels of manganese, aluminum, and f luoride (2.0 mg/L) exceeded secondary DWS in many samples as well as many exceedances of the secondary DWS for TDS of 500 mg.

In fact, EIP fails to disclose any specific parameter value(s), or monitoring well(s) for the years referenced, so the data canno t be verified. Moreover, DEP’s review has determined that any sporadic exceedances are all of secondary, non

- health related parameters.

F. Fern Valley Landfill, Orion Power Holdings, Inc.

1. EIP's February 24, 2010 report claims:698

Leachate from the CCW landfill has degraded surface quality with high levels of arsenic, boron, chloride, sulfate and TDS compared to upstream surface waters."

In fact, EIP presents no analytical data presented to substantiate this statement. The leachate being treated is disc harged under an NPDES permit. The permit limits were established based on the fact that the stream in which the treated leachate flows into discharges to the Monongahela River. The facility is in compliance with its NPDES discharge permit.

2. EIP's Februa ry 24, 2010 report claims:

While concentrations of arsenic have not exceeded water quality standards for aquatic organisms, they have been several times higher than the primary MCL in several measurements, and sulfate and TDS concentrations have commonly exceeded secondary MCLs by two or three

times downstream of the landfill."

In fact, the report does not present any specific analytical data for arsenic, sulfate, and TDS.

3. EIP's February 24, 2010 report claims there has been:

Demonstrated damage t o groundwater and surface water moving off

- site.

In fact, EIP has presented no data to validate this claim.

4. EIP's February 24, 2010 report claims:

From around 1997 to 2006 chloride, sulfate and TDS levels generally ranged two to five times higher at SW

- 2 than at upstream sampling locations (SW

- 1 and SW

- 3), and sulfate and TDS

concentrations at SW

- 2 commonly exceeded the secondary MCL by two or three times.

In fact, EIP's report contains no analytical data presented for the years referenced to make t hese

claims.

5. EIP's February 24, 2010 report claims:

In 2001 and 2002, selenium levels downstream of the landfill were six to ten times the Pennsylvania surface water quality standard for the protection of aquatic life.

In fact, there has been no sp ecific analytical surface data for selenium for the 2 years referenced in EIP's report.

G. PPL Martins Creek Power Plant

1. EIPs February 1, 2011 report, p. 7, item 21 claims that an unlined pond at PPL Martins Creek has groundwater contamination above 100 ug/l.

In fact, the report does not identify any well or monitoring period as evidence of chromium699

contamination.

IV. SUMMARY

In summary, due to the inaccuracies and flaws contained in the reports identified above, they

should not be used to make a ny findings of damage associated with the studied facilities or provide the foundation for designating Coal Combustion Residuals as a hazardous waste.

Response: Thank you for your rebuttal of the arguments raised by environmental advocacy groups in their three recent reports ( Out of Control: Mounting Damages from Coal Ash Waste

Sites , February 24, 2010; In Harm’s Way: Lack of Federal Coal Ash Regulations Endangers

Americans and Their Environment , August 26, 2010; and EPA’s Blind Spot: Hexavalent

Chromium i n Coal Ash , February 1, 2011) addressing CCR management sites in Pennsylvania. EPA has assessed all the newly alleged damage cases submitted in the two former reports (the February 1, 2011 report essentially imported data from the two other reports without presenting new data). For a summary of stakeholder arguments addressing the Pennsylvania sites and the rationale for the Agency’s damage case designation decisions of the former alleged damage cases, see the technical support documents on damage cases in the docket of the final rule.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0201

- 4 

### Organization 1 

### : Commonwealth of Pennsylvania, Department of Environmental Protection (DEP)


### Commenter 1 : Michael Krancer Commenter Type: State Government
Classification: Substantive



### Comment Excerpt Text: Specific to the October 12, 2011, NODA, DEP has carefully reviewed the following reports

identified for comment:

· Out of Control: Mounting Damages from Coal Ash Sites, Environmental Integrity Project and EarthJustice, February 24, 2010, and

· In Harm’s Way: Lack of Federal Coal Ash Regulations Endangers Americans and Their Environment, Environmental Integrity Project, EarthJustice and Sierra Club, August 26, 2010.

Generally DEP believes those reports mischaracterize the issue and stretch the data to come to unfounded conclusions regarding the cause, effects and alleged impacts from the identified facilities. The authors are quick to assess blame on present coal ash management practices while ignoring the legacy of historical coal mining and past ash management practices. Further, the authors confuse readers and themselves by comparing data related to ongoing remedial action and cleanup actions to new coal ash management practices. Our overview and detailed rebuttals to those report s are attached.

Response: See response to comment excerpt EPA

- HQ

- RCRA

- 2011

- 0392

- 0201

- 13.700



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0201

- 5 

### Organization 1 

### : Commonwealth of Pennsylvania, Department of Environmental Protection (DEP)


### Commenter 1 : Michael Krancer Commenter Type: State Government
Classification: Substantive



### Comment Excerpt Text: The NODA also listed the following document for comment:

· Comments of EarthJustice, Environmental Integrity Project, Sierra Club, Natural Resources Defense Council, Southern Alliance for Clean Energy, Southern Environmental Law Center, Physicians for Social Responsibility, November 19, 2010.

While the time allotted for comments to the NODA (30 days) did not allow for detailed review of all the identified state progra ms in those comments, DEP notes that the report also contains many of the same allegations as the previous two reports identified in this letter. Please be advised that our enclosed rebuttals also serve as commentary on those comments contained in the

Nove mber 19, 2010, comments submitted by EarthJustice, et al.

Response: See response to comment excerpt EPA

- HQ

- RCRA

- 2011

- 0392

- 0201

- 13.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0202

- 1 

### Organization 1 

### : American Electric Power (AEP)


### Commenter 1 : John McManus Commenter Type: Electric Utility Company

Classification: Substantive



### Comment Excerpt Text: The AEP comments that follow are focused on two reports referenced in the NODA. They are Out of Control: Mounting Damages from Coal Ash Waste Sites, by the Environm ental Integrity Project and Earthjustice and In Harm's Way: Lack of Federal Coal Ash Regulations Endangers Americans and Their Environment, by the Environmental Integrity Project, Earthjustice, and the Sierra Club. These two reports allege a total of 70 ad ditional damage cases allegedly caused by CCR disposal operations, and that were not recognized as such in USEPA's 2007 report entitled Coal Combustion Waste Damage Case Assessments.

Out of the 70 cases alleged to be proven damage cases in the two reports , nine are associated with AEP power plants. Our comments that follow will address each of the nine plants.

It is important to note USEPA's definition and interpretations of a "proven damage case". By definition (75 FR 35131), a proven damage case means t hose cases with (i) Documented exceedances of primary maximum contaminant levels (MCLs) or other health

- based standards measured in groundwater at sufficient distance from the waste management unit to indicate that hazardous constituents have migrated to the extent that they could cause human health concerns,701

and/or (ii) where a scientific study provides documented evidence of another type of damage to human health or the environment (e.g., ecological damage), and/or (iii) where there has been an

administr ative ruling or court decision with an explicit finding of specific damage to human

health or the environment.

USEPA has stated that it would not be appropriate to consider as a proven damage case an exceedance of an MCL in groundwater directly beneath a waste management unit, or very close to the waste boundary (65 FR 32224). Rather, where groundwater is concerned, the basis for categorizing a site as a proven damage case is documented, off

- site damage to groundwater quality.

Given these definitions and federal interpretations as a basis, AEP has evaluated again the nine sites mentioned in the two referenced reports. Following are plant

- by

- plant comments on each of

the nine AEP sites.

John Amos Power Plant, Appalachian Power, Winfield, WV ("Out of Contr ol", Site #30, Page 106)

• The John Amos Plant utilizes wet fly ash disposal for one of its three generating units. The fly ash slurry is pumped to a large headwaters impoundment. The treated fly ash decant water is discharged at Amos Plant Outfall 001 to Little Scary Creek, formerly a small tributary to the Kanawha River. Approximately 95% of Little Scary Creek's total flow is comprised of treated and decanted fly ash pond discharge. Little Scary Creek discharges to the Kanawha River upstream of Amos Plan t.

• Earthjustice correctly cites that Little Scary Creek has approved site

- specific criteria for two parameters: copper and selenium. The site

- specific criterion for selenium (equal to the maximum outfall limitation) is 62 AFEFSFSEFg/L. Earthjustice clai ms that, for Little Scary Creek, " ... there is also substantial evidence that aquatic life uses are being seriously degraded due to the disposal of fly ash in the headwaters of the creek." They cite high fish selenium tissue levels, obtained from WV DEP, as evidence of the degraded use.

• It should be noted that WV DEP has not adopted any numeric fish tissue criteria for selenium. U.S. EPA is not expected to finalize the revised aquatic life criteria for selenium until 2012. It is expected that the agency will propose a fish tissue (ovary) chronic aquatic life criterion, in conjunction with water concentration chronic criteria.

• There is evidence in the scientific literature that levels of selenium in freshwater fish can be high, but without significant population

- level impacts. The company has published technical reports, specifically to Little Scary Creek, supporting this premise (Reash et al. 1999; Lohner et al. 2001).

• Appalachian Power Company has conducted numerous biological studies in Little Sca ry Creek, many of which were submitted to WV DEP in accordance with the facility's NPDES permit. Little Scary Creek supports a fairly diverse biological fauna despite the creek being comprised of almost entirely fly ash pond discharge water. A similar obse rvation was reported for a stream in702

Ohio that was comprised of nearly 100% treated fly ash water (Reash et al. 1988). Neither WV DEP nor any other party has provided unequivocal evidence that the aquatic life use of Little Scary Creek is, or was previousl y, impaired.

• It is important to note that Amos Plant has changed the manner in which fly ash is disposed of. In August 2010, the one generating unit that was practicing wet ash disposal ceased sluicing fly ash to the fly ash impoundment. As such, Little Scary Creek no longer receives treated fly ash water and has returned to its original headwater stream characteristics.

• The EIP report states that the fly ash dam is ranked as a "high hazard". It is important to understand what that means. Using the cr iteria developed by the National Dam Safety Program (NDSP) for the National Inventory of Dams led by FEMA, the dam is ranked as "high hazard potential". A high hazard potential rating indicates that a failure will probably cause loss of human life; the rat ing is not an indication of the structural integrity of the unit or the possibility that a failure will occur in the future; it merely allows dam safety and other officials to determine where significant damage or loss of life may occur if there is a struc tural failure of the unit. It should be noted that there are an estimated 83,000 dams in the United States regulated by FEMA under the NDSP of which 14,000 dams are classified as "high hazard potential".

References

Lohner, T.W., R.J. Reash, V.E.Willet, a nd L.A. Rose. 2001. Assessment of tolerant sunfish populations (Lepomis sp.) inhabiting selenium

- laden coal ash effluents: 1. Hematological and population

- level assessment. Ecotoxicology and EnvironmentalSafety 50: 203

- 216.

Reash, R.J., J.H . Van Hassel , and K.V. Wood. 1988. Ecology of a southern Ohio stream receiving fly ash pond discharge: changes from acid mine drainage conditions. Archives of Environmental Contamination and Toxicology 17: 543

- 554.

Reash, R.J., T.W. Lohner, K.V. Wood, and V.E. Will et. 1999. Ecotoxicological assessment of bluegill sunfish inhabiting a selenium

- enriched fly ash stream. In: Henshel, D.S., M.C. Black, and M.C. Harrass (editors), Environmental Toxicologyand Risk Assessment: Standardization of

Biomarkers for Endocrine Dis ruption andEnvironmental Assessment, Volume 8. American Society for Testing and Materials, Conshohocken, PA.

Reash, R.J., T.W. Lohner, and K.V. Wood. 2006. Selenium and other trace metals in fish inhabiting a fly ash stream : implications for regulatory t issue thresholds. Environmental

Pollution 142: 397

- 408.

U.S . EPA.2004. Draft Aquatic Life Water Quality Criteria for Selenium. EPA

- 822

- D

- 04

- 001. U.S. EPA Office of Water, Washington, DC.

Mitchell Generating Station, Ohio Power Company , Moundsville, W V ("Out of Control", Site #31, Page 110)

• Earthjustice claims that two facilities in West Virginia having coal combustion byproduct703

(CCB) impoundments have caused "serious water quality damage" in the immediate receiving streams. Ohio Power Company's Mit chell Plant (located along the Ohio River in Moundsville, WV) has a fly ash treatment impoundment that discharges to Conner Run, a small tributary to Fish Creek. Fish Creek empties into the Ohio River just downstream of Mitchell Plant.

Earthjustice correc tly references the previously

- approved site

- specific aquatic life criteria for iron and selenium, applicable to Conner Run. Earthjustice then claims that the existing aquatic life use for Conner Run (which must be protected as a requirement for approval of a site

- specific criterion) is not being attained due to measured levels of selenium in various fish species exceeding two fish selenium tissue thresholds: 1) U.S. EPA's draft chronic aquatic life criterion whole body fish tissue criterion of 7.91 mg/kg (U .S. EPA, 2004); and 2) a proposed "safe” fish tissue criterion advocated by Dennis Lemly of the USDA Forest Service (4 mg/kg). Earthjustice cites fish tissue levels, obtained from the West Virginia Department of Environmental Protection

as evidence for th is claim.

• While most fish collected from Conner Run do contain whole body selenium levels that exceed U.S. EPA’s draft fish tissue criterion, it should be noted that WV DEP has not adopted any fish tissue criterion in their water quality standard regula tions. U.S. EPA has not yet issued

- for public comment

- revised draft aquatic life criteria for selenium. The agency, in fact, is expected to issue a fish tissue criterion that is based on the selenium content in fish ovary (egg) tissue.

There are some i ndications that this criterion value will be approximately 17 mg/kg total selenium (dry weight). Nonetheless, WV DEP has not adopted any fish tissue criterion for selenium. The only applicable selenium regulatory limitation at the Mitchell Plant fly ash po nd impoundment is the existing maximum effluent limitation of 62 μg/L. This site

- specific criterion is based on laboratory toxicity studies conducted by Ohio Power Company. Neither WV DEP nor any other party has provided evidence indicating that the aquati c life use of Conner Run is, or previously was, impaired.

• The fish species collected and analyzed by WV DEP, for Conner Run are common stream forms (creek chub, white sucker, and green sunfish). A single bluegill was collected and analyzed for selenium content during WV DEP's 2007 sampling event. The entire length of Conner Run is on Mitchell Plant property, thus there is no harvest of fish from the creek for consumption purposes. Moreover, the most common species residing in the creek are not

considered sport fish.

• While U.S. EPA is not expected to issue a final fish t issue criterion for selenium until 2012, there is considerable evidence indicating that fish residing in fly ash impoundment receiving streams do not suffer adverse population

- level imp acts despite having relatively high levels of selenium in their tissues (Reash et al. 1988, Reash et al. 1999; Lohner et al. 2001, Reash et al. 2006). The most likely explanation of these fish not exhibiting adverse effects is long

- term adaptation and the presence of other trace metals that are believed to antagonize the potential

toxic effects of selenium.

• Earthjustice points out, correctly, that Mitchell Plant Outfall 004 (fly ash pond discharge) has

exceeded the maximum selenium effluent limitation of μg/L on occasion during 2005

- 2007. Ohio Power Company identified the cause of these unusually high selenium levels and,704

subsequently, implemented measures to lower the outlet selenium levels. Currently, Mitchell Plant is meeting the selenium effluent li mitation.

• Earthjustice references "moderate exceedances of the arsenic groundwater criterion downgradient from the [Conner Run] impoundment" on four occasions in 2005 and two occasions in 2006. This statement is accurate although AEP would characterize the exceedances as "slight" rather than "moderate". Five samples were collected from monitoring well MWU3 over this period and one result (12 μg/l) exceeded the arsenic standard of 10 μg/l. Five of the 8 samples collected from monitoring well MWL3 over thi s period exceeded the arsenic standard. Results ranged from 6.1 μg/l to μg/l. It is also important to note that two of the six arsenic results from an upgradient monitoring well (MWH1) exceeded the arsenic standard over this same time period. MWH1 results ranged from 6.1 μg/l to 14 μg/l.

• It should be noted that Ohio Power Company is evaluating the conversion from a wet fly ash handling system to a dry fly ash handling system at Mitchell Plant. If this conversion does take place, Conner Run will no longer receive treated fly ash sluice water.

• The EIP report states that the dam is ranked as a "high hazard". It is important to understand what that means. Using the criteria developed by the National Dam Safety Program (NDSP) for the National Inventory of D ams led by FEMA, the dam is ranked as "high hazard potential". A high hazard potential rating indicates that a failure will probably cause loss of human life; the rating is not an indication of the structural integrity of the unit or the possibility that a failure will occur in the future; it merely allows dam safety and other officials to determine where significant damage or loss of life may occur if there is a structural failure of the unit . It should be noted that there are an estimated 83,000 dams in the United States regulated by FEMA under the NDSP of which 14,000 dams are classified as "high hazard potential".

References

Lohner, T.W., R.J . Reash, V. E. Willet, and L.A. Rose. 2001. Assessment of tolerant sunfish populations (Lepomis sp.) inhabitin g selenium

- laden coal ash effluents: 1. Hematological and population

- level assessment. Ecotoxicology and EnvironmentalSafety 50: 203

- 216.

Reash, R.J., J.H. Van Hassel, and K.V. Wood. 1988. Ecology of a southern Ohio stream receiving fly ash pond dischar ge: changes from acid mine drainage conditions. Archives of Environmental Contamination and Toxicology 17: 543

- 554.

Reash, R.J., T.W. Lohner, K.V. Wood, and V.E. Willet. 1999. Ecotoxicological assessment of bluegill sunfish inhabiting a selenium

- enriche d fly ash stream. In: Henshel, D.S., M.C. Black, and M.C. Harrass (editors), Environmental Toxicologyand Risk Assessment: Standardization of Biomarkers for Endocrine Disruption andEnvironmental Assessment, Volume 8. American Society for Testing and Materia ls, Conshohocken, PA.

Reash1 R.J., T.W. Lohner, and K.V. Wood. 2006. Selenium and other trace metals in fish inhabiting a fly ash stream: implications for regulatory tissue thresholds. Environmental

Pollution 142: 397

- 408.705

U.S. EPA. 2004. Draft Aquatic Life Water Quality Criteria for Selenium. EPA

- 822

- D

- 04

- 001. U.S. EPA Office of Water, Washington, DC.

Flint Creek Power Plant, So u thwestern Electric Power Company, Gentry, AR ("In Harm's Way", Site #1, Page 1)

• Elevated concentrations of coal combustio n byproducts constituents, selenium and sulfate, have been observed in groundwater monitoring wells located very close to the facility's landfill.

• The closest downgradient drinking water well is located on plant property about 1,670 feet west

of the lan dfill. This well has been sampled and analyzed for primary MCLs (As, Ba, Cd, Cr, Se, Hg), action levels (Pb, Cu), and secondary standards (Ag, Fe, Mn, Zn). Results for all parameters were below their respective standard.

• Plant management has no reason t o believe, nor is there any indication, that impacted groundwater has moved off company

- owned property.

• Plant management is working with the Arkansas Department of Environmental Quality (ADEQ) and following a rigid regulatory process to determine the na ture and extent of the CCB constituent migrations and what corrective measures may be needed, if any, to ensure continued protection of public health and the environment.

• A new leachate collection system has been designed, permitted, and constructed in the southeast corner of the landfill to properly collect and manage leachate that was discovered seeping from the waste material and entering an adjacent ditch that flows to the facility's bottom ash pond. This new leachate collection system began operatin g in January, 2010.

• The Company has completed the design of an intermediate liner and leachate collection system for the landfill and submitted that design to the ADEQ for approval. The new leachate collection system will allow for the effective collect ion and treatment of leachate generated from the facility. The new intermediate liner will stop recharge of the underlying groundwater from precipitation moving through the CCBs, eliminating the landfill as a source of CCB constituents to the groundwater.

• Groundwater monitoring wells have proactively been installed around the primary and secondary ash ponds.

Cardinal Plant, American Electric Power, Brilliant, OH ("In Harm's Way", Site# 23, Page 119)

• As the EIP report indicates, one of the Cardinal mo nitoring wells, S

- 2, is designated as a hydraulically "upstream", or upgradient monitoring well. However, due to the influence from previous surface mining activity and ash disposal operations, it is not appropriate to use the data from this well in compar isons to downgradient groundwater data. Groundwater data from monitoring well S

- 2 is not used in evaluating upgradient to downgradient groundwater quality.7 06

• Monitoring well S

- 2 does have elevated levels of arsenic, boron, and molybdenum relative to

the f acility's unimpacted upgradient shallow aquifer monitoring wells. It has not been established what the source is of elevated arsenic concentrations in monitoring well S

- 2. The monitoring well is located in an area where previous surface mining of coal occu rred.

• Arsenic in the groundwater has been measured at levels higher than the EPA's Maximum Contaminant Level (MCL). Arsenic levels in the deeper Cow Run aquifer, which is hydraulically disconnected from the influence of ash leachate, have been observed at 0.41 mg/l. Arsenic in this aquifer is naturally occurring at levels 40 times that of the EPA MCL.

• The entire Morgantown groundwater aquifer is not contaminated although there are elevated concentrations of boron and molybdenum in monitoring wells loc ated near the Flyash Reservoir 2 (FAR 2) dam, as well as to the east of the FAR 2 impoundment.

• Regarding the seeps to Blockhouse Hollow, those constitute groundwater being discharged from the Morgantown Aquifer. There are no seeps from the face of the F AR 2 dam itself.

• In 2010 the Company installed four additional groundwater monitoring wells to identify the nature and extent of elevated levels of boron and molybdenum in three different monitoring wells (M

- 11, M

- 21, and M

- 22). The Company is in the pr ocess of evaluating data from these monitoring wells as well as an identified seep in the valley sidewall of Blockhouse Hollow. Preliminary results indicate that there are no exceedances of EPA's MCLs for barium, cadmium, chromium, fluoride, lead, mercury, or selenium in any of the monitoring wells. There are exceedances of the EPA's MCL for arsenic however these exceedances are below the facility's

inter

- well prediction interval for arsenic and are likely attributable to naturally occurring arsenic

concent rations. Upon completion of the evaluation an Assessment Monitoring Report will be submitted to Ohio EPA which summarizes the findings.

• The Tidd

- Dale Subdivision is not in the direct path of groundwater flow from the FAR 2. Groundwater travel to the aqu ifer underlying the Tidd

- Dale Subdivision, within which the referenced domestic wells are screened, is restricted by a shale aquitard. In addition to the restricted flow path, which limits groundwater flow from the FAR 2 to the aquifer underlying the

TiddD ale Subdivision, significant natural attenuation within the lithology along the flow path reduces the risk of groundwater contamination to a deminimis level.

• A domestic drinking water well within the Tidd

- Dale Subdivision was sampled and analyzed in Apr il of 2011. The analyses of this sample indicated that there were no exceedances of EPA's MCLs for antimony, arsenic, barium, beryllium, cadmium, chromium, copper, cyanide, fluoride, lead, mercury, nitrate, nitrite, selenium, and thallium.

• The EIP repor t states that the dam is ranked as a "high hazard. It is important to understand what that means. Using the criteria developed by the National Dam Safety Program (NDSP) for the National Inventory of Dams led by FEMA, the dam is ranked as "high hazard poten tial". A high hazard potential rating indicates that a failure will probably cause loss of human life; the rating is not an indication of the structural integrity of the unit or the possibility that a failure will occur in the future; it merely allows dam safety and other officials to determine where significant707

damage or loss of life may occur if there is a structural failure of the unit. It should be noted that there are an estimated 83,000 dams in the United States regulated by FEMA under the NDSP of

whi ch 14,000 dams are classified as "high hazard potential".

Gavin Power Plant, Ohio Power Company, Cheshire, OH ("In Harm's Way", Site # 24, Page 124)

• The Gavin landfill footprint covers about 255 acres and is lined with 1.5 feet of clay with a permeabil ity less than or equal to 1.0 x 10

- 7 cm/sec and a 30 mil polyvinyl chloride (PVC) geomembrane placed directly on top of the clay. Leachate is collected, analyzed, and treated prior to discharge under an NPDES permit.

• There have been statistically signif icant increases (SSIs) at downgradient wells for a few indicator parameters at the Gavin landfill. However, several other potential indicator parameters have not shown SSIs. Per Ohio EPA regulations, the SSIs are investigated through the implementation of an Assessment Monitoring Plan that is reviewed and approved by Ohio EPA. To date, all SSIs have been shown to be the result of natural groundwater variation, not the result

of a release from the landfill.

• It is important to note that many types of coal mines

- mapped/unmapped deep mines, auger mines, small

- scale room and pillar mines, and strip mines

- were present within the landfill footprint and are adjacent to the landfill and the fly ash pond. Several oil/gas wells were also drilled and operated wit hin and adjacent to the landfill and fly ash pond footprints . Thus, the groundwater was highly degraded for decades prior to landfill/fly ash pond construction. In fact, the fly ash pond serves to collect and treat the surrounding acid mine drainage prior to discharge. If the fly ash pond was not available to treat this AMD, it would severely degrade Stingy Run and Kyger Creek to levels much worse than currently exist.

• The previous boron limit in the NPDES permit for the landfill leachate collection/tre atment ponds discharge became outdated when Ohio EPA became aware of new scientific information. Based on the new information, Ohio EPA reviewed calculations and determined that the limit no longer was needed.

• Regarding the Outfall 001 (fly ash pond) to xicity tests, all tests run since September 2008 have shown no toxicity.

• Regarding the toxicity of the Outfall 008 discharge from landfill leachate treatment pond 2, there are no toxicity limits applied to this outfall, contrary to what EIP has reported

.

• For landfill groundwater monitoring Well 94126, the EIP report is misleading, as groundwater monitoring well 94126 is an upgradient well in the Cow Run Sandstone

- the uppermost aquifer that extends under the entire landfill, and not a downgradient mo nitoring well. Well 94126 does not reflect any impacts from the landfill, since it is upgradient. Barium concentrations in this upgradient monitoring well are extremely high coming onto the landfill environment with the highest being 13.8 mg/l (drinking wa ter standard is 2 mg/l). Leachate from the landfill that is collected and that enters permitted ponds 1, 2 and 3, and this covers the entire 255

- acre landfill,708

has never tested above 0 .2 mg/l barium (over 115 analyses), a full order of magnitude less than the drinking water standard and almost two orders of magnitude less than the highest concentration in upgradient well 94126.

• Regarding groundwater monitoring well 9801, it is a monitoring well that is downgradient from

Phase C in the Cow Run Sandstone aquifer, and about 2,000 feet downgradient from monitoring well 94126 which is also in the Cow Run. Barium concentrations exceed 2 mg/l but are not nearly as high as the concentrations seen in the upgradient monitoring well 94126. Again, raw

leachate from the landfill has never exceeded 0.2 mg/l in over 115 analyses. The higher barium concentrations in Well 9801 are due to upgradient influences, not a release from the landfill.

• There are no structural integrity issues at the Gavin fly ash pond dam. Using the criteria developed by the National Dam Safety Program (NDSP) for the National Inventory of Dams led by FEMA, the dam is ranked as "high hazard". A high hazard potential rating indicates that a failure will probably cause loss of human life; the rating is not an indication of the structural integrity of the unit or the possibility that a failure will occur in the future; it merely allows dam safety and other officials to determine where significant damage or loss of life may occur if there

is a structur al failure of the unit. It should be noted that there are an estimated 83,000 dams in the United States regulated by FEMA under the NDSP of which 14,000 dams are classified as "high hazard potential".

• There are no slope stability issues at the Gavin lan dfill. The 3:1 outer slopes of the landfill were shown to be stable during the landfill permitting process meeting all OEPA factors of safety.

Muskingum River Plant, Ohio Power Company. Beverly, OH ("In Harm's Way", Site # 26. Page 144)

• There was a sta tistically significant increase (SSI) for alkalinity at one down gradient well (M

9603); however the other potential indicator parameters did not show any statistical significant increases (SSIs).

• To date, the SSI for alkalinity has been shown to be due to a natural groundwater variation/ and not as a result of a release from the fly ash reservoir.

• In addition, based on an Ohio EPA Division of Groundwater guidance document, we did not believe that alkalinity was a good indicator parameter; therefore a request was made to Ohio EPA to revise the indicator parameter list to exclude alkalinity. Aside from alkalinity, existing groundwater data indicates that there has not been any release of CCB constituents to groundwater.

• On July 21, 2011 Ohio EPA conf irmed through email correspondence that alkalinity can be dropped as an indicator parameter for groundwater contamination.

• Monitoring well OB

- 2, which EIP reported on, has been closed and abandoned since 2008 (See letter to ODNR sent 11/10/2008), and is not one of the monitoring wells sampled and reported to

the Ohio EPA.709

• Gross Alpha is not reported to Ohio EPA, and the maximum data point (128pCi/L) mentioned in the EIP report for well M

- 9612 appears to be a statistical outlier.

• The Pomeroy/Pittsbu rgh sandstone bedrock aquifer is a brackish aquifer. The total dissolved solids (TDS) in this aquifer range between 2,380 mg/L

- 29,200 mg/L. Sampling groundwater in a brackish aquifer with increasing ionic contents tends to dissolve out minerals or consti tuents readily, hence we find TDS values that are above the MCL. However, these elevated values are

not an accurate indicator of CCR constituent release.

• Ohio EPA was made aware of the high TDS concentrations in the Pomeroy/Pittsburgh aquifer,

and on Au gust 27, 2010 a report was sent to Ohio EPA requesting a modification to the indicator parameters that AEP analyzes and reports in the groundwater monitoring program. AEP's

• Muskingum River Plant made a request to Ohio EPA to include boron, bromide and

m olybdenum, which are better indicators of any release from fly ash, as opposed to using parameters that yield inconclusive results for evaluating subsurface geochemistry.

Northeastern Station, Public Service Company of Oklahoma, Oologah, OK ("In Harm's Wa y", Site# 27, Page 149)

• In September 2007, the Oklahoma DEQ directed the Company to establish a groundwater monitoring program for the facility's landfill.

• A groundwater monitoring program consisting of four monitoring wells around the landfill was

e stablished in February, 2008. Seeps from the embankment just south of the landfill (along the Verdigris River) were discovered. During the summer of 2011, a barrier system was installed along the southern edge of the landfill to address the seeps.

• ODEQ requested additional monitoring wells in the Fall, 2008, after which twelve additional

wells were installed.

• Analytical results show elevated concentrations of coal combustion byproduct constituent in the groundwater.

• Based on this information, ODEQ directed the Company to propose a plan and schedule for analyzing the potential release from the facility and for developing appropriate corrective

measures

• Plant management is working with ODEQ and following a rigid regulatory process to

determine the nature and extent of the CCB constituent migrations and what corrective measures may be necessary to assure continued protection of public health and the environment.

• A total of twenty

- six monitoring wells have been installed around the fly ash landfill . Quarterly groundwater monitoring and a nature and extent investigation are being conducted.710

• Only a localized groundwater flow pattern has been developed around the landfill. The current monitoring wells do not provide information about the groundwater flow pattern beyond the facility property line.

• The Company is committed to mitigating the impact of the stored fly ash to groundwater and

the environment.

• The Company is designing an intermediate liner and leachate collection system for the landfil l, which will be submitted to ODEQ for approval. The leachate collection system will allow for the effective collection and treatment of leachate generated from the facility. The intermediate liner will stop recharge of the underlying groundwater from prec ipitation moving through the CCBs, eliminating the landfill as a source of CCB constituents to the groundwater.

• Groundwater monitoring wells have been proactively installed around Northeastern's ash pond.

Clinch River Plant, Appalachian Power, Clevelan d, VA ("In Harm's Way, Site # 36, Page 212)

• The case referenced happened almost 45 years ago in 1967. A dike surrounding a fly ash settling pond collapsed sending about 130 million gallons of fly ash laden water into t he Clinch River. In effect, the Cl inch River turned into a muddy flow with resulting ecological damage attributed to pH and severe loading of solids. This catastrophic event was determined by EPA to be a proven damage case and was listed as such in the February 1988 "Report to Congress

- W astes from the Combustion of Coal by Electric Utility Power Plants" and in the August 9, 1993 Federal Register (58 FR 42446

- 42480).

• Such a catastrophic occurrence that occurred nearly 45 years ago is certainly not representative

of results that can be found from current coal ash disposal practices nor was this incident the result of "surface runoff or leachate" in the sense contemplated by RCRA section 8002 (n). Extremely rare catastrophic occurrences such as this event should not be used as an industr y

wide indictment on coal ash disposal practices nor should it be used to justify a hazardous waste listing for coal ash.

• The pond from which the spill occurred is no longer active. The stretch of the Clinch River affected by the spill has long since co mpletely recovered and is now one of the few areas in the entire river where sensitive mussel populations are increasing rather than declining (Ahlstedt 2008).

• The Company worked with Virginia DEQ and U.S. Fish & Wildlife Service in studying plant

disch arges and appropriate protection for the river, culminating in construction of an advanced wastewater treatment plant in 1993 that has resulted in effluent water quality from Clinch River Plant that is overall superior to ambient river water.

Glen Lyn Pla nt, Appalachian Power, Glen Lyn, VA ("In Harm's Way, Site# 37, Page 217)

• The EIP report "In Harms Way, Lack of Federal Coal Ash Regulations Endangers Americans and Their Environment" dated August 26, 2010, relies on very outdated information (late 70's

-711

1980).

• Discharge from the subject fly ash pond ceased in 1998. The plant has since converted to dry fly ash handling.

• More importantly, no toxicity was measured from the fly ash pond or the bottom ash pond. The

cited studies show some differences in biotic communities upstream vs. downstream of the fly ash pond discharge, however no acute or chronic toxic effects were demonstrated.

• The cadmium and selenium water quality standards "violations" were not attributable to the ash pond effluent. The cit ed data were extracted from analyses that also show (but weren't mentioned) that upstream (uninfluenced) waters also commonly exceeded cadmium and selenium standards several fold. These samples were not collected and analyzed with appropriate quality contr ols to provide valid comparison against water quality standards.

• Valid effluent quality samples were collected on a recurring basis under the NPDES program, evaluated by Virginia DEQ, and found acceptable for meeting state water quality standards

. Respo nse: Thank you for the rebuttal of arguments the two environmental advocacy group
reports

, Out of Control and In Harm’s Way

, made in to support their claims that nine of AEP ’s CCR management sites should be designated as CCR damage site s . The Agency has assessed all the ‘newly alleged’ damage cases included in the se two reports against EPA’s test of proof criteria. Based on this assessment, EPA designated the John Amos, Winfield, WV, the Clinch River Plant, Cleveland, VA, and the Glen Lyn Plant, Glen Lyn, VA sites as proven damage

cases. In addition, EPA has designated the Flint Creek Power Plant, Gentry, AR, the Cardinal Plant, Brilliant, OH, the Gavin Power Plant, Cheshire, OH, the Muskingum River Plant, Beverly, OH, and the Northeastern Station, Oologah , OK sites as potential damages cases. Finally, EPA rejected the Mitchell Generating Station, Moundsville, WV site as a CCR damage case , because this CCR management site received CCR comingled with coal mining waste. For a summary of stakeholder arguments addressing AEP’s nine sites and the rationale for the Agency’s damage case designation decisions, see the technical support documents on damage cases in the docket of

the final rule.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0203

- 2 

### Organization 1 

### : Tennessee Valley Authority (TVA)


### Commenter 1 : John Myers Commenter Type: Electric Utility Company

Classification: Substantive



### Comment Excerpt Text: II. The NODA requests comment on a total of 70 alleged damage cases identified in two reports prepared by environmenta l organizations, including the report by the Environmental Integrity Project (“EIP”), and EarthJustice entitled “Out of Control: Mounting Damages from Coal Ash Waste Sites” (Feb. 24, 2010) and the report prepared by EIP, EarthJustice and the Sierra Club

en titled “In Harm’s Way: Lack of Federal Coal Ash regulations Endangers Americans and Their Environment” (Aug. 26, 2010).712

In response to EPA’s solicitation for comment in Section VI, “What reports regarding alleged damage cases from the management of CCRs a re being noticed?” TVA is providing comment on sections (1) and (3).

As identified in the Notice under Section VI (1), a new report of alleged damage cases was released February 24, 2010, by the Environmental Integrity Project and Earthjustice titled “Ou t of Control: Mounting Damages From Coal Ash Waste Sites.” The report presents 31 alleged CCR damage cases that were not included or recognized as damage cases in EPA’s July 2007 report [EPA

- HQ

- RCRA

- 2006

- 0796

- 0015] titled “Coal Combustion Waste Damage Case Assessments.” TVA is providing comment on the validity of information pertaining to the following information contained in pages 98

- 101:

Tennessee Valley Authority (TVA)

- John Sevier Fossil Plant 611 Old Highway 70 Rogersville, Tennessee 37857

· Th e pollution figures in this report for the John Sevier plant in Rogersville are accurate for the dates mentioned; however, more recent monitoring results show cadmium levels below the maximum contaminate level (MCL) of 5μg/L.

· The groundwater data at th e John Sevier Fossil Plant is monitored and evaluated according to the requirements dictated by the Tennessee Department of Environment and Conservation (TDEC).

· Investigation of possible reasons for the fluctuating cadmium levels in the one groundwater monitoring well resulted in a determination that laboratory interference issues were the cause of false exceedances being reported.

 Although there are private water wells within a mile of the John Sevier Plant, none of these wells are in the path of the groundwater flow. They are all “upgradient” of it, so no private groundwater supplies could be or are affected.

 TVA monitors the groundwater well network around the dry fly ash stack at John Sevier Fossil plant semi

- annually (twice per year) according to TDEC requirements, and exceedances of the groundwater protection standards are required to be reported within

14 days. If groundwater contaminant levels are observed exceeding permitted levels, TVA will continue to work with TDEC to determine the source and extent of any contamination.

Not all information pertaining to the TVA facility is correctly represented.

• Misapplication of water quality criteria:

· The report applies EPA “human health criteria for fish consumption” to groundwater data. Those surface water criteria are designed to reduce the cancer risk for citizens who regularly

consume fish. The inciden ce of humans regularly consuming fish living in groundwater is exceedingly rare (or more likely non

- existent).

· The report applies drinking water maximum contaminant level criteria to groundwater. That is713

appropriate and relevant in cases where there is a down

- gradient well that is used for potable water. However, that also is a very rare situation. Coal ash storage/disposal facilities usually are sited so no potable water wells are down

- gradient, and where there is virtually no opportunity for

such well s. For at least one of the instances the report cites, the contaminated well is up

- gradient from the storage/disposal facility, indicating the storage/disposal facility is not a source of

contamination.

• Misapplication/interpretation of regulations:

· The report cites EPA Superfund Removal Action Levels (RALs) in several instances. According to the EPA report presenting the RALs, they “...are provided as a convenience to response managers and are intended to be used as one factor in determining whether t o provide alternate water supplies (emphasis added) under Superfund removal authority...” and apply only in cases where groundwater drinking water supplies are affected.

· The report justifies application of surface water quality criteria to groundwater by citing Tennessee Water Quality Criteria regulations, suggesting that TDEC requires that surface water criteria be applied to groundwater. In fact, the cited regulation states that when groundwater

enters a stream it becomes surface water and the clear int ent is that surface water criteria are applicable at that time, not while the water still is in the ground.

As identified in the Notice under Section VI (3), a report released August 26, 2010, by the Environmental Integrity Project, Earthjustice, and the Sierra Club titled “In Harm’s Way: Lack of Federal Coal Ash Regulations Endangers Americans And Their Environment,” presents 39 alleged CCR damage cases. TVA is providing comment on the validity of information pertaining to the following information conta ined in pages 63

- 68 and in pages 197

- 206:

Tennessee Valley Authority (TVA)

- Shawnee Fossil Plant 7900 Metropolis Lake Road Paducah, Kentucky 42086

· As referenced in the e

- mails below between Todd Hendricks, Geologist III of Kentucky Department of E nvironment, Division of Solid Waste and Mark Quarles with the Sierra Club, the report does not consider impacts on the environment by Department of Energy (DOE) operations and a documented contaminant plume. The DOE site, also referred to as PGDP in the be low e

mails, is located upgradient and adjacent to Shawnee Fossil Plant. The report also does not consider groundwater quality of upgradient monitoring wells and confirmation by subsequent groundwater monitoring well sampling. The referenced e

- mails state as follows:

From: Hendricks, Todd (EEC) Sent: Thursday, July 15, 2010 8:10 AM To: 'Mark Quarles' Subject: RE: TVA Shawnee

I caution you about using old data or data that has not been confirmed by subsequent sampling. There were a couple of instances in the Sierra Club’s report where data that reflected one or two714

sampling events was given more weight than the data that showed no such detections.

You probably need approved application APE 20060003 in its entirety. It would answer a lot of questions you have, but it is a couple of thousand pages in length with the attachments. If you are not in a hurry, request Tina to send it to you.

Let me see what I can do. I might be able to find a map. The problem we have in groundwater statistical analysis fo r SFP is that there are no true upgradient wells because the ash pond and the landfill occupy nearly all of the area between Little Bayou Creek and the Ohio River. Reddish leachate seeps from the alluvium overlying the Peoria Loess into Little Bayou Creek. (The alluvium and loess are lumped together into an informal hydrostratigraphic unit called the Upper Continental Recharge System by the locals down there, although this is appropriate neither hydrostratigraphically or lithostratigraphically.)

TVA, in t he groundwater assessment they did years ago, determined that for all intents and purposes, the entire site has groundwater issues caused by CCW. That having been said, if you stand in Little Bayou Creek and look at the leachate seeps as I have done, techn etium and trichloroethene are bubbling up out of the creek bed at your feet. The sediments in the streambed are contaminated with radionuclides, metals, PCBs and the like. Uranium and other contaminants flow from PGDP through KPDES outfalls and through Lit tle Bayou Creek (and Bayou Creek to the west).

There are documented mutations in populations of midge larvae in the creek (extra eyes and eyes growing out of the wrong places). These problems are not caused by CCW. \

------------------------------------- --------------------------------------------------- From: Mark Quarles [mailto:markquarles@comcast.net] Sent: Wednesday, July 14, 2010 5:09 PM To: Hendricks, Todd (EEC) Subject: Re: TVA Shawnee Todd, thanks for the info.

The only things that we got f rom our FOIA were Sampling Data Reporting Forms that included no maps whatsoever. The file folders are all CMR, not APE so we don’t have the approved application.

The reason that I ask about D

- 77 is that it has had arsenic and pH exceedances in the past.

Sure would like to see the application with a map of disposal area, the wells, the bayou, and groundwater potentiometric surface diagram. I will beg if that helps. Can scan or fax it.

Thanks again for your help,

Mark

On 7/14/10 3:32 PM, "Hendricks, Todd (EEC)" <todd.hendricks@ky.gov> wrote:

You probably already have a map showing all of the things you asked for, if Tina Fisher sent715

you.

Well D

- 77 is located at

- 88.77396W and 37.15197N.

As I recall, D

- 77 is located in such a position that, altho ugh not directly upgradient, most likely reflects ambient or background groundwater quality unaffected by the site. No closer wells would, and I did not want to allow them to use contaminated wells for background.

There is really not a well that is adjac ent to the waste disposal area that is unaffected by waste. There is a component of radial flow that makes all wells close to the waste disposal areas “downgradient”. Also, Ohio River levels (and associated water levels in Little Bayou Creek) greatly affec t apparent flow directions due to bank storage during high water. Most likely, groundwater flow directions don’t actually reverse for great durations or distances, though.

Moreover, the extraordinary groundwater contamination coming from PGDP affects the ir ability to monitor in a lot of ways.

TOC and COD are common problems at these sites.

SHF just burns coal... Wyoming coal.

There has been an enormous amount of surface and groundwater sampling by TVA and DOE. TVA did a GW assessment years ago, but th ey need to do another site

- wide study.

There is a perched water table, and depth to GW varies a bit depending on where you are. They submitted GW flow information in their applications, but the regs do not require it for their reports. We will change tha t with the new regs we are writing.

I am way overtime today, and have to go home now. Feel free to ask more questions if you need

to.

Tennessee Valley Authority (TVA)

– Cumberland Fossil Plant 815 Cumberland City Road Cumberland City, Tennessee 37050

· The report states, “There are 440 households within a 3

- mile radius of the TVA Cumberland Fossil Plant, and the “high hazard” ranking for Cumberland Fossil Plant’s surface impoundments indicates that persons living nearby are likely to be seriously ha rmed by any failure of Cumberland’s storage facilities.” Independently, the two statements that (1) there are 440

households within a 3

- mile radius of the TVA Cumberland Fossil Plant, and (2) the “high hazard” ranking for a surface impoundment indicates t hat persons living nearby are likely to be seriously harmed by any failure of the impoundment dike are accurate. However, the linking of these two statements inaccurately infers an elevated sense of harm.

· The referenced households, within the 3

- mile ra dius, are not within the potential path of impacted area for surface impoundment failures. As of September 2011, the previous ‘high716

hazard’ ranking for the Cumberland Fossil Plant surface impoundments was downgraded to ‘moderate/significant hazard’. “Signi ficant hazard” rating is correlated to mean “Failure or improper operation results in no probable loss of human life but can cause economic loss, environmental damage, disruption of lifeline facilities, or can impact other concerns,” which is according to the Federal definition.

Tennessee Valley Authority (TVA)

– Gallatin Fossil Plant

1499 Steam Plant Road Gallatin, Tennessee 37066

· Groundwater at the Gallatin Fossil Plant is monitored quarterly under a compliance monitoring program as identified in the current solid waste permit for the closed ash pond. Reports are submitted to TDEC. TVA samples for parameters dictated by TDEC, which are 16 metals and fluoride. Historically, beryllium and nickel have exceeded the EPA Maximum Contaminant Levels (MCLs) in groundwater onsite. While cobalt and vanadium don’t have MCLs, they are compared against an EPA Region IX Preliminary Remediation Goal for tap water, and those were exceeded. As a result, TVA is working with TDEC to conduct assessment monitoring. A

Gro undwater Assessment Plan was submitted to TDEC and approved on April 18, 2011. TVA is now implementing the plan for the plant. This plan is intended to determine the source of solid waste constituents which may have impacted groundwater, the concentration, rate and extent of migration, and whether corrective action is needed.

· The active ash pond has a voluntary groundwater monitoring network. To date, there have been no MCL exceedances identified within the voluntary program. The groundwater is monitore d for the TDEC Appendix I parameters (16 metals and fluoride).

· Investigation of Beryllium levels in groundwater at the site showed that the soils contain naturally

- occurring high levels of Beryllium.

Tennessee Valley Authority (TVA)

- Johnsonville Fo ssil Plant

535 Steam Plant Road New Johnsonville, Tennessee 37134

· The report states: “The abandoned ash disposal “Area A” at the Johnsonville Fossil Plant, for example, showed high concentrations of arsenic, lead and other pollutants in the early 199 0’s, but TVA stopped monitoring in 1994. The current quality of the groundwater near these disposal
areas is unknown.”

· The data from the wells installed in the abandoned ash disposal Area A was provided to the Environmental Integrity Project (EIP) in 2 010 via a FOIA request and has been taken out of context by EIP. These wells were all shallow wells drilled into the ash deposits of Pond A, and were used for evaluating leachate, not groundwater. The wells were installed for short

- term sampling purposes f

or TVA, and were never a part of an on

- going monitoring program or regulatory process. The wells drilled in the ash to evaluate leachate do not monitor groundwater in the area of Ash Pond A. However, there are groundwater monitoring wells nearby that are p art of a compliance monitoring network for monitoring the closed DuPont Dredge Cell. The results717

of this monitoring are submitted to TDEC semi

- annually, and there have been no exceedances of any EPA Maximum Contaminant Levels (MCL), including arsenic and l ead. There are two other

semi

- annual groundwater monitoring networks at the site. One is a compliance network for the South Rail Loop ash fill that is submitted to TDEC, and the other is a voluntary monitoring program for Ash Pond D. Both of these areas ar e closed ash storage areas. These results are reported to TDEC on a semiannual basis. There have been no confirmed exceedances of EPA maximum contaminant levels (MCL) from either of these monitoring programs.

· Required stormwater monitoring for surface water discharges from Johnsonville’s abandoned ash disposal/storage areas include iron and total suspended solids (TSS). Monitoring for arsenic, lead and other potential pollutants is not required for these surface water samples and would not be representa tive of groundwater quality.

In summary, the reports identified above misinterpret publicly available data, misapply regulatory criteria, and attempt to influence the decision

- making process with unscientific conclusions. Therefore, the Tennessee Valley Authority requests that the information contained in the reports, “Out of Control: Mounting Damages From Coal Ash Waste Sites” and “In Harm’s Way: Lack of Federal Coal Ash Regulations Endangers Americans And Their Environment,” not

be considered in the rul emaking process

.

Response: Thank you for the rebuttal of the arguments two environmental advocacy group s made in their reports

, Out of Control and In Harm’s Way

, to support their claims that five of TVA’s CCR management sites should be designated as CCR damage case sites. EPA has assessed all the ‘newly alleged’ damage cases included in the se two reports against the Agency’s test of proof criteria. Based on this a ssessment, EPA designated the Shawnee Fossil Plant, KY, the John Sevier Fossil Plant, TN, the Cumberland Fossil Plant, TN, the Gallatin Fossil Plant, TN, and the Johnsonville Fossil Plant, TN as potential damage cases. For a summary of stakeholder
argument s addressing AEP’s nine sites and the rationale for the Agency’s damage case designation decisions, see the technical support documents on damage cases in the docket of the

final rule.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0209

- 1 

### Organization 1 

### : East Kentucky Power Cooperative (EKPC)


### Commenter 1 : Perry Purvis Commenter Type: Electric Utility Company

Classification: Substantive



### Comment Excerpt Text: EKPC would like to take this opportunity to correct several inaccuracies contained in the

document In Har m's Way: Lack of Federal Coal Ash Regulations Endangers Americans and Their Environment, dated August 26, 20 10 , produced by the Environmental Integrity Project, Earthjustice, and the Sierra Club (Jeff Stant, Project Director, Editor and Contributing Author ), with respect to EKPC's Spurlock Station special waste landfill (the "Spurlock Landfill"). EKPC is also providing additional information about groundwater quality at the Spurlock Landfill that has been generated since the issuance of In Harm's Way. This information demonstrates that there is no demonstrated impact to groundwater outside the permit boundary of the Spurlock718

Landfill.

The total permitted area of the Spurlock Landfill is 389 acres, of which 177 acres are designated

for fill. The horizontal e xpansion of Area C as permitted in 2005 is 54.48 acres.

In Harm's Way contains several errors regarding the location of monitoring wells contains several errors regarding the location of monitoring wells for the Spurlock Landfill, which

contribute to the document's incorrect conclusions. In the aerial map (p. 69), MW

- 1 is shown in

the location of MW

- 2, MW

- 2 is shown in the location of MW

- 3, and MW

- 3 is shown in the

location of MW

- 1. The reference well, MW

- 1, is located side

- gradient to the fill areas in a location that is unaffected by landfill operations, as required by Kentucky regulations. MW

- 2

and MW

- 3 are located downgradient of fill Areas A and B, respectively, within the permit

bounda r y. Area C is located down

- gradient of Areas A and B, also within t he permit boundary. After construction began for Area C, MW

- 2 and MW

- 3 were removed and replaced by MW

- 2A

and MW

- 3A, which are down

- gradient from Areas A, B and C in the direction of documented groundwater flow. Contrary to the claims made in In Harm's W ay, all of the monitoring wells are within the permit boundary. In addition, the permitted groundwater standard for arsenic is 0.050 ppm, not 0.0 10 ppm as In Harm's Way claims.

Another aerial map (p. 72) appears to depict a drinking water well within the Spurlock facility boundary. No drinking water well exists on the EKPC property. The groundwater at the Spurlock Facility is not used as a drinking water source. Moreover, the direction of groundwater flow beneath the Spurlock Landfill is away from the dri nking water wells shown on the map.

In September 2010, the Kentucky Division of Waste Management (the "Division") directed

EKPC to conduct an assessment to determine the cause of the detection of arsenic in MW

- 3 at a concentration exceeding the permit li mit. EKPC submitted this assessment on February 3, 2011.

Because MW

- 3 was abandoned as part of the landfill expansion and was replaced with MW

- 3A, the Division released EKPC from groundwater assessment associated with MW

- 3 by letter dated March 30, 2011, and directed EKPC to provide a Remedial Action Plan. The Remedial Action Plan, which the Division approved on June 8, 2011, demonstrates that impacts to groundwater have been delineated to be well within the permit boundary. Groundwater monitoring of MW

- 2A

and MW

- 3A has not indicated the presence of contamination in either monitoring well. As explained in the Remedial Action Plan, the results of groundwater assessment activities indicate that the migration of arsenic in groundwater on the site is impeded b y natural attenuation mechanisms. However, out of an abundance of caution, the Remedial Action Plan proposes as a remedy the collection of leachate from Landfill Areas A and B in the leachate drainage layer of Area C, which will further serve to prevent im pacts to groundwater from leachate from all three

fill areas.

The Spurlock Landfill and its groundwater monitoring system have been permitted by the Kentucky Division of Waste Management in accordance with the requirements of 401 KAR Chapter 45. EKPC has followed all design requirements in effect at the time of development of each phase of the landfill. The In Harm's Way's claim that contaminated groundwater has been documented outside the permit boundary is based on inaccurate information and is incorrect

. Groundwater monitoring at the Spurlock Landfill has confirmed that there are no demonstrated719

impacts to groundwater at the designated compliance monitoring wells inside the permit boundary

.

Response: Thank you for the rebuttal of the arguments made in the August 2010 environmental advocacy groups’ report In Harm’s Way, to support their claim that the Spurlock Station CCR Landfill should be designated as a CCR damage case site. The Agency has assessed all the ‘newly alleged’ damage cases included in the report against EPA’s test of proof criteria. Based on this assessment, the Agency designated the Spurlock Station Landfill as a potential damage case. For a summary of stakeholder arguments addressing EC KPC’s Spurlock Landfill site and the rationale for the Agency’s damage case designation decision , see the technical support documents on damage cases in the docket of the final rule.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0211

- 11 

### Organization 1 

### : Utility So lid Waste Activities Group (USWAG), et al.


### Commenter 1 : James Roewer Commenter Type: Trade Association

Classification: Substantive



### Comment Excerpt Text: V. The Alleged Damage Cases Presented By Environmental Groups Are Not Proven And Do Not Support The Subtitle C Option

The NODA identifies two reports prepared by environmental groups that, when taken together, allege that 70 CCR sites are “damage cases” that should be considered in the CCR rulemaking. The first report, entitled Out of Control: Mounting Damages From Coal Ash Wastes Sites (“Out of Control”), [Footnote 42: Environmental Integrity Project, Earthjustice, Out of Control: Mounting Damages From Coal Ash Waste Sites (Feb. 2010) (EPA

- HQ

- RCRA

- 2011

- 0392

- 0005).] presents 31 alleged CCR damage cases t hat EPA explains were not included or recognized as proven damage cases in EPA’s July 2007 Coal Combustion Waste Damage Case Assessments (“EPA 2007 Report”). 76 Fed. Reg. at 63256. The second report, entitled In Harm’s Way: Lack Of Federal Coal Ash Regulat ions Endangers Americans And Their Environment (“In Harm’s Way”), presents an additional 39 alleged CCR damage cases. [Footnote 43: Environmental Integrity Project, Earthjustice, Sierra Club, In Harm’s Way: Lack of Federal Coal Ash Regulations Endangers Am ericans And Their Environment (Aug. 2010) (EPA

- HQRCRA

2011

- 0392

- 0006).] As discussed below, nothing presented in the alleged damage cases in Out of Control or In Harm’s Way support the regulation of CCRs under RCRA Subtitle C or undermine EPA’s original de cision in the 2000 regulatory determination that the best means to address the damage cases is to “develop national Subtitle D regulations.” 65 Fed. Reg. at 32216.

Similar to past attempts by environmental groups to inflate the number of proven CCR damage cases in this rulemaking, the overwhelming majority of the allegations regarding the 70 sites are replete with errors, inaccuracies and misstatements and, most importantly, fail to provide the requisite “test of proof” documentation necessary for EPA to c haracterize virtually any of the sites as proven damage cases. EPA should therefore review the allegations with extreme care for accuracy and with a skeptical eye, given the propensity for the allegations to contain general accusations of damage without th e requisite degree of proof to substantiate the claims. Indeed, as720

EPA well knows, prior to initiating this rulemaking, the Agency gathered or received information on 135 alleged damage cases, many of which were submitted to EPA by the same

environmental o rganizations that prepared Out of Control and In Harm’s Way. See 75 Fed. Reg. 35128, 35147 (June 21, 2010). After evaluating these earlier allegations, close to half (62) were dismissed “because there was little or no information supporting the concerns id entified.” Id. Another six were outside the scope of the rulemaking. Id. Of the remaining 67 allegations, 24 were identified as proven damage cases, but this included the 14 proven cases already identified in the 2000 regulatory determination. Id. The poin t is that the track record of the validity of these environmental groups’ damage case allegations is astonishingly poor and, as detailed below, the additional allegations proffered by these same groups in Out of Control and In Harm’s Way are no exceptions to this poor record.

A. Statutory Conditions Related to Reviewing the Alleged Damage Cases

As an initial point, it is important to make clear that it is inappropriate for EPA to rely on damage case allegations in any final rulemaking for CCRs before the Agency has fully evaluated the allegations and provided an opportunity for public hearing and comment on EPA’s initial conclusions. The plain text of the Bevill Amendment commands that this process be followed. Specifically, before making any final regulat ory determination, EPA is required to submit its initial recommendation, along with the reasons for this recommendation, in a report to Congress, and to provide an opportunity for public comment and hearings on these initial findings. See RCRA § 3001(b)(3) (C). Among the Bevill Amendment study factors that must be addressed in the report to Congress is EPA’s evaluation of the “documented cases in which danger to human health or the environment from surface runoff or leachate [from CCRs] has been proven.” RCR A § 8002(n).

Therefore, even assuming that EPA is authorized to issue a new regulatory determination for CCRs, any proven damage cases that have been considered by EPA as part of that determination must be the subject of notice and comment. The mere ident ification of the alleged damage case reports in the NODA cannot serve as substitute for EPA’s statutory obligation under the Bevill Amendment for the Agency to evaluate and make an initial finding as to whether allegations are proven damage cases and to pr ovide the public with opportunity to review and comment on the Agency’s initial findings. As explained above, past experience underscores the importance of this statutorily prescribed vetting process, as many of the former allegations of damage cases

ident ified by environmental groups have been shown to be without merit and have been dismissed by EPA as unsubstantiated and/or incorrect.

Further, before addressing the additional alleged damage cases, it is important to emphasize that it is inappropriate for EPA to include the so

- called “potential” damage cases in its evaluation of the appropriate regulatory option for CCRs. As noted above, the Bevill Amendment provides that, in considering the “documented cases” of danger from the management of CCRs, the Age ncy was only to evaluate those instances where such danger “ has been proved .” RCRA § 8002(n)(4) (emphasis added). EPA has acknowledged this statutory limitation, observing in its final 2000 regulatory determination that, although the potential damage cases may pose a “potential danger” to human health and the environment in some circumstances, they do not “satisfy the statutory criteria of documented, proven damage cases because damage to human721

health or the environment has not been proven.” 65 Fed. Reg. at 32225. Therefore, it is inconsistent with the plain language of the statute for EPA to include any so

- called “potential” damage cases in EPA’s assessment of the “documented cases” of danger to human health and the environment from the management of CCRs. As a consequence, it would be unlawful for EPA to consider the alleged “potential” damage cases in Out of Control or In Harm’s Way as support for any decision to reverse its final 1993 or 2000 regulatory determination. The alleged “potential” damage cases are simply irrelevant to this rulemaking.

B. The Alleged Damage Cases Do Not Have Merit

While it is EPA’s statutory responsibility to make an initial assessment as to whether any of the alleged damage cases are proven damage cases [Footnote 44: “Proven d amage cases are those with (i) documented exceedances of primary MCLs or other health

- based standards measured in ground water at sufficient distance from the waste management unit to indicate that hazardous constituents have migrated to the extent that th ey could cause human health concerns, and/or (ii) where a scientific study demonstrates there is documented evidence of another type of damage to human health or the environment (e.g., ecological damage), and/or (iii) where there has been an

administrative ruling or court decision with an explicit finding of specific damage to human health or the environment. In cases of comanagement of CCWs with other industrial waste types, CCWs must be clearly implicated in the reported damage.” EPA, Coal Combustion Wast e Damage Case Assessments 2 n.3 (July 2007). In determining whether evidence of ecological damage from a CCR unit constitutes a damage case, EPA stated in the proposed 2010 CCR rulemaking that it “now believes that ecological damages warranting state envir onmental response are generally appropriate for inclusion as damage cases,” such as information leading a state to issue fish advisories. 75 Fed. Reg. at 35147.] and to provide public with notice and opportunity to comment on its initial findings, USWAG ha s conducted its own initial review of the allegations. To do this, USWAG retained Kelron Environmental (“Kelron”) to perform a technical assessment of the 70 alleged damage cases identified in the above reports.

In conducting its technical assessment, Kel ron reviewed all of the allegations presented in Out of Control and In Harm’s Way, including those allegations such as secondary MCLs and other non

health based criteria and advisories that are ultimately irrelevant to the analysis because they

cannot serv e as the basis for categorizing a site as a proven damage case. These allegations were taken at face value for the purpose of conducting the review and evaluated against the test of proof criteria used by EPA in making damage case assessments. Kelron perfo rmed this comprehensive assessment for purposes of completeness and to preclude any suggestion that it was selective in its review of the allegations. Importantly, this comprehensive review, including
Kelron’s inclusion of non

- health based allegations in i ts technical assessments, reveals that the vast majority of the alleged damage cases in Out of Control and In Harm’s Way do not, even on their face, implicate potential adverse impacts to human health or the environment. Such allegations clearly are insuff icient under EPA’s test of proof criteria to demonstrate that a particular site meets the definition of a proven damage case. In the end, only those allegations that meet EPA’s test of proof criteria are relevant in determining whether a site has the poten tial to meet EPA’s definition of a proven damage case. [Footnote 45: The Kelron Report appropriately did not evaluate allegations from sources involving NDPES permitted outfalls. The Bevill Amendment directs EPA to evaluate documented cases of proven damag es from “surface722

runoff or leachate,” which does not encompass authorized parameters under NPDES permits which are technically based and would not constitute a “proven damage.” See RCRA § 8002(n). Further, RCRA expressly excludes NPDES discharges from RCRA jurisdiction, and hence alleged surface water damage from an NPDES permitted outfall would not and could not be addressed by future RCRA regulations. See RCRA § 1004(27) (excluding industrial point source discharges subject to NPDES permitting from RCRA’s statutory definition of solid waste). Moreover, from a “test of proof” perspective, allegations based simply on the level of constituents collected from an NDPES outfall cannot meet the definition of a proven damage case because such allegations do not co nstitute a scientific study demonstrating “documented evidence of . . . damage to human health or the environment” or an “administrative ruling . . . with an explicit finding of specific damage to human health or the environment.” EPA, Coal

Combustion Wast e Damage Case Assessments 2 n.3 (July 2007).] A copy of Kelron’s report, including its technical assessments for all 70 of the alleged damage cases, is attached to these comments as Attachment A (“Kelron Report”).

For each case where Kelron determined tha t the allegations for a particular site were facially insufficient to meet the test of proof criteria necessary to be evaluated as a proven damage case, Kelron identified the deficiencies in the allegations and concluded that the allegations did not

suppor t characterization of the site as a proven damage case. In those cases where the allegations regarding a particular site could potentially be viewed as meeting the test of proof criteria for characterizing the site as a proven damage case, Kelron sought to obtain additional background information regarding the site from facility owners/operators or from state regulatory bodies to better assess the underlying validity, accuracy or comprehensiveness of the allegations. The supplemental information obtained fr om these sources varied, but generally included more detailed or up

- to

- date information regarding the site, including the status of any regulatory and remediation actions, as well as corrections to inaccuracies and/or misinformation with respect to specifi c facilities.

Based on the above analysis, Kelron concluded that, of the 70 damage cases alleged in In Harm’s Way and Out of Control, only 6 contained allegations that could be viewed as meeting EPA’s test of proof criteria for potentially characterizing the site as a proven damage case. Moreover, one of these cases had already been determined by EPA to be a proven damage case, effectively reducing to 5 the number of cases, out of a total of 70, that could even potentially be viewed as additional proven da mage cases. Further, 12 of the 70 alleged “new” cases were already previously addressed in EPA’s 2007 damage case assessment, [Footnote 46: EPA, Coal Combustion Waste Damage Case Assessments (July 2007) (EPA

- HQ

- RCRA

- 2006

- 0796

- 0015).]

with five of the sites already rejected by EPA due lack of evidence of damage or lack of evidence of damage uniquely associated with CCRs, and seven of the sites characterized as indeterminate due to insufficient information. The Kelron Report found that no new information rega rding these 12 sites was contained in the above reports warranting their designation as proven damage

cases.

For the remaining 6 alleged damage cases where the allegations, taken at face value, could be viewed as meeting EPA’s test of proof criteria and t hus potentially viewed as proven damage cases (including the previously designated proven damage case), Kelron found that these sites fell into two categories: (1) sites that are no longer active and where the alleged damages have723

been fully remediated (in deed, in one case the alleged impact surface water body is reported to be restored to a quality superior to other non

- impacted areas), and (2) sites involving circumstances where the alleged damages are currently undergoing remediation with federal

and/or state oversight. Therefore, the regulation of CCRs under the Subtitle C option (or even EPA’s proposed Subtitle D option) would have no impact on addressing these sites, as they are all already fully remediated or are undergoing active remediation. Further , as discussed below, EPA’s proposed Subtitle D regulations would be just as effective as the Subtitle C option in preventing any future CCR damage cases.

It also is important to emphasize that Kelron is not alone in identifying significant inaccuracies

a nd outright errors in the vast majority of the alleged damage cases identified Out of Control and In Harm’s Way. USWAG understands that state environmental protection agencies, who have

first

- hand knowledge of the many of the alleged damage case sites, als o will be commenting on the errors in the above reports. For example, the Pennsylvania Department of Environmental Protection (“PADEP”) submitted comments on last summer’s CCR proposal with respect to the damage case allegations in Out of Control for four facilities located in the southwest region of the state. USWAG understands that PADEP is updating these comments to address all the alleged damage cases identified in Out of Control and In Harm’s Way in Pennsylvania, but it is worth noting that even in its initial comments on the damage case allegations in Out of Control, PADEP explained that “[s]ince the EIP report did not contain standard scientific documentation, the Department has responded based on a scientific review of each facility’s data and the

De partment’s familiarity of the sites and their groundwater data and impacts.” Commonwealth of Pennsylvania Department of Environmental Protection Southwest Region, Review of the Environmental Integrity Project and Earthjustice Report: “Out of Control: Mount ing Damages From Coal Ash Waste Sites”, (October 13, 2010). PADEP “reviewed and responded to each specific allegation point by point” and concluded, after a “methodical, organized and scientific review” of its data, that “the allegations regarding groundwa ter and surface water contamination by Primary MCL’s are unfounded.” Id.

C. The Proposed Subtitle D Controls Will Address the Alleged Risks Identified in Environmental Group Reports

In addition to the fact that virtually all of the allegations in Out of Control and In Harm’s Way fail to demonstrate that any of the sites meet EPA’s definition of a proven damage case, the concerns expressed in those reports involve alleged damage to surface and groundwater from CCR disposal units that the proposed Subtitle D controls are specifically designed to address. EPA has stated repeatedly that the standards for CCR disposal units are identical under both the Subtitle C and Subtitle D options (75 Fed. Reg. at 35213), with both proposed regulatory programs requiring l iners and leachate collection systems for new disposal units and lateral expansions of existing units, as well as the retrofitting of existing CCR impoundments. See e.g.,

id. at 35243

- 45 (proposed 40 C.F.R. §§ 257.70

- .72). Further, under the Subtitle D opt ion, existing CCR disposal units would be subject to groundwater monitoring standards that will allow for the early detection of any groundwater contamination from both lined and existing unlined units. Id. at 35246 (proposed 40 C.F.R. § 257.90). Finally, the Subtitle D option would impose structural integrity requirements on all CCR surface impoundments, thus addressing the additional concern with the potential structural failure of such units that served as the basis for724

identifying the TVA Kingston facil ity and Martin’s Creek Power Plant as proven damage cases.

Id. at 35243

- 45 (proposed 40 C.F.R. §§ 257.71(b)

- (f), 257.83). While the Subtitle D regulations will be effective in preventing future damage cases, as explained above, any of the alleged damage ca ses that EPA may ultimately conclude are proven damage cases already are being properly remediated under state and/or federal oversight.

The vast majority of alleged damage cases identified in Out of Control and In Harm’s Way do not present adequate infor mation to even be considered as meeting the test of proof criteria necessary for EPA to evaluate the sites as proven damage cases. The small number of alleged damage cases that, based on the allegations taken at face value, potentially meet the criteria fo r evaluation as a proven damage case, are either inactive units where remediation is complete and/or undergoing active remediation. Finally, the proposed Subtitle D regulations will prevent future damage cases. Therefore, nothing presented in Out of Contro l and In Harm’s Way supports the authors’ call for the regulation of CCRs under RCRA Subtitle C when EPA’s proposed Subtitle D option will effectively address future issues associated with their purported concerns regarding CCR management. As USWAG stated in its initial comments on the CCR proposal, given the underlying goal of the Bevill Amendment that EPA avoid the Subtitle C regulation of CCRs “if at all possible” (Envt’l Def. Fund v. EPA, 852 F.2d 1309, 1314 (D.C.Cir. 1988)), there is no basis for EPA t o rely on the damage case allegations in the above reports as the basis for pursuing the Subtitle C option

.

Response: This rule will regulate CCRs under RCRA subtitle D: for further details, see unit IV of the preamble to the final rule.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0211

- 17 

### Organization 1 

### : Utility Solid Waste Activities Group (USWAG), et al.


### Commenter 1 : James Roewer Commenter Type: Trade Association

Classification: Substantive



### Comment Excerpt Text: [ATTACHMENT: see original comment for Attachmen t A: "Evaluation of Alleged CCR Damage Cases in the October 2011 NODA, 76 Fed. Reg. 63252 (Oct. 12, 2011)," prepared for the Utility Solid Waste Activities Group by Keldron Environmental, November 14, 2011, Project

No. 110901.

Executive Summary, excerpted from full report in Attachment A:

At the direction of the Utility Solid Waste Activities Group (“USWAG”), Kelron Environmental (“Kelron”) prepared this technical assessment of the 70 alleged damage cases identified in the two reports entitled Out of Cont rol: Mounting Damages From Coal Ash Waste Sites (“Out of Control”) and In Harm’s Way: Lack of Federal Coal Ash Regulations Endangers Americans and Their Environment (“In Harm’s Way”). In conducting this technical review, Kelron assumed the allegations pres ented in In Harms Way and Out of Control were true for the limited purpose of evaluating those allegations against the “test of proof” criteria used by USEPA in making damage case assessments. In those cases where the allegations on their face did not meet the test725

of proof criteria for being considered a proven damage case, Kelron identified the deficiency in the allegations and concluded that the allegations did not support characterization of the site as a proven damage case.

In cases where the allegati ons presented, taken at face value, could be viewed as facially meeting the test of proof criteria for characterizing the site as a proven damage case, Kelron sought to obtain additional background information regarding the site from facility owners/operat ors or from state regulatory bodies to better assess the underlying validity, accuracy or comprehensiveness of the allegations. The supplemental information obtained from these sources varied, but generally included more detailed or up

- to

- date information regarding the site, including the status of any regulatory and remediation actions, as well as corrections to inaccuracies and/or misinformation that were found in the reference documents (i.e., Out of Control and In Harm’s Way) regarding a particular site

.

Based on the above, of the 70 damage cases alleged in In Harm’s Way and Out of Control, Kelron found that 64 of the allegations did not meet USEPA’s test of proof criteria for characterizing the site as a proven damage case. For the remaining 6 sites wh ere the allegations on their face could arguably be viewed as meeting USEPA’s definition of a proven damage case, Kelron found that the alleged damage cases involved one of two circumstances: (1) sites that are no longer active and where the alleged damage s have been remediated, or (2) sites where the alleged damages are currently undergoing remediation with federal/state oversight. Kelron notes that 12 of the 70 alleged damage cases were previously addressed in USEPA’s 2007 Damage Case assessment, with fiv e of the sites rejected by USEPA due lack of evidence of damage or lack of evidence of damage uniquely associated with CCR, and seven of the sites characterized as indeterminate due to insufficient information. No new information regarding these 12 sites

w as contained in the above reports warranting their classification as proven damage cases.]

Response: Thank you for the rebuttal of the arguments made in the February and August 2010 environmental advocacy groups’ reports

, Out of Control and In Harm’s Way, respectively, to support their claims that 70 CCR management sites should be designated as CCR damage cases

. EPA has assessed all the ‘newly alleged’ damage case sites included in both reports against

EPA’s test of proof criteria. For a summary of stakeho lder arguments addressing these CCR management sites and the rationale for their damage case designations decisions , see the technical support documents on damage cases in the docket of the final rule.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0211

- 30 

### Organi zation 1 

### : Utility Solid Waste Activities Group (USWAG), et al.


### Commenter 1 : James Roewer Commenter Type: Trade Association

Classification: Substantive



### Comment Excerpt Text: USWAG’s primary comments on the NODA are as follows:

- The new CCR facility and waste management data illustrate that CCR impoundments are operated safely and that not a single CCR impoundment, out of the hundreds inspected by EPA,726

poses an immediate safety threat.

- The noticed chemical constituent data underscores that CCRs rarely, if ever, exhibit a waste characteristic and that no category of CCRs meets EPA’s hazardous waste listing criteria.

- Contrary to comments in the docket from groups with a narrow agenda of pervasive federal regulation, comments from state regulators illus trate that the states have successfully overseen CCR management programs for decades and have the expertise and resources to implement an

effective non

- hazardous CCR program. In contrast, the imposition of a hazardous CCR regulatory scheme would create pra ctical problems at the state level that would frustrate the intent of this rulemaking.

- Comments from end users of CCRs and CCR products demonstrate that designating CCRs destined for disposal as “special” hazardous wastes will saddle all CCRs with a sti gma that will be adversely impact the beneficial use rates of those materials.

- A review of the alleged damage case data in the NODA docket compels the conclusion that that none of the alleged damage cases warrant reversal of EPA’s Bevill determinations or regulation

of CCRs under Subtitle C.

- EPA’s risk assessment contains serious flaws in its inputs and modeling methodology which are not addressed by the information in the NODA. Some of the information in the NODA could contribute to modest improvemen ts in the risk assessment, but only if used appropriately.

Response: This rule will regulate CCRs under RCRA subtitle D: for further details, see unit IV of the preamble to the final rule.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0212

- 5 

### Organization 1 

### : Consumers Energy Company (Consumers Energy)


### Commenter 1 : Gary Dawson Commenter Type: Electric Utility Company

Classification: Substantive



### Comment Excerpt Text: Comments on Consumers Energy Alleged Damage Cases

Consumers Energy has reviewed in detail the a lleged damage cases provided in the NODA for the Company's Karn/Weadock Generating Facility in Essexville, Michigan (Environmental Integrity Project and Earthjustice, "Out of Control: Mounting Damages from Coal Ash Waste Sites": pp.28

- 30, (February 24, 201 0)), and for its J.R. Whiting Generating Plant in Erie, Michigan. (Environmental Integrity Project, Earthjustice, and Sierra Club, "In Harm's Way: Lack of Federal Coal Ash Regulations Endangers Americans and Their Environment", pp. 92

- 93, (August 26, 2010) . Detailed comments for these two alleged damage cases will follow below. Additionally, the Company would like to state, with regard to the alleged damage cases as a

whole:727

• There are no data in the alleged damage cases published with this NODA that prov ide support to warrant regulation of CCR under Subtitle C.

• The alleged damage cases in general are replete with errors and generally comport with EPA's damage case criteria in only the most perfunctory mam1er. Given the readily apparent lack of quality in these allegations, Consumers Energy questions why these alleged damage cases have been included in this NODA as an item worthy of response.

Alleged Karn

- Weadock Damage Case

Allegations made against Consumers Energy's Karn and Weadock Plants do not sup port the claim that this is a proven damage case. The allegations are not supported by the facts, which are often misstated, in the Environmental Integrity Project and Earthjustice, report "Out of Control: Mounting Damages from Coal Ash Waste Sites": pp.28

- 30 (February 24, 2010).

The Saginaw Bay receives large volumes of contaminants from numerous industrial sources in the Saginaw River, and other rivers which collect to it. Further there are naturally occurring

sources of arsenic and other substances. In fact, average arsenic concentrations in the sediment in the vicinity of the Karn and Weadock landfills are significantly lower than the average concentration in background samples in the Saginaw Bay. The average for Saginaw Bay is 16.6 mg/kg, while the sa mples in the landfill vicinity average only 10 mg/kg. See Natural Resource Technology, Inc. Phase II Final Report at pages ES

- 3, ES

- 4, and 4

- 1 (2005), t his report is erroneously attributed to the Michigan Department of Environmental Quality (MDEQ) in the

a lleged damage case.

Further, the plants have not been found by the MDEQ to have exceeded any standard at the point of compliance for the plants. As discussed below, the MDEQ did allege non

- compliance at one time, due to a miscalculation of mixing zone req uirements by the agency. That has been corrected, and there are no known exceedences caused by the plants.

Here are comments on specific allegations.

1. The alleged damage case fails to note that, while this is a "utility site", the Karn and Weadock

land fills were constructed on former bottomlands associated with the Saginaw River and Saginaw Bay, "which are known areas of environmental impact from various sources" (MDEQ 2009a, as cited in the alleged damage case.) The lower Saginaw River and Saginaw Bay has been named by the Great Lakes' International Joint Commission (IJC) as an "Area of Concern" (AOC) for metals. To examine sediment pore water (groundwater) data and uncritically attribute metals concentrations to discharges from the landfill ignores the context developed in alleged damage case reference MDEQ 2005; additionally, the interpretations of data and conclusions drawn from the data differ from those of the Michigan Department of Environmental Quality (MDEQ) in the cited references, MDEQ 2009a an d 2009b.

• The groundwater determination is at variance with the finding from the Michigan Department of Environmental Quality (MDEQ 2009b) quoted in item 2 above, viz. "Some of the pollutants were heading toward the Saginaw Bay, but no transect data foun d any reaching it above water728

quality criteria"

• The surface water determination is not supported by any of the references listed. In fact, the 2005 NRT Phase II Final Report (MDEQ 2005) notes that high arsenic concentrations in the

sediment do not lead to concentrations of concern in surface water. As noted in the 2005 NRT source document, results and conclusions section, natural attenuation processes such as arsenic precipitation with sulfide minerals and co

- precipitation with iron oxides as the reduced groundwater approaches the oxic surficial sediment zone remove the arsenic from the venting

water.

6. The 0.997 mg/l arsenic concentration cited in the Test of Proof section is not in source 2009a; regardless, an MCL should not be applied to arsenic conc entrations in this designated non

- usable aquifer. 7. With regard to the Incident and Date Damage Occurred section, the alleged damage case cites MDEQ 2009b as the source for their statement, "Groundwater monitoring later confirmed that

contaminants were re aching Saginaw Bay in levels that were exceeding federal standards." There is no such conclusion in the cited reference. As noted in item 2. above, MDEQ concluded "Some of the pollutants were heading toward the Saginaw Bay, but no transect data found any r eaching it above water quality criteria". Monitoring data collected since then confirm this conclusion. 8. With regard to the Regulatory Actions of the alleged damage case, we stated in our November 19, 2010 on this proposed rule, page 5, that: "First, the re were allegations of damage to the Saginaw Bay caused by eft1uent from the D.E. Karn Plant and the J.C. Weadock Plant, both in Essexville, Michigan. This was based upon a misunderstanding. The State of Michigan had incorrectly calculated the allowable di scharges of certain substances, considering the mixing zone. With the corrected calculations, the plants are in compliance with applicable requirements. The regulatory compliance point for the landfills is the point at which the water enters the

surface wa ter (the groundwater/surface water interface, or "GSI"). The Michigan Department of Natural Resources and the Environment has acknowledged that "... we do not currently know of any parameter or location where exceedences are suspected or known to occur at the GSI." Letter from Terry L. Walkington, August 26, 2009. 9. With respect to the "Wastes Present" section of the alleged damage case, the response mentions only coal ash and does not mention contaminated dredge spoil from dredging by others (partially no ted in item 2 above), or industries upriver that have been noted as sources of contaminants to the AOC, or native metal contamination noted in item 2 above. 10. With respect to "Types of Waste Management Units", these facilities are regulated under Michiga n solid waste rules under R299.4309 as, Industrial waste surface impoundments closed as landfills. Both impoundments converted to dry fly ash disposal in early 2009 and will be closed as landfills. The rules require the elimination of free liquids or solid ification of the waste and cover with a specified landfill final cover. Groundwater and post

- closure maintenance monitoring are required. Both units are currently "active". 11. With respect to "probable cause", compliance with discharge standards has been documented above, and there is no finding of damage to require the determination of probable cause. 12. The following comments address the "Additional Narrative" section of the alleged damage

case:

• The Karn and Weadock landfills are in fact former surfa ce impoundments that are being729

dewatered for ultimate closure as landfills. Both facilities (not just Weadock, as stated) converted to dry fly ash handling in early 2009. DE Karn landfill is in the process of completing design fill

elevations on the struct ural fill portion of the landfill prior to closure; JC Weadock landfill will continue in operation for some years. • The transition to dry fly ash disposal was complete at both facilities in early 2009; dry fly ash from both the Karn and Weadock plants is transported dry to a single silo in the Weadock landfill for either disposal or marketing. The transition to dry fly ash handling was not in response to contamination problems. • The alleged groundwater contamination issue has been discussed at length abo ve. Quarterly groundwater monitoring indicates that the discharges are in compliance. The area of influence from ash pond discharge stated in the narrative were mapped during the NRT 2005 study; the area of influence is much smaller today due to the conver sion to dry ash handling and the dewatering of the landfills, which has diminished head and the groundwater mounds noted • Contrary to claims of the Environmental Integrity Project, the MDEQ 2005 reference does not

state that the Karn and Weadock landfills are major contributors to contamination in the Saginaw Bay AOC. This statement nowhere appears in the cited reference. • The Environmental Integrity Project report also contains an allusion in the narrative to fish and wildlife damages in the AOC. With re spect to alleged damage to wildlife, Consumers Energy wishes to cite a Michigan Sea Grant study that concluded that there was "an absence of metal toxicity" in sediments in the proximity of the Karn

- Weadock plant:

Lewis, Brent 2006. An Evaluation of Seaso nal and Temporal Variability of Potential Trace Metal Remobilization in Coastal Wetland Sediments Using Voltammetric [sic] Microelectrode Technology and Solid Phase Extraction Techniques. Sea Grant Final Report. Project Number

R/ES/20

Alleged J.R. Whiting Plant Damage Case Allegations made with respect to the J.R. Whiting Plant do not support the claim that this is a proven damage case. Environmental Integrity Project, Earth justice, and Sierra Club, "In Harm's Way: Lack of Federal Coal Ash Regulations End angers Americans and Their Environment", pp.

92

- 95, (August 26, 2010). The allegations are based on a study that is inadequate and did not authoritatively show environmental harm from the plant. There is no allegation that the surface water or groundwater exceeded federal standards. The allegations even admit that there was no

exceedence found of state standards. "Maximum concentrations for all four trace elements in sediment were below Michigan Department of Environmental Quality criteria for soil cleanup. " See In Harm's Way at page 93.

The "Additional Narrative" on page 94 of the allegations acknowledges that "EPA rejected this damage case (#76, Lake Erie, Ohio) because of insufficient evidence to confirm that fossil fuel

combustion wastes were the source of contamination in this case' ". While the narrative then goes on in an attempt to make the case that this was a carefully designed study specifically designed to evaluate the effects of coal ash disposal (Hatcher, C.O., R.E. Ogawa, T.P. Poe and J.R.P.

F rench III, 1992. Trace elements in lake sediment, macrozoobenthos, and fish near a coal ash disposal basin, J. Freshwater Ecol. 7:257

- 269), in fact, it was not, and the EPA was right to reject the potential damage case because the study failed to determine damage or to meet EPA's several criteria required for the demonstration of a damage case.730

The study used only "total metals" (ug/g) concentrations to compare concentrations in coal ash, sediment, and organisms

- there are no data with regard to the concent rations that the ash or sediment produced in the water relative to standards to protect aquatic life. While coal ashes often contain higher concentrations of metals than sediments, the bulk of these metals are primarily embedded in the glassy ash matrix, a nd are unavailable to aquatic life. Additionally, the data in the study for uptake in biota were both sparse and inconsistent; there was also no comparison of tissue concentrations to known chronic or acute thresholds.

Uptake of "metals" in and of itself does not constitute damage. Indeed, some "metals" are essential micronutrients that may be beneficial to aquatic life. Selenium, for example, is an essential micronutrient that was found to be higher in some organisms near the discharge.

Selenium is clear ly a potential contaminant, but selenium can also be used to reduce mercury concentrations in aquatic organisms, e.g. Paulsson,K. and Lundbergh, K. (1991 ). Treatment of mercury contaminated fish by selenium addition. Water Air Soil Pollut. 56:833

- 841.

Th e study also failed to adequately assess the role of other sources of contamination, industrial or agricultural, or the contribution of background metals in native sediments. While "control" sediment locations were established along the Woodtick Peninsula, there is no information in the publication to show that the native sediments in the two areas were comparable physically or chemically. The Woodtick Peninsula is a complex geological feature that has accreted and eroded and accreted over and over again ov er time, which has resulted in very complex sediment bedding and inter

- bedding with sediment from different sources over time. (U.S. Army Engineer District, Detroit Corps of Engineers, Detroit, Michigan, "Erosional History and Management

Alternatives of Wo odtick Peninsula, Michigan, April, 1982.) Additionally, metals concentrations are generally lowest in sands, intermediate in silts, and highest in clays. Soils in the Huron

- Erie glacial lobe tend to be high in metals generally relative to the statewide ave rage (Michigan Department of Environmental Quality, 2005.Michigan Background Soil Survey 2005) and are especially high in arsenic; erosion of these soils leads to sediments that are high in metals. Thus the high silt and clay content sediment produced by B ay Creek proximal to the plant would naturally have more arsenic than the more sandy sediments in the control area along the Woodtick. The study cited in the alleged damage case is wholly inadequate in differentiating the

effects of contamination from othe r sources, and especially soils, from contamination produced by the discharge.

An especially troublesome detail from this study was the finding that arsenic and cobalt concentrations were higher in the sediment station near the outfall, but only in the su mmer and fall. While one would expect to see seasonal differences in the distribution of metals in mobile biota, one would not expect to see significant seasonal differences in sediment total metals concentrations. This observation, together with the spora dic nature of uptake data, raises questions with regard to quality control in sampling and analysis.

To sum, there are substantial questions with regard to the quality of the subject study, the inability to separate CCR inputs from native background and o ther sources of contamination, and in the determination of damage to water quality (it wasn't measured) or to biota. EPA was correct731

in rejecting this alleged damage case in 2007.

Response: Thank you for the rebuttal of the arguments made in In Harm’s Way, the August 2010 environmental advocacy groups’ report to support their claims that the Karn/Weadock Generating Facility and the J.R. Whiting Generating Plant CCR management sites should be designated as CCR damage case s. EPA has assessed, among others , th e se two ‘newly alleged’ damage case sites against the Agency ’s test of proof criteria. Based on this assessment, the J.R. Whiting Generating Plant site was designated as a proven damage case whereas the Karn/Weadock Generating Facility site was designa ted as a potential damage case. For a summary of stakeholder arguments addressing these two CCR management sites and the rationale for their damage case designations decisions , see the technical support documents on damage cases in the docket of the final rule.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0215

- 1 

### Organization 1 

### : Duke Energy Business Services, LLC (Duke Energy)


### Commenter 1 : Richard Meiers Commenter Type: Electric Utility Company

Classification: Substantive



### Comment Excerpt Text:

II. Comments on Alleged Damage Cases in the NODA

A. Information Contained in the NODA Alleging that Certain Duke Energy Stations Constitute a Proven Damage Case

On August 26, 2010, a report targeting new alleged damage cases was released by the Environmental Integrity P roject, Earthjustice, and the Sierra Club entitled “In Harm’s Way: Lack of Federal Coal Ash Regulations Endangers Americans and Their Environment” (“SC Report”). The SC Report, which is referenced in the NODA, contends (among other things) that Duke Energy ’s Dan River Steam Station constitutes a proven damage case.

On February 24, 2010, a report of new alleged damage cases was also released by the Environmental Integrity Project and Earthjustice entitled “Out of Control: Mounting Damages

from Coal Ash Wast e Sites” (“EIP Report”). The EIP Report, which is referenced in the NODA, contends (among other things) that Duke Energy’s Gibson Generating Station and Belews Creek Steam Station constitute proven damage cases.

The SC Report and EIP Report contain numero us errors and misleading arguments. However, Duke Energy does not address each and every error in these comments. Rather, Duke Energy simply discusses the relevant facts and assertions, all of which demonstrate that there is no factual or legal basis to es tablish a proven damage case for Dan River Steam Station, Gibson Generating Station, or Belews Creek Steam Station.

B. Requirements to Establish a Proven Damage Case

In order to establish a proven damage case, it must be shown that:732

(i) Documented excee dances of primary MCLs or other health

- based standards have been measured in groundwater at a sufficient distance from the waste management unit to indicate that hazardous constituents have migrated to the extent that they could cause human health concerns ; and/or

(ii) A scientific study has demonstrated that there is documented evidence of another type of damage to human health or the environment (e.g., ecological damage) [Footnote 3: In determining whether evidence of ecological damage from a CCR unit co nstitutes a damage case, EPA stated in the proposed 2010 CCR rulemaking that it “now believes that ecological damages warranting state environmental response are generally appropriate for inclusion as a damage case,” such as information leading a state to issue fish advisories. 75 Fed. Reg. 35128, 35147 (June 21, 2010).]; and/or

(iii) There has been an administrative ruling or court decision with an explicit finding of specific damage to human health or the environment. In cases of co

- management of CCR wit h other industrial waste types, CCR must be clearly implicated in the reported damage [Footnote 4: Coal Combustion Waste Damage Case Assessments, U.S. EPA, Office of Solid Waste (7/9/07), citing EPA’s May 2000 Regulatory Determination, 65 Fed. Reg. R 32214 , 32224 (May 22, 2000),(http://frwebgate.access.gpo.gov/cgi

bin/getdoc.cgi?dbname=2000_register&docid=fr22my00

- 22.pdf) and Section 1.4.4 of the 1999 Report to Congress (http://www.epa.gov/epaoswer/other/fossil/volume_2.pdf).].

Notably, the SC Report and EIP Report often allege exceedances that are not relevant to EPA’s test of proof criteria for a damage case (as outlined above). For example, the SC Report and EIP Report point to alleged exceedances of standards that are non

- health based standards (such a s secondary maximum concentration levels) and other criteria (health advisories (“HAs”)). While this data may be referenced in Duke Energy’s response, it is only to address any allegations that the response is incomplete; such data is otherwise irrelevant. For purposes of alleged groundwater contamination, only alleged exceedances of primary MCLs and other health

- based

standards in off

- site groundwater or in nearby surface waters are relevant for purposes of assessing whether a site meets the definition of a proven damage case [Footnote 5: See 65 Fed. Reg. 32214, 32224 (May 22, 2000); see also EPA’s July 9, 2007 Report entitled “Coal Combustion Waste Damage Case Assessments” at p.6, distinguishing documented off

- site damages to groundwater from on

- site excee dances as a basis for categorizing a site as a proven damage case.].

C. Duke Energy’s Dan River Steam Station Does Not Constitute a Proven Damage Case

1. The SC Report’s Allegations, Even if True, Do Not Meet the Test of Proof to Establish a Proven Damag e Case

The SC Report asserts that Dan River Steam Station (“Dan River”) qualifies as a proven damage

case because there are adverse on

- site groundwater impacts.

As the SC Report notes, however, there has been no documented exceedance of maximum733

concentra tion levels (“MCLs”) or other health

- based standards in groundwater at a sufficient distance from any of the identified waste management units to indicate that hazardous constituents have migrated so that they could cause human health concerns. Furthermore , the SC Report cites no scientific studies documenting ecological damage or administrative rulings or court decisions with explicit findings implicating CCR as the cause of specific damage to human

health or the environment.

As a result, even if true, th e SC Report’s allegations do not meet the test of proof to establish a proven damage case at Dan River.

2. Additional Information Demonstrating that Dan River is Not a Proven Damage Case

Some additional information is warranted given the SC Report’s misl eading assertions. First, the data referenced in the report was taken from monitoring wells which were either background monitoring wells on station property or were located very close to the ash ponds on station property. Therefore, it is improper to cite to this data as being representative of off

- site groundwater concentrations.

Moreover, four of the parameters noted in the SC Report (iron, manganese, silver, and sulfate) do not have primary MCLs or other health

- based standards. In addition, iron and ma nganese occur naturally in soils in the Piedmont region of the Carolinas, and elevated levels of these parameters are common in on

- site background wells. Therefore, reliance upon these parameter concentrations during the damage case determination process i s misplaced.

The concentrations of silver, chromium, and lead cited in the SC Report only occurred in the first

and/or first few on

- site well sampling events. It is common for some parameters to be elevated in initial sampling events due to turbidity and other well installation

- related issues. After the initial sampling events occurred, there has been no exceedance of any health based standards (to the extent any health based standards were exceeded in the first place). Similarly, sulfate

concentrations ha ve remained well within acceptable limits since 1996.

Finally, the SC Report’s reference to “five public drinking water wells within a five

- mile radius of Dan River” is misleading. Those wells are all located at least two miles from the station and

are no t downgradient. Likewise, the SC Report’s reference to “over a dozen private suburban wells within two miles of the CCR impoundments at Dan River” is misleading. These wells are

off

- site and are also not downgradient.

Thus, the referenced off

- site public and private wells are irrelevant to any proven damage case

determination.

As a result of the foregoing, the SC Report’s allegations fail to establish any proven damage case concerning Dan River’s operations.

D. Duke Energy’s Gibson Generating Station Doe s Not Constitute a Proven Damage Case

1. The EIP Report’s Allegations, Even if True, Do Not Meet the Test of Proof to Establish a734

Proven Damage Case

The EIP Report contends that Gibson Station qualifies as a proven damage case because there

are adverse o ff

- site impacts to groundwater, drinking water, and aquatic life. Upon scrutiny, this

claim has no merit.

First, on its face the EIP Report’s allegations are insufficient to establish a proven damage case concerning human health concerns. There is no alle gation that there is an off

- site exceedance of any primary MCL or other health

- based standard. There is only an allegation that off

- site impacts to groundwater exceed certain health advisory levels [Footnote 6: The Edition of the Drinking Water Standards a nd Health Advisories, EPA 820

- R

- 11

- 002 (January 2011) defines a Health Advisory (“HA”) as an estimate of acceptable drinking water levels for a chemical substance based on health effects information. A HA is not a legal or enforceable federal standard.]. M oreover, as noted by the EIP Report, municipal water service has been supplied to all residents that might be affected by any alleged off

- site impacts to groundwater. Consequently, the EIP Report’s allegations do not establish, and cannot establish, any cu rrent off

- site adverse human health impacts.

Second, the EIP Report cites no specific scientific study that concludes that there has, in fact, been any off

- site actual ecological damage caused by CCR impacts from Gibson Station’s operations. Instead, the Report merely contains allegations that there may be or could be adverse

off

- site ecological effects based upon selenium levels in aquatic invertebrates, fish, and bird eggs in an adjacent area. Under the law, allegations of “may be” or “could be” are insu fficient to establish a proven damage case.

Finally, the Report properly notes that the Indiana Department of Environmental Management (“IDEM”) is satisfied with the actions taken by Duke Energy. Consequently, IDEM has not taken any enforcement action rel ated to any alleged CCR impacts. Thus, there has been no administrative ruling or court decision with an explicit finding of specific damage to human

health or the environment.

As a result, even if true, the EIP Report’s allegations do not meet the test o f proof to establish any proven damage case at Gibson Station.

2. Additional Information Demonstrating that Gibson Station is Not a Proven Damage Case

a. Duke Energy’s Actions in Maintaining the Cane Ridge Wildlife Area

Additional information is warrant ed given the EIP Report’s misleading assertions concerning adverse ecological impacts to the Cane Ridge Wildlife Area (“Cane Ridge”), which is a 463

- acre area adjacent to Gibson Station’s industrial surface impoundment cooling pond (“Cooling Pond”). At the outset, it should be noted that Duke Energy voluntarily funded over $250,000.00 of the construction cost for two nesting islands in Cane Ridge. These islands were designed to facilitate the breeding of interior least terns, an endangered species. In coope ration with the U.S. Fish & Wildlife Service, Duke Energy also agreed to allow water from its Cooling Pond to be used to protect and provide habitat for the least tern nesting islands.735

The Cane Ridge least tern unit was completed and operational for the 2 005 tern nesting season. By all accounts, least tern breeding in the area has been a huge success. At and near Gibson Station, the number of adult least terns has increased dramatically

– from two in 1986 and 1987 to nearly 300 in 2011.

Duke Energy volunt arily funded and constructed an alternative water supply for Cane Ridge, which was completed in 2009. Since then, the Cane Ridge least tern unit has been supplied with water from the Wabash River via a fourteen (14) inch pipeline approximately 2.5 miles lo ng. This system cost over $500,000.00, and Duke Energy owns, operates, and maintains this pump/pipe system. Consequently, instead of adversely affecting the ecology of Cane Ridge, Duke Energy plays a vital role in maintaining the area’s successful ecology.

b. The Suspension of Public Fishing at the Cooling Pond

Contrary to the assertion in the EIP Report, IDEM did not close Gibson Station’s Cooling Pond to public fishing. Rather, Duke Energy chose to suspend public fishing in its Cooling Pond surface impo undment. This policy is not an unusual practice with respect to industrial surface impoundments.

c. The Closure of the East Ash Pond System and Conversion to Dry Ash Handling

In 2008, Duke Energy made a decision to convert fly ash handling and disposal a t Gibson Station to a “dry handling” process. This process will eventually eliminate the need for most of the ash ponds at Gibson Station. The conversion to dry fly ash handling will be completed in 2013. Once the dry handling system is in place, the major ity of the ash from the station will be handled dry and disposed of in the existing permitted coal combustion waste landfills located on the station property. As part of the conversion to dry fly ash handling, Duke Energy submitted closure and
post

- closure plans in August of 2008 to IDEM for the East Ash Pond System and received approval in March of 2009. This closure plan, which was initiated in 2008, is scheduled to be completed by 2020. Therefore, to the extent that any off

- site impacts may have been cau sed by Gibson Station’s East Ash Pond System, such impacts are in the process of being mitigated and

remedied.

As a result of the foregoing, the EIP Report’s allegations fail to establish any proven damage case concerning Gibson Station’s operations.

E. Duke Energy’s Belews Creek Steam Station Does Not Constitute a Proven Damage Case

1. The EIP Report’s Allegations, Even if True, Do Not Meet the Test of Proof to Establish a Proven Damage Case

The EIP Report argues that Belews Creek Steam Station (“Belew s Creek”) qualifies as a proven damage case because there are adverse on

- site impacts to groundwater.

As the EIP Report notes, however, there have been no documented exceedances of MCLs or736

other health

- based standards in groundwater at a sufficient distan ce from any of the identified waste management units to indicate that hazardous constituents have migrated so that they could cause human health concerns. Indeed, the Report only speculates that there might be off

- site groundwater impacts. This is insuffic ient to establish a proven damage case. Furthermore, the EIP Report cites no scientific study documenting any ecological impacts to support a new proven damagecase [Footnote 7: The EIP Report notes that previous ecological impacts to Belews Lake

were cause d by ash impoundment discharges in the 1970s. These issues were successfully remediated and addressed by Duke Energy years ago, in cooperation with the North Carolina DENR. The EIP Report (correctly) does not assert that Belews Creek currently qualifies as a proven damage case based upon ecological impacts.]. Finally, there have not been any administrative rulings or court decisions with explicit findings implicating CCR as the cause of specific damage to human health or the environment.

As a result, even if true, the EIP Report’s allegations do not meet the test of proof to establish any new proven damage case at Belews Creek.

2. Additional Information Demonstrating that Belews Creek is Not a Proven Damage Case

Some additional information is warranted gi ven the EIP Report’s misleading assertions. First, the data referenced in the report was taken from monitoring wells which were either background monitoring wells on station property or were located very close to the landfills and/or ash ponds on station p roperty. Therefore, it is improper to cite to this data as being representative of off

- site groundwater concentrations.

There are no off

- site downgradient residential wells with respect to the station’s landfills and ash impoundment. Consequently, there i s no potential that groundwater impacts can or will cause adverse human health concerns to any nearby resident.

The referenced “surface water” sample location SW

- 2 at Pine Hall Road Landfill is, in fact, seepage flowing directly to the station’s ash impou ndment, which discharges via a NPDES permitted outfall.

There is no support for a proven damage case at the referenced surface water sampling locations near Craig Road Landfill. Those sampling locations are on

- site and, therefore, it is improper to

cite t o this data as being representative of off

- site groundwater concentrations. Furthermore, there are no primary MCLs for iron or manganese, and the referenced groundwater standards do not apply.

Finally, alleged elevated concentrations of lead in BC

- 25 at t he FGD Landfill only occurred in the first two well sampling events. It is common for some parameters to be elevated in initial sampling events due to turbidity and other well installation

- related issues. Since the initial sampling events occurred, lead co ncentrations have remained well below standards.

As a result of the foregoing, the EIP Report’s allegations fail to establish any proven damage case concerning Belews Creek’s operations.737

Response: Thank you for the rebuttal of the arguments made in Out of Control and In Harm’s Way, the February and August 2010 environmental advocacy groups’ reports

, respectively, to support their claims that three of Duke Energy’s CCR management sites (Dan River Steam Station, Gibson Generating Station, and Belews Creek Steam Station) should be designated as CCR damage sites. EPA has assessed all the ‘newly alleged’ damage case sites included in these
reports against EPA’s test of proof criteria. Based on this assessment, the Gibson Generating Station site was designated as a proven damage case, whereas the Dan River Steam Station and the Belews Creek Steam Station sites were designated as potential damage cases. Note that as a result of the February 2014 failure of a sewer line underneath an inactive surface impoundment

a t the Dan River Steam Station and the resulting spill of about 27 million gallons of CCR slurry into the Dan River, the Dan River Site is now designated as two discrete damage cases: the original designation as a potential damage site is based on the adver se impact of CCR

- leached constituents on groundwater onsite (reference NC DENR’s August 2013 lawsuit against Duke Energy indicating that, based on groundwater monitoring data between January 2011 and July 2013, there are groundwater exceedances of the 2L g roundwater standard at or beyond the compliance boundary of the Dan River plant’s ash ponds) , whereas the new designation as a proven damage case is based on the CCR slurry spill incident. For a summary of stakeholder arguments addressing these CCR managem ent sites and the rationale for their damage case designation decision s, see the technical support documents on damage cases in the docket of the

final rule.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0217

- 2 

### Organization 1 

### : Nebraska Department of Environmental Quality


### Commenter 1 : David Haldeman Commenter Type: State Government

Classification: Substantive



### Comment Excerpt Text: The NDEQ comments to the 2010 proposed rule also provides information and clarification concerning a CCR landfill identified in a report titled "IN HARMS WAY: Lack of Federal Coal Ash Regulations Endangers Americans and Their Environment" that was prepared by the Environmental Integrity Project, Earthjustice, and the Sierra Club.

The landfill identified in the report is the Sheldon Statio n Coal Ash Pit #3. The report identifies this landfill as a "damage case" in support of the position that lack of federal regulations endangers Americans and their environment. The NDEQ is still of the position that it is premature to identify this site as a damage case. We would also point out that the landfill was constructed in 1989 prior to the promulgation of the substantially better regulatory requirements that have since been adopted by Nebraska. The design and construction of this landfill does not represent current waste management disposal facility standards. The NDEQ has updated the Sheldon Station Coal Ash Pit #3 information it submitted to the 2010 proposed rule docket. Please find the updated information enclosed with this letter.

Response: T hank you for the rebuttal of the arguments made in In Harm’s Way, the August 2010 environmental advocacy groups’ report to support their claims that the Sheldon Station Ash Pit #3 site should be designated as CCR damage cas e. EPA has assessed, among others, the se738

‘newly alleged’ damage case sites against EPA’s test of proof criteria. Based on this assessment, the Sheldon Station Ash Pit #3 site was designated as a potential damage case. For a summary of stakeholder arguments addre ssing this CCR management site and the rationale for its damage case designation decisions , see the technical support documents on damage cases in the docket of

the final rule.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0217

- 3 

### Organization 1 

### : Nebraska Department of Environmental Quality


### Commenter 1 : David Haldeman Commenter Type: State Government
Classification: Substantive



### Comment Excerpt Text:

State of Nebraska Comments

To Report: "IN HARMS WAY : Lack of Federal Coal Ash Regulations Endangers Americ ans and

Their Environment"

Docket ID No. EPA

- HQ

- RCRA

- 2011

- 0392 Federal Register/Vol. 76, No. 197/Wednesday, October 12, 2011 Pages 63252

– 63257

NDEQ is aware that the Environmental Integrity Project and EarthJustice submitted a report to

EPA that li sted a CCR landfill in Nebraska as a damage case. NDEQ offers the following additional information and clarification of the conditions at the landfill identified in the report.

Sheldon Station Ash Pit #3

The Environmental Integrity Project, Earthjustic e, and the Sie1ra Club have identified the closed fossil fuel combustion ash (FFCA) landfill at Sheldon Station (Coal Ash Pit #3) as a damage case in a report titled "IN HARMS WAY: Lack of Federal Coal Ash Regulations Endangers

Americans and Their Environm ent." Most of the information in the report is accurate regarding the fact that selenium and sulfate have been detected at levels exceeding maximum contaminant levels (MCLs) in some of the monitoring wells at the site. However it is not conclusive that the

landfill is the source of the elevated levels of selenium and sulfate. The information obtained to date suggests that additional investigation is warranted at Ash Pit #3 and, the site is being further investigated by the Nebraska Public Power District und er the direction of the Nebraska Department of Environmental Quality. The purpose of the additional investigation is to determine to what extent, if any Coal Ash Pit #3 has impacted ground water quality at the site.

At this time the NDEQ has not conclude d that the site is a potential or proven damage case as defined by EPA. Further investigation is necessary in order to arrive at those conclusions.

The following provides some background information on the site:

Naturally Occurring Substances/Contamina nts of Concern739

The two contaminants of concern, selenium and sulfate, exist as naturally occurring minerals throughout the region. Both selenium and sulfate have been detected in wells downgradient and up gradient of Ash Pit #3. Similar observations have been made in downgradient and up gradient monitoring wells at the currently operating landfill, Ash Pit #4, located near the southern edge of the property.

Other Possible Source or Sources being Considered

The natural occurrence of both substances is be ing considered in evaluation of the site, as well as the possibility of a localized discharge of cooling tower water used for fire suppression or similar activity involving power plant operations.

Site is Closed in Post

- Closure Monitoring Status and Regu latory Standards have Improved The report IN HARMS WAY refers to the closed landfill as "clay

- lined." However the closed landfill was not constructed with an engineered liner. This site was constructed in 1989 prior to promulgation of the regulations that now apply to coal ash landfills. The substantial new requirements for FCCA landfills were adopted in 1993. After the adoption of the new regulations, all new facilities or lateral expansion of existing facilities are required to be lined.

As a point of interest, the currently operating landfill, Ash Pit #4 was designed to the newer regulatory standards, with a compacted clay liner, a leachate collection system, and an evaporation pond. None of the seven monitoring wells associated with the active site ha ve shown any indications of a possible release.

Conditions Unlikely to Impact Useful Water

- Bearing Aquifer

Under the "at

- risk population" column of a table in the report IN HARMS WAY, an irrigation well has been identified as being within one mile of th e landfill. However that irrigation well draws water from the deeper regional aquifer with the upper and lower aquifers being separated by a 50

- to 100

- ft. thick, low permeability clay layer. Ash Pit #3 was constructed above a shallow aquifer consisting of glacial till. The glacial till is underlain by a high

- density clay layer that acts as a protective barrier above the lower regional aquifer which is the zone used for water wells. The elevated groundwater monitoring results are from the low

- yield uppermos t zone and since it is not a source of drinking or irrigation water, it is currently not a public health threat.

Regulatory and Enforcement Perspective The site continues to be monitored and evaluated to more conclusively determine the extent to

which t he landfill may be contributing to the cumulative observed levels of these naturally occurring contaminants, and what further steps should be taken to ensure that private wells within any reasonable distance of the site are not adversely impacted. In Decem ber 2010 additional wells were installed in the down gradient direction from the landfill. The facility will

conduct six semi

- annual sampling events of all ground water monitoring wells around the facility and perform statistical analysis of those results. When this work is completed we will have a better understanding of site conditions.

No Removal or Remedial Action Warranted Under Current Conditions The report IN HARMS WAY listed Ash Pit #3 as having enforcement actions. The public

owned power plant f

acility is voluntarily conducting additional groundwater investigation with740

the NDEQ's guidance. If however, the facility's owner/operators were not complying with the NDEQ's recommendations, enforcement action could be pursued. The MCL for selenium is 0.0 5 mg/1, and 250 mg/1 for sulfate. The highest concentrations of selenium and sulfate at Ash Pit #3 were 0.073 mg/1 and 381.0 mg/1 respectively. Unless the levels of selenium and/or sulfate increase dramatically, the likely remedial action for this site wou ld be continued groundwater monitoring and/or restricted groundwater use.

Response: S ee response to comment excerpt EPA

- HQ

- RCRA

- 2011

- 0392

- 0217

- 2.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0219

- 14 

### Organization 1 

### : Commonwealth of Kentucky, Department for Environmental Protection, Division of Waste Management


### Commenter 1 : Anthony Hatton Commenter Type: State Government
Classification: Substantive



### Comment Excerpt Text: The Agency is noticing several reports received in comments to the 2010 proposed rule, rel ating to alleged CCR management damage cases:

1. A new report of alleged damage cases was released February 24, 2010, by the Environmental Integrity Project and Earthjustice titled ‘‘Out of Control: Mounting Damages From Coal Ash Waste Sites,’’ which pre sents 31 alleged CCR damage cases that were not included or were not recognized as damage cases in EPA’s July 2007 report (EPA

– HQ

– RCRA

– 2006

– 0796

– 0015) titled ‘‘Coal Combustion Waste Damage Case Assessments.’’ The report is available from the

docket to this Notice.

The report contains no Kentucky sites so the Commonwealth has no comment.

Response: Thank you for your comment.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0219

- 16 

### Organization 1 

### : Commonwealth of Kentucky, Department for Environmental Protection, Division of Waste Management


### Commenter 1 : Anthony Hatton Commenter Type: State Government
Classification: Substantive



### Comment Excerpt Text: 3. A report released August 26, 2010, by the Environmental Integrity Project, Earthjustice, and the Sierra Club titled ‘‘In Harm’s Way: Lack Of Federal Coal Ash Regulations Endangers Americans And Their Environment,’’ which presents 39 alleged CCR damage c ases. The report

is available from the docket to this Notice.

a. E.ON U.S. d/b/a Louisville Gas & Electric (LG&E)

- Mill Creek Plant741

The Commonwealth knows of no impact to groundwater users off

- site related to the ash facilities. The groundwater flows to the immediately adjacent Ohio River.

The report states, on page 56, that there is “Demonstrated damage to groundwater moving offsite (Ohio River)”. The report does not mention a scientific basis for this determination such as

multi

- level river samplin g or aquatic animal evaluation.

The report also states: “...the horizontal extent of the contamination is approximately one

- mile wide potentially affecting off

- site human use of shallow groundwater in this urban area.” There

are several CCR units and the m onitoring wells may be spread over this distance. The Commonwealth has no knowledge of any domestic groundwater users located immediately downgradient from the CCR site. The company owns the property between the CCR sites and the river which overlies the g roundwater flowing from the landfill and impoundments to the Ohio River. It is therefore highly unlikely to affect any domestic groundwater well users. Past reports that surveyed off

- site potential drinking water locations in the area found two domestic we lls and nine industrial wells near the facility, but each was upgradient.

The report refers to E.ON, which announced that it was being acquired by PPL Corporation of Allentown, Pennsylvania in 2010.

Also, it states on page xxvi notes that arsenic excee ded the MCL of 0.01 mg/L with a 0.015 mg/L reading and that the State Required Assessment Monitoring.

The last Commonwealth analyses report, dated May 6, 2011, shows 0.0019 mg/l arsenic for

MW

- 6 (downgradient) and 0.00635 for MW

- 3 (Upgradient).

The rep ort conflicts with itself, saying that the state requires assessment monitoring on page xxvi and “...has not required any assessment or corrective action...” on page 56. The Commonwealth did require assessment monitoring for a high sulfates levels. Since it is a secondary MCL, for taste, odor or color, the Commonwealth allowed continued monitoring based on the condition that sulfates remain below the SMCL of 250 mg/l.

Sulfates in MW

- 6 are at 570 mg/l based on the last groundwater monitoring report dated May 6

, 2011. Using the ANOVA statistical method, chloride is at 776 and has an F

- statistic of 806.36

vs. an F

- comparison statistic of 5.99. Chlorides, as a non

- human health MCL, are statistically significant. The Commonwealth is currently evaluating this inform ation.

b. TVA Shawnee Fossil Plant:

The Commonwealth finds that the authors picked the highest value reported by the facility and then used language like “slightly exceeding the MCL” or “up to 5.6 times the MCL” without evaluating whether the highest v alue was statistically credible.

The report states that residential well users could be affected by contamination from the facility, but the authors failed to evaluate the accuracy of data they used and failed to evaluate whether a742

hydrogeologic connecti on exists between the alleged “residential wells” and disposal areas.

The report discusses the presence of “selenium at almost twice the federal drinking water MCL”. There are no current MCL exceedances for this parameter. The most recent data from the s ite indicates that the highest level was 0.009 mg/L of selenium in Well D

- 74B while the MCL is 0.05 mg/L.

The report discusses the presence of “arsenic slightly exceeding the MCL”. There are no current MCL exceedances for this parameter. The most recent data from the site indicates that the highest level was 0.0045 mg/L of arsenic in Well D

- 33A while the MCL is 0.010 mg/L.

Regarding at risk populations, the report states that Kentucky’s GIS layer shows a total of 24 private wells within a two

- mile radiu s of the site. The Commonwealth finds that the closest private water wells in the KDOW database are 0.79 miles west

- southwest of the waste boundary (AKGWA 0000

- 0307); 0.88 miles southeast of the waste boundary (0000

- 0221); and 1.05 miles

southeast of the w aste boundary (0000

- 5003). All three wells are situated upgradient of the waste disposal areas. Moreover, all three wells are situated within the Paducah Gaseous Diffusion Plant Water Policy Boundary and are therefore not used for consumption. Groundwater from the landfill and ash pond area discharges to Little Bayou Creek and the Ohio River before it can impact any residential well users.

The Kentucky Geological Survey (KGS) database shows a number of additional “residential wells” in the area, but the d ata is flawed. An overlay of the KGS data on the Kentucky Division of Water data shows that most of the KGS “residential wells” are monitoring wells. Other such wells are located in the middle of buildings or within the waste boundary. No residential wells exist on TVA property.

The report alleges that TVA contaminants have affected Metropolis Lake, a natural meander cutoff east of the site. A fish consumption advisory has been issued for the lake by the Kentucky Department of Fish and Wildlife Resources because of mercury and PCBs in fish tissue. (A fish consumption advisory for mercury has been issued for every stream in the state, including the Ohio River, which also has an advisory for PCBs.) According to the Kentucky State Nature

Preserves Commission and the Kentucky Division of Water, data does not exist which allows the determination of the origin of the mercury and PCBs in the fish tissue. The contaminated fish are most likely coming from the Ohio River, which inundates Metropolis Lake during floods

, restocking the lake with new fish during each flooding event.

c. Eastern Kentucky Power Cooperative

- Spurlock Station.

The contaminated former monitoring well, MW

- 3, was located inside the new waste boundary, between existing disposal areas A and B and future area C. With the approval of the expansion area C, Kentucky rules require the monitoring system design to include wells “...points hydraulically downgradient in the direction of decreasing static head from the area in which special waste has been or will be disposed.” See 401 KAR 45:160, Section 2(2). The cooperative replaced the monitoring wells now inside the waste boundary with new wells MW

- 2A and MW

3A downgradient and outside waste area 3, which is downgradient of Areas A and B. Arsenic743

has no t been detected in the replacement wells MW

- 2A and MW

- 3A during the two initial characterization samples required by the 401 KAR 45:160, Section 7. The new monitoring wells are still on East Kentucky Power Cooperative property. The source of this informati on is in the “Background” section on page 1

- 2 of Attachment 44C, “Groundwater Monitoring Well MW

- 3 Remedial Action Plan” which is part of “Remedial Action Plan for East Kentucky Power Cooperative, Inc. Spurlock Landfill Permit No. 081

- 00005 AI No. 3004” re ceived April 6, 2011 and approved by the Commonwealth on June 8, 2011. The application number is

ARM20110001.

The executive summary on page viii of “In Harm’s Way” charges that the arsenic reading constituted a violation of open dump requirements. The cr iteria for classification based on
“Ground water” at 40 CFR 257.3

- 4 states: “(a) A facility or practice shall not contaminate an underground drinking water source beyond the solid waste boundary or beyond an alternative boundary specified in accordance wit h paragraph (b) of this section.” (The Commonwealth has a similar rule called the “Environmental Performance Standards” at 401 KAR 30:031.) The readings are below MCLs at the replacement wells now beyond the new solid waste boundary. The original reading w as inside the current waste disposal area. Therefore, there is no violation of federal or state open dumping requirements.

The report also alleges that the exceedance of the MCL at Spurlock Is “Determination: Demonstrated damage to off

- site groundwater...” (pages xviii and xxvi). This is in error. The former groundwater monitoring well was inside the waste disposal area on property owned by the cooperative. East Kentucky Power Cooperative owns the land between the landfill and the Ohio River, the natural de stination for the groundwater under the landfill. Therefore, there is no damage shown to off

- site groundwater. With the non

- detect readings in the new monitoring wells, there is little threat to the 25 private wells and 3 public wells within a two and five

- mile radius, respectively, of the site.

The site summary uses IW

- 7 in the charts, but this also refers to MW

- 3 (as the report noted earlier).

There is discussion on secondary MCLs, but the Commonwealth generally uses these to compare to background rea dings to assess changes in groundwater quality across the site. The Commonwealth believes that the primary MCL constituents are of more importance for protection of human health.

The “groundwater” in this case is the soil

- rock interface, designated by th e permit and reviewing geologists as a method to provide early detection. The soil

- rock interface generally does not yield enough water for residential use.

A statement on page 71 declares:

"The most contaminated well, IW

- 7, is located approximately 75 0 feet northeast of and beyond the landfill permit boundary in a spring

- fed hollow (EKPC, 2003), indicating that contaminated groundwater has flowed off the landfill property and likely into the receiving stream;..."744

Monitoring well IW

- 7 is MW

- 3, the well i nside the current waste disposal area. It is on

- site.

The picture showing the location of the drinking water wells on page 72 shows all of the wells to be upgradient of the shallow water flow. The one well downgradient appears to be on Spurlock
property and is most likely the withdrawal point for the power station.

On page 72, the report states for the power plant and landfill to be located in a “karst limestone area where cave systems allow very rapid flow of contaminated groundwater practically in any direction”. The plant sits on Quaternary Ohio River alluvium and glacial outwash. The landfill is located on Upper Ordovician limestones and shales of the Outer Bluegrass physiographic region. Outer Bluegrass karst with its higher occurrence of interbedde d shale layers does not develop extensive karst features resulting in much slower groundwater movement than very rapid flow (groundwater sensitivity rating #2 to #3). In contrast, recharge and dispersion potential in highly developed karsts such as the rel atively pure limestones of the Mississippian Plateau physiographic region cause very rapid groundwater movement (groundwater sensitivity rating #5).

The “Regulatory Action” on pages 72 and 73 consists of the following: The Commonwealth of Kentucky did re quire a remedial action plan under its regulations and, as noted above, the plan has been approved and the cooperative has implemented it. The initial monitoring well results indicated groundwater arsenic levels below MCLs.

The discussion on the “liner r isk analyses” comparing the test results directly to drinking water standards is somewhat misleading. One must take the leachate concentrations and input the values into a groundwater model that also includes parameters such as liner design, groundwater

ch aracteristics, distance to property line (or drinking water receptor), and others before reaching a conclusion on safety to human health. The agency has such a model, the Industrial Waste Environmental Model (IWEM) designed for this purpose.

Response: Th ank you for the rebuttal of the arguments made in In Harm’s Way, the August 2010 environmental advocacy groups’ report to support their claims that three Kentucky CCR management sites: Mill Creek Plant, TVA Shawnee Fossil Plant, and Spurlock Station, shoul d be designated as CCR damage cases

. EPA has assessed, among others, the se ‘newly alleged’ damage case sites against the Agency ’s test of proof criteria. Based on this assessment, the se three sites were designated as potential damage cases. For a summary of stakeholder arguments addressing these CCR management sites and the rationale for their damage case designation

decision s, see the technical support documents on damage cases in the d ocket of the final rule.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0219

- 22 

### Organization 1 

### : Commonwealth of Kentucky, Department for Environmental Protection, Division of Waste Management


### Commenter 1 : Anthony Hatton Commenter Type: State Government
Classification: Substantive



### Comment Excerpt Text:745

k) Page 52 and 98 [from Earthjustice et. al. attachment one of document No. EPA

- HQ

- RCRA

2009

- 0640

- 6315] refers to arsenic detected in groundwater above the MCL at Spurlock Station. The Commonwealth placed the facility in the groundwater assessment phase, the owners performed corrective action and recent monitoring confirmed a return to compliance. That is, arsenic is detected below MCLs at the groundwater monitoring point on plant property.

l) On page 61, the report states: “An examination of these inspection reports reveals likely unpermitted seeps that discharge to surface water at the following two facilities:...American Electric Power’s Big Sandy Power Plant, Louisa, Kentucky: Likely unpermitted overflow to the Big Sandy River.” The dam has both an overflow discharge and seep condition because: 1) The principal spillway discharges through an outlet pipe and it has a KPDES permit for the overflow; and 2) The seep through the dam is natural and is not con sidered a discharge because all dams have natural seepage paths through them.

Response: Thank you for the rebuttal of the arguments made in In Harm’s Way, the August 2010 environmental advocacy groups’ report to support their claims that Spurlock Station ’s CCR management site should be designated as CCR damage case . The Agency has assessed, among others, the ‘newly alleged’ Spurlock damage case site against EPA’s test of proof criteria. Based on this assessment, the Spurlock site was designated as a poten tial damage case. For a summary of stakeholder arguments addressing this CCR management site and the rationale for its damage case designation decisions , see the technical support documents on damage cases in the docket of

the final rule.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0219

- 24 

### Organization 1 

### : Commonwealth of Kentucky, Department for Environmental Protection, Division of Waste Management


### Commenter 1 : Anthony Hatton Commenter Type: State Government
Classification: Substantive



### Comment Excerpt Text: n) On page 55, Table 29 and page 84, Table 34, [from Earthjustice et. al. attachment one of

document No. EPA

- HQ

- RCRA

- 2009

- 0640

- 6315] is the statement for Louisville Gas & Electric

Mill Creek Plant that “Groundwater contaminated with arsenic 1.5 times the M CL and TDS 2.5 times Secondary MCL.” The latest Commonwealth sample analyses indicate that the value for

arsenic is below MCL.

o) On page 55, Table 29 and page 84, Table 34, is the following statement for TVA

- Shawnee Fossil Plant: “Arsenic, boron, and se lenium contaminated groundwater feeds into Ohio River via

an on

- site creek.” There are no current MCL exceedances for Arsenic and Selenium. The most recent data from the site indicates that the highest level was 0.009 mg/L of selenium in Well D

74B while t he MCL is 0.05 mg/L. The data also indicates that the highest level was 0.0045 mg/L

of arsenic in Well D

- 33A while the MCL is 0.010 mg/L. Boron is listed as a Chemical Contaminant Candidate by the agency on the MCL website.746

Response: For a discussion of LG&E’s Mill Creek plant ’s site and the rationale for designating it as a potential damage case, see the technical support document to damage cases in the docket of

the final rule.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0219

- 3 

### Organization 1 

### : Commonwealth of Kentucky, Department for Environmental Protection, Division of Waste Management


### Commenter 1 : Anthony Hatton Commenter Type: State Government
Classification: Substantive



### Comment Excerpt Text: Third area, found under VI on page 63256, “What reports regard ing alleged damage cases from the management of CCRs are being noticed?”

Generally speaking, the Commonwealth disagrees with several of the statements in the report regarding the three Kentucky sites.

For the Mill Creek site, the report cites “damage t o groundwater” but does not state a scientific basis for this claim. The Commonwealth agrees that the groundwater is moving towards the Ohio River, but no surface water sampling has occurred to determine the affects on aquatic life of the secondary MSL con stituents flowing into the Ohio River. The affecting of “...off

- site human use of shallow groundwater” is disputed by the Commonwealth since it has no knowledge of any domestic groundwater users located immediately downgradient from the CCR site. The company owns the property between the CCR sites and the river.

For TVA Shawnee, the report states that residential well users could be affected by contamination from the facility. The authors failed to evaluate the accuracy of data they used and

failed to evalu ate whether a hydrogeologic connection exists between the alleged “residential wells” and disposal areas. Some recent groundwater well monitoring data with below

- MCL readings has superseded earlier data with MCL exceedances.

Groundwater from the landfill and ash pond area discharges to Little Bayou Creek and the Ohio River before it can impact any residential well users.

The Kentucky Geological Survey (KGS) database shows a number of additional “residential wells” in the area, but the data is flawed. An overlay of the KGS data on the Kentucky Division of Water data shows that most of the KGS “residential wells” are monitoring wells. Other such wells are located in the middle of buildings or within the waste boundary. No residential wells exist on TVA pro perty.

The contaminated fish in Metropolis Lake are most likely coming from the Ohio River, which inundates the adjacent water body during floods, restocking the lake with fish during each flooding event.

For the Spurlock site, the contaminated former monitoring well MW

- 3 was located inside the747

new waste boundary, between existing disposal areas A and B and future area C. Arsenic has not been detected in the replacement downgradient wells MW

- 2A and MW

- 3A during the two initial characterization samples.

The report also alleges that the exceedance of the MCL at Spurlock Is “Determination: Demonstrated damage to off

- site groundwater...” This is in error since the former monitoring

well was inside the on

- site waste disposal area. Replacement wells showing n on

- detects for arsenic are downgradient of the ash area and still on Spurlock property. Therefore, no

contamination detected from MW

- 3 has migrated off

- site, based on these test results. Fourth area, found under VII on page 63256, “What new analyses of sta te programs are being noticed?”

Response: Thank you for the rebuttal of the arguments made in In Harm’s Way, the August 2010 environmental advocacy groups’ report to support their claims that three Kentucky CCR management sites: Mill Creek Plant, TVA Shawnee Fossil Plant, and Spurlock Station, should be designated as CCR damage cas es. The Agency has assessed, amo ng others, the se ‘newly alleged’ damage case sites against EPA’s test of proof criteria. Based on this assessment, the se three sites were designated as potential damage cases. For a summary of stakeholder arguments addressing these CCR management sites and the rationale for their damage case designation decision s, see the technical support documents on damage cases in the docket of the final rule.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0220

- 3 

### Organization 1 

### : NRG Energy, Inc. (NRG)


### Commenter 1 : Verne Shortell Commenter Type: Electric Utility Company

Classification: Substantive



### Comment Excerpt Text: •Alleged Damage Case Validity

– The alleged damage cases presented in certain third party documents are not proven, do not support the Subtitle C option, and shoul d not be considered by EPA as a justification in support of a Subtitle C determination.

The NODA identifies two reports prepared by environmental groups that, when taken together, allege that 70 CCR sites are “damage cases” that should be considered in th e CCR rulemaking. The report, entitled Out of Control: Mounting Damages From Coal Ash Wastes Sites (Feb. 24, 2010) (“Out of Control”) [Footnote 1: Environmental Integrity Project, Earthjustice, Out of Control: Mounting Damages From Coal Ash Waste Sites (Fe b. 2010) (EPA

- HQ

- RCRA

- 2011

- 0392

- 0005)], presents 31 alleged CCR damage cases that EPA explains were not included or recognized as proven damage cases in EPA’s July 2007 Coal Combustion Waste Damage Case Assessments (“EPA 2007 Report”). 76 Fed. Reg. at 6325 6. The second report, entitled In Harm’s Way: Lack of Federal Coal Ash Regulations Endangers Americans and Their Environment (Aug. 26, 2010) (“In Harm’s Way”), presents an additional 39 alleged CCR damage cases [Footnote 2: Environmental Integrity Project, Earthjustice, Sierra Club, In Harm’s Way: Lack of Federal Coal Ash Regulations Endangers Americans And Their Environment (Aug. 2010) (EPA

- HQ

- RCRA

2011

- 0392

- 0006).]. These reports have not undergone rigorous scientific review to ensure that all

data is acc urate and analyzed correctly. A proper review of the available information and application to EPA criteria will clearly show that the majority of these sites are not proven748

damages cases, and as a result, application of Subtitle C to address damage case co ncerns is not

warranted.

Our comments focus on the alleged damage cases at NRG facilities. The reports fail to provide the requisite “test of proof” documentation necessary for EPA to characterize any of the sites as proven damage cases.

In summary, EPA should not consider alleged damage cases as a basis for regulation determination, whether hazardous or non

- hazardous. Further, we have evaluated the NRG sites referenced in the reports as well as EPA’s 2007 Coal Combustion Waste Damage Case

Assessments and have determined that none of the NRG sites meet or would meet the definition of a “proven damage case.” Further, none of NRG’s alleged damage cases satisfies EPA’s criterion of an “exceedance of a primary drinking water standard that is measured in ground water at a sufficient distance from the waste management unit to indicate that hazardous constituents had migrated to the extent that they could cause human health concerns.” 65 Fed. Reg. 32214, 32224 (May 22, 2000). Where appropriate, NRG is working with the state agencies to address any questions or concerns regarding the potential for future risk

. Response: This rule will regulate CCRs under RCRA subtitle D: for further details, see unit IV of the preamble to the final rule.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0220

- 4 

### Organization 1 

### : NRG Energy, Inc. (NRG)


### Commenter 1 : Verne Shortell Commenter Type: Electric Utility Company

Classification: Substantive



### Comment Excerpt Text:

Section III. Basis for NRG Site Evaluation and Determinations

To supp ort this determination, we have based our comments on criteria regarding the definition of a proven damage case and test of proof criteria provided by EPA (EPA, Coal Combustion Waste Damage Case Assessments 2 n.3, July 2007). For each case, we provide a br ief assessment of the site and a table format on applicability to these criteria.

• Definition of Proven Damage Case The definition of a proven damage case is based on the following criteria. (i) Documented exceedances of primary maximum contamination lev els (MCLs) or other health

based standards measured in ground water at sufficient distance from the waste management unit to indicate that hazardous constituents have migrated to the extent that they could cause human health concerns, and/or (ii) where a scientific study demonstrates there is documented evidence of another type of damage to human health or the environment (e.g., ecological damage) [Footnote 3: In determining whether evidence of ecological damage from a CCR unit constitutes a damage case,

E PA stated in the proposed 2010 CCR rulemaking that it “now believes that ecological damages warranting state environmental response are generally appropriate for inclusion as a damage case,” such as information leading a state to issue fish advisories. 75 Fed. Reg. 35128, 35147749

(June 21, 2010).], and/or (iii) where there has been an administrative ruling or court decision with an explicit finding of specific damage to human health or the environment. In cases of co

- management of CCRs with

other industrial w aste types, CCRs must be clearly implicated in the reported damage.” [Footnote 4: Coal Combustion Waste Damage Case Assessments, U.S. EPA, Office of Solid Waste (7/9/07), citing EPA’s May 2000 Regulatory Determination, 65 Fed. Reg. R 32214, 32224 (May 22, 2000), (http://frwebgate.access.gpo.gov/cgi

- bin/getdoc.cgi?dbname =2000register &docid=fr22my00

- 22.pdf) and Section 1.4.4 of the 1999 Report to Congress (http://www.epa.gov/epaoswer/other/fossil/volume_2.pdf).]

•Test of Proof As stipulated in RCRA §8002( o)(4), EPA is statutorily required to examine proven cases of danger to human health or the environment. For the above mentioned reports to Congress, EPA developed “tests of proof” to Congress to determine if documentation available on a case provides evid ence that danger or damage has occurred. EPA uses the same methodology here. These “tests of proof” consist of three separate tests; a case that satisfies one or more of these tests is considered “proven.” The tests are as follows:

(i)Scientific investiga tion. Damages are found to exist as part of the findings of a scientific study. Such studies should include both formal investigations supporting litigation or a state enforcement action, and the results of technical tests (such as monitoring of wells). Sc ientific studies must demonstrate that damages are significant in terms of impacts on human health or the environment. For example, information on contamination of a drinking water aquifer must indicate that contaminant levels exceed drinking water standar ds. (ii) Administrative ruling. Damages are found to exist through a formal administrative ruling, such as the conclusions of a site report by a field inspector, or through existence of an enforcement action that cited specific health or environmental dama ges. (iii) Court decision. Damages are found to exist through the ruling of a court or through an out of

court settlement.

Section IV

- Site Determinations

A. Indian River

Site Name: Indian River Power Station

- Burton Island Landfill

Site Location: Mill sboro, Delaware Alleged Damage Case Reference Document: “Out of Control: Mounting Damages From Coal Ash Waste Sites”; Environmental Integrity Project and Earth Justice; February 24, 2010

CCR Damage Assessment This case does not meet the criteria for a pro ven damage case because there is no documented

evidence of off

- site groundwater monitoring data or off

- site groundwater monitoring data showing exceedances of specified health

- based criteria. In fact, an exhaustive multi

- media assessment was conducted per approved protocols and indicated that this site does not pose a risk to drinking water. The conclusion was further validated by a “No Further Action remedy from the Delaware Department of Natural Resources and Environmental Control (DNREC).”750

This site was considered a potential damage case and NRG has conducted a scientific investigation under the review of the state environmental agency. For Burton Island, environmental investigations and activities have been performed in accordance with the Voluntary Cle anup Program (VCP) Agreement DE

- 1399 between Indian River Power LLC, a wholly owned subsidiary of NRG Energy, Inc. (NRG), and the DNREC. This site has not been

used since 1979.

In 2008 a Facility Evaluation (FE) report was completed that discussed the nat ure and extent of the constituents of interest as well as their fate and transport for the three “operable units; the shoreline (OU1), the former ash management areas inside the shoreline (OU2), and offshore sediment and surface water (OU3).

The FE report also contained both a Human Health Risk Assessment (HHRA) and a Screening Level Ecological Risk Assessment (SLERA). Based on the results DNREC issued an Approval of Final Plan of Remedial Action for Burton Island Ash Disposal Area (Operable Units 1 & 3)

w hich approved the results of the FE for OU1 and OU3, reflecting that there were no significant human health risks from these “OUs”, and that, with the exception of the then ongoing shoreline stabilization project (completed in 2011), no further remedial ac tion was required for OU1 and OU3. An additional investigation for OU2 was completed in 2011that further characterized the environmental media and the potential human health and ecological risks at OU2. The report concluded there is no offsite damage to re ceptors and the groundwater pathway to offsite receptors is incomplete (RI) based on migration patterns.

Review of Environmental Integrity Project and Earthjustice Report “Out of Control: Mounting Damages from Coal Ash Waste Sites” Damage Case for Indian River Generating Station dated February 24, 2010 (This site was considered a potential damage case and NRG conducted scientific investigation under the review of the state environmental agency.)

Criteria Test of Proof: Documented exceedances of primary MCLs or other health

- based standards measured in groundwater at sufficient distance from the waste management unit to indicate that hazardous constituents have migrated to the extent that they could cause human health concerns,

and/or

Comments: Comment 1 Elevated concentrations of multiple constituents in groundwater are not entirely related to a facility based on: Arsenic and chromium are also >USEPA MCL in groundwater in background monitoring well (FE). Aluminum, arsenic, barium, chromium, iron, manga nese, and vanadium >DNREC URS in groundwater in background well (FE). Aluminum and iron are the two major components of soil/sediment. The presence at elevated concentrations in groundwater and surface water appears to be the result of re

- suspension of so il and sediment during sampling. This is supported by statistical correlation (FE). Site is surrounded by brackish water bodies, and it has been determined that there is no pathway751

for on

- site groundwater to migrate to off

- site groundwater (residential we lls or other drinking water sources). Thus, there is no potential for human health concerns off

- site from groundwater. (Remedial Investigation for OU2 [RI]; Shaw, 2011).

Criteria Test of Proof: Where a scientific study demonstrates there is documented evidence of another type of damage to human health or the environment (i.e., ecological damage), and/or

Comments: Comment 2

Based on the results of extensive multi

- media sampling and risk assessment (FE), DNREC issued No Further Action remedy for off

- sit e sediment and off

- site surface water (DNREC, 2008).

On

- site sediment and soil currently under evaluation by DNREC (RI). Arsenic is the only constituent in surface soil and sediment that poses potential health risk to human receptors (i.e., trespassing fi shermen) using standard conservative assumptions in the assessment of risk. The risk is within guidance levels using a realistic exposure scenario and current conditions. Arsenic, barium, and selenium in surface soil are identified as posing potential hea lth risk to ecological receptors using conservative assessment techniques in the assessment of risk. However food web models used to assess ecological communities/populations instead of individuals (as per the conservative method) identifies no expected fo od web impacts to terrestrial populations.

Criteria Test of Proof: Where there has been an administrative ruling or court decision with an explicit finding of specific damage to human health or the environment.

Comments: Comment 3 No such ruling or de cision has been made for Burton Island.

B. Montville Station

Site Name: Montville Generating Station Site Location: Uncasville, Connecticut Alleged Damage Case Reference Document: In Harm’s Way: Lack of Federal Coal Ash Regulations Endangers American s and their Environment” August 26, 2010.

This case does not meet the criteria for a damage case because the allegations: (1) do not contain any documented evidence of the off

- site groundwater monitoring data or off

- site groundwater monitoring data showi ng exceedances of specified health

- based criteria; and, (2) there is no evidence provided of any testing or scientific studies of surface waters (i.e., Thames River) to support any allegation of ecological damage.

The power plant converted from coal to o il in 1971 and CCRs have not been generated or disposed at the Site since that time. No regulatory enforcement action has been issued regarding CCR disposal at this site.

At Montville Generating Station, environmental investigations and activities have b een governed by the Connecticut Transfer Act and RCRA Corrective Action programs. NRG Energy has752

completed an Ecological Risk Assessment, which has been approved by both the USEPA and the

CTDEEP.

Review of Environmental Integrity Project, Earthjustice an d Sierra Club Report: “In Harm’s Way: Lack of Federal Coal Ash Regulations Endangers Americans and their Environment” August 26, 2010.

Summary / Test of Proof: Recent groundwater monitoring data (Shaw Environmental, 2007

– 2009) indicates that arsenic and beryllium concentrations remain high in the eastern zone (GB area). Both zones (GA/GAA and GB areas) have high concentrations of iron far above the SMCL, manganese above SMCL and USEPA’s Lifetime Health Advisory Level and pH below

the SMCL.

Comments: Com ment 1 No significant increase in groundwater concentrations has been observed at the site for any

contaminant of concern. GW concentrations of contaminants of concern at the eastern/up gradient/ GA portion of the site (i.e., closest to any potential pri vate or municipal wells) are all below the CTDEP GWPC (CT drinking water standards). All potential private and municipal wells are located hydraulically up gradient of the site and are not impacted by the site nor is there a reasonable threat of impact to the wells.

Summary / Test of Proof: In the 1980s, Montville began groundwater monitoring, and, in 1999 conducted soil and groundwater assessments after an Equalization Basin (EB2) constructed in 1978 (in an area formerly used for coal ash storage wastew aters) became regulated as a RCRA hazardous waste unit due to corrosivity as well as occasional presence of chromium and lead. EB2 was a single membrane

- lined surface impoundment, and investigations of EB2’s impact on groundwater led to implementation of a groundwater monitoring program in the late 1980s.

Comments: Comment 2 The certification of clean closure was approved by the CTDEEP for this former surface impoundment in 2001.

C. Huntley Station Site Name: Huntley Generating Station

Site Location: New York Alleged Damage Case Reference Document: “Coal Combustion Waste Damage Case Assessments” July 2007.

CCR Damage Assessment

This case does not meet the criteria for a proven damage case because the allegations do not contain any documented evide nce of off

- site groundwater monitoring data or off

- site groundwater monitoring data showing exceedances of specified health

- based criteria.

(SAIC) A 1987 hydrogeologic investigation (Malcolm Pirnie) found exceedances of State groundwater standards for su lfates, arsenic, barium, cadmium, iron, manganese, and lead in753

downgradient wells of the waste area placement areas at that time. However, all of these exceedances were correlated with exceedances in upgradient wells and the hydrogeologic investigation con cluded that there were no apparent trends in the data that could be construed as contaminant migration from the wastes.

Based on the findings that there are exceedances in upgradient wells, the bedrock aquifer cannot be interpreted to be a primary or pri ncipal aquifer. Concerns about off

- site migration at this site, however, are further mitigated by a lack of nearby receptors. According to the Niagara Sheet

- NYDEC/USGS, there are no aquifers used for public water supply in the vicinity of the subject

pro perty.5 As a result, there is no offsite damage to receptors and the groundwater pathway to offsite receptors is incomplete.

Review of Memorandum from SAIC to Dennis Ruddy regarding Final Revised Report on Resolution of 18 Previously Indeterminate Damage Cases, March 5, 2003

Criteria Summary/Damage Case Test of Proof: iv) Documented exceedances of primary MCLs or other

health

- based standards measured in groundwater at sufficient distance from the waste management unit to indicate that hazardous constit uents have migrated to the extent that they

could cause human health concern and/or

Comments: Comment 1

- There are no documented exceedances off

- site. There is no offsite damage to receptors and the groundwater pathway to offsite receptors is incomplete.

- According to the Niagara Sheet

- NYDEC/USGS aquifer map, there are no aquifers used for public water supply in the vicinity of the subject property

Criteria Summary/Damage Case Test of Proof: v) Where a scientific study demonstrates there is

documente d evidence of another type of damage to human health or the environment (i.e., ecological damage), and/or

Comments: Comment 2

- No such study has documented any evidence of damage to human health or the environment.

Criteria Summary / Damage Case Test of Proof: vi) Where there has been an administrative ruling or court decision with an explicit finding of specific damage to human health or the environment.

Comments: Comment 3

- No such ruling or decision has been made for Huntley Landfill.

D. Big Ca jun 2 Site Name: Louisiana Generating Station, LLC Big Cajun 2 Site Location: New Roads, Louisiana Alleged Damage Case Reference Document: “In Harm’s Way: Lack of Federal Coal Ash Regulations Endangers Americans and their Environment” August 26, 2010.754

CCR Damage Assessment

This case does not meet the criteria for a damage case because the allegations do not contain any

documented evidence of off

- site groundwater monitoring data or specifically off

- site groundwater monitoring data showing exceedances of specified health

- based criteria.

Review of Environmental Integrity Project, Earthjustice and Sierra Club Report: “In Harm’s Way: Lack of Federal Coal Ash Regulations Endangers Americans and their Environment” August 26, 2010.

Summary/Damage Case Test of Proof: The summary states “Selenium concentrations in the groundwater from 1994 to 1999 exceeded the federal Maximum Contaminant Level (MCL) in all five monitoring wells at concentrations up to 1.32 mg/L...”

Comments: Comment 1

- The concentration of 1. 32 mg/L was detected in 1999, and was a statistically significant increase (SSI).

- Verification re

- sampling is used to verify or disconfirm an SSI

- Subsequent data from the 1999 detection are all below detection limit except a 0.013 ppm

detection in well 85A, 0.012 ppm in well 85B and 0.015 ppm detection in 2000 for well 85C, thus disconfirming the SSI.

- All wells have been non

- detect for selenium since 2001, except for two very low detections in

wells 85B and 85E in March 2003.

- Ten new groundwater mon itoring wells installed in 2011.

- All ten new wells were sampled for selenium in July 2011. All were non

- detect except for one well (MW

- 10B) which had a concentration of 0.022 mg/L. All concentrations are below the primary drinking water standard of 0.050 ppm.

Summary/Damage Case Test of Proof: The summary states that “...one existing well adjacent to the property line shows that contamination is moving off site.”

Comments: Comment 2

- In 2010, the existing well MW

- 85A was the only well located near a pro perty boundary. There is no evidence that contamination is moving off site at this well. No detectable concentrations of selenium have been observed since March, 2001, except as noted in comment # 1.

Test of Proof Section: This section includes discussio ns on selenium, TDS and calcium over various periods but does not involve statistical analysis.

Comments: Comment 3

- For selenium, the discussion concerns the period 1994

- 1999. They fail to mention in the report that in the last 10 years (2000

- 2011) all of the existing wells were non

- detect for selenium except as noted in comment #1 above. Statistical analyses need to be utilized, not comparisons to MCLs. There has been no mention of background concentrations for selenium, TDS and

calcium.

At Risk Popul ation: This section discusses public drinking water sources within 2

- 5 miles of the Cajun II site.

Comments: Comment 4755

- There is no documented evidence that contamination is moving off

- site and has impacted any public wells. There is also no documented e vidence of off site groundwater monitoring data showing exceedances of specified health

- based criteria.

Regulatory Actions: This section states “ LDEQ issued a Notice of Deficiency to NRG with regard to its CCW ponds and permit renewal at Big Cajun 2 Pow er Plant, and determined that the groundwater monitoring system for the CCW ponds was grossly inadequate.”

Comments: Comment 5

- This statement implies that LDEQ issued a NOD and considered that groundwater monitoring system was inadequate. This is not ac curate.

- The NOD from DEQ was administrative, issued only to complete the permitting process. Specifically the reason why additional monitoring wells were required for this permit was because of the new regulation in effect at the time the permit was issu ed. Current regulations, LAC 33:VII.805.A.2.d require that a maximum spacing between downgradient wells should not

exceed 800 feet.

Regulatory Actions: This section states “Further, LDEQ is requiring that a true background well be installed, although NRG Big Cajun concluded that “it is not possible at this time to conclusively specify an upgradient...well”

Comments: Comment 6

- Upgradient wells should be compared to downgradient wells and not MCL’s. Due to the inability of specifying an upgradient well due to groundwater flow fluctuations, the LDEQ requested a background well be installed and located far from the permitted facility during the permit renewal. This is one of the ten new wells installed at Big Cajun. Although not necessarily hydraulically upgr adient, it is in an area that avoids any groundwater impacts.

Regulatory Actions: This section also implies that the western end (well 85

- A) was always listed

as up

- gradient well but states that it is down

- gradient, and has been affected by CCW.

Comment s: Comment 7

- Groundwater flow at Big Cajun II has fluctuated from sampling event to sampling event. Based on the groundwater monitoring data provided, no contaminated groundwater has migrated off

site.

Hydrogeologic Conditions: This section discusses t he hydraulic changes in groundwater direction and invalidating well MW

- 85A as an up

- gradient well.

Comments: Comment 8

- See comment 6 regarding background and Upgradient wells.

Table A: Summary of On

- site Monitoring Results for Select Contaminants: Tab le lists Big Cajun II highest value for Selenium at 1.320 ug/L.

Comments: Comment 9

- This value for selenium was collected in 1999. See comment # 1

Table 1: Summary of Damage Cases: In Table 1 (page xvii) of the report, it implies that Big Cajun II has caused demonstrated damage to groundwater moving off site, and has contaminated wells with selenium up to 26.4 times the MCL.756

Comments: Comment 10

- See comment #1. The Big Cajun II site currently monitors groundwater and no statistically significant inc rease (SSI) for selenium has occurred.

Table 2: Coal Combustion Wastes Damage to Groundwater: Noted for Big Cajun 2 (Table 2 page xx under the “Enforcement Action” column the report states: Notice of Deficiency State Required Assessment Monitoring.

Comm ents: Comment 11

- See comment # 5 on the NOD. The state required the installation of additional wells to be installed during the permit renewal. The facility has not been required to conduct assessment monitoring, but is in detection monitoring with the a ddition of the new wells

.

Response: Thank you for the rebuttal of the arguments made in In Harm’s Way, the August 2010 environmental advocacy groups’ report to support their claims that three of NRG’s CCR management sites: Indian River Power Station

- Burton Island Landfill, DE, Montville Generating Station, Uncasville, CT, and Big Cajun 2, LA, should be des ignated as CCR damage

cas es. The Agency has assessed, among others, the se ‘newly alleged’ damage case sites against

EPA’s test of proof criteria. Based on this assessment, the se three sites were designated as potential damage cases. The commenter also addr esses the Huntley Generating Station, NY, described in EPA’s July 2007 report: Coal Combustion Waste Damage Case Assessments. The Agency has reassessed, among others, the Huntley Generation Station damage case site against

EPA’s test of proof criteria. Bas ed on this assessment, the Huntley site was confirmed as a potential damage case. For a summary of stakeholder arguments addressing these CCR management sites and the rationale for their damage case designation decision s, see the technical support document s on damage cases in the docket of the final rule.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0221

- 2 

### Organization 1 

### : Exelon Corporation


### Commenter 1 : Kathleen Barron Commenter Type: Electric Utility Company

Classification: Substantive



### Comment Excerpt Text: II. Reports Regarding Alleged Damage Cases

EPA identified reports regarding alleged damage cases that were submitted by: (1) Electric Power Research Institute ("Evaluation of Coal Combustion Product Damage Cases: Volume 1: Data Summary and Conclusions," dated July 1, 2010, and "Evaluation of Coal Combustion Product Damage Cases: Volume 2: Case Summaries," dated September 2010); (2) Environmental Integrity Project and Earth justice, ("Out of Control: Mounting Damages From Coal Ash Waste Sites," released Fe bruary 24, 2010); and (3) Environmental Integrity Project, Earthjustice, and Sierra Club ("In Harm's Way: Lack of Federal Coal Ash Regulations Endangers Americans And Their Environment," released August 26, 2010). 76 Fed. Reg. 63256. In its

comments on the proposed rule, Exelon referenced findings in the July 1, 2010 Electric Power Research Institute ("EPRf') report, and expressed its belief that the conclusions of that report were valid. See Exelon Comments at 3. The damage case reports prepared by the env ironmental757

groups do not change Exelon's view that it is the older disposal units that tend to be associated with allegations of water contamination.

Assuming arguendo that the damage cases alleged in "Out of Control: Mounting Damages From

Coal Ash Waste Sites," and "In Harm's Way: Lack of Federal Coal Ash Regulations Endangers Americans And Their Environment," (hereafter, "Alleged Damage Case Reports") can be considered proven, [Footnote 3: By referencing and discussing the Alleged Damage Case Reports, t hese comments should not be interpreted as implying that the alleged contamination incidents are credible. Exelon notes that several state agencies who have weighed in on the supposed damage cases in their states largely dispute information or conclusions in the Alleged Damage Case Reports. See generally Draft Report from the Commonwealth of Pennsylvania, Department of Environmental Protection, Southwest Region, "Review of the Environmental Integrity Project, Earth justice and Sierra Club Report: 'In Harm's Way: Lack of Federal Coal Ash Regulations Endangers Americans and Their Environment' 'Thirty

- nine New Damage Cases of Contamination From Improperly Disposed Coal Combustion Waste,' dated August 26, 2010 for the Sites: Little Blue Run Disposal Impoundment, Hatfield Ferry Power Station Disposal Site (Jan. 3, 2011) (Attachment A); Commonwealth of Kentucky, Energy and Environment Cabinet,

Document No. EPA

- HQRCRA

- 2011

- 0392

- 0078 at 29

- 31 ("[T]he study fails to ' ... demonstrate that damages are significant in t erms of impacts on human health or the environment. "'); and Tennessee Department of Environment and Conservation, Document No. EPA

- HQ

- RCRA

- 2011

- 0392

- 0080 at 11 ("Given the concentrations of groundwater contaminants and rates of groundwater flow, the depar tment has not identified any danger to public health and the environment associated with either offsite groundwater or the adjacent river at [the six Tennessee sites identified by environmental groups)."). It is Exelon's understanding that the Pennsylvania Department of Environmental Protection intends to update the draft report attached here to address additional alleged damage sites in the Commonwealth.] the vast majority of alleged damage cases that contain enough information to determine the date a disp osal unit was built, commissioned or initially used still support the notion that older disposal units (e.g., pre

- 1990) are associated with environmental contamination. Based on the information presented in the Alleged Damage Case Reports and applying reas onable assumptions to determine the date a disposal units was built, commissioned or initially used, the following trends emerge: [Footnote 4: Due to the inconsistent reporting of information related to the alleged damage cases, this chart does not represe nt disposal units alleged to be damage cases at all sites identified in these reports. Some site reports gave no reasonable basis for making any assumptions about the dates for all or some units referenced in the report. Moreover, this chart does not attem pt to capture unit modifications or expansions that may have been undertaken in subsequent years. Exelon will make available the detailed background assumptions and analyses at EPA's request, but makes no representations as to the quality or accuracy of th e underlying data.]

[Please see original attachment for the graph titled Alleged Damage Cases (with reasonable date assumptions)]

Under this analysis, 92% of the disposal units in the alleged damage cases relate to landfills or impoundments constructed before 1990. Almost 72% of these pre

- 1990 units are surface impoundments, and over 97% of the total cases relating to surface impoundments involve pre

1990 construction. Thus, even if one a s sumes that the damage cases alleged in these reports were758

proven damage cases, it appears that the trend where damages arise would be towards damages related to older units, and that those older units are more likely to be ponds/impoundments rather than landfills (presumably not likely to be constructed to modem standar ds). Accordingly, Exelon continues to believe that EPA's promulgation of a Subtitle D regulatory program can adequately fill any gaps that may exist between modem regulatory requirements and controls that may not have been previously required at existing, older units

.

Response: This rule will regulate CCRs under RCRA subtitle D: for further details, see unit IV of the preamble to the final rule.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0221

- 4 

### Organization 1 

### : Exelon Corporation


### Commenter 1 : Kathleen Barron Commenter Type: Electric Utility Company

Classification: Substantive



### Comment Excerpt Text: [Please see original attachment for Commonwealth of Pennsylvania Department of Environmental Protection Southwest Region Review of the Environmental Integrity Proje ct, Earthjustice and Sierra Club Report: In Harm’s Way: Lack of Federal Coal Ash Regulations Endangers Americans and Their Environment]

Response: EPA assessed the four Pennsylvania CCR management sites (the Mitchell Power Station site, the Seward Generati ng Station site, the Phillips Power Station/Landfill, and the Fern Valley Disposal Site) discussed in Out of Control by comparing them against EPA’s test of proof criteria. Based on the assessment, the Mitchell Power Station site, the Seward Generating Sta tion site, and the Phillips Power Station/Landfill site were designated as potential damage cases . The Fern Valley Disposal Site was designated as a proven damage case. For a summary of stakeholder arguments addressing the se four sites and the rationale fo r their damage case designation decision s, see the technical support documents on damage cases in the docket of the

final rule.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0223

- 3 

### Organization 1 

### : Ameren Corporation


### Commenter 1 : Paul Pike Commenter Type: Electric Utility Company

Classification: Substantive



### Comment Excerpt Text: Damage Cases

The NODA identifies two reports prepared by environmental groups that, allege that a total of 70 CCR sites are “damage cases" that should be considered in the CCR ru lemaking. The report, entitled Out of Control: Mounting Damages From Coal Ash Wastes Sites (Feb. 24, 2010) ("Out of Control”) [Footnote 1: Environmental Integrity Project, Earthjustice, Out of Control:759

Mounting Damages From Coal Ash Waste Sites (Feb.2010) (EPA

- HQ

- RCRA

- 2011

- 0392

- 0005).] presents 31 alleged CCR damage cases that EPA explains were not included or recognized as proven damage cases in EPA's July 2007 Coal Combustion Waste Damage Case Assessments ("EPA 2007 Report''). 76 Fed. Reg. at 63256. The s econd report, entitled In Harm's Way: Lack Of Federal Coal Ash Regulations Endangers Americans And Their Environment (Aug. 26, 2010) ("In Harm's Way”) [Footnote 2: Environmental Integrity Project, Earthjustice, Sierra Club, In Harm's Way: Lack of Federal C oal Ash Regulations Endangers Americans and Their Environment (Aug. 2010) (EPA

- HQ

- RCRA

- 2011

- 0392

- 0006).] presents an additional 39 alleged CCR damage cases.

As we understand the majority of alleged damage cases identified in In Harm's Way and Out of

Contr ol do not present adequate information to even be considered as meeting the test of proof criteria necessary for EPA to evaluate the sites as proven damage cases. The small number of alleged damage cases that, based on the allegations taken at face value, potentially meet the criteria for evaluation as a proven damage case, are either inactive units where remediation is complete and/or undergoing active remediation. Finally, the proposed Subtitle D regulations will prevent future damage cases, by requiring groundwater monitoring, liners and leachate collection systems for new disposal units and lateral expansions of existing units, as well as the retrofitting of existing CCR impoundments.

Venice Energy Center

In the report, In Harms Way, our Venice Energy Center is identified as one of the alleged facilities that should be included as a damage case. The allegations are for on

- site and off

- site groundwater exceedances of CCRs above health

- based standards. The alleged off

- site groundwater exceedances of groun dwater standards are specifically for arsenic, boron, iron, and manganese. Evaluation of the data [Footnote 3: Natural Resources Technology. (2010). Supplemental Hydrogeological Assessment, Venice Ash Ponds, Technical Memorandum No. 2.]

has demonstrated th at the ash impoundment is not a significant source of arsenic and that elevated arsenic concentrations may be from other sources, including historic industrial activities

that used arsenic

- based compounds such as wood treatment facilities. The documentatio n that the source of arsenic is from a source other than the ash ponds has been demonstrated to the Illinois

EPA's satisfaction. It has also been documented that there are off

- site sources (both anthropogenic and natural) resulting in elevated concentratio ns of iron, manganese, and Total Dissolved Solids in groundwater unrelated to CCRs.

Boron concentrations in off

- site monitoring wells located upgradient from the site do not exceed groundwater standards; reported exceedances in an off

- site well located so uth of the site and downgradient of the impoundment were observed where the groundwater flow system intercepts the Mississippi River. A synthetic cap is proposed for the site, there are local groundwater ordinances in place restricting the use of groundwat er, and the only downgradient receptor is the Mississippi River. There is no potential for groundwater transport of CCR

- related constituents to human receptors. The Illinois EPA is overseeing closure activities at the site.

Response: Thank you for the reb uttal of the arguments made in In Harm’s Way, the August 2010 environmental advocacy groups’ report to support their claims that the Venice Energy Center760

should be designated as CCR damage case . The Agency has assessed, among others, this ‘newly alleged’ d amage case site against EPA’s test of proof criteria. Based on this assessment, the cited site was designated as a potential damage case. For a summary of stakeholder arguments addressing the Venice Energy Center CCR management site and the rationale for i ts damage case designation decision s, see the technical support documents on damage cases in the docket of the

final rule.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0223

- 7 

### Organization 1 

### : Ameren Corporation


### Commenter 1 : Paul Pike Commenter Type: Electric Utility Company

Classification: Substantive



### Comment Excerpt Text: See original comment for Technical Memorandum No. 2

- Supplemental Hydrogeological Assessment, Venice Ash Ponds

.

Response: See response to comment excerpt EPA

- HQ

- RCRA

- 2011

- 0392

- 0223

- 3.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0227

- 6 

### Organization 1 

### : Entergy Services, Inc. (Entergy)


### Commenter 1 : Myra Glover Commenter Type: Electric Utility Company

Classification: Substantive



### Comm ent Excerpt Text: The Alleged Damage Cases Presented By Environmental Groups Are Not Proven And Do Not Support The Subtitle C Option

The NODA identifies two reports prepared by environmental groups that, when taken together, allege that 70 CCR sites are “damage cases” that should be considered in the CCR rulemaking. The report, titled Out of Control: Mounting Damages From Coal Ash Wastes Sites (February 24, 2010) (“Out of Control”), [Footnote 2: Environmental Integrity Project, Earthjustice, Out of

Contro l: Mounting Damages From Coal Ash Waste Sites (Feb. 2010) (EPA

- HQ

- RCRA

- 2011

- 0392

- 0005).] presents 31 alleged CCR damage cases that EPA explains were not included or recognized as proven damage cases in EPA’s July 2007 Coal Combustion Waste Damage Case

Asse ssments (“EPA 2007 Report”). 76 Fed. Reg. at 63256. The second report, titled In Harm’s Way: Lack Of Federal Coal Ash Regulations Endangers Americans And Their Environment (August 26, 2010) (“In Harm’s Way”), presents an additional 39 alleged CCR damage ca ses [Footnote 3: Environmental Integrity Project, Earthjustice, Sierra Club, In Harm’s Way: Lack of Federal Coal Ash Regulations Endangers Americans And Their Environment (Aug. 2010) (EPA

HQ

- RCRA

- 2011

- 0392

- 0006).]. As discussed below, nothing presented in thealleged damage cases in Out of Control or In Harm’s Way support the regulation of CCR under RCRASubtitle C or undermine EPA’s original decision in the 2000 regulatory determination that the best meansto address the damage cases is to “develop national S ubtitle D regulations.” 65 Fed. Reg. at 32216.761

The vast majority of alleged damage cases identified in In Harm’s Way and Out of Control do not present adequate information to even be considered as meeting the test of proof criteria necessary for EPA to ev aluate the sites as proven damage cases. The small number of alleged damage cases that, based on the allegations taken at face value, potentially meet the criteria for evaluation as a proven damage case, are either inactive units where remediation is compl ete and/or undergoing active remediation. Finally, the proposed Subtitle D regulations will prevent future damage cases. Therefore, nothing presented in In Harm’s Way or Out of Control supports the authors’ call for the regulation of CCR under RCRA Subtitl e C when EPA’s proposed Subtitle D option will effectively address future issues associated with their alleged concerns regarding CCR management. Given the underlying goal of the Bevill Amendment that EPA avoid the Subtitle C regulation of CCR “if at all p ossible” (EDF v. EPA, 852 F.2d at 1314), there is no basis for EPA to rely on the damage case allegations in the above reports as the basis for pursuing the Subtitle C option.

Response to Environmental Integrity Project August 26, 2010 Report: In Harm’s W ay: Lack of Federal Coal Ash Regulations Endangers Americans and Their Environment

– Independence

Steam Station

Entergy’s Independence Plant was included in the August 26, 2010 In Harm’s Way report. That report concluded that there is demonstrated damage to groundwater based on exceedances of federal maximum contaminant levels (MCLs) for arsenic, cadmium, and lead and exceedances of secondary MCLs (SMCLs) for iron, manganese, pH, total dissolved solids (TDS) and sulfate, and exceeded SMCLs along the easter n property line which make it extremely likely that off

- site contamination is occurring. The EIP report authors appear confused that no corrective action,

off

- site monitoring or enforcement actions have occurred and that ADEQ did not object to the

cessatio n of a site

- wide monitoring program. Entergy agrees that plant activities have affected groundwater quality, especially with respect to sulfate and TDS but disputes the facts and overtones that are presented in the report.

Test of Proof

The plant operate d a site

- wide groundwater monitoring system from 1991 through 2008. The sitewide system consisted of a network of 32 monitoring wells, which includes a subset of eight monitoring wells that continue to be used for monitoring the Class 3N ash landfill. Cont rary to the assertion in the EIP report that other wells around the surge pond, various treatment ponds, and the plant are no longer sampled, Entergy has continued to voluntarily sample a smaller number (seven) of site

- wide wells in addition to the ash lan dfill wells to monitor potential impacts on groundwater quality from these ponds.

The majority of comments and opinions expressed in the EIP report concerning the condition of groundwater at the Independence site are based on data collected from February 2002 through October 2009 as part of the ash landfill monitoring program. Some consideration was given to

site

- wide historical data collected from 1991 to 1995. Site

- wide data and information contained in one annual report and six biennial reports that wer e subsequently submitted to ADEQ between 1996 and 2008 form the basis for reducing the site

- wide monitoring program and were762

apparently ignored by EIP. Consistent with EIPs presentation of their assessment, comments regarding this “test of proof” assessmen t are grouped into “historical site

- wide data” and “ash landfill monitoring program.”

Historical Site

- Wide Data

All of the inorganic parameters (and more) shown on the table on page 8 of the EIP report occur in the earth’s crust thus they also occur natu rally in groundwater, and some of these constituents have been detected in site groundwater. The EIP report wrongly concluded that heavy metal concentrations of arsenic, lead, and cadmium concentrations in groundwater beneath the site

exceed federal maximu m contaminant levels (MCLs) for the following reasons:

• Groundwater beneath the Independence Plant currently does not have arsenic concentrations above drinking water standards. Arsenic has only been detected above the current MCL in two of 379 samples ( 1991

- present) that have been analyzed for arsenic. In September 1992, arsenic was detected in the samples from wells 409 and 410 (located near the recycle pond and cooling towers, respectively) at concentrations that were above the current 10 μg /L MCL but below the 50 μg/L MCL applicable at the time of sampling. Arsenic has not been detected above the MCL since September 1992.

• Groundwater beneath the Independence Plant currently does not have lead concentrations above drinking water standards. Lead was detected at a concentration above its MCL in one of 396 samples that were analyzed (1991

- 1996). In September 1992, lead was above the current 15 μg/L MCL in the sample from well 410. There was no MCL for lead in 1992, but there was the

copper

- lead rule whe re a limit of 15 μg /L lead applied to public drinking water supplies (related to leaching of lead and copperin pipes). No lead was detected above the MCL in sampling events subsequent to September 1992.

• Groundwater beneath the Independence Plant curren tly does not have cadmium concentrations above drinking water standards. Cadmium was detected in only one of 396 groundwater samples analyzed for cadmium (1991

- 1996). Cadmium was above the 0.005 mg/L MCL in the sample from well 410 (0.006 mg/L) in February 1993. Cadmium was not detected above the MCL in sampling events subsequent to February 1993.

It is worthy to note that site

- wide monitoring for heavy metals ceased in 1997 with ADEQ concurrence because there were so few metal detections during the 1991

- 1 996 monitoring period. The EIP report states that strontium levels in groundwater and source waters are too high and that secondary maximum contaminant levels (SMCLs) for some constituents were routinely exceeded. Following is a response to these concerns:

• The USEPA (2010) publishes tap water screening levels for some contaminants that do not have drinking water MCLs. Tap water screening levels are based on ingestion of tap water and inhalation of chemicals volatilizing during residential indoor water us e. The screening level for strontium is 22 mg/L. All of the data for the site show that strontium concentrations in groundwater and in potential source waters (surge pond, recycle ponds, and cooling tower sump) are approximately an order of magnitude below the EPA screening level, thus strontium levels763

are not too high nor do they represent a health threat.

• Entergy agrees that SMCLs for some constituents have been exceeded. The highest concentration of TDS (1,796 mg/L) cited in the EIP report occurred in a sample from the facility’s up gradient monitoring well (501D). Movement of groundwater from the surge pond, coal storage pile, etc. toward this well is prevented by the cone of depression that is created by the plant production wells. Thus the elevated TDS in this well indicates an off

- site source for

TDS.

The EIP report claims that Entergy’s interpretation regarding agricultural irrigation impacts to site groundwater at well C

- 413 is flawed because C

- 413 is downgradient of the coal pile during

the summ er months when off

- site irrigation pumping is greatest; rice requires more water for irrigation, therefore more pumping for rice should increase the rate of flow away from the plant property; and because TDS, strontium, and sulfate are classic indicator pa rameters of CCW runoff and are consistent with groundwater flow to the north from pumping. The report’s interpretation of groundwater flow and water quality data is based on a review of 1995 water level data and historical water quality data and ignores 15 years of subsequent data, which includes data from many more monitoring wells that were installed to improve interpretations of groundwater flow and quality. Contrary to the EIP report assertions,

• Well C

- 413 is not located downgradient of the coal pile , and groundwater from the coal pile does not pass through the well.

• TDS and sulfate are also classic indicators of agricultural impacts from irrigation return water

and sulfur

- containing fertilizers used on rice and soybeans.

• Off

- site agricultural i mpacts to groundwater along the northern property have been well documented. Irrigation water returns substantial volumes to groundwater especially where rice is concerned because, as EIP has stated, rice generally requires more water for irrigation. High mineralization in irrigation return flow makes it a prime source of pollution of groundwater. Geochemical analysis of groundwater samples from the northern perimeter show a water type (having elevated levels of TDS, chloride, and sodium) that is very diffe rent from that observed beneath other parts of the Plant.

Ash Landfill Data

The EIP report repeatedly refers to a “shortened list” of analytical parameters that are being monitored at the ash landfill, implying that sampling is not being conducted in com pliance with the permit.Such statements regarding the requirements of the Class 3N landfill permit indicate incomplete research on the part of the EIP authors because monitoring required by the permit is being performed. The Class 3N landfill was issued a permit modification on February 14, 2002. Prior to that date Entergy operated the landfill under Permit No. 0220

- S, which was issued in October 1982. The modified permit formalized the landfill groundwater monitoring program that

had been in existence sinc e 1991. The permit required monitoring of 28 parameters and that Entergy submit a statistical approach for evaluating groundwater data that conformed to Regulation 22. The permit, as well as Regulation 22.1204(a)(1) as indicated in paragraph 12 of764

ADEQ’s l etter dated October 20, 2000, also allowed modification of the list of analytical parameters with ADEQ approval. Thus, upon completion of two years of quarterly sampling to establish background groundwater quality for the 28 permit parameters, A Statistica l Evaluation Plan (“Plan”)(FTN, April 28, 2004) was developed as required by the permit, and based on the data evaluation, the Plan proposed an alternate list of 16 analytical parameters, which ADEQ approved by letter dated May 18, 2004. In 2009, the list of analytical parameters was expanded to 21 parameters in anticipation of an additional permit modification. Among these parameters are chromium, mercury, and selenium. None of these metals have been detected at concentrations above their respective MCLs ( mercury and chromium have not been detected).

The EIP report summarized what were considered to be “key points” for the landfill monitoring program from 2002 to 2007 (page 9) and the period from 2007 to 2009 (page 10). These key points are related to exce edances of SMCLs, presence of boron in groundwater, the laboratory detection limit for arsenic, rejection of data, and an expectation for corrective action based on statistically significant increases (SSIs) in data. Responses to these key points follow be low.

EPA has established National Secondary Drinking Water Standards (NSDWS) that set non

mandatory water quality standards for six site

- related contaminants. Neither EPA nor the state of Arkansas enforces these SMCLs. They are established only as guideli nes to assist community water systems in managing their drinking water for aesthetic considerations, such as taste, color and odor. These contaminants are not considered to present a risk to human health, and community water systems are not required to red uce these chemicals below the SMCL. However, water utilities control the levels of these chemicals in the water in order to prevent tap

water odor

- and taste

- related customer complaints. The EIP report cites exceedances of the SMCLs for pH, iron, manganese , TDS, and sulfate, as follows:

• The SMCL for pH is 6.5 to 8.5 su because at pH levels below 6.5, water may corrode metal pipes imparting a metallic taste to the water. The pH of pure water at 25°C is 7.0 su. Most natural groundwater found in the United States has pH values ranging from about 6.0 to 8.5 su (USGS 1970). EIP states that the “worst” results, i.e., pH values of 5.5 and 6.2 su, were for the downgradient landfill wells. The landfill data show that in only 8 of 168 measurements in landfill

monit oring wells were the pH measurements below 6.0 su, and five of those readings occurred during a single sampling event. It should be noted that similarly “worst” results (pH less than 6.0 su) have also been reported for monitoring wells that are located upg radient of the facility and have not been affected by plant activities, and landfill leachate should increase pH in groundwater, not reduce it. Furthermore, data evaluations have shown that the landfill is not affecting the pH of groundwater.

• The EIP re port identified exceedances of the iron SMCL only in the data for monitoring wells located downgradient of the landfill (604S and 605S), when iron also exceeded the SMCL in upgradient landfill wells (413S and 602S). The report also stated that the highest iron concentration was 39.3 mg/L, which was a value that had been rejected after rigorous data review. The highest valid result was 17.4 mg/L. The EIP report also fails to mention that the historical data shows iron concentrations above the SMCL in samples from monitoring wells located upgradient of the facility (i.e., D501, D508, and D509). The USEPA (2010) tap water screening level for iron is 26 mg/L. The data indicate that iron concentrations in groundwater are765

below this health

- based screening level. D ata evaluations have shown that the landfill is not affecting iron concentrations in groundwater.

• Manganese has been monitored only in relation to the landfill monitoring program. The EIP report states that highest concentration measured is 8.35 mg/L, w hich was a value that had been rejected after rigorous data review. The highest valid result was 2.08 mg/L, found in an upgradient landfill monitoring well (602S). Manganese concentrations are above the 0.05 mg/L SMCL in landfill monitoring wells (includin g upgradient monitoring wells 602S and 413S); however, the data indicate that manganese concentrations in groundwater tend to be below the 0.88 mg/L tap

- water screening level (USEPA 2010), although exceedances of this screening

level have been observed in monitoring wells 602S (upgradient) and 606S (downgradient). A statistically significant increase (SSI) in manganese was reported for monitoring well 604S, which is located near the eastern property boundary as EIP has stated. The manganese concentration (0 .11 mg/L, June 2007), however, was below the health

- based screening level and even lower manganese concentrations have been observed in the well since the June 2007 sampling event.

• The EIP report asserts that the highest reported TDS and sulfate concent rations as well as the most frequent exceedances of the SMCL were associated with wells closest to the landfill. However, there are data associated with the site

- wide monitoring program that show exceedances of the SMCL for TDS and/or sulfate at eight othe r well locations that are not associated with the landfill, including 501D, which is a monitoring well that is located hydraulically upgradient of the entire facility. For example, in October 2003, when EIP reports the highest concentration for TDS (910 mg /L) in well 603S, TDS levels were 930 mg/L in 410S, 1,000 mg/L in 600, and 2,500 mg/L in 501D. It is true that TDS and sulfate concentrations in groundwater exceed their respective SMCLs, which are not health

- based limits, and this fact has been clearly do cumented in reports submitted to ADEQ by Entergy.

The EIP report raises concerns about boron concentrations in groundwater because boron is a coalash indicator. The report stated that the highest reported concentrations were in samples from upgradient mon itoring wells 603S (0.319 mg/L) and 511S (0.607 mg/L). Boron has historically been observed in groundwater site

- wide, including locations upgradient of the facility. Boron is considered to be a minor constituent of most natural groundwater and important in agriculture as small amounts of boron are essential to plant growth. The USEPA (2010) tap water screening level for boron is 7.3 mg/L. Maximum boron concentrations in site groundwater are an order of magnitude below this screening level. The EIP report st ates that the detection limit for arsenic, which was equal to the MCL, made it impossible to determine if arsenic concentrations were increasing “until the MCL had already been exceeded.” However, the MCL had not been exceeded in landfill wells. In October 2009, the laboratory detection limit was lowered from 0.010 mg/L to 0.0005 (an order of magnitude lower than that cited by EIP). No exceedance of the arsenic MCL has been found even with the lower laboratory detection limit. The EIP report further states that the arsenic concentration in 605S (0.007 mg/L) was “slightly less” that the MCL in October 2009, but the arsenic level in this well was an order of magnitude less than the MCL (0.001 mg/L) in May 2010, demonstrating the variability of metals concentra tions in groundwater.766

During each reporting period, data are vigorously reviewed, verified, and validated. A specific process is followed in deciding to accept, reject, or qualify data. EIP report authors apparently takes issue with rejecting data. Specif ically,

• EIP states (page 9) that arsenic exceeded the MCL by more than six times in one well (i.e., upgradient well 602S) and implies that rejecting the data due to high turbidity was improper. Data for 602S (up gradient of the landfill) from September 2006 showed elevated metals in general and arsenic was above the MCL. Metals concentrations in groundwater samples are affected by the presence of suspended sediment in the sample. There is evidence (turbidity measurements) which shows the level of suspend ed sediment in the sample was very high, therefore the analytical results were rejected because the sample was not representative, which is not only standard professional practice but this practice conforms to Arkansas Regulation 22 requirements.

• EIP st ates (page 10) that “AP&L rejected data for some sampling events when results were too high.” The examples they cited were metals in the September 2006 sample from 602S, which have already been discussed. The manganese and iron in the May 2004 sample from 605 were also rejected based on turbidity readings. Prediction limit analysis of results from the October 2004 sampling produced SSIs for manganese at monitoring well 413S. Independent evidence of an error (calculation or transcription) in the manganese re sult for this wells was not corroborated by the laboratory, thus verification re

- sampling was conducted on December 2004 using the "one of two" approach (FTN 2004). No SSIs were detected in the verification data. In short, the bases for rejecting data are clearly supported and documented in monitoring reports, which EIP apparently did not review.

• Additionally, EIP apparently takes issue with rejecting the groundwater data elevation for 605s (page 10). FTN (2009) described data from the well as “potential ly anomalous” because the water level maps resulting from the anomalous data point indicated the presence of a groundwater “high” where there is no mechanism to cause groundwater mounding. The reference point for the well was subsequently resurveyed and th e elevation error was identified

and corrected.

The EIP report claims (page 9) that statistically significant increases (SSIs) in constituent

concentrations are a basis for corrective action and notes that an SSI for chloride in the data for

605S was dete cted. Chloride is not a significant constituent in subbituminous landfill ash leachate; it is not included in Appendix 3 of Regulation 22; and it does not have a health

- based limit, thus FTN (2007) concluded the facility was in compliance with Arkansas Reg ulation 22.1204(c). SSIs do not trigger corrective action, but they may trigger if verification sampling

confirms the SSI.

The EIP report references correspondence sent by Entergy to ADEQ (page 11) on September 17, 2009 regarding the permit modification a pplication for the landfill. Two points about EIP’s assertions are worth addressing:

• The report mischaracterizes the letter by leaving out the primary reason why wells located 3⁄4 mile west of the landfill should not be used as “background” monitoring wel ls. EIP authors767

appear to be concerned about Entergy’s proposal to place background monitoring wells west of the landfill [upgradient] in an area “already contaminated” by other sources to determine if SSIs are occurring. This concern reflects an ignorance concerning the detection monitoring program and a lack of understanding of how statistics are used to determine if a waste management unit, in this case, the ash landfill, is impacting groundwater. Importantly, USEPA (2004) states that “it

is crucial to t he detection monitoring hypothesis and use of interwell, upgradient

- to

downgradient comparisons that changes in groundwater quality only be caused by on

- site waste management activity and that they only affect downgradient wells. Otherwise it may be diffic ult if not impossible to accurately pinpoint the facility in question as the source or cause of the contaminated groundwater.” While monitoring wells located 3⁄4 mile west of the landfill are have been used as background wells for the entire plant, groundwat er at this location is not representative of background groundwater upgradient of the landfill.

• The EIP report claims that Entergy said it would not use pre

- 2002 groundwater data to determine background, when in fact the referenced letter followed up on an ADEQ’s inquiry about why the data was not included in the database, to which Entergy responded that it was not included in the database because it was not required by the permit.

At Risk Populations

The EIP report indicates there are 25 irrigation we lls and three drinking water wells within a 2

- mile radius of the plant. It is not clear from the EIP report if the referenced irrigation wells are near the Independence Plant or near the Flint Creek site, as stated in the report. Previous work by Entergy h as documented the presence of 45 wells within a 2 to 3 mile radius of the plant. Most of these wells are used for irrigation. The Plant’s three production wells are not used for drinking water supply. The Plant has two drinking water supply wells that the Arkansas Department of Health (ADH) tests on a regular basis. All ADH reports have stated, “the finished water quality is within the allowable limits of the primary drinking water standards.”

The EIP report maintains that ADEQ has never required off

- site sampling of private or public wells near the facility to define the extent of contamination. The reason for this is that groundwater conditions are well below any MCL or risk

- based groundwater standards. The report further states that it is unclear what in fluence CCW disposal is having on the nearby White River; however, groundwater reports show that contamination does not extend south of the Plant to the White River. Additionally, the Plant is in compliance with its NPDES permit which allows discharges fro m the waste management systems to the White River.

Regulatory Actions

As stated in the EIP report, ADEQ has not ordered any assessment monitoring or corrective action because as stated in ADEQ’s letter dated October 16, 2009, “current groundwater

concent rations near the landfill appear to be well below any MCL or risk

- based groundwater
standard.”

Contrary to the EIP statement about Entergy no longer monitoring the plant area and surge pond, Entergy continues to voluntarily sample select plant area and su rge pond monitoring wells and768

evaluate the data, however, Entergy no longer submits biennial reports to ADEQ.

With respect to the EIP statement regarding the lack of corrective action, it should be noted that Entergy is committed to identifying cost

- effec tive best management practices (BMPs) to mitigate potential impacts on groundwater quality. For example,

• Because sulfuric acid is intermittently added to generation unit cooling water for pH control, Entergy previously concluded that leaking underground cooling water pipes may be contributing to a higher than normal concentration of sulfates in groundwater. Maintaining the integrity of those pipes and controlling leaks is an important plant maintenance objective and has been identified by plant managemen t as a BMP for reducing the potential infiltration of cooling water into local groundwater resources. During scheduled maintenance outages at the plant, specialized contractors are employed to locate and repair significant leaks that occur at pipe joints a nd in cooling tower basins.

• The Independence Plant has two recycle ponds, which are used in the management of bottom ash and are potential sources affecting concentrations of TDS and sulfate in groundwater. Ash that accumulates in the ponds as a result of operations is periodically removed. Although not initially known, it was suspected that past ash removal activities in the ponds had lowered the pond bottom elevation thus reducing the flow path to the aquifer. In 2004 and 2005, Entergy

undertook a volu ntary program to construct clay liners in the pond bottoms and return the bottoms to their original design elevation.

The area of groundwater impacted by enriched sulfate has decreased and numerous decreasing trends were observed in the data indicating th at repairs to the recycle pond liners and on

- going efforts to repair leaking underground water lines appear to be having a positive effect on groundwater quality (FTN 2009).

In summary, the EIP report is flawed because it is based on incomplete research a nd lack of understanding of Arkansas environmental regulations; it’s authors selected data which had been rejected through a rigorous data validation process to support their supposition; and the report fails to look at the bigger picture or entire site be cause at least 15 years of data from the site

- wide monitoring program have been ignored. Had the study been complete, EIP would have concluded the following:

• There are no heavy metals in groundwater above MCLs;

• There are no site

- related contaminants that exceed health

- based levels;

• Impacts from plant activities are related primarily to elevated levels of sulfate and TDS (sulfate being a primary component of TDS);

• It is likely that off

- site migration of TDS and sulfate east of the plant is occurr ing;

• No regulatory enforcement or corrective action is necessary; and769

• Entergy has voluntarily implemented best management practices/corrective actions which appear to be having a positive effect on groundwater quality beneath the site.

Response: This rule will regulate CCRs under RCRA subtitle D: for further details, see unit IV of the preamble to the final rule.

Concerning the Independence Steam Station site, addressed in In Harm’s Way, the August 2010 environmental advocacy groups’ report to s upport their claim that the Independence Steam Station site should be designated as CCR damage case : EPA has assessed, among others, this ‘newly alleged’ damage case site against EPA’s test of proof criteria. Based on this assessment,

th is site was designa ted as a potential damage case. For a summary of stakeholder arguments addressing the Independence Steam Station CCR management site and the rationale for its damage case designation decision , see the technical support documents on damage cases in the

dock et of the final rule.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0228

- 2 

### Organization 1 

### : Virginia Department of Environmental Quality (DEQ)


### Commenter 1 : Jeffery Steers Commenter Type: State Government
Classification: Substantive



### Comment Excerpt Text: Information on Damage Cases The In Harm’s Way report lists two Virginia power plants in its discussion of alleged damage cases. Both of the cases noted, American Electric Power’s Clinch River Plant in Russell County and Glen Lyn Plant in Giles County were from many years ago. The Virginia DEQ has reviewed this report and by this letter, is providing clarifying information on the report’s summary and

conclusions.

American Electric Power Plant (AEP) Clinch River Plant

There is no dispute that the 1967 spill had a huge impact on the river benthic community. Since that spill over 44 years ago, regulations have been put in place to control solid waste and wastewater from the plant and the benthic community has been restored to a fully supporting

state.

The St ate Water Control Board, a predecessor to DEQ, issued the first state Virginia Pollution Discharge Elimination System (VPDES) permit in approximately 1975 requiring monitoring and treatment of the wastewater discharges from the AEP Clinch River Plant. The VPDES permit addresses all potential wastewater sources from the site, and is sufficiently restrictive to protect water quality of the receiving stream. The company has a consistent history of compliance with all provisions of the permit, and the DEQ has c onfidence that the permit is sufficiently protective of water quality. The In Harm’s Way report contends that discharges from the facility has high concentrations of copper and aluminum which result in adverse impacts to aquatic life. There are

two outfall s at the Clinch River Plant which would have the potential to discharge pollutants which contact waste ash from the two ash handling ponds. Outfall 003 is the final discharge from770

the advanced wastewater treatment plant which receives all waste water from the ash handling activity; and, Outfall 015 is identified as the collective discharge from seeps along the toe of the embankment of the area which was previously used as ash pond #2 located on the east bank of Dumps Creek.

The wastewater treatment plant, which serves Outfall 003, receives all non

- storm water wastewater generated from the facility including ash transport waste, landfill leachate, cooling tower blowdown, and any other miscellaneous wastewaters generated at the facility. As such, it is the pr inciple focus of the VPDES permit for the facility and the DEQ has imposed effluent limitations for a number of potential pollutants including a water quality based Total Recoverable Copper limit of 0.039 mg/l. The effluent limits were developed using curr ently accepted anti

- degradation and mixing zone policies and are sufficiently stringent to preserve the 0.0124 mg/l water quality standard adopted for the Clinch River. During the last permit action in 2010, the staff reviewed the data from the most recent 5

- year permit cycle and determined that the maximum reported concentration of total recoverable copper was 0.037 mg/l and the long term average concentration reported in the discharge is 0.016 mg/l.

Similarly, the facility is required to report the conce ntration of Aluminum in its discharge. The most recent reported Aluminum concentration for outfall 003 is 0.16 mg/l. Although this end

- of

pipe concentration is higher than the 0.087 mg/l criteria for Aluminum that is quoted In Harm’s Way report, it is not likely to produce instream concentrations which approach the criteria level; because Virginia has not adopted water quality standards for Aluminum, no water quality based effluent limits are contained in the permit. Therefore, the wastewater from Outfall 0 03 is in compliance with all regulatory water quality standards.

The other potential discharge which may contact ash waste material is regulated in the permit as Outfall 015. Inspections of the facility discovered seepage at the toe of Ash Pond 2 in the l ate 1980s. As a result, the VPDES permit was modified to include dike stability analysis, chemical analysis, and flow monitoring of the seepage. AEP removed Ash Pond 2 from service in the mid

1990s and the seepage quantity has reduced significantly. DEQ ha s evaluated the seepage quality and has repeatedly found no in

- stream water quality standard violations from this source.

Furthermore, downstream ambient data from DEQ monitoring stations has confirmed that the Clinch River below the facility meets all wa ter quality standards. A 2007 ambient water analysis which included results for seventeen metal parameters identified no water quality standards violations. Incidentally, the levels of Copper and Aluminum were both low. Copper was

determined to be 0.0005 m g/l and Aluminum was detected at a level of 0.0044 mg/l. Therefore, DEQ is confident that the Clinch River Plant is not contributing levels of pollutants in violation of the water quality standards.

DEQ has benthic macroinvertebrate stations on the Clinch River upstream of and downstream of the Clinch River Plant (Stations 6BCL264.27 and 6BCL250.67, respectively). The most recent DEQ data reveals a Virginia Stream Condition Index (VSCI) score of 71 and 73 respectively. If

VSCI has a level of below 60 as im paired for aquatic life use and scores of above 70 are indicative of a very health and diverse benthic community.771

Researchers have noted mussel decline in certain section of the Clinch and Powell Rivers, namely upstream and near the Towns of Tazewell and North Tazewell. This stretch of the river, however, is far upstream of the Clinch River Plant discharges.

DEQ is signatory to a memorandum of understanding (MOU) between the State of Tennessee, EPA Region 3 and 4 and Virginia Department of Mines, Minerals and Energy for the purpose of studying the reasons for the mussel decline. A product of this MOU is the formation of the

Clinch

- Powell Clean Rivers Initiative (CPCRI), consisting of federal and state regulatory and resource agencies, environmental advocac y groups, universities and coal companies (see Table 1 below). The purpose of the CPCRI is the study the reason for the mussel decline from a scientific basis. The group determined that studies are needed to define the populations in the various

sections o f the rivers and to develop a study plan to define the causes of the mussel decline. A scientific study plan is being developed and will be implemented by the partners. As the full plan is being developed now, only a summary is available. DEQ believes that blaming mussel decline on discharges from the Clinch River Plant, or any cause, is premature until the study is complete.

The draft 2012

– 305(B/303(D) Water Quality Assessment Report that is now being developed by DEQ also notes this mussel decline in th e listing the Clinch Rivers as fully supporting with observed affects for aquatic life use.

Table 1.

Clinch

- Powell Clean Rivers Initiative participants ·Tennessee Department of Environment and Conservation ·Virginia Department of Environmental Quality

·Vi rginia Department of Game and Inland Fisheries ·Tennessee Wildlife Resources Agency ·Virginia Department of Conservation and Recreation ·Virginia Department of Mines, Minerals and Energy ·US Environmental Protection Agency Regions 3 & 4

·US Office of Surfa ce Mining Reclamation and Enforcement

·US Fish and Wildlife Services ·US Geological Survey ·US Army Corps of Engineers ·Tennessee Valley Authority ·Alpha Natural Resources

·Arch Coal ·The Nature Conservancy ·Upper Tennessee River Roundtable ·Virginia Tech ·North Carolina State University

American Electric Power Plant (AEP) Glen Lyn Plant

As with the Clinch River Plant, the Glen Lyn Plant also is a regulated facility subject to DEQ review and inspection. The In Harm’s Way report is not clear on which out fall is responsible for the problems alleged; however, based on the picture associated with the description, it would appear that the report refers to Outfall 007. Outfall 006 is associated with the wet pond system772

and has not had any discharges from the o verflow during the past three VPDES permit cycles (15 years) and Outfall 007 has had discharges and includes the leachate ponds from the existing landfill which currently has its final cap installed and storm water via Outfall 907.

The current VPDES Permi t VA0000370 was issued on July 11, 2009, and expires on July 10, 2014. In this permit, Outfall 006 and 007 are required to be monitored for flow, pH, TSS and oil & grease. In past permit cycles, biological toxicity testing, using Ceriodaphnia dubia, was

re quired for both Outfall 006 and 007; however, based on the last 15 years of data, this testing was deemed unnecessary for Outfall 007 and was not included in the most recent renewal. Outfall 006 still requires biological toxicity testing if there is ever a discharge from the system. There is also monitoring of total recoverable copper, nickel, zinc, arsenic, and selenium.

The In Harm’s Way report references water quality problems from TSS, a rise in pH and elevated levels of the following trace elements: c admium, chromium and selenium; however, the DMR data submitted to DEQ does not indicate any current issues with TSS or a rise in pH.

Based on the TMDL studies on the New River, the river is impaired with PCBs and perhaps

bacteria. Both of these issues ar e unrelated to CCRs. The following link provides additional information on the current water quality in the vicinity of the Glen Lyn’s industrial landfill, which has a DEQ

- issued Solid Waste Permit under the Virginia Solid Waste Management Regulations:

htt p://gisweb.deq.virginia.gov/FactSheets2010/FactSheets.aspx?id=VAWN35R_NEW01A00&st yle=1

Finally, DEQ is familiar with Dr. Cherry’s studies from the 1970s and 1980s as he worked closely with DEQ staff. Based on that working relationship, the following comme nts are offered

on those studies: o Dr. Cherry’s methodology in those early studies was unconventional and could not be used for regulatory purposes. o The study conditions that existed in the 1970s and 1980s no longer exist. The facility has made many imp rovements to its operation to reduce pollutant loading and the volume of discharge.

Those studies are not pertinent to today for the above reasons. At this time, the DEQ has no reason to suspect a benthic impairment much less one contributed by the Glen L yn Plant. In regards to benthic macroinvertebrate samples in the New River, the Virginia Stream Condition Index (VSCI) was not developed as an assessment tool for large rivers such as the New River at Glen Lyn; therefore, the DEQ has not collected any bent hic macroinvertebrate samples in the area around Glen Lyn.

Response: Concerning the Clinch River Plant site and the Glen Lyn Plant site, both of which are

addressed in In Harm’s Way, the August 2010 environmental advocacy groups’ report to support their claim that these two sites should be designated as CCR damage cases: EPA has assessed, among others, these two ‘newly alleged’ damage case sites against the Agency ’s test of proof

crite ria. Based on this assessment, both sites were designated as a proven damage cases. For a summary of stakeholder arguments addressing these two CCR management sites and the773

rationale for their damage case designations by the Agency, see the technical suppo rt documents on damage cases in the docket of the final rule.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0230

- 1 

### Organization 1 

### : Santee Cooper


### Commenter 1 : Jay Hudson Commenter Type: Electric Utility Company

Classification: Substantive



### Comment Excerpt Text:

1. Reports on alleged damage cases should not be considered in the final rule making until the reports and alleged cases have been scientifically proven and the accuracy of the reports have been verified. The EPA should be consistent in applying its "test of proof' criteria for determining which of the damage cases should be included

.

Response: EPA has assessed all the ‘ newly alleged’ damage cases in Out of Control and In Harm’s Way, the February and August 2010 reports , respectively by comparing them against

EPA’s test of proof criteria. For a summary of stakeholder arguments addressing the assessed CCR management sites and the rationale for their damage case designation decision s, see the technical support documents on damage cases in the docket of the final rule.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0233

- 4 

### Organization 1 

### : MidAmerican Energy Holdings Company


### Commenter 1 : Cathy Woollums Commenter Type: Electric Utility Company

Classification: Substantive



### Comment Excerpt Text: 3. Reports Regarding Alleged Damage Cases from the Management of CCRs

– As set forth in MidAmerican’s general comments, EPA must ensure the quality, including objectivity, utility and integrity, of information that is disseminated and utilized to reach its conclusions. Specifically with respect to the clear advocacy efforts fostered in the February 24, 2010, report by the Environmental Integrity Project and Earthjustice titled “Out of Control: Mounting Damages From Coal Ash Waste Sites” and the August 26, 2 010, report by the Environmental Integrity Project, Earthjustice, and the Sierra Club titled “In Harm’s Way: Lack Of Federal Coal Ash Regulations Endangers Americans and Their Environment,” MidAmerican does not believe the appropriate level of information quality has been achieved to allow EPA to rely on the unsupported conclusions reached.

In particular, MidAmerican disputes the accuracy of the conclusions of the August 26, 2010 report, In Harm’s Way, [Footnote 2: Environmental Integrity Project, Earthju stice, In Harm’s Way: Lack of Federal Coal Ash Regulations Endangers Americans and Their Environment (August 2010)] noticed by the Agency. In Harm’s Way is not a peer

- reviewed science

- based report. EPA is strongly cautioned on reliance on an advocacy docum ent based on accusation (to which no response was requested) designed to inflate the number of damage cases in an effort to774

advance a more stringent regulatory scheme. MidAmerican strongly disagrees that the George Neal Station North and George Neal Statio n South facilities are so

- called damage cases, as alleged in the report. Not only has no danger been proven, but there is no evidence of any damage, including potential damage.

The George Neal facilities are located in Iowa, along the Missouri River. The alleged damage claims are from groundwater testing conducted directly beneath the waste facilities that detected elevated concentrations of arsenic. Notably, In Harm’s Way assessed potential impacts precisely the way the EPA’s 2000 Regulatory Determinatio n identified as the improper way to assess impacts

– EPA clarified that an exceedance directly beneath a waste management unit, or very close to the waste boundary, would not be considered a documented, proven damage case. [Footnote 3: See 65 Federal Regis ter 32224.] For damage to be proven, measurement had to be “at a sufficient distance from the waste management unit to indicate the hazardous constituents had migrated to the extent that they could cause human health concerns.”

To assess potential human health concerns from arsenic in ground water, MidAmerican voluntarily conducted testing at several locations along the Missouri river (away from the waste boundaries) including both upstream and downstream from the facilities in August 2010. In addition, M idAmerican sampled drinking water wells and the drinking water systems at both George Neal Station North and George Neal Station South; the sample results were provided to the Iowa Department of Natural Resources. Where arsenic was detected, all results we re at concentrations well below the federal maximum contaminant level for drinking water; [Footnote 4: Testing was completed 9/3/10 and the results were sent to the Iowa Department of Natural Resources in 6/27/11 correspondence] there were no samples that posed a risk to human health or the environment. The upstream arsenic values were consistent with the downstream values, suggesting the sites are not contributing arsenic to the river water.

Asserting a damage case based on selective sample results measu red from an inappropriate location without the benefit of complete data mischaracterizes the facts

– the situation is further compounded when background information is not considered. Multiple studies have reported arsenic is a common constituent in ground water and soil in the state of Iowa. In 2004, the University of Iowa, the Iowa Department of Natural Resources, and the U.S. Geological Survey published the Iowa Community Private Well Study, [Footnote 5: Iowa Department of Natural Resources, Geological Su rvey

– Iowa’s Water Ambient Monitoring Program

– Iowa Community Private Well Survey; Water Fact Sheet 2004

- 4, January 2004.] which randomly sampled 103 wells in 50 counties throughout the state and arsenic was present in 24% of all wells. Further,

from 200 6

- 2008 the University of Iowa’s Center for Health Effects of Environmental Contamination conducted the Iowa Statewide Rural Well Water Survey [Footnote 6: University of Iowa Center for Health Effects of Environmental Contamination, Iowa Statewide Rural Wel l Water Survey Phase 2 (SWRL2), Results and Analysis, August 2009] on behalf of the Iowa Department of Natural Resources. This survey found arsenic in almost half of all 473 private drinking water wells sampled across 89 counties throughout the state. In 2 010 the Iowa Department of Natural Resources issued a report on the geochemistry of soil samples collected from across the state and arsenic was detected in 100% of the samples. The report noted, “because of the high percentage of detections and the state

- wide distribution of arsenic in the soil, it is thought to be naturally occurring from the breakdown of arsenic bearing minerals, such775

as pyrite, in the glacial till and rock parent material.” [Footnote 7: Iowa Department of Natural Resources, The Iowa Sta te

- Wide Trace Element Soil Sampling Project: Design and Implementation, A Report of the Iowa Component of the United States Geological Survey, pg 60, Open File Report 10

- 1, June 2010] A review of contour maps indicate that soil surrounding the George Neal Station facilities has some of the state’s highest concentrations of arsenic from naturally occurring sources.

In summary, EPA should not consider George Neal Station North and George Neal Station South alleged damage claims as part of the regulatory det ermination process. The alleged damage claims did not follow the Agency’s 2000 CCR Final Determination procedures, and there was no evidence of contaminant migration at sufficient distances to cause human health concerns. Further, raw water samples from bo th the George Neal Station North and the George Neal Station South drinking water systems show arsenic concentrations well below federal standards for drinking water. EPA should not include the George Neal Station facilities in the CCR rulemaking because t he “alleged damage claims” fail the definition of a proven damage claim, which are the only cases that can be included in CCR rulemaking.

In addition, there is no evidence indicating even a “potential damage” to human health and the

environment. Even if one assumes the facilities are “potential damage cases,” it is improper for EPA to include potential damage cases in its analysis of regulatory options for CCR since it clearly violates the Bevill Amendment. As part of the Bevill Amendment, EPA must only

c onsider documented cases of danger when the danger “has been proved.” [Footnote 8: See RCRA § 8002(n)(4)]

.

Response: Thank you for the rebuttal of the arguments made in In Harm’s Way, the August 2010 environmental advocacy groups’ report to support their claims that the George Neal Station North and George Neal Station South facilities should be designated as CCR damage cases. EPA has assessed, among others, these two ‘newly alleged’ da mage case sites against The Agency ’s test of proof criteria. Based on this assessment, the se sites were designated as potential damage cases. For a summary of stakeholder arguments addressing the George Neal Station North and George Neal Station South CCR management sites and the rationale for their damage case designation decision s, see the technical support documents on damage cases in the docket of the

final rule.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0234

- 2 

### Organization 1 

### : Wisconsin Electric Power Comp any (We Energies)


### Commenter 1 : Bruce Ramme Commenter Type: Electric Utility Company

Classification: Substantive



### Comment Excerpt Text: Section VI (Reports regarding alleged damage cases from the management of CCRs)

EPA has noticed several reports that were received as comments to the 2010 proposed CCR rules related to alleged CCR management damage cases. Some of the reports included in the NODA include detail of We Energies’ owned sites. While we support inclusion of some documents in776

the rulemaking record, we take issue with the inclusion of an alleged damage case related to a We Energies site since that allegation is based on speculation and flawed logic, and is unsupported by any scientific basis.

We Energies sup ports the comments provided by USWAG as well as the inclusion of the EPRI

documents EPA

- HQ

- RCRA

- 2011

- 0392

- 0007 and EPA

- HQ

- RCRA

- 2011

- 0392

- 0008 identified

in the docket.

We disagree, however, with inclusion of information contained in document EPA

- HQ

- RCRA

2011

- 0392

- 0024. This document relies on information included in newspaper articles instead of factual data regarding We Energies Oak Creek Power Plant site. This document refers to such on p. 13.

OAK CREEK POWER PLANT:

A report titled “In In Harm’s Wa y: Lack of Federal Coal Ash Regulations Endangers Americans And Their Environment”, produced by the advocacy group named the Environmental Integrity Project (EIP) in August 2010 contends that one or more of the three coal ash landfills on the Oak

Creek Pow er Plant property constitute a damage case due to concentrations of molybdenum in nearby residential wells. The report makes this allegation despite the fact that the wells are hydrogeologically upgradient from the power plant and landfills.

The weight o f evidence strongly suggests that the power plant and landfills are not the source of these molybdenum concentrations. This is documented in the attached NRT technical memorandum (Attachment A). The allegations made by the advocacy group are based on

specu lation and flawed logic.

Examples of speculation and flawed logic by EIP include a statement that the residential wells have created a capture zone extending to the landfills on the power plant property. However, groundwater flow data clearly show that n o such capture zone exists, and that unspecified unvegetated areas (no specific locations are provided) are suggestive of offsite coal ash placement, which ignores the universe of other reasons why an area may be un

- vegetated and is unsupported by any data or other evidence. The EIP also completely ignored the possibility that the elevated ground water levels might be attributed to an unremediated Superfund site upgradient of these same wells or could be naturally occurring in the soils. This type of broad speculation without scientific basis is unwarranted and specious.

The off

- site molybdenum exceedances upgradient of the Oak Creek Power Plant landfills do not meet the criteria for a proven damage case because the weight of evidence indicates that these exceedances are not due to a release from the landfills. The Wisconsin Department of Natural Resources is conducting an independent groundwater study to determine the cause.

Response : Thank you for your comment, alerting the Agency to the presumably poorly founded arguments concerning the Oak Creek CCR landfills in Wisconsin that are included in the August 2010 report titled In Harm’s Way . The Agency has assessed, among others, the ‘newly alleged’ Oak Creek Landfill damage case site against its test o f proof criteria. Based on this assessment,777

th is site was designated as a potential damage case. For a summary of stakeholder arguments addressing the Oak Creek CCR management site and the rationale for its damage case designation decision by the Agency, s ee the technical support documents on damage cases in the

docket of the final rule.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0234

- 6 

### Organization 1 

### : Wisconsin Electric Power Company (We Energies)


### Commenter 1 : Bruce Ramme Commenter Type: Electric Utility Company

Classification: Substantive



### Comment Excerpt Text: August 13,2010 Mr. Joe Lourigan

Sturtevant Service Center Wisconsin Depattment of Natural Resources 9531 Rayne Road, Suite IV Sturtevant, WI 53177

RE: OAK CREEK SOUTH ASH LANDFILL

LICENSE# 2357

- F ID# 241219770

GROUNDWATER INVESTIGATION TECHNICAL MEMORANDUM

Dear Mr. Lourigan:

Enclosed for your review is the document, "Review of Analytical Results from New Sample Points: Dolomite Aquifer Groundwater Quality Evaluation, Oak Creek Power Plant", da ted August 11,2010, This technical memorandum was prepared to supplement the Investigation Plan Summary Analysis that was submitted on March 31, 2010,

Please contact me at (414) 221

- 2206 if you have any questions or comments regarding

this submittal.

Sincerely, Timothy C Muehlfeld, PE Project Manager

Enclosure

cc: Bizhan Sheikholeslami

- DNR

Natural Resource Technology

TECHNICAL MEMORANDUM

Date: August 11, 2010 Subject: Review of Analytical Results from New Sample Points: Dolomite Aquifer

Gro undwater Quality Evaluation, Oak Creek Power Plant

From: Bruce Hensel778

Introduction

This technical memorandum reviews data collected since the March 30, 2010 Investigation Plan Summary Analysis. Specifically, two sets of data have become available:

- Monitoring results from well nest W45, installed in March 2010, and

- Monitoring results from residential well samples collected by the Wisconsin Department of Natural Resources (WDNR) in late February 2010 and provided to We Energies on May 19,

2010.

Ba ckground and Conceptual Model

The March 30, 2010 Investigation Plan Summary Analysis provided hydrogeologic and water chemistry data for the till and bedrock flow systems, leading to a conclusion that elevated molybdenum concentrations in private water s upply wells west of the Oak Creek Power Plant property are not attributable to activities on the power plant property.

The geologic materials underlying the power plant property largely consist of a thick sequence of

low

- permeability clays that do not re adily convey groundwater. Sand seams within the till unit are capable of laterally transmitting water if the seams are horizontally continuous. One such sand seam, referred to as the intermediate sand, was identified in the vicinity of the Oak Creek

South landfill. A sand lens was also encountered at the W45 nest at a similar elevation and thickness as the intermediate sand, and is interpreted to be an extension of the intermediate sand seam. Based on these geologic data and groundwater flow data presented here and in the March 30, 2010 document, a conceptual model of groundwater flow at the site is as follows:

Groundwater at the water table has a horizontal component of flow toward surface water discharge points and a downward component of flow. Downward percolating water that

encounters the intermediate sand seam

- at a depth of 35 to 60 feet flows southeast. A component of groundwater within the intermediate sand, and any vertically percolating water that does not encounter the intermediate sand, will cont inue to percolate downward until it reaches the dolomite bedrock aquifer at a depth of 160 to 190 feet. Groundwater within the dolomite bedrock aquifer flows in a northeasterly to east direction and eventually discharges to Lake Michigan.

Monitoring Well Nest W45

Two monitoring wells were installed at the W45 nest. W45A is screened in the intermediate sand unit at a depth of 55 to 60 feet, and W45B is screened in the dolomite aquifer at a depth of 184 to 189 feet. The wells were sampled as part of the s emi

- annual monitoring event for the Oak Creek South landfill in April 2010, and resampled in June 2010. This memorandum focuses on three constituents: boron and sulfate as indicator constituents for coal ash leachate, and molybdenum,

which has been a const ituent of concern in the dolomite aquifer investigation. The table below summarizes the analytical results for these three constituents:

W45A (intermediate sand), April2010779

Boron: 0.31

Sulfate: 51 Molybdenum: 0.044

W45A (intermediate sand), June 201 0

Boron: 0.37

Sulfate: 47 Molybdenum: 0.100

W45B (dolomite), April 2010

Boron: 0.11

Sulfate: 48 Molybdenum: 0.014

W45B (dolomite), June 2010

Boron: 0.44

Sulfate: 75 Molybdenum: 0.049

- This sample appears to show residual effects from monitori ng well installation

The anomalously low boron and molybdenum results in the April sample from the dolomite aquifer well, W45B, suggest residual effects from drilling and monitoring well installation. Therefore, the April sample is not considered represe ntative of groundwater conditions in the aquifer. The June sample shows boron, sulfate, and molybdenum concentrations similar to the private wells in the vicinity, and is representative of dolomite aquifer groundwater quality.

Analytical results for boro n and sulfate in the intermediate sand well, W45A, were within the range of results observed at the other intermediate sand wells at Oak Creek South (0.023 to 0.35 mg/L B and 6 to 125 mg/L S04 at W25CR, W26CR, W27C, W37C, and W39B). Boron was at the high e nd of this range while sulfate was near the middle of the range. However, the molybdenum concentrations in the April sample and the June resample were both higher than the range of results observed in the other intermediate sand wells at Oak Creek South (0 .004 to 0.027 mg/L). The direction of groundwater flow (discussed next) and low boron and sulfate concentrations suggest that leachate from coal ash is not migrating in this direction via the intermediate sand. The source of the high molybdenum concentrati ons is uncertain at this point

in time.

Groundwater flow in the intermediate sand wells was mapped to determine whether or not intermediate sand well W45A is upgradient or downgradient of the power plant property. The groundwater elevation in W45A was hi gher than the other intermediate sand wells, and the overall direction of flow is toward the southeast (Plate 1). These data indicate that W45A is upgradient of the power plant property. Groundwater flow in the dolomite aquifer, with the

additional measure ment point at W458, is consistent with prior flow maps; groundwater flow direction in April 2010 was toward the northeast (Plate 2).

In summary, the low concentrations for coal ash indicator constituents (boron and sulfate)780

combined with the upgradient p osition of the W45 well nest indicate that groundwater in the bedrock aquifer near W45 is representative of background conditions and does not show any effects from power plant or coal ash management operations.

WDNR Sample Results

Total (unfiltered) b oron and molybdenum results from private well samples collected by WDNR were added to plates 38 and 48 from the March 30, 2010 Investigation Plan Summary Analysis. These points are plotted as R36 through R64, and have been added to Table 2 from the

Investi gation Plan Summary Analysis

- all of which are attached.

Molybdenum concentrations in WDNR samples taken from private wells along County Line Road were similar to results from samples previously collected by We Energies, with most between 0.03 and 0.04 mg /L (Plate 38). There was a cluster of private wells (R44 to R48) along Foley Road with relatively high molybdenum concentrations in the WDNR samples, between 0.03 and 0.09 mg/L. Wells R44 to R48 are upgradient of the private wells sampled by We Energies wh ere molybdenum concentrations are often higher than the enforcement standard. Molybdenum concentrations in the southern wells sampled by WDNR were all lower than 0.02 mg/L, which is consistent with We Energies sample results from wells to the south.

Boro n concentrations in the WDNR samples were consistent with results from We Energies samples, with concentrations close to 0.5 mg/L in wells along County Line Road, and decreasing toward the southwest (Plate 4B).

Summary

Groundwater flow and concentratio n data collected since the March 30, 2010 Investigation Plan Summary Analysis are consistent with the data and conclusions presented in that analysis. The new W45 well nest indicates that flow in the dolomite aquifer and intermediate sand units is

eastward from the private wells toward the power plant property, and the high molybdenum concentrations in WDNR samples taken from a cluster of wells along Foley Road, which are

more than one

- half mile upgradient of the power plant property, support the conclusion that the source of molybdenum in the private wells is not on the power plant property

.

Response: See response to comment excerpt EPA

- HQ

- RCRA

- 2011

- 0392

- 0234

- 2.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0235

- 1 

### Organization 1 

### : Lower Colorado River Authority


### Commenter 1 : Mike Almendarez Commenter Type: Electric Utility Facility

Classification: Substantive



### Comment Excerpt Text: Damage Cases

In Section VI of the NODA, EPA noticed three (3) specific reports received in comments to the781

2010 proposed rule: 1) “Out of Control: Mounting Damages From Coal Ash Waste Sites”, February 24, 2010, Environmental Integrity Project and Earthjustice (EIP/EJ 2010); 2) “Evaluation of Coal Combustion Product Damage Cases: Volume 1 and 2”, July 2010 and September 2010, Electric Pow er Research Institute (EPRI) (EPRI 2010); and 3) “In Harm's Way: Lack of Federal Coal Ash Regulations Endangers Americans and Their Environment”, August 26, 2010, Environmental Integrity Project, Earthjustice and the Sierra Club (EIP/EJ/SC 2010).

In the r eport EPRI 2010, EPRI described its detailed assessment of the proposed and potential damage cases identified by US EPA in 2007 (2007 Damage Cases). EPRI concluded that slightly more than 60 percent of the damage case sites were located in areas with low p otential for groundwater receptors. EPRI also concluded that groundwater remediation activities were ongoing or completed at 23 of the 24 proven damage case sites, as well as at 24 of the potential damage case sites, thereby significantly limiting potentia l for future risk from these sites.

In EPRI 2010, EPRI also perfo rm ed a brief assessment of the EIP/EJ 2010 and the EIP/EJ/SC 2010 publications. EPRI stated the following about these two publications.

The EIP/EJ and the EIP EJ/Sierra Club reports identif ied 70 new alleged damage cases, based primarily on researching state records. US EPA noted in the preamble that they were not able to do independent verification of these new cases. It is critical that each of these cases be fully vetted by US EPA with at least the level of technical review as the previous alleged damage cases, and that the results be made available for public input ... The evaluation of environmental impacts at CCP management facilities requires sufficient time and data to adequately defi ne items such as complex hydrogeological flow systems, groundwater chemistry, other sources of impacts, and sampling and analysis artifacts. This often is contained in additional data or consultant reports prepared subsequent to reported groundwater qualit y exceedances, and this information may or may not be readily found in state records ... In our brief review of the EIP/EJ/Sierra Club reports, we have found several examples of possible errors or misrepresentations that merit further investigation...

LCR A supports EPRI's approach and concurs with EPRI's recommendation regarding further vetting of cases that are alleged to be damage cases in the EIP/EJ 2010 and the EIP/EJ/SC 2010 publications. LCRA urges EPA not to characterize the alleged damage cases as proven or potential damage cases unless and until each case can be fully vetted by US EPA with at least the level of technical review and “test of proof” criteria that have been applied to the 2007 Damage Cases. Without this analysis, the data presented in the reports is of insufficient quality to be used in the development of the final rule. Upon completion of this detailed review, the results should be made available for public review and comment

.

Response : EPA assessed all the 9 0 ‘newly alleged’ damage cases presented in the February and August 2010 reports Out of Control and In Harm’s Way, respectively, and in the November 2011
report Risky Business report against EPA’s test of proof criteria. Based on this assessment, some

of t hese sites were designated as proven damage cases, others were designated as potential damage case, and still others were rejected as CCR damage cases because they failed to satisfy the Agency’s test of proof criteria. For a summary of stakeholder argument s addressing the782

assessed sites and the rationale for their damage case designation decision s, see the technical support documents on damage cases in the docket of the final rule.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0236

- 15 

### Organization 1 

### : Iowa Department of Natural Resources (IDNR)


### Commenter 1 : Brian Tormey Commenter Type: State Government
Classification: Substantive



### Comment Excerpt Text: [See original comment for Attachment 1: MidAmerican Energy Arsenic Test #1.]

[See original comment for Atta chment 2: MidAmerican Energy Arsenic Test #2.]

Response: Thank you for the rebuttal of the arguments made in In Harm’s Way, the August 2010 environmental advocacy groups’ report to support their claims that the George Neal Station North, the George Neal Station South, and the Lansing Station Landfill sites should be designated as CCR damage cases. EPA has assessed, among others , these three ‘newly alleged’ damage case sites against The Agency’ s test of proof criteria. Based on this assessment, the George Neal Station North and the George Neal Station South sites were designated as potential damage cases, whereas the Lansing Stat ion Landfill site was rejected as a CCR damage case. For a summary of stakeholder arguments addressing these three sites and the rationale for their damage case designation decision s, see the technical support documents on damage cases in the

docket of the final rule.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0236

- 2 

### Organization 1 

### : Iowa Department of Natural Resources (IDNR)


### Commenter 1 : Brian Tormey Commenter Type: State Government
Classification: Substantive



### Comment Excerpt Text: Because of the significant programmatic, logistic and economic implications to our state from the proposed regulation of CCRs, it’s imperative that EPA have accurate data with which to base a determination. Regrettably, some information received during the 2010 proposed rule public comment period regarding Iowa’s CCR regulatory programs and disposal facilities was factually inaccurate or exaggerated to substantiate ulterior agendas. Specifically, IDNR would like to respond to claims made by Earthjustice and other environmental organi zations in comments submitted during the 2010 proposed rule comment period and expressed in Sections VI and VII

of the NODA.

Response: See response to comment excerpt EPA

- HQ

- RCRA

- 2011

- 0392

- 0236

- 15.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0236

- 3 

### Organization 1 

### : Iowa Department of Natural Resources (IDNR)783



### Commenter 1 : Brian Tormey Commenter Type: State Government
Classification: Substantive



### Comment Excerpt Text: Section VI: 2010 report titled, “In Harm’s Way: Lack of Federal Coal Ash Regulations

End angers Americans And Their Environment”

This report alleges to have identified 39 more coal combustion waste disposal sites in 21 states that have contaminated groundwater or surface water with toxic metals and other pollutants, based upon on monitoring d ata and other information available in state agency files. Three sites in Iowa are identified within this report as having contaminated ground water (George Neal Station North Landfill, George Neal Station South Landfill, and Lansing Station Landfill).

Wh at this report fails to document is:

· For arsenic, the contaminant for which maximum contaminant level (MCL) exceedances are highlighted in this report, the background levels naturally exceed the MCL at the referenced

sites.

· The George Neal Station No rth Landfill completed construction of a new composite lined cell in 2009 and the older cells are being closed and capped.

· The George Neal Station South Landfill beneficially uses more CCR annually than is placed in

the landfill.

· For the Lansing Stat ion Landfill, this report claims damage to groundwater from several contaminants, including arsenic at twice the MCL. All downgradient monitoring wells at this site for the noted contaminants were well below the MCL and the upgradient control limits, as of the most recent annual water quality report. Also, the referenced arsenic exceedance was from a monitoring well that has been dry since August 2004, which likely did not yield valid or representative samples to appropriately characterize the site.

· Soon after this report was made public, a series of tests were conducted (Table 1) that evaluated water quality in various locations of the river, drinking water wells, and the drinking water systems at both the George Neal North and George Neal South sites. W here there were detectable levels of arsenic in the samples, they were still below EPA drinking water standards. The actual processed drinking water at the sites was also below detectable levels.

[See original comment for Table 1, with site locations, sam ple results, Federal standard, and notes.]

· Where MCL exceedances cannot be soundly documented, this report turns to unenforceable concentrations of drinking water contaminants (SMCLs) and guidance values based on

noncancer health effects for different d urations of exposure (LTHA) to substantiate damage site

claims.784

· Further review of annual ground water quality reports for these sites has identified several instances of contaminant levels being misrepresented in this report by not properly considering background levels, citing data outliers as current site conditions, and the incorrect application of current upgradient control limits. This concern is compounded by the fact that this inaccurate information is being reiterated in a series of reports alleg ing deficiencies in Iowa’s CCR regulatory programs. Examples of such reports include Environmental Integrity Project’s report titled, “Toxic Waters Run Deep: Coal Ash Open Dumps Still Open for Business” and Earthjustice’s report titled, “State of Failure: How States Fail To Protect Out Health And Drinking Water From Toxic Coal Ash.”

Response: See response to comment excerpt EPA

- HQ

- RCRA

- 2011

- 0392

- 0236

- 15.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0237

- 10 

### Organization 1 

### : Edison Mission Energy, LLC


### Commenter 1 : Basil Constantelos Commenter Type: Electric Utility Company

Classification: Substantive



### Comment Excerpt Text:

UPDATED TECHNICAL REBUTTAL OF “IN HARM’S WAY: LACK OF FEDERAL COAL

ASH REGULATIONS ENDANGERS AMERICANS AND THEIR ENVIRONMENT”

– DAMAGE CASE JOLIET 9 GENERATING STATION

Prepared For:

Midwest Generation, LLC

1800 Channahon Rd. Joliet, IL 60436

Prepared By:

KPRG and Associates, Inc. 14665 W. Lisbon Road, Suite 2B Brookfield, WI 53005

November 15, 2010 Updated November 10, 2011

TABLE OF CONT ENTS

SECTION PAGE

EXECUTIVE SUMMARY .......................................................................................... ES

- 1

1.0 INTRODUCTION .................................................................................................. 1785

2. 0 REBUTTAL OF EIP “IN HARM’S WAY” PUBLICATION ............................... 2

2.1 Overview and Background ....................................................................................... 2

2.2 Damage Case Rebuttal................................ .............................................................. 3

2.2.1 Summary ............................................................................................................ 3

2.2.2 Test of Proof............................................. ........................................................ 13

2.2.3 Regulatory Action ............................................................................................ 23

2.2.4 Hydrogeologic Conditions ........................................... .................................... 27

2.2.5 “At Risk Population”....................................................................................... 28

3.0 CONCLUSIONS.................................................................................. ................. 30

Midwest Generation, LLC

Technical Rebuttal (Updated)

– In Harm’s Way

- Damage Case Joliet 9 Generating Station

EXECUTIVE SUMMARY

On August 26, 2010, the Environmental Integrity Project (EIP) issued a report entitled “In Harms Way: Lack of Federal Coal Ash Regulations Endangers Americans and Their Environment.” This is an update to a November 19, 2010 Report presenting new data and information in further rebuttal to that publication. The original November 19, 2010 report, also prepar ed by KPRG and Associates, Inc. (KPRG) on behalf of Midwest Generation, provided a detailed technical rebuttal of EIP’s allegations regarding Midwest Generation’s Joliet 9 coals ash landfill. The November 19, 2010 Report was included in Midwest Generation’ s submittal to USEPA dated November 19, 2010 entitled “Comments of Edison Mission Energy on EPA’s Proposed Hazardous and Solid Waste Management System; Identification and Listing of Special Wastes; Disposal of Coal

Combustion Residuals from Electric Utilit ies” (75 Fed. Reg. 35,128 [Jun. 21, 2010] Docket No.

EPA

- HQ

- RCRA

- 2009

- 0640). Subsequent to that submittal, USEPA issued a Notice of Data Availability (NODA) requesting additional information. As part of Midwest Generation’s response to the NODA, this updat ed report was prepared to add relevant on

- site and off

- site data developed since the completion of the 2010 Report, including assessment and corrective action activities performed in accordance with the existing operating permit. The new information

includ es the installation of additional assessment monitoring wells, new groundwater sampling results from those wells, and the voluntary expansion of the corrective action system as a precautionary measure against future Laraway Quarry mining activities that ma y further affect the groundwater gradient in the area of the landfill. The new information is consistent with and lends further support to the findings and conclusions presented in the 2010 Report.786

The EIP report entitled “In Harm’s Way: Lack of Federal C oal Ash Regulations Endangers
Americans and Their Environment” is biased and inaccurate. It contains numerous false and unsubstantiated allegations, misleading statements and accusations regarding Midwest
Generation’s Joliet 9 coal ash landfill which is mo re commonly referred to as the Lincoln Stone Quarry (Quarry.) Prior to the report’s publication, the EIP did not provide either the Illinois Environmental Protection Agency (IEPA) or Midwest Generation with the opportunity to review the report’s contents. Most egregiously, the EIP excluded or misrepresented information and data which demonstrates that the environment and public welfare in the vicinity of the Joliet 9 landfill have been, and are being, protected. The report irresponsibly serves to advance EI P’s campaign against coal

- fired electric generating stations, but it does not provide reliable or accurate information concerning the Joliet 9 landfill operations. The following summary addresses the most significant defects in the EIP report:

· The Quarr y is a regulated landfill permitted by IEPA that has been operating in compliance with applicable landfill regulations and its permits’ requirements. The standards by which it operates are not “relaxed.” The site

- specific applicable groundwater quality sta ndards, known as “AGQSs,” are in most instances stricter than Illinois Class I groundwater standards. EIP’s claims are in part based on a subterfuge whereby it applies the landfill’s NPDES permit effluent discharge limits to groundwater sampling results or conversely, the AGQS groundwater standards to surface water sampling results in order to falsely allege that the Quarry facility has violated applicable standards without any enforcement action by IEPA. Unlike the EIP, the IEPA is clearly aware that efflu ent discharge standards apply to surface water discharges and groundwater standards apply to groundwater.

· The Quarry has not been the subject of any NOV issued by the IEPA, as EIP falsely claims.

IEPA did not issue an NOV because no events occurred that could have supported it.

· EIP wrongly but repeatedly insinuates that a loss of inward gradient occurred around the entire facility, that the facility is not operating in accordance with its permit and the IEPA is not requiring any corrective actions. A limited, temporary loss of inward gradient occurred only along the south side of the facility due to unrelated dewatering activities at the Laraway Quarry located approximately 1,000 feet southeast of the Quarry landfill. Midwest Generation implemented a c orrective action program, after review and approval by IEPA, which reestablished the inward gradient at the southeast boundary of the facility. Due to its effectiveness, Midwest Generation is currently expanding the corrective action program with IEPA’s ap proval. In addition, an interim Groundwater Management Zone (GMZ) is being proposed to address any constituents that may have migrated off

- site and are not pulled back by the extraction well system. Midwest Generation did not violate the terms of the Quarr y landfill permit or applicable regulations.

· The EIP has made a wholly unsupported and inflammatory allegation that neighborhood residential wells to the northeast of the Quarry, known as the Smiley Subdivision, have been adversely affected by the Quarr y’s operations. The true facts and direct evidence, including residential well data collected and reported by the IEPA, show that no such effects have

occurred.787

The EIP falsely claims that Midwest Generation “bought out” its neighbors to the south. In tru th, Midwest Generation simply offered these neighbors the option of having deeper potable wells installed, even though existing well sampling data and modeling results did not show any adverse impacts to their wells. EIP purposefully distorts the facts bec ause they demonstrated a Midwest Generation commitment to protecting the public welfare that exceeded any legal requirement.

Midwest Generation has and continues to act responsibly and in full compliance with applicable regulations and permit requirements in its operation of the Quarry landfill. Midwest Generation also has gone beyond what either the law or the relevant facts supported in the exercise of caution regarding matters of the public health and welfare. The EIP’s description of the Quarry operati ons is neither credible nor reliable.

1.0 INTRODUCTION

On August 26, 2010, the Environmental Integrity Project (EIP), with active support from Earthjustice and Sierra Club, issued a report entitled “In Harm’s Way: Lack of Federal Coal Ash Regulations End angers Americans and Their Environment.” The report reviews 31 coal combustion waste disposal sites in 14 states and presents details for each site as an alleged “Damage Case”. One of the 31 sites identified is the Joliet 9 Generating Station in Joliet, Il linois which is operated by Midwest Generation, LLC (Midwest Generation). Specifically, the Lincoln Stone Quarry ash disposal facility (“Quarry”) used by the Joliet 9 and Joliet 29 generating stations was the focus of the review. KPRG and Associates, Inc. (KPRG) has been assisting Midwest Generation with addressing environmental issues at this facility since 2006 and is intimately familiar with the specifics of the site. As such, KPRG has been requested to provide this updated technical rebuttal evaluating EIP’s “Joliet 9 Damage Case” discussion.

There are many false, misleading and inaccurate statements made throughout the “Joliet 9 Damage Case” EIP review. In addition, many relevant facts are omitted that were in the public

records EIP states it reviewed in detail and these facts would have contradicted EIP’s contentions. These errors evidence EIP’s lack of due diligence and scientific rigor in evaluating Quarry site data and in interpreting applicable legal requirements.

The objectives of this technical rebuttal are:

- To identify false statements and correct them;

- To clarify and correct misleading statements; and

- To identify and present additional, relevant information and data omitted by EIP.

Section 2.0 provides specific point by point discussi ons rebutting various errors made by EIP in the order in which they are presented in the EIP publication. A summary of our conclusions is provided in Section 3.0.

2.0 REBUTTAL OF EIP “IN HARM’S WAY” PUBLICATION788

2.1 Overview and Background

Before address ing the specific statements relating to the “Joliet 9 Generating Station Damage Case,” a brief historical summary of relevant Illinois solid waste regulations is helpful to understanding the important fact that the Quarry landfill is and has been regulated for years by the State of Illinois. The Illinois solid waste regulations that apply to the Quarry landfill arise from the U.S. EPA’s adoption of the initial RCRA Subtitle D standards in 1991, pursuant to

RCRA and the Hazardous and Solid Waste Amendments o f 1984 (HSWA), Pub.L. No. 98

- 616, 98 Stat. 3221. The RCRA Subtitle D standards called for stringent federal standards for the state regulation of non

- hazardous waste management facilities. See 40 C.F.R. Part 258. In response, the Illinois legislature amend ed the Illinois Environmental Protection Act to require the incorporation of the federal standards into the state regulatory system and authorized the Illinois Pollution Control Board (the “Board”) to adopt rules identical in substance to the federal RCRA Subtitle D requirements. (Illinois Environmental Protection Act, §22.40). The Board adopted regulations implementing the RCRA Subtitle D standards in 1993. See In re RCRA Subtitle D Amendments, PCB R93

- 10 (Sept. 15, 1993). Under these regulations, new Illi nois landfills were required to meet the standards set forth in 35 Ill.Adm.Code Part 811 and existing landfills were regulated by the standards set forth in 35 Ill.Adm.Code Part 814. The Quarry landfill is regulated by 35 Ill.Adm.Code Part 814 which in tur n incorporates the Part 811 regulations for requirements such as groundwater monitoring, leachate collection, etc.

Because the Parts 811 and 814 landfill regulations have general applicability and therefore, were not developed to address site

- specific con ditions that may exist at certain Illinois landfills, there is a provision in the Illinois Environmental Protection Act, Section 28.1 (415 ILCS 5/58.1 (1994)) under which a landfill owner or operator may seek to “adjust” these regulatory standards

to fit t he different conditions at its landfill which were not considered as part of the adoption of the landfill regulations [Footnote 1: A petition for an adjusted standard must demonstrated that: (a) site factors are substantially and significantly different fr om the factors relied upon by the Board in adopting the general regulation and justify an Adjusted Standard; (b) the requested standard will not result in environmental or health effects substantially and significantly more

adverse than the effects conside red by the Board in adopting the general regulation; and (c) the Adjusted Standard is consistent with any applicable federal law.]. When the required technical demonstration is successfully made, the Act authorizes the Board to grant an “adjusted standard”

that takes site

- specific conditions into account while still affording the same level of protection to public health and the environment as the landfill regulations. Therefore, it is incorrect to refer to such adjusted standards as either “relaxed” or “re duced” standards, as does EIP. For example, the general landfill regulations require a daily soil cover to be placed over the waste material. This standard is not technically feasible for a former quarry facility such as the Quarry landfill

which sluices t he ash into the disposal unit. Therefore, the Quarry’s Adjusted Standard insteadrequires the ash be covered with water rather than soil.

The Quarry received an adjusted standard from the Board which, in relevant part, modifies the following Illinois Part 814 regulatory requirements governing nonhazardous solid waste landfill operations:789

1. Leachate collection and management system;

2. Groundwater monitoring requirements for certain inorganic and organic constituents;

3. Location of monitoring wells;

4 . Zone of attenuation; and

5. Daily and final cover for the Quarry landfill.

In granting the Adjusted Standard, the Board agreed that the relevant factors for the Quarry landfill “are substantially and significantly different from the factors relied on b y the Board in adopting the regulation for general applicability” [Footnote 2: Opinion and Order of the Board,

AS96

- 9, 1996, p. 19]. After a review of the extensive technical and scientific information and data that was presented during the adjusted standa rd proceeding before the Board, the Board found, and IEPA agreed, that granting the Quarry landfill Adjusted Standard would not have an adverse affect on the environment [Footnote 3: Opinion and Order of the Board, AS96

- 9, 1996, p. 19]. Unlike several of t he stories told in the “In Harm’s Way” EIP publication, the Quarry landfill is and has been subject to extensive state regulatory requirements that protect both the environment and public health.

2.2 Damage Case Rebuttal

The following discussion rebuts v arious statements and allegations made in the ”In Harm’s Way” EIP publication relative to the “Joliet 9 Generating Station Damage Case,” as found on pages 41 through 47 of the publication. This updated rebuttal addresses items in various sections

of the EI P publication starting with the summary found on page 41. For ease of reference and context, the same section titles used in the “In Harm’s Way” publication are included here and

are italicized as subsections.

2.2.1 Summary

1) Environmental Integrity Pro ject Statement (pg. 41): Since 1996, the Landfill has been exempt from complying with Illinois Class I Groundwater Protection Standards and the Illinois Environmental Protection Agency (IEPA) has applied relaxed standards for boron, cadmium, selenium, and molybdenum that allow groundwater with concentrations up to 52 times standards for protection of public health to flow off

- site.

Correction: The Quarry landfill is not exempt from complying with Illinois Class I Groundwater Protection Standards. The Quarr y facility must comply with the Part 811 “Standards for New Solid Waste Landfills” regulations regarding groundwater protection. The investigation, assessment and standards for groundwater are important components of the requirements for

both Parts 811 and 814 Illinois solid waste landfills. Although the Quarry was an existing landfill within the meaning of the Part 814 landfill regulations, Part 814 incorporates many of the same requirements regarding groundwater standards, monitoring and assessment from t he Part 811 regulations for new landfills and hence, those requirements are applicable to the Quarry landfill,790

as discussed further below [Footnote 4: 35 Ill.Adm.Code § 814.302(a) states that all requirements for new units described in 35 Ill.Adm.Code 811w ill apply with the exception of (1) location standards, (2) foundation and mass stability analysis, (3) final cover for those units or portions of units that were closed/covered and vegetated prior to the effective date, (4) liner and leachate drainage/col lection requirements and (5) hydrogeological site investigation requirements except that Part 814 existing landfills are not exempt from the requirements to implement a groundwater monitoring program in accordance with 811.318 and 811.319 and

establish bac kground concentrations for the purpose of establishing site

- specific AGQSs pursuant to 811.320.].

The groundwater program that is established under Part 811 requires an in

- depth investigation of the groundwater conditions, the use of that data to make a m odel to predict the effect of the landfill on groundwater, the setting of groundwater quality standards and the monitoring of actual groundwater conditions to make certain that the groundwater does not exceed the groundwater quality standards or the levels predicted by the model. The Quarry was required to and has complied with each of these regulatory requirements.

A groundwater monitoring network that satisfied the requirements of section 811.318(b) was established for the Quarry facility and approved by IEPA. The groundwater monitoring network consists of multiple monitoring wells at shallow and deeper depths. It has been expanded as necessary to remain in compliance with the Part 811 regulations based on regular evaluations of the groundwater flow condi tions in the vicinity of the Quarry. The groundwater monitoring network requirements, as approved by IEPA, are incorporated into the terms and conditions of the Quarry’s landfill permit. The Quarry facility’s landfill permit currently includes 26 routine

m onitoring wells (three of which are off

- site), one piezometer, one surface water monitoring

location and six additional off

- site groundwater assessment wells. Since the 2010 Report, four of

the off

- site assessment wells have been installed and are being ro utinely sampled and two of the offsite wells are in the process of being installed as part of defining more closely the extent of the proposed off

- site interim groundwater management zone (GMZ) to the southeast of the Quarry. The groundwater protection sta ndards for each chemical constituent included in the monitoring program were established for the facility, and approved by IEPA, based on groundwater monitoring results and a statistical background evaluation, performed in accordance with the requirements of the Part 811 regulations.

Each Part 811 and 814 solid waste landfill has special groundwater standards applicable to it in accordance with 35 Ill.Adm.Code §811.320(a)(1). The default groundwater standard is the background concentration level (35 Ill. A dm. Code §811.320(a)(1)(A)). Background concentration levels are established using approved statistical techniques and one year’s monitoring data gathered during the groundwater investigation phase (35 Ill.Adm.Code §811.320(d)). These regulatory requiremen ts were applied to the Quarry landfill. The Quarry statistical background evaluation used four quarters of consecutive groundwater monitoring data from several monitoring wells in the early 1990s. This data provided the required “background

concentrations” on which the site specific standards for the Quarry were based. These site specific standards are referred to in the Part 811 regulations as Applicable Groundwater Quality Standards (AGQSs). When an AGQS is in place, it becomes the applicable groundwater standard for the facility (35 Ill.Adm.Code §811.320(a)(1)(B)). If the groundwater monitoring identifies a79 1

confirmed exceedance of an AGQS outside the zone of attenuation*, the facility must initiate an assessment monitoring program in accordance with Part 811.319(b) to determine whether the exceedance is the result of a release from the regulated unit. If the assessment monitoring program determines that the exceedance is the result of a release from the regulated unit, then a remedial action must be implem ented in accordance with Part 811.319 (d).

Because the AGQSs are based on existing background concentrations in the groundwater in the vicinity of the subject landfill, they may differ from the generic Illinois Class I Groundwater

Protection Standards. If the AGQS for a particular parameter is higher than the Class I groundwater standard, it is because the relevant background concentration for that chemical constituent is higher than the Class I groundwater standard. The converse is also true. If the backg round concentration for a chemical constituent is lower than the Class I groundwater standards, then the AGQS is set at a level that is more stringent than the Class I groundwater standard. Thus, the AGQS achieves its purpose of protecting against degradat ion of the existing quality of the groundwater that might otherwise be caused by landfill operations. For this reason, the AGQSs are often equal to or more stringent than the Illinois Class I Groundwater Standards. Further, if IEPA identifies a constituent for monitoring based on the nature of the waste disposed of in the landfill, and there is no established Illinois Class I groundwater standard for that constituent, then an AGQS value is also established for that constituent using the same methodology as discussed above. For example, there is no promulgated Illinois Class I Groundwater Standard (or federal Maximum Contaminant Level (MCL)) for ammonia. However, the IEPA required ammonia monitoring as part of the groundwater monitoring program for the Quarry landfill. Using the same background data set of four quarters of monitoring in the early 1990s, an AGQS of 1.57 mg/L for ammonia was calculated and established for the Quarry. By requiring an AGQS for constituents not regulated under the

Illinois Class I Groundwater Standards, the established regulatory monitoring program using AGQS values actually provides broader and more complete protection of groundwater quality.

Table 1 provides a comparison of the AGQSs and the Class I Standards for each chemical

co nstituent that is sampled for as part of the monitoring requirements applicable to the Quarry landfill. The bolded values designate site specific AGQSs that are set lower than existing Illinois

Class I Groundwater Protection Standards or for which a Class I standard does not exist. Eighteen of the 24 parameters monitored have AGQS values that are stricter than the corresponding Illinois Class I groundwater standards (or lack thereof). Clearly, the AGQSs for the Quarry do not constitute “relaxed” standards i n comparison to the Class I groundwater standards. Further, the AGQSs do not “relax” the protection afforded to maintain existing background concentrations of these constituents in the vicinity of the Quarry landfill.

[[See original comment for Table 1 ]]

2) Environmental Integrity Project Statement (pg. 41): As of early 2007, unsafe concentrations of arsenic, boron, and molybdenum were flowing off

- site to the south.

Correction: A review of the permit monitoring data for all of the off

- site wells that exi sted “as of early 2007” and would have monitored flows to the south does not support EIP’s claim. The off

site wells are G38S, G38D and G39S. Our review included an evaluation of arsenic, boron and792

molybdenum data from these wells from 2007 (see Table 2). All of the data values were below both the established AGQSs and Illinois Class I standards.

[[See original comment for Table 2. 2007 Off

- site Groundwater Monitoring Results]]

It appears that because the off

- site well data showed no migration of contamin ants, EIP may have instead used data from monitoring wells that are within the landfill’s boundaries. There are three such monitoring wells, wells G46S, G47S and G48S, located along the south side of the Quarry Landfill. Groundwater monitoring did identify and confirm exceedances of the AGQS at

on

- site locations G47S and G48S during the noted 2007 time period as well as in monitoring events since that time. It was determined that the exceedances were associated with the Quarry as a result of Laraway Quarry dewatering operations moving water from the Quarry to the south/southeast. Based on this evaluation, in accordance with both Part 811 regulations and permit requirements, Midwest Generation implemented corrective action through the installation and operati on of an extraction well system which was rendered fully operational as of April 30, 2010. This is discussed in more detail under the response to item 6 below.

Since the 2010 Report, as part of the corrective action, Midwest Generation has installed and

r outinely sampled four additional off

- site assessment wells to the south and southeast of the Quarry (wells T01S through T04S) in accordance with permit requirements. The arsenic, boron and molybdenum data from these wells is summarized below in Table 2a.

[[See original comment for Table 2a. New 2011 Off

- Site Assessment Well Data]]

All of the above 2011 values are below the established AGQSs. The only sampling result above a Class 1 groundwater standard is boron at location T01S. The corrective action addr esses off

site migration to the southeast (toward T01S) caused by dewatering activities at the Laraway Quarry located approximately 1,000 feet to the southeast of the Quarry landfill facility.

3) Environmental Integrity Project Statement (pg. 41): IEPA is sued a Notice of Violation (NOV) in response to the groundwater contamination in late August 2009. The NOV identified 50 exceedances of groundwater quality standards in ten wells, including high concentrations of arsenic, barium, boron, copper, and molybde num. Arsenic was measured in two off

- site groundwater monitoring wells at 0.022 to 0.083 mg/L (2.2 to 8.3 times the Illinois Class I Groundwater standard of 0.01 mg/L).

Correction: This allegation is false. A NOV was never issued by IEPA. As stated by Mr. Rick Cobb, IEPA Bureau of Water, in an August 27, 2010 Herald News article, a draft notice was developed based on a hypothetical set of future conditions that never occurred and which were associated with the proposed dewatering of Boyd’s Quarry east of t he Quarry. Because this future scenario on which the draft NOV was developed never occurred, the NOV was never finalized or issued. As Mr. Cobb told the Herald News: “The whole thing became moot”.

The EIP’s statement that there were 50 exceedances is misl eading as it combines both the initial

and confirmation re

- sampling (duplicate samples) performed each quarter, in order to double the number of alleged exceedances from a single quarterly sampling event. Therefore, the maximum793

number of potential exceedan ces that would have been alleged would be 25. Of the remaining 25, four would not have been “exceedances of groundwater quality standards” because they are surface water sampling results for which groundwater standards (or AGQSs) are not applicable.

Of the remaining 21 “exceedances”, 15 would have been for parameters which have a site specific AGQS set below (i.e., more rigorous and conservative than) the Illinois Class I groundwater standard as discussed under item 1 above. Of the remaining six exceedances , five would have been from wells G47S and G48S located along the southeast boundary of the facility. Both of these wells are “on

- site” wells and not off

- site wells, as EIP wrongly contends. Midwest Generation has installed groundwater control wells in the southeast area of the landfill to prevent further outward migration of any affected groundwater (see further discussion in Item 6 below). The last of the noted exceedances would have been for well A08S for boron. This well is located north of the Quarry a nd within the zone of attenuation. There were no boron exceedances further downgradient to the north within the zone of compliance.

The current Illinois Class I groundwater standard for arsenic is 0.05 mg/L and not 0.01 mg/L, as incorrectly stated by EIP. Therefore, the alleged magnitude of the exceedances is also wrong and one is not an exceedance because it is less than the correct Class I standard of 0.05 mg/L. A more detailed rebuttal of this issue is provided under item 15 below. Since the 2010 Report , four

additional off

- site assessment monitoring wells installed and sampled by Midwest Generation have indicated no detections of arsenic over seven sampling events performed to date (see Table 2a above).

4) Environmental Integrity Project Statement (pg. 41): The locations of the groundwater monitoring wells indicate that contamination is flowing from the CCW Landfill off

- site to the southeast, south, west, and north.

Correction: Any potential further migration from the southeast portion of the facility to the south/southeast associated with ongoing dewatering operations at Laraway Quarry has been addressed through the installation of a groundwater extraction system (see discussion for item 6 below). Natural groundwater flow to the north and west is in ac cordance with the leachate management system under the Adjusted Standard as discussed below.

The Quarry facility operation consists of bottom ash and slag sluiced from Joliet 9 and 29 to a Main Quarry area. In accordance with the Adjusted Standard AS96

- 9 granted by the Pollution Control Board for the Quarry facility, Midwest Generation must maintain a leachate management system that consists of gravity fed water from the Main Quarry to the North Quarry

and maintains the water level below the natural water table elevation. After settling, the water is gravity fed to the North Quarry and is then discharged through Outfall 005, NPDES permit IL 0002216 to the Des Plaines River. This operation is substantially and significantly different than for a typical landf

ill. The Quarry manages 8.5 million gallons of “leachate” per day [Footnote 6: Opinion and Order of the Board, AS96

- 9, 1996, p. 4] through this gravity flow treatment system. The gravity flow drainage system captures all but 1.2 percent (101,400 gpd) of th e water volume leaving the site via groundwater flow [Footnote 7: Petition of Commonwealth Edison Company for Adjusted Standard from 35 IAC 811.814, April 1, 1996.]. The water volume leaving the site through a groundwater route is allowed to flow directly to the Des Plaines River which is where it would have been routed by the North Quarry discharge. The Adjusted Standard allows this794

small percentage of flow to the north and west from the bedrock directly into the River rather than being channeled to the le achate management system. This is allowed because the relevant data and information shows that at the point at which this flow discharges to the Des Plaines River, there is no discernible effect on water quality in the River. The constituent concentrations in the groundwater have historically shown no discernible effect on water quality in the Des Plaines River [Footnote 8: Opinion and Order of the Board, AS96

- 9, 1996, p. 14]. Table 3 summarizes background upstream river sampling (averaged data from United States Geologic Survey and Harza Engineering sampling), the calculated incremental weighted average of groundwater contributions discharging to the river from the site, along with applicable surface water quality standards as presented to the Pollution Con trol Board in support of the Adjusted Standard for leachate management.

The information in Table 3 shows that any effect of any Quarry

- related groundwater discharge is well below established surface water quality standards. In fact, many of the values are below analytical detection limits.

Under the Adjusted Standard for leachate management, Quarry leachate is not allowed to flow to the south or east. This is generally referred to as the “inward gradient” requirement for the landfill (i.e., the natural in ward gradient from the south and east must be maintained resulting in groundwater flow from those directions into the Quarry and not away). Since the issuance of the Adjusted Standard, the inward gradient from the east has always been maintained and there has only been one instance where the inward gradient from the south was not continuously maintained. Specifically, there was a loss of inward hydraulic gradient to the southeast resulting from unrelated dewatering activities that are part of the operations of the Laraway Quarry located approximately 1,000 feet southeast of the Quarry landfill. As discussed under item 6 below, to reestablish the inward gradient in that area, four groundwater extraction wells have been installed by Midwest Generation. Since t he 2010 Report, this system is undergoing expansion by eight additional extraction wells along the entire south boundary of the Quarry landfill facility as a precautionary measure against potential future mining expansion activities by Laraway Quarry.

In a ddition, an interim groundwater management zone (GMZ) is being evaluated for an area of approximately 7.5 acres south/southeast along the Quarry facility boundary to assist in managing and remediating groundwater that may have been drawn in that direction due to ongoing Laraway Quarry dewatering activities to the southeast. There are no residential wells or other groundwater receptors within the proposed interim GMZ area. Most of the area is within an existing Commonwealth Edison transmission/pipeline right

- of

- way. Therefore, no risks to human health ever existed due to the temporary loss of the inward gradient to the southeast.

[[See original comment for Table 3]]

5) Environmental Integrity Project Statement (pg. 42): The IEPA Bureau of Water recently fou nd the CCW Landfill to be in an area with very high geologic vulnerability and a high potential for potable well contamination. There are 94 wells within a mile of the CCW Landfill. Drinking water wells up to a thousand feet south of the Landfill show evid ence of degradation of water quality, and there is evidence to suggest that contamination is moving toward the Smiley Subdivision northeast of the Landfill. Midwest Generation has bought out nearby residents or had deeper wells drilled for residents. Only limited sampling has been done by IEPA to assess795

the extent of contamination in private drinking water wells.

Correction: There is no factual basis for the EIP’s contention regarding the IEPA Bureau of Water’s alleged recent findings that is relevant to t he Quarry. EIP provides no supporting document or other information that would support its implication that the Quarry landfill has affected any residential wells in the area.

EIP also has not produced data supporting its allegation that “drinking water w ells up to a thousand feet south of the Landfill show evidence of degradation of water quality.” In 2006, Midwest Generation sampled 18 residential wells located immediately to the south and southeast

of the Landfill. The data showed that these wells were not degraded. Boron was used as an indicator parameter in this sampling of residential wells to search for potential Quarry

- related effects. Boron (and its isotopes) is widely recognized as a good, conservative tracer compound due to its high solubility in water, natural presence in nearly all water, and its insensitivity to evaporation, volatilization, oxidation

- reduction reactions or mineral precipitation or dissolution in all but extremely saline water [Footnote 9: Munster, J., Hanson, G.N., Bokuniewicz, H., A Geochemical Study to Determine the Sources of Nitrate in the Groundwater of Suffolk County, Long Island, NY. 2003. Conference on the Geology of Long Island and Metropolitan New York.]. The use of boron as a tracer constituent was reviewed with and s upported by IEPA. The resulting sampling data did not indicate any constituents above standards or degradation of water quality.

Midwest Generation did not “buy out” any residents nor did it offer to do so. This is another

false EIP statement. Midwest Gen eration made an unconditional offer to provide new, deeper wells for these residents. Also, groundwater modeling done at that time did not show that any excursion of a groundwater standard would affect these residential wells in the future. Recognizing tha t nearby residents might not be adequately comforted by modeling results alone, Midwest Generation voluntarily and pro

- actively initiated the aforesaid residential well sampling program for residents to the south/southeast of the Quarry to both confirm tha t there had been no impact to their wells from the Quarry landfill’s operations and to address their concerns about potential future developments, by offering to replace their residential wells with wells that obtain water from a deeper formation that is h ydraulically isolated from any potential shallow groundwater impacts (i.e., within the Silurian dolomite) so that these residents could not possibly be affected at some point in the future. The existing residential wells were sampled before any

new wells w ere drilled and sampling results did not indicate any impacts to the wells.

Finally, with regard to the EIP contention that “there is evidence to suggest that contamination is moving toward the Smiley Subdivision northeast of the Landfill,” EIP does not s tate what the referenced “evidence” is or how it suggests that there is any threat to the Smiley Subdivision. The known facts and relevant data do not support any such “suggestion.” First, groundwater modeling does not indicate any migration of potential Q uarry constituents, under either past or current conditions, toward the Smiley Subdivision. Second, no loss of the inward gradient on the east side of the facility has occurred (i.e., groundwater continues to flow from the east to the west, which is toward s the Quarry landfill, not away from it). Third, in 2009, the IEPA collected water samples from multiple residential wells within the Smiley subdivision, with some as close as 300 feet from the boundary of the Quarry facility. A review of the data did not indicate any796

constituents above Illinois Class I drinking water standards. The IEPA also stated that the results of the sampling did not indicate any contamination in these wells. EIP’s statement is wrong and it has provided no evidence to support it.

6) Environmental Integrity Project Statement (pg. 42): As of mid

- 2010, there was no evidence that IEPA had taken significant actions to address the contamination flowing off

- site in violation of the CCW Landfill operating permit.

Correction: This statement i s false. There was no permit violation to enforce against because the required corrective action to address outward migration of groundwater in the southeast area of the Quarry Landfill was taken and successfully completed before mid

- 2010.

In accordance with 35 Ill. Adm. Code 811.319(d)(1) and 811.319(d)(2), Midwest Generation submitted an Application for Significant Modification to Permit on September 2, 2009 which detailed a proposed corrective action for the loss of inward gradient at the southeast sid e of the Quarry facility. The proposed corrective action included the design and installation of a groundwater extraction system along the east portion of the south perimeter of the Quarry facility to intercept Quarry water moving to the south and partiall y pull back any groundwater with levels above the AGQS that may have migrated past site boundaries. In addition, the proposed permit modification included conducting further investigation of off

- site groundwater quality to

the south/southeast to assist in defining the extent of potential migration of constituents.

The IEPA approved the Application for Significant Modification to Permit on December 1, 2009. In accordance with 35 Ill.Adm.Code 811.319(d)(3) and 811.319(d)(4), and the current operating permit, Midwest Generation has implemented the corrective action. The extraction well system was installed and rendered operational by April 30, 2010. The system has been pumping since that time. A cone of depression has been established between south perimeter

w ells G48S, G47S and G38S and the Quarry. Groundwater from the southeast perimeter of the site is now being drawn back to the north to the extraction well system. Water from the Quarry that would flow to the south is also being intercepted by the extraction system. The extracted water is being discharged back into the Main Quarry. The off

- site groundwater investigation is ongoing and is expected to be completed in 2012 with the formal definition of an off

- site groundwater management zone.

2.2.2 Test of Proo f

7) Environmental Integrity Project Statement (pg. 42): In May 1994, an Application for Significant Landfill Permit Modification documented exceedances of the applicable groundwater quality standard for boron, selenium, manganese, sulfate, total dissolve d solids, molybdenum, zinc, pH, ammonia, chloride, potassium, sodium, and total organic carbon (TOC) levels. The application further noted that any contaminants derived from CCW can migrate to downgradient areas and to the river bank area “with no signific ant reduction in concentration.”

Clarification: The exceedances noted were generally within the zone of attenuation, as defined in the Quarry’s operating permit. Within this zone, exceedances can be managed such that they do

not extend into the zone of co mpliance which is immediately downgradient of the zone of797

attenuation. This concept is similar to a groundwater management zone. As to the statement regarding migration to downgradient areas, the 1994 application was referring to the very small volume of g roundwater that passes through the Quarry to the Des Plaines River without being captured by the gravity feed system at the Quarry. This is an area in which there are no groundwater receptors. Further, this issue was addressed in the 1996 Petition for Adju sted Standard in which it was demonstrated that this small percentage (i.e., 1.2%) of overall groundwater flow through the Quarry system is discharged to the Des Plaines River and that the constituent levels will not adversely affect the Des Plaines River water quality (see detailed discussion under item 4 above). These findings and conclusions were supported by the IEPA and accepted and relied upon by the Pollution Control Board in its decision to grant the Adjusted

Standard.

8) Environmental Integrity Pr oject Statement (pg. 42): IEPA permit reviewer notes for the Landfill dated August 1, 2002 and October 15, 2003 state that the groundwater sampling “indicates that the site has caused statistically measured impacts on downgradient groundwater quality.”

Cl arification: Midwest Generation has not been privy to the noted reviewer comments. However, as required by the Quarry operating permit, and applicable Illinois regulations, groundwater quality assessments were performed for various parameters subsequent to the referenced dates in the EIP statement, primarily within the zone of attenuation. Midwest Generation complied with all groundwater assessment requirements and submitted the evaluations to IEPA. As noted above, the only downgradient area in which the gr oundwater evaluations indicated statistically measured effects on groundwater quality was in the southeast area of the Landfill and this outward migration has been stopped.

9) Environmental Integrity Project Statement (pg. 42): In 2004, Andrews Engineerin g submitted to IEPA, on behalf of Midwest Generation, a proposed “assessment monitoring program” to address confirmed exceedances of several pollutants. This submittal also clearly acknowledged that inward gradient was not being maintained at the Landfill’ s Main Quarry.

Clarification: In this 2004 submission, indications of a loss of inward gradient were referring only to the south side of the Quarry facility as a result of unrelated dewatering operations occurring at the Laraway Quarry located approximate ly 1,000 feet southeast of the Quarry. As noted in item 6 above, this limited loss of the inward gradient has been stopped. The inward gradient from the east side of the facility has historically been, and is currently being, maintained. Natural groundwate r flow to the north and west is in compliance with the terms of the Adjusted Standard.

10) Environmental Integrity Project Statement (pg. 42): Midwest Generation’s February 15, 2005 submittal (Log No. 2005

- 058) acknowledged that the Des Plaines River is a “major area of discharge for the Silurian dolomite aquifer” and identified elevated concentrations of pollutants associated with the CCW Landfill operations in the groundwater monitoring wells located along

the River.

Clarification: The Des Plaines River is a major discharge point for the Silurian dolomite on a798

regional basis, not just in the vicinity of the Quarry. This is not a unique situation as the EIP seems to suggest. As noted in the response to item 4 above, the Adjusted Standard for the Quarry

al lows for discharge of a small quantity of leachate through the Silurian dolomite aquifer to the Des Plaines River that is not captured by the gravity flow system. The constituent concentrations in the groundwater have historically had no discernible effect on water quality in the Des Plaines River. It is noted that if this small volume of leachate was captured by the gravity flow system, it would still eventually be discharged to the River via NPDES permitted outfall No. 005. A more

detailed discussion of t his part of the Adjusted Standard is provided in item 4 above.

11) Environmental Integrity Project Statement (pg. 42): The October 13, 2005 Significant Modification Application (Log No. 2005

- 413) concluded that “current water levels in the Main Quarry and the shallow monitoring wells indicate that there is an outward gradient from the Main Quarry such that groundwater movement is to the south, west and north.” Midwest Generation’s consultants, KPRG, confirmed to IEPA on February 22, 2006 that water level

m easurements in all of the existing monitoring well locations around the perimeter of the CCW landfill demonstrated a loss of hydraulic gradient at the landfill. This submittal stated that “evaluations are also being performed relative to potential correcti ve measures which may be implemented” to address the loss of hydraulic gradient.

Clarification: The first part of this statement is correct as it states that there is an outward gradient from the Main Quarry to the south, west and north. However, the exis tence of an outward gradient to the west and north is compliant with the terms of the Adjusted Standard and the Quarry’s Permit, as already explained. The outward gradient to the west and north is part of the natural flow system that is to be maintained fo r the facility and is in accordance with the Adjusted Standard. The outward gradient to the south is the result of unrelated dewatering operations occurring at the Laraway Quarry located approximately 1,000 feet southeast of the Quarry. The second part of this statement is worded in a manner that suggests a loss of hydraulic gradient on all sides of the Quarry. This is not true. At no time was there an indication of loss of hydraulic gradient to the east. Based on all available data and information, groundw ater has been, and is currently flowing under natural conditions, from the east to the west (i.e., into and not out of the Quarry).

The last part of this statement is also correct. Midwest Generation performed a series of engineering evaluations to determ ine the best course of action to address the loss of hydraulic gradient to the south. As noted in the response to item 6 above, the outward flow to the southeast has been stopped by the installation of a groundwater extraction wells system. .

12) Environm ental Integrity Project Statement (pg. 42

- 43): In April 2006, Midwest Energy conducted sampling of 18 private wells on Brandon Road along the east side of the landfill and south to Laraway Road about 4,000 feet south of the southeast corner of the landfill . Only boron (and no other ash

- related contaminants) was analyzed in the samples. The results were reported to the residents in May 2006 (Arcadis, 2006). Concentrations of boron in two wells exceeded 1.0 mg/L, with a maximum being 1.5 mg/L

– far above the natural background concentration, which has been identified by Midwest Generation’s consultant to be around 0.3 mg/L in the local carbonate rocks in the vicinity of the Quarry (KPRG, 2008a). Boron concentrations in six other wells ranged between 0.33 to 0. 71 mg/L, also above natural background concentrations.799

Assuming that the wells with elevated boron are from residents closest to the CCW Landfill, it appears that the groundwater quality has been degraded in wells possibly up to 1,000 feet south

of the La ndfill. The results of this sampling led Midwest Generation to either buy out or drill deeper wells for the residents south of the Landfill. Nothing has been done to systematically sample private wells in the Smiley neighborhood northeast of the Landfill d espite the fact that, as discussed in the next bullet, groundwater modeling indicates migration of contaminants in that direction as well (Thompson, 2010).

Corrections and Clarifications:

Correction of Purpose of the Residential Well Sampling Program: Mi dwest Generation offered to replace the residential wells without regard to what the sampling results from the subject residential wells showed. Both the offer to replace the wells and the offer to sample them were made to these residents as part this effo rt. The decision to offer to replace these wells was made without knowledge of what the sampling results would show. The available information prior to the residential well sampling, such as the groundwater monitoring and modeling data, indicated

that thes e wells were not being affected by the Quarry landfill. Contrary to EIP’s assertions, the sampling was not for the purpose of determining whether the residential wells were affected and therefore should be replaced. The purpose was to gather evidence that directly confirmed or refuted what the other available data showed, namely that these residential wells had not been impacted by any Quarry operations. It also served the goal of “transparency” with the residents. Midwest Generation conducted this sampling to confirm to the residents that its landfill had not impacted their wells and that the well replacement Midwest Generation was offering was a voluntary choice that each resident could either decide to make or refuse. As further explained below, the sampl ing results did confirm that none of these wells were being affected by the Quarry Landfill operations. None of these facts are disclosed in the EIP “In Harm’s Way” publication. These sampling results are persuasive, direct evidence that dispels the EIP’s false accusations that the residential wells had been impacted by the Quarry. As previously noted, Midwest Generation did not offer to, nor did it “buy out” any of the residents.

Clarification of Selection of Boron as Sampling Parameter for Residential We lls: As part of that well replacement program, Midwest Generation implemented a boron and boron isotope sampling program for the noted 18 wells south of the facility. Boron was chosen as an indicator of potential Main Quarry water impacts due to its conser vative nature in the environment, which means that of all the constituents that may be associated with an ash landfill, boron has the ability to move uninhibited through the groundwater system and thus, it is the parameter that is reasonably expected to be the first indication of off

- site migration of groundwater. One of many literature references for the applicability of the use of boron as a conservative tracer compound was provided under Item 4 above. This information concerning boron’s ability to “out r un” other

ash

- related constituents in groundwater is not acknowledged anywhere in the EIP’s publication. It is a commonly known, established fact in the scientific literature as well as among persons knowledgeable about ash constituents and their ability t o migrate in groundwater. Although less well known, but also available in the relevant literature, the boron isotope analytical method is a means to identify whether or not boron detected in groundwater is associated with natural or anthropogenic sources s uch as coal ash [Footnote 10: Ruhl, L.A., Dwyer, G.S., 2009. Boron and800

Strontium Isotope Proxies for Tracing Environmental Impact of the TVA Coal Ash Spill, Kingston, TN. Geologic Society of America Annual Meeting, Portland, October 18

- 21. Abstracts

with P rograms, 41(7), 334.]. Boron has two naturally occurring stable isotopes, 11 B (80.1%) and

10 B (19.9%). 11 B is the dominant isotope of boron and the average 11 B / 10 B in nature is approximately 4.0. Boron isotope data can be reported as the 11 B / 10 B ratio or in (delta) notation in units of ‰ (per mil) relative to National Institute of Standards and Technology (NIST) standard NIST SRM 951. Negative delta values indicate that there is less 11 B in the sample than in the

standard. Positive delta values indicate t hat there is more 11 B in the sample than in the standard. Water samples were collected from the residential wells for boron isotope analysis as well as a sample of Main Quarry leachate. Based on a comparison of the isotope ratios from the residential

wells to that of the Main Quarry leachate, it was concluded that the boron detected within residential wells did not originate from the Quarry. Because Midwest Generation’s purpose in sampling the residential wells was to show the residents with direct evidence that they had not been affected by the Quarry’s operations, it was not necessary to identify other potential sources of boron in the groundwater sampled. However, because boron is a constituent that does naturally occur in groundwater or due to other caus es, Midwest Generation needed to conduct the boron isotope testing in anticipation of the fact that boron would likely be detected and if so, the question of whether it was coming from the Quarry landfill would need to be answered. The boron isotope result s provided the answer to this question for those wells in which boron was detected. There was no need to include testing of other parameters in the residential well sampling that Midwest Generation conducted.

Correction of the Boron Sampling Results: Firs t, the EIP does not mention that all of the boron results were well below the AGQS for boron of 5,924.16 ug/L that applies to the Quarry landfill. Second, the boron results were all well below the Illinois Class I Groundwater standard for boron. Again, thi s is not mentioned by the EIP. Third, the boron isotope results showed that any boron detections in those residential wells were not associated with boron that may have originated from the Quarry facility (i.e., the isotopes analyses indicated a different source of boron).

Correction of the Alleged Boron Natural Concentration of 0.3 mg/L: The EIP’s treatment of the issue of the natural concentration of boron that would occur in the groundwater in the vicinity of the Quarry landfill is another clear example of how it twists and misuses available information.

For purposes of contaminant transport evaluations conducted by Midwest Generation’s consultants, it was necessary to use a boron background concentration as an input to the model being used for this eva luation. This model input value is the source of the EIP’s 0.3 mg/L alleged boron background value. The boron value used for modeling purposes is an estimated value. As EIP scientists should be aware, such background concentration values are an estimated a verage from a larger data set. The noted background value was obtained from the Illinois State Geologic Survey (ISGS) Will County Water Quality Database for wells screened within the Silurian dolomite. A total of 689 data points for boron were available. T he boron concentrations from these samples ranged from not detected to 2.88 mg/L. The mean (average) of the data was 0.34 mg/L with a median of 0.23 mg/L. 15% of the detections were in excess of 0.90 mg/L. The residential well sampling results were not “ab ove background concentrations.” All of the boron detections in the residential wells were well within the overall range of the Will County boron801

dataset used for identifying a general background value for modeling purposes, with the highest

boron value in the residential wells being 1.5 mg/L compared to the background dataset’s highest value of 2.88 mg/L.

Correction of EIP’s Smiley Subdivision Speculation: There is certainly no threat of any potential impact to the Smiley Subdivision residential wells caus ed by the Quarry Landfill. The IEPA has gathered direct evidence of the absence of any threat or impact to these residential wells in 2009 through the collection of water samples from multiple residential wells within the Smiley

Subdivision as close as 300 feet from the Quarry facility. The results of the sampling showed no contamination in these wells. This data is available in the public records and was conveniently ignored by EIP.

Further, groundwater modeling performed for past and current conditions d oes not indicate any loss of gradient or migration of constituents to the east/northeast toward the Smiley neighborhood. This is supported by available field data for water level measurements from monitoring wells surrounding the Quarry facility. As discus sed in the next response, groundwater model runs were made under a potential future scenario if the former owners of Boyd’s Quarry (a.k.a., Brandon Road Quarry) were allowed by IEPA to dewater their quarry for subsequent use

as a construction debris landfi ll. Under those potential future conditions modeling suggested that there may be a loss of gradient to the east/northeast potentially resulting in migration of Quarry constituents in that direction. It is for this reason that Midwest Generation proactively approached the IEPA Bureau of Water to make the results of this modeling available to the Agency and to request that the pending permit application for dewatering of the Boyd’s Quarry be thoroughly considered with this information in hand. Midwest Generat ion submitted that the issuance of an NPDES permit that allowed the dewatering of Boyd’s Quarry would not be consistent with applicable Illinois law. Midwest Generation also requested that if the IEPA disagreed and decided the NPDES permit should be issued , then Midwest Generation should be allowed the opportunity to institute precautionary measures to prevent the loss of the inward gradient that might result from a dewatering of Boyd’s Quarry. The IEPA encouraged Midwest

Generation to find a resolution of the matter. Midwest Generation resolved the matter in the most timely and protective way possible

– it bought Boyd’s Quarry. Midwest Generation, as the new owner of Boyd’s Quarry, has no plans to dewater it.

It is unfortunate that EIP apparently relied on s peculative, hearsay from a local activist resident and presented it as fact in its publication. There is no indication in the EIP’s “In Harm’s Way” document that it performed any investigation to attempt to confirm the accuracy of this unsupported accusati on.

13) Environmental Integrity Project Statement (pg. 43): In response to concerns that dewatering of the Brandon Road/Boyd Quarry east of the landfill would cause contaminants to migrate toward the residential area, groundwater modeling found that a bor on contaminant plume with concentrations greater than 2.0 mg/L (Illinois Class I Groundwater Standard) would discharge into the dewatered Quarry within 5 years, and that the 1.0 mg/L isoconcentration line for boron would extend for more than 1,000 feet int o the Smiley residential area to the northeast (KPRG, 2008c). The Annual Groundwater Flow Evaluations submitted by KPRG to IEPA for Midwest Generation CCW Landfill for 2006 to 2008 confirm a change in direction of groundwater flow at802

the Landfill and conce de that the change in direction of groundwater flow “is also a change from the conditions that existed at the time of the adjusted standard for the facility” (Driver, 2009).

Correction and Clarification: There is no contamination moving from the Quarry fa cility to the Smiley neighborhood to the northeast. Midwest Generation did have concerns that the proposed dewatering of Boyd’s Quarry, if it were allowed to occur, would change the direction of groundwater flow in the vicinity of the Quarry Landfill. Midw est Generation proactively voiced those concerns both to the IEPA and to local citizens at the community Baptist church within the Smiley subdivision in a meeting to discuss this issue. However, as noted above, Midwest Generation eliminated the possibility that its concerns could become a reality by purchasing Boyd’s Quarry. EIP’s twisted description of the relevant facts never discusses the fact that this potential future scenario never came to be, that Midwest Generation timely disclosed its concerns

to b oth the community and the IEPA, and that Midwest Generation prevented the issue from ever becoming a reality. Similarly, the EIP twists the truth of the contents of the referenced Annual Groundwater Flow Evaluations. Those evaluations addressed an entirely different change in direction of groundwater flow beneath the Quarry facility that is unrelated to and has no possible effect upon the Smiley Subdivision residents. The referenced change from the groundwater flow

conditions that existed at the time of the Adjusted Standard for the facility was describing the flow conditions along the south side of the Quarry landfill due to unrelated dewatering activities associated with the Laraway Quarry located approximately 1,000 feet southeast of Quarry. The

same Annu al Evaluations also clearly stated and demonstrated that the inward gradient from the east of the Quarry facility remained intact and that there is no movement of groundwater from the Quarry to the east/northeast. The EIP improperly chose to present this i nformation in a distorted manner to wrongly imply that it is related to the flow of groundwater to the

east/northeast.

14) Environmental Integrity Project Statement (pg. 43): KPRG’s 2007 Annual Report for the Landfill, submitted on behalf of Midwest Gener ation, showed high concentrations of arsenic, boron and molybdenum and pH above applicable groundwater quality standards in well G47S...and well G48S...IEPA’s applicable groundwater quality standards (AGQSs) for the first quarter 2008 were exceeded for eight d issolved parameters (arsenic, boron, molybdenum, ammonia, chloride, sodium and fluoride), and concentrations of total copper and nitrate exceeded the AGQS (KPRG, 2008c).

Clarification: As noted above, this statement identifies groundwater monitoring resul ts from on

site wells G47S and G48S located at the southeast side of the Quarry facility. Please see

discussion under item 6 above. The off

- site groundwater investigation is ongoing and is expected to be completed in 2012 with the formal definition of an o ff

- site groundwater management zone.

15) Environmental Integrity Project Statement (pg. 43

- 44): On August 31, 2009, IEPA issued a Notice of Violation (NOV) to Midwest Generation for “failure to operate a leachate collection and management system that assu res protection of Class I potable resource groundwater” (IEPA, 2009a). The NOV cited exceedances of AGQS between July 14 to August 31, 2009 at the site as summarized below: [The statement proceeds with 8 bullet items summarizing various exceedances].803

Corr ection: This statement is false. Neither the described NOV nor any other NOV was ever issued to Midwest Generation by IEPA. As stated by Mr. Rick Cobb, IEPA Bureau of Water, in an August 27, 2010 Herald News newspaper article, the draft notice was develope d based on a hypothetical set of future conditions that never occurred. The hypothetical conditions were associated with the potential dewatering of Boyd’s Quarry east of the Quarry. Because these conditions never occurred, the NOV was never finalized or i ssued. As Mr. Cobb told the Herald News: “The whole thing became moot”.

Because EIP also mischaracterizes the contents of the draft NOV, the following additional errors in its description are also noted and corrected:

- EIP Bullet (pg 43): Ten wells were identified where AGQS violations were found, including “upgradient” G38S, four wells within zone of attenuation (G30S, R08S, G47S, G48S) and five compliance wells (G31S&D, G41S&D, G42D). Of these wells, G38S, G47S and G48S and five compliance wells are fr om 150 to 200 feet beyond the edge of the landfill and are called off

- site

wells in the discussion below.

Correction: Wells G47S, G48S and all five compliance wells are “on site” wells (i.e., on Midwest Generation property), not off

- site wells as EIP clai ms. The only off

- site well EIP references is G38S. The only parameter that was detected above the AGQS at this well location during the July 14 through August 31, 2009 timeframe was total nitrate. This well is within an actively cultivated farm field. Nitr ates are a standard component of fertilizers and other agricultural amendments routinely applied to farm fields. There were no AGQS exceedances of other typical CCW constituents such as boron, arsenic and molybdenum. In fact, arsenic was not

detected and m olybdenum was at 21 ug/L, which is lower than even the unpromulgated advisory level of 40 ug/L.

- EIP Bullet (pg. 43): There were a total of 50 exceedances for individual monitoring parameters.

Correction: The EIP’s statement that there were 50 exceedanc es is misleading as it combines

both the initial and confirmation re

- sampling (duplicative samples) performed each quarter, in order to double the number of alleged exceedances from a single quarterly sampling event. Therefore, the maximum number of potent ial exceedances that could have been alleged is 25. Of the remaining 25, four would not have been “exceedances of groundwater quality standards” because they are surface water sampling results for which groundwater standards (or AGQSs) are not applicable. Of the remaining 21 “exceedances,” 15 would have been for parameters which have a site specific AGQS set below (i.e., more rigorous and conservative than) the Illinois Class I groundwater standard as discussed under item 1 above. Of the remaining six

excee dances, five would have been from wells G47S and G48S located along the southeast boundary of the facility. Both of these wells are “on

- site” wells and not off

- site wells, as EIP wrongly contends. Exceeding an AGQS in an on

- site well is not a permit violat ion. Midwest Generation has installed groundwater control wells in the southeast area of the landfill to prevent further outward migration of any effected groundwater (see further discussion in Item 6 above).

The last of the noted exceedances would have be en for well A08S for boron. This well is located north of the Quarry and within the zone of attenuation. There were no boron exceedances further downgradient to the north within the zone of compliance.804

· EIP Bullet (pg 44): Exceedances of boron were in so utheast wells G47S and G48S, but also in G46S and R08, indicating that contamination is also migrating to the south and west from the

Landfill.

Correction: The on

- site boron exceedances in wells G47S and G48S located along the east portion of the south pe rimeter have been addressed as noted above (see Item 6). The EIP statements regarding well G46S monitoring results are false. There have been no confirmed AGQS exceedances in well G46S either during the noted July 14 through August 31, 2009 time frame, pri or to that time frame or during any monitoring since that timeframe through the third quarter of 2011 (most recent complete sampling as of this rebuttal). Well R08S is located north of the Quarry facility and is within the zone of attenuation. This well ha s historically indicated elevated levels of boron above the AGQS, however, compliance wells further downgradient of this location have not had any boron AGQS exceedances. The movement of some leachate through the groundwater system to the north (and west f or that matter) is in accordance with the Adjusted Standard for the site as discussed in item 7 above. Relative to the statement that contamination is moving to the west of the site, none of the wells identified are west of the Quarry facility. Well cluste r G44S/G44D is located west of the facility. These wells did not indicate any exceedances. This is yet another false statement by the EIP.

- EIP Bullet (pg. 44): Discharge from NPDES Outfall S501 also violated the AGQS for barium (0.36 mg/L, AGQS 0.075), c opper (0.03 mg/L, AGQS 0.02 mg/L) and dissolved nitrate (3.4 mg/L, AGQS 2.43 mg/L).

Correction: Sampling point S501 is a surface water sample collected from the North Quarry settling pond. It is neither a NPDES outfall sampling point nor is it a groundwat er monitoring point for which the AGQSs are applied. Sampling of the actual NPDES Outfall No. 005 for the Quarry facility did not indicate any discharge permit exceedances. It is also noted that the three identified compounds of barium, copper and dissolve d nitrate have the AGQSs set below either federal MCLs or IEPA Class I drinking water standards. These are:

Barium: MCL and IEPA Class I

– 2.0 mg/L Copper: MCL

– 1.3 mg/L, IEPA Class I

– 0.650 mg/L

Dissolved Nitrate: MCL

– none, IEPA Class I

– 10 mg/L

Th e noted detections in the surface water of the North Quarry are substantially below these

standards.

16) Environmental Integrity Project Statement (pg. 44): The current NPDES permit, issued by IEPA for the CCW Landfill in 2009, identifies Outfall No. 5 as “Quarry (ash pond) discharge”. Despite the extensive documentation of contamination of groundwater by ash constituents, and the fact that surface water discharges are mostly water that has been in contact with the ash that is slurried to the landfill, IEP A requires only testing of pH and total suspended solids. The latest IEPA Inspection Report indicates that Midwest Generation is in compliance with the permit (IEPA 2009a). The limited data contained in this report indicates that from January 2008 to May

2 009, pH exceeded the AGQS (6.14 to 8.56) in 7 of the 17 sampling events (maximum pH of805

8.8). As noted above, apparently separate sampling related to the Groundwater NOV found exceedances of the AGQSs for barium, copper, and nitrate at the No. 5 Outfall.

C orrection: Total suspended solids (TSS), pH and oil and grease are required routine indicator parameters for NPDES Outfall No. 005 discharge monitoring in accordance with the permit. However, as is required for all NPDES permit applications in order to obt ain the permit, an expanded list of parameters was analyzed for in the influent North Quarry water before its discharge to the Des Plaines River. These analytical results were submitted to IEPA as part of the Midwest Generation discharge permit application . They are part of the public record for the Midwest Generation NPDES Permit and would have been available for review by the EIP with any Freedom of Information Act request.

Based on EIP’s unsubstantiated allegation, it is not currently known whether the EIP reviewed this information. For the subject Outfall No. 005 discharge, this list included the following 36 parameters: TSS, pH, color, fluoride, nitrate

- nitrite, total nitrogen, oil and grease, phosphorous, sulfate, sulfide, surfactants, aluminum, bariu m, boron, cobalt, iron, magnesium, molybdenum, manganese, tin, titanium, antimony, arsenic, beryllium, cadmium, chromium, copper, lead, mercury, nickel, selenium, silver, thallium, zinc, cyanide and phenols. This expanded list must also be analyzed for wit h permit renewal applications. Based on the levels of these 36 parameters in the influent to Outfall No. 005, IEPA determined that monitoring requirements for TSS, pH and oil and grease was necessary. The EIP does not identify any basis for its opinion tha t the monitoring requirements for Discharge No. 5 are inadequate.

The noted EIP document reference to IEPA 2009a as an “Inspection Report” is wrong. This “IEPA 2009a” reference is the draft NOV which was never issued (the correct internal document

referen ce probably should be IEPA 2009b). The EIP also either intentionally or carelessly makes another mistake. It takes a groundwater standard, the AGQS for pH of 8.8, which does not apply to surface water discharges like the Outfall No. 005 discharge, and appl ies it to the Outfall No. 005 discharge. This is the basis of the EIP’s false accusation that IEPA issued an inspection report that indicated that the facility was in compliance when there were allegedly exceedances of pH limits. As EIP should be aware if it reviewed the NPDES permit for Outfall No. 005, the applicable pH limits for the Outfall No. 005 discharge is 6.0 to 9.0, which is the pH limit typically contained in Illinois discharge permits to protect surface waters. The monitored discharge from Outf

all No. 005 was consistently within these limits. The EIP put forth no explanation, nor could it, for why it ignored the applicable pH discharge limit and instead used the inapplicable AGQS standard for groundwater in order to create its false claim that t he surface water discharge violated pH limits. Please also see further discussion under item 15 above.

In addition, besides the fact that an NOV was never issued by IEPA, the EIP’s contention that “apparently separate sampling related to the groundwater N OV found exceedances of the AGQSs for barium, copper, and nitrate at the No. 5 Outfall” makes absolutely no sense and is pure speculation. No proof is provided of any such “separate sampling” of the NPDES outfall related to the alleged NOV and Midwest Gene ration is not aware of any such sampling being conducted. The sampling and analytical data submitted with Midwest Generation’s discharge permit application shows that there are no exceedances of applicable effluent and water quality

standards associated wi th the Outfall No. 5 discharge.806

2.2.3 Regulatory Action

17) Environmental Integrity Project Statement (pg. 44): The operating permit for the Landfill has gone through a complex series of modifications since 1994 related to groundwater at the site,

with a dditions and removals of monitoring wells and parameters monitored. The latest Significant Modification of the Landfill operating permit was submitted in 2006 (KPRG, 2006) and approved in 2007 (IEPA, 2007).

Correction: First, it is important to understand the nature and intent of a Significant Modification to Permit. This term should not be misconstrued to imply that something negative has occurred which requires a permit modification, which appears to be the EIP’s intent. An Application for Significant Mo dification to Permit is a regulatory requirement for submittal and IEPA approval whenever there is a proposed change in the operation of the facility that is not specifically accounted for in the facility’s operating permit. For example, when Midwest Gener ation identified a beneficial reuse for ash that required the removal of that material from the landfill, this was a significant change in the operation of the landfill, albeit a positive change, and the operator (Midwest Generation) was required to apply for and obtain a Significant Modification to the Permit prior to being able to initiate the recycling operation.

The noted permit modification is not the latest modification as stated by EIP. There have been several approved Significant Modifications sinc e the one noted above. Specifically, these are:

- Application for Significant Modification to Permit dated October 10, 2007 and approved by IEPA as Permit Modification 11 on July 21, 2008. This modification was for the removal of up to 40,000 tons of ash annually from the northwest corner of the Main Quarry for beneficial reuse in sand blasting and asphalt shingles.

- Application for Significant Modification to Permit dated September 2, 2009 and approved by IEPA as Permit Modification 12 on December 1, 20 09. This modification was for the installation/implementation of a corrective action to address the loss of hydraulic gradient and potential migration of Quarry water to the south/southeast of the facility.

· Application for Significant Modification to Pe rmit dated April 6, 2010 and approved by IEPA as Permit Modification No. 13 on July 1, 2010. This modification was for a minor schedule

extension for off

- site well installations due to property access issues.

Post

- 2010 Report Permit Activities

· Applicat ion for Significant Modification to Permit dated July 21, 2010 and approved by IEPA as Permit Modification 14 on October 26, 2010. This modification was for approval of the engineer’s construction acceptance report for the installation and operation of the southeast extraction well system as part of the proposed corrective action addressing loss of inward gradient to the southeast of the facility.

· Application for Significant Modification to Permit dated January 25, 2011 and approved by807

IEPA as Permit Mod ification 15 on May 26, 2011. This modification was for an updated cost estimate for closure and post

- closure care for the facility.

· Applications for Significant Modification to Permit dated October 13, 2010 and March 31, 2011 and approved by IEPA as Pe rmit Modification 16 on August 8, 2011. This modification was for the acceptance of the Assessment of Interim Corrective Action Report and approval of

the recommended installation of two additional off

- site assessment wells to further define the proposed o ff

- site groundwater management zone to the southeast. The modification also approved the proposed expansion of the existing groundwater extraction system by eight extraction wells extending along the south boundary of the Quarry facility. The expansion of the extraction well system is a voluntary precautionary measure against potential future mining expansion activities by Laraway Quarry.

At least the first two documents noted above should have been available to EIP at the time of its alleged IEPA files re view. Perhaps because these modifications and associated actions are positive and proactive measures being taken by Midwest Generation, they have been ignored by EIP because they contradict the negative statements in its publication.

18) Environmental Int egrity Project Statement (pg. 44

- 45): The groundwater monitoring program ... A “G2” list of parameters that must be sampled annually includes: barium, copper, iron, lead, mercury, and nitrate (unfiltered total concentration). The request in the latest Signif icant Permit Modification (KPRG, 2006) to eliminate ten parameters from the G2 list (dissolved antimony, beryllium, chromium, cobalt, cyanide, iron, lead, mercury, nickel, and thallium) was approved by IEPA (IEPA, 2007).

Clarification and Correction: Whil e the referenced Significant Modification to Permit is not the “latest”, it is true that Midwest Generation requested the noted parameters to be removed from the annual monitoring G2 list. In Section X. Groundwater Monitoring Program, Condition 13,

List G2 , Note iii of the operating permit, there is a provision to re

- evaluate the appropriateness of the G2 list of parameters being monitored at the site. Specifically, this permit item states that if after five years of monitoring for an inorganic constituent listed in List G2, there has been no statistically significant increase above the AGQS, the operator may propose to discontinue monitoring for that constituent as a permit modification. EIP does not acknowledge that this permit provision provides the basis for the request to remove the subject parameters.

The List G2 annual groundwater monitoring data through 2005 (the Application for Significant Modification to Permit was dated May, 2006) shows that there were a number of parameters that

had not shown a s tatistically significant increase above the AGQS for at least the last 5 years of monitoring. Specifically, these parameters were antimony, beryllium, chromium, cobalt, cyanide (total and dissolved), iron (total and dissolved), lead (total and dissolved), mercury (total and dissolved), nickel and thallium. In fact, antimony, beryllium, chromium, cobalt, cyanide, mercury and thallium were generally not detected at all. A detailed description of this extensive period of monitoring data for each parameter was provided in the document EIP referenced. IEPA’s approval of the permit modification on January 31, 2007 (Modification No. 10) approved the removal of some of the requested parameters, not all of them as stated incorrectly by EIP. Iron, lead and mercury wer e not approved for removal from List G2 monitoring and continue to808

be monitored on a routine basis.

19) Environmental Integrity Project Statement (pg. 45): A review of the AGQSs, as defined in the latest significant permit modification approval, indicates that the modified standards for boron, cadmium, manganese, molybdenum, and selenium for the landfill are significantly higher

than either Illinois Class I Groundwater Standards or other health

- based water quality standards (IEPA, 2007). [The statement pro ceeds with 5 bullet items summarizing AGQS values relative to other standards].

Clarification: See explanation of how the AGQS is determined, using background groundwater information, and the chart comparing the AGQS to Class I Groundwater Standards in It em 1 above. To the extent that the EIP is apparently also contending that the AGQS groundwater standards should be as strict as the Illinois surface water quality standards, this is a contention that goes well beyond the scope of the compliance status of t he Quarry landfill and which is not a position that either the IEPA nor the U.S. EPA has supported.

20) Environmental Integrity Project Statement (pg. 45): A consequence of the IPCB’s AS for groundwater, combined with the AGQSs that have been set, is that groundwater with significant

concentrations of toxic metals can move off

- site and be in compliance with the terms of the current Landfill operating permit.

Correction: EIP has not provided any evidence that shows movement of metals off

- site at significan t concentrations, let alone at any concentrations that would be toxic to the public. EIP’s statement that such groundwater would be allowed to move off

- site and be in compliance with the Quarry landfill permit is wrong. For groundwater flows to the north a nd west, as established and discussed above under item 7, the Adjusted Standard allows for the movement of groundwater under natural flow conditions from the Quarry to the north and west with eventual discharge to the Des Plaines River at levels so low tha t their effect, if any, is indiscernible. There is absolutely no way that anyone could ever be exposed to any significant concentrations of metals in this direction because there are no residential wells or any other potable wells present

between the landf

ill and the point of eventual discharge to the Des Plaines River. There are no

residential wells located within a one

- mile radius to the west or north of the Quarry facility. Applicable standards must be met at the point of compliance prior to discharge to the River either via groundwater or through the permitted NPDES outfall. In addition, the AS does not allow for the movement of potentially affected groundwater to the south or east. The corrective action work which Midwest Generation has done to stop out ward migration of groundwater to the southeast, as discussed in item 6 above, demonstrates that the permit’s requirements are effective in protecting the environment and the public health.

21) Environmental Integrity Project Statement (pg. 45): Despite ev idence that groundwater contamination at the Landfill has repeatedly exceeded even the relaxed AGQSs that have been allowed by IEPA, no significant enforcement action was taken until a Notice of Violation dated August 31, 2009 was issued. The details of th e NOV are summarized in the Test of Proof

section.

Correction: This statement is false. The descriptions of the exceedances, the AGQSs, the NOV’s809

alleged issuance and the need for any enforcement action are all inaccurate. Please see detailed

discussions under items 3 and 15 above. .

22) Environmental Integrity Project Statement (pg. 45): The IEPA Ash Impoundment Assessment identifies the Lincoln Quarry Ash Landfill as having an IPCB Groundwater Management Zone (GMZ) designation (IEPA, 2009c). Such a desi gnation has the potential for allowing off

- site contamination of groundwater within a designated zone. However, according to IEPA internal communications there is no GMZ at the site (EPA, 2010). The only information available as part of the voluminous mate rial eventually received in response to FOIA requests for information about the Joliet 9 ash disposal site that would indicate that a GMZ is even being considered is a June 2009 map prepared by KPRG showing proposed locations of initial GMZ monitoring well s.

Clarification: Relative to the first part of this statement, not being privy to the internal IEPA communications referenced (Midwest Generation performed a detailed FOIA file review on September 15, 2010 and these documents were not in the files made a vailable), it appears that there may be confusion between the Zone of Attenuation established under the Illinois Pollution Control Board approved Adjusted Standard and a GMZ. Relative to the second part of the statement, the eventual establishment of an in terim GMZ is part of the overall approved corrective action being implemented by Midwest Generation for the southeast corner of the Quarry facility. Work to adequately define the interim GMZ is ongoing.

2.2.4 Hydrogeologic Conditions

23) Environmental In tegrity Project Statement (pg. 46): Consultants for Midwest Generation have developed a nine

- layer model three dimensional groundwater flow model for the site (KPRG, 2008b), details of which have been questioned by consultants for Brandon Road Properties ( owners of the old Quarry east of the ash landfill) (C&E, 2008).

Clarification: In response to the C&E questions, KPRG provided to IEPA, on behalf of Midwest Generation, a Technical Memorandum dated November 12, 2008 documenting the numerical groundwater f

low model along with a diskette that included a working copy of the model along with various calibration runs and supporting backup. It is our understanding that C&E was provided with this information (including the diskette with the flow model for their e valuation) two times as apparently C&E misplaced the first copy that was provided to them. In addition, a second submittal was provided to IEPA dated January 30, 2009 which addressed each individual item in the above referenced C&E letter. To our knowledge , C&E did not review the submitted model, associated backup and answers to their initial questions. C&E also did not provide any technical backup or discussions regarding the basis for the questions associated with the modeling effort.

24) Environmental I ntegrity Project Statement (pg. 46): A proposal by Brandon Road Properties (BRP), LLC to dewater an inactive Quarry immediately east of the Lincoln Quarry Ash Landfill (referred to in documents variously as the BRP, Boyd, and former De Be Land Quarry) rais ed concerns that groundwater would also begin to flow east to this Quarry and northeast toward a residential area. This concern led IEPA to deny BRP’s application for an NPDES permit, a810

denial that BRP has contested (Driver, 2009). Even without dewatering of the BRP Quarry, there is evidence that contamination is moving to the northeast into the Smiley subdivision, probably as a result of residential well usage.

Clarification and Correction: The unidentified source of the referenced “concerns” that were

ex pressed about a change in groundwater flow direction that might arise from a dewatering of Boyd’s Quarry was Midwest Generation. Midwest Generation was the party who brought these concerns to the attention of IEPA, BRP and to the community and proposed alt ernatives to prevent any such risk from occurring. EIP doesn’t reveal this fact because it would undermine its attempt to characterize Midwest Generation as an “unconcerned” landfill operator. But more importantly, EIP also does not identify any informatio n to support its allegation that even without the dewatering of Boyd’s Quarry, contamination is moving to the northeast into the Smiley Subdivision because none exists. This allegation is unsubstantiated by any information or data provided in the EIP repor t. Relevant site data and direct sampling of Smiley Subdivision residential wells shows that contamination is not moving to the northeast towards the Smiley Subdivision. Groundwater modeling performed for past and current conditions does not indicate any l oss of gradient or migration of constituents to the east/northeast toward the Smiley neighborhood. Standard residential well usage does not affect this conclusion. This is also supported by available field data of water level measurements from monitoring w ells surrounding the Quarry facility. Finally, IEPA has collected water samples from multiple residential wells within the Smiley subdivision in 2009 as close as 300 feet from the Quarry facility. The results of the IEPA’s residential well sampling did not indicate any contamination in

these wells.

2.2.5 “At Risk Population”

25) Environmental Integrity Project Statement (pg. 46): There are 94 wells used for drinking

water within a one

- mile radius of the Landfill (IEPA, 2009c). An unincorporated area lies northeast of the landfill, a few private residences lie to the south. Private and public well data for the state of Illinois is maintained on a county by county basis via online database operated by the Illinois State Water Survey. Plotting the wells from this database on a map is nearly impossible for the reason that instead of each well being assigned an exact x and y location (Latitude and Longitude), the exact position of the well falls in a one

- to five

- mile area of a square that is arranged by section , township, and range. It is unknown how many wells are downgradient of the

site.

Clarification and Correction: The Illinois State Water Survey database for residential wells is organized in a manner that makes it difficult to plot the well locations on a map. However, there are other ways to identify downgradient drinking water wells in the vicinity of a landfill. Proper due diligence and scientific rigor should include at least a windshield survey of the area and a thorough understanding of local ground water flow conditions. These same suggestions are contained in an IEPA Fact Sheet for evaluating and identifying potential groundwater receptors

for a site.

A windshield survey of the area indicates that residential wells within a one

- mile radius of the Q uarry are located to the northeast and south/southeast of the facility. There are no residential811

wells located within a one

- mile radius to the west or north of the Quarry facility

– which is the downgradient direction. Therefore, it is known how many poten tial residential wells are currently

within one

- mile downgradient of the Quarry facility that obtain potable water from the Silurian dolomite (shallow aquifer). The answer is none.

3.0 CONCLUSIONS

No one has been placed “in harm’s way” by the Lincoln Sto ne Quarry Landfill. This detailed rebuttal of the numerous errors in the EIP”s “In Harm’s Way: Lack of Federal Coal Ash Regulations Endangers Americans and Their Environment” reveals the lack of adequate due diligence and scientific rigor associated with i ts preparation and publication. The EIP chose not to review its misinterpretation of the Quarry information with either the IEPA or Midwest Generation prior to publication. EIP’s decision insulated it from a pre

- publication review and

rebuke of the numerou s false and unsubstantiated allegations, misleading statements and inaccuracies regarding the Joliet 9 Quarry. The EIP also excluded extensive information showing that the environment and public welfare in the vicinity of the Quarry have been and are being protected. EIP’s strategy successfully advanced its own personal agenda against coal

- fired generating stations, but produced a report that is highly biased and inaccurate.

The main errors in, and corrections to, EIP’s contentions are:

- EIP repeatedly and falsely alleges that the facility was issued an NOV for the site operations. IEPA did not issue an NOV because no events occurred that could have supported it. Midwest Generation did not violate the terms of the Quarry Landfill Permit or applicable reg ulations.

- EIP alleges that the facility is being allowed to operate under a set of “relaxed” standards. The development of the Quarry AGQSs followed the same regulatory procedures that are applied to all solid waste landfills in Illinois, not just coal

- ash landfills. The overwhelming majority of the Quarry AGQSs are as strict as or stricter than the Illinois Class I Groundwater Standards, including setting standards where none would otherwise exist. The Adjusted Standard for the site was issued by the Il linois Pollution Control Board based on rigorous scientific and engineering evaluations that demonstrated the Adjusted Standard conditions would be protective of the environment and the public welfare.

- EIP misrepresents the voluntary well replacement pr ogram offered to residents located south of the facility. Midwest Generation did not “buy out” any of its neighbors. This program was voluntarily initiated and proactively implemented by Midwest Generation, but participation was optional because groundwate r sampling and modeling showed the wells were not adversely impacted by Quarry operations. The program was also limited to paying for the costs associated with the installation of deeper residential wells.

- EIP wrongly insinuates numerous times that ther e is a loss of inward gradient around the entire facility, that the facility is not operating in accordance with its permit and the IEPA is not requiring any corrective actions. A limited, temporary loss of inward gradient occurred only along the south sid e of the facility due to unrelated dewatering activities at the Laraway Quarry located approximately 1,000 feet southeast of the Quarry. Midwest Generation implemented a812

corrective action program, after review and approval by IEPA, which reestablished the inward gradient at the southeast boundary of the facility. This extraction well system is currently being expanded by Midwest Generation, on a voluntary basis, as a precautionary measure against potential future mining expansion activities by Laraway Quarr y. In addition, an interim GMZ is being proposed to address any constituents that may have migrated off

- site and are not pulled back by the extraction well system. Relative to the inward gradient along the east side of the facility, groundwater modeling pe rformed for past and current conditions does not indicate any loss of gradient or migration of constituents to the east/northeast toward the Smiley Subdivision neighborhood. This is supported by both available field data of water level measurements from

mo nitoring wells surrounding the Quarry and residential well sampling in the Smiley Subdivision community performed by IEPA in 2009.

- EIP alleges, without any supporting information or data, that the Quarry facility has affected

residential wells to the no rtheast. IEPA sampled multiple residential wells within that community. The results of the sampling did not show any contamination in these wells.

- EIP purposefully confuses and misrepresents groundwater and surface water standards to
suggest non

- complia nce that does not exist. The Quarry landfill is functioning in compliance with both its operating permit issued by the IEPA Bureau of Land and its NPDES permit issued by the IEPA Bureau of Water.

Midwest Generation has and continues to act responsibly and in full compliance with applicable regulations and permit requirements in its operation of the Quarry landfill. Midwest Generation also has gone beyond what either the law or the relevant facts supported in the exercise of caution regarding matters of the public health and welfare. The EIP’s description of the Quarry operations is neither credible nor reliable.

Response: See response to comment excerpt EPA

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### Comment Number: EPA

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### Organization 1 

### : Edison Mission Energy, LLC


### Commenter 1 : Basil Constantelos Commenter Type: Electric Utility Company

Classification: Substantive



### Comment Excerpt Text:

VI. THE ADDITIONAL ALLEGED CASES OF CCR CONTAMINATION OF GROUNDWATER, IN PARTICULAR EME’S LINCOLN QUARRY SITE, AR E BASED ON

MISLEADING REPORTS.

As EME discussed in its comments on the proposed rule, there are significant flaws with both the “proven” damage cases accepted by EPA, but also with the various potential, or unproven cases, identified by EPA and by environ mental commenters in filings such as In Harm’s Way. For the “proven” cases, EPA relies on aspects of the damage cases that are not related to any potentially hazardous nature of the CCRs as materials, but instead are caused by the sheer volumes involved, s uch as in the release of 5.4 million cubic yards of fly ash from the TVA’s Kingston,813

Tennessee facility [Footnote 40: EME Comments at 61

- 63.]. Similarly, the recent bluff collapse of a structural fill at the We Energies Oak Creek Power Plant in Wisconsin w as a result of structural failure, and not of any particularly hazardous quality of any CCRs that may have been present in the fill. While initial testing results had not been released as of the date these comments were prepared, the primary cause of damag e was the collapse of the bluff and the resulting landslide, and thus the collapse is not further proof of a need for federal regulation of

CCRs under Subtitle C of RCRA.

Even more troubling would be the reliance of EPA, without proper technical review, o n the purported damage cases suggested for inclusion by In Harm’s Way and Out of Control. As discussed in more detail in EME’s full comments, EME is the owner of one of the sites identified by In Harm’s Way, Lincoln Stone Quarry (“LSQ”). Environmental Inte grity Project (“EIP”) makes a series of inaccurate statements with regards to LSQ, beginning with the statement that LSQ is exempt from Illinois Class I Groundwater Protection Standards [Footnote 41: See Environmental Integrity Project, In Harm’s Way: Lack Of Federal Coal Ash Regulations Endangers Americans And Their Environment 41 (Aug. 26, 2010).] This is simply untrue, as an existing landfill, LSQ is required to establish and maintain a groundwater monitoring network

under Part 811 and Part 814 of the Il linois regulations [Footnote 42: EME Comments Appendix

A at 3

- 4.]. EIP also states that Illinois EPA filed a Notice of Violation (“NOV”) regarding the LSQ; this is false; no such NOV has ever been issued [Footnote 43: Id. Appendix A at 7.]. EIP

also incorr ectly identifies onsite wells as offsite, and makes various other incorrect statements and misinterpretations [Footnote 4: Id.]. For an in

- depth rebuttal, please see EME’s technical rebuttal, updated to reflect the most current information available, attac hed as Appendix A.

In fact, the LSQ is a regulated landfill that has been operating in compliance with its permits and the applicable environmental regulations since it began receiving material in 1962. Based on data collected and maintained by EME (and p rovided to Illinois EPA), it does not pose a threat to human health or the environment. The LSQ landfill is subject to Illinois’ Class I Groundwater Protection Standards and the state’s regulations for new solid waste landfills regarding groundwater protec tion [Footnote 45: See ILL. ADMIN. CODE tit. 35, part 811 (1996) titled “Standards for New Solid Waste Landfills.” This is true even though the LSQ is an existing landfill subject to Part 814 regulations, because Part 814 incorporates many of the Part 811 regulations.]. Consequently, the LSQ landfill was required to install a groundwater monitoring network consisting of 26 monitoring wells, three of which are located off

- site, and has established groundwater protection standards for the facility [Footnote 4 6: See infra Appendix A at 2. The groundwater monitoring network and groundwater protection standards are required by ILL. ADMIN. CODE tit. 35, § 811.318(b) (1996) and were approved by the Illinois Environmental Protection Agency.]. In fact, 18 of the 24 p arameters monitored at the LSQ site have Applicable Groundwater Quality Standards (“AGQS”) values that are equal to or stricter than the corresponding Illinois Class I groundwater standards [Footnote 47: See id. at 3. Unlike

the Class I Ground Protection S tandards, the AGQS values are site

- specific and based on existing background concentrations in the groundwater near a particular landfill. The AGQS may therefore differ from the Class I standards because they take into consideration local conditions.].

Mid west Generation must initiate an assessment monitoring program any time groundwater monitoring identifies a confirmed exceedance of an AGQS outside the zone of attenuation at the facility. If the assessment determines that the exceedance is the result of a release from the814

landfill, Midwest Generation must take corrective action.

In short, the LSQ does not operate under a “relaxed” set of groundwater standards, as the Environmental Integrity Project’s alarmist report contends. Midwest Generation maintains a leachate management system that consists of a gravity fed water system [See id. at 6.]. The leachate management system manages 8.5 million gallons of leachate per day, and the gravity flow draining system captures all but 1.2 percent of the water volume leaving the site via groundwater flow [Footnote 49: Id.]. The standards applicable to the LSQ facility allow this small percentage to leave the site because the relevant data show that when the small amount of groundwater flows off of the LSQ site, there i s no discernible impact on water quality [Footnote 50: Id.].

EIP continues to exaggerate, misstate and patently mischaracterize the situation at LSQ. EPA ought not to rely on alarmist, unverified reports alone to identify potential damage cases. All damag e cases, including those already identified by EPA, need to undergo a rigorous technical review, the results of which must be made available for public comment. Only in this manner can any reasonable and accurate assessment be made of what those cases migh t mean in terms of potential impacts to human health or the environment from existing CCR management practices.

For a more complete, point

- by

- point rebuttal of the EIP characterization of LSQ, please see Appendix A, which includes an updated version of th e technical rebuttal included in EME’s original comments prepared by KPRG and Associates. Consistent with our experience, EPRI’s analysis of many of the potential damage cases indicates far less of a threat than was claimed by

EIP and the other environment al groups [Footnote 51: See EPRI Comments, Hazardous and Solid Waste Management System; Identification and Listing of Special Wastes; Disposal of Coal Combustion Residuals From Electric Utilities, No. EPA

- HQ

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- 0640, at 49

- 50 (November 19, 2010).] F urther, the Utility Solid Waste Action Group (“USWAG”) is working with individual utilities who manage the facilities in question to file comments on this docket directly addressing the claims made by EIP. EME supports these comments and incorporates

them by reference.

Response: See response to damage case excerpt s EPA

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### Comment Number: EPA

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- 9 

### Organization 1 

### : Southern Company


### Commenter 1 : Chris Hobson Commenter Type: Electric Utility Company

Classification: Substantive



### Comment Excerpt Text:

V. ALLEGED DAMAGE CASES

The Notice referenced comments on the 2010 proposed CCB rules that were submitted by Earthjustice, Environmental Integrity Project, Sierra Club, Natural Resources Defense Council, Southern Alliance for Clean Energy, Southern Environmental Law Center, and Physician’s for815

Social Responsibility (“NGO Comments”). [Footnote 20: Comments of Earthjustice, et al., Doc.,

No. EPA

- HQ

- RCRA

- 2009

- 0640

- 6315.1 (Nov. 19, 2 010) (hereinafter “NGO comments”).] Attachments to the NGO Comments make reference to two Gulf Power Company facilities in the context of alleged damage cases. Southern Company provides the following response to that
commentary.

A. Gulf Power, Plant Cris t

Gulf Power’s Plant Crist, located in Pensacola, Florida, is referenced in the document entitled “Analysis of EPA and EIP/Earthjustice Damage Cases: The Extent of Damage from CCR Disposal is Significant, Pervasive and Growing,” including the following l anguage:

“FL Crist Power Plant SI&LF, Gulf Power. Arsenic in groundwater MCL; manganese, TDS, iron and pH SMCL. This site has ash pond, an ash landfill, and a gypsum storage area. Three of five

semi

- annual samplings from 2007

- 2009 reported exceedances fo r the arsenic MCL in one monitoring well. SMCL exceedances routine for sulfate, manganese, TDS, iron, and pH, but information on the monitoring system such as locations of wells and direction of flow is limited. The facility has a NPDES permit with a very large volume discharge.” [Footnote 21: Doc. No.

EPA

- HQ

- RCRA

- 2009

- 0640

- 6314.1, at 17 (boldface in original).]

However, Plant Crist is in full compliance with applicable Florida Department of Environmental Protection (“FDEP”) groundwater regulatory require ments and NPDES Permit No. FL0002275 and conditions thereunder. Plant Crist has an extensive groundwater monitoring system that has been approved by FDEP and there have been no violations of applicable FDEP groundwater standards at this facility.

As outl ined in Southern Company’s comments on EPA’s proposed rules, Florida groundwater regulations, contained in Chapter 62

- 520, F.A.C., provide for specified zones of discharge (“ZOD”) for facilities discharging to groundwater. [Footnote 22: Southern Company Co mments, supra n. 2, at 185

- 86.] A ZOD is defined as a “volume underlying or surrounding the site and extending to the base of a designated aquifer or aquifers, within which an opportunity of the treatment, mixture or dispersion of wastes into receiving gro undwater is afforded.” [Footnote 23:

R. 62

- 520.200(27), F.A.C.] This regulatory construct has been a part of Florida’s groundwater protection program since its inception in the mid

- 1980s. FDEP’s groundwater regulations require that facilities discharging t o groundwater implement a groundwater monitoring plan that includes downgradient detection wells located within the facility’s ZOD in addition to compliance wells located at or immediately adjacent to the compliance line of the ZOD. [Footnote 24: R. 62

- 520 .600(6) and 62

- 701.510(3), F.A.C.]

Plant Crist (including its associated CCB management units) has a FDEP authorized ZOD where numerical primary and secondary drinking water standards do not apply. In regard to arsenic,

FDEP has determined that this cons tituent is a “report only” parameter for Plant Crist’s groundwater monitoring due to the natural occurrence of arsenic in groundwater at this location. Gulf Power Company’s Plant Crist is and has been meeting all applicable groundwater standards

and monito ring required by FDEP regulations and the aforementioned NPDES permit.816

B. Gulf Power, Plant Smith

Plant Smith located in Southport, Florida is referenced in the document entitled “Critique of EPRI Report Evaluation of Coal Combustion Product Damage Cas es.” [Footnote 25: Doc. No.

EPA

- HQ

- RCRA

- 2009

- 0640

- 6314.1, at 8.]

The entirety of that reference is set forth below:

EPRI: “Two cases, while not resolved, do not have known exceedances that can be attributed to

CCP.”

Response: The EPRI report is wrong about these cases.

Lansing Smith Surface Impoundment, Florida. This site was identified by EPA as a potential damage case. According to EPRI (NRT, 2009b): Groundwater impacts are reported to occur within the approved Florida Department of Environmental Protection Zone of Discharge (ZOD), so they are in compliance with FDEP groundwater regulations. This additional information suggest that exceedances of FDEP groundwater standards are taking place, meaning that this should be reclassified as a proven damag e case. This is another example of a state making accommodations for groundwater contamination at a CCR site without addressing it. [Footnote 26: Id. at 8 (italics and boldface in original).]

As referenced above, Florida groundwater regulations provide f or specified zones of discharge for facilities discharging to groundwater. [Footnote 27: Chapter 62

- 520, F.A.C.] As with Plant Crist, Plant Smith (including its associated CCB management units) has a FDEP

- authorized ZOD within which numerical primary and s econdary drinking water standards do not apply. Plant Smith is in full compliance with applicable state groundwater regulatory requirements and NPDES Permit No. FL0002267 and conditions thereunder and should not be considered a proven or potential damage c ase.

Response : EPA has reassessed the damage cases included in its July 2007 report Coal Combustion Waste Damage Case Assessments against the Agency ’s test of proof criteria. As a result of this reassessment, the Florida Power & Light Lansing Smith Power Plant site has

retained its original designation as a potential damage case. For a summary of stakeholder arguments addressing this site and the rationale for its damage case designation decision by the Agency, see the technical support documents on damage cases in the docket of the final rule.

Gulf Power’s Crist Power Plant, Florida, was submitted to EPA in EIP’s comment to the October

2011 NODA: EPA

- HQ

- RCRA

- 2011

- 0392

- 0259 ( published on December 12, 2011 as Risky

Business report ) as one of 20 new alleged damage cases . EPA assessed, among others, this ‘newly alleged’ damage case site against the Agency’s test of proof criteria. Based on this assessment, the Crist Power Plant site was designated as potential damage cases. For a sum mary of stakeholder arguments addressing this site and the rationale for its damage case designation decision, see the technical support documents on damage cases in the docket of the final rule.817



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0240

- 5 

### Organization 1 

### : Tri

- State Generation and Transmission Association, Inc.


### Commenter 1 : Barbara Walz Commenter Type: Electric Utility Company

Classification: Substantive



### Comment Excerpt Text: Information on Additional Alleged Damage Cases

The appropriateness and quality o f the data presented by the Environmental Integrity Project and Earthjustice (EIP/EJ) is unacceptable for EPA to use as a reasonable basis of any decision in the rulemaking to regulate CCRs as hazardous waste or solid waste. The information presented by

th e EIP/EJ is focused largely on alleged unproven damage cases at facilities that existed prior to the advent of the requirements with which most CCR disposal facilities must currently comply. The reports from these organizations that are placed in the recor d for the NODA are misleading and fail to represent current or even recent industry practices to manage CCRs in a responsible

manner. Tri

- State believes that the Reports titled “In Harm’s Way” and “Out of Control” should not be relied upon for any reasonab le evidence to support a decision to regulate CCRs as a hazardous or as a solid waste. These reports do not accurately reflect the impact that CCRs have

on the environment.

For example, in the “In Harm’s Way” report, the EIP/EJ dramatically overstates the nature of a primary example they use for further regulation of coal ash. Specifically, the Uniontown, OH case where they say in the executive summary

“At Uniontown (OH), many domestic well users have been left to fend for themselves, even though monitori ng data documented flows heavily contaminated with metals from the Industrial Excess Landfill moving toward their wells until such monitoring was stopped in 2004.”

The EPA report on the Uniontown, Ohio Industrial Excess Landfill noted that many different types of wastes were placed in the landfill when it was operating between 1966 and 1980. The EPA report focuses on the numerous waste streams that were comingled in the landfill, but only mentions fly ash twice in the entire 77 page report. Specifically, t he EPA report notes that oils,

flammable and non

- flammable solvents, garbage, septic tank cleanouts, and other organic matter were placed in this landfill during the life of its operation. The Uniontown, Ohio Industrial

Excess Landfill does not resemble an y reasonable coal ash landfill or impoundment in operation today. It would be completely inappropriate for EPA to consider these types of examples in their

decision

- making to regulate coal ash under the provisions of the Resource Conservation and Recovery Act.

The EIP/EJ reports allege damage from existing impoundments, but typically do not provide adequate or appropriate information to demonstrate that the damages are from CCR placement, another contaminant, or possibly even due to natural conditions. In many cases, the reports provide down gradient water quality monitoring data, but do not provide any up gradient data to show that there is an actual adverse impact from a CCR management operation. Also, there is a high frequency of the alleged damage being attributable to the exceedance of Secondary818

Maximum Contamination Levels (SMCLs) which are not compliance thresholds for determining damage. On its web page, EPA states the following about SMCLs:

Since these contaminants are not health threatening at the SMCL, and public water systems only need test for them on a voluntary basis, then why is it necessary to set secondary standards?

EPA believes that if these contaminants are present in your water at levels above these standards, the contaminants may caus e the water to appear cloudy or colored, or to taste or smell bad. This may cause a great number of people to stop using water from their public water system even though the water is actually safe to drink.

Secondary standards are set to give public water systems some guidance on removing these chemicals to levels that are below what most people will find to be noticeable.

There is nothing in the EIP/EJ reports that demonstrate or establish that there is a reasonable

nexus between the unit that contains C CRs and the elevated concentrations of a particular constituent that is noted in the field. The assessment of damage in the EIP/EJ reports fails to include the consideration that there could be other possible sources of contamination or natural occurring l evels of contaminants that could cause the elevated concentrations of the individual

constituents.

Some individual states have provided a response to the EIP/EJ reports for alleged damage cases, and the responses argue against the claims of the EIP IE as being unsubstantiated by data presented in the reports, specifically the Pennsylvania Department of Environmental Protection (PDEP) provides a response to refute claims of the reports. The PDEP identifies that existing

data in some cases demonstrate that t here is no damage claim at all. The information further supports the idea that the EIP/EJ reports should not be used in the EPA decision making in this rulemaking.

Tri

- State believes that EPA cannot justly rely on alleged damage cases that are asserted by an outside organization without verification of their authenticity. The inclusion of the potential damage cases provided by the EIP/EJ in the rulemaking record, and their consideration by EPA in its decision making, is inconsistent with the procedures pro scribed by the Bevill Amendment and the plain language of the statute. Tri

- State believes that it is completely inappropriate for EPA to consider the situations reported by the EIP/EJ in the submitted reports for any aspect of

the outcome of the determinat ion to regulate CCRs as a solid or as a hazardous waste

.

Response: First, in response to the comment ’ s closing sentence, this rule will regulate CCRs under RCRA subtitle D: for further details, see Unit IV of the final rule’s preamble.

Secondly, EPA has assessed all the ‘newly alleged’ damage cases submitted by environmental advocacy groups in February and August 2010 ( Out of Control and In Harm’s Way , respectively) and in November 2011 ( Risky Business )

, against EPA’s test of proof criteria. Based on this assessment, the Agency designated some of the 9 0 CCR management sites as proven damage

case , others

– as potential damage case, and still others were rejected as CCR damage cases because they failed the scrutiny of the test of proof criteria. For dis cussion of the damage case819

assessment methodology, please refer to Unit XI of the preamble to this rule. For a summary of stakeholder arguments addressing all the assessed CCR management sites and for the rationale for the Agency’s damage case designation decisions, see the technical support documents on damage cases in the docket of the final rule.

Finally, EPA concurs with the commenter that the Uniontown, Ohio Industrial Excess Landfill

site does not qualify as a CCR damage case because this site has re ceived many other waste types. It is on this ground that the Ohio Industrial Excess Landfill site was rejected as a CCR damage case.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0242

- 2 

### Organization 1 

### : PPL Services Corporation


### Commenter 1 : Craig Shamory
Commenter Type: Electric Utility Company

Classification: Substantive



### Comment Excerpt Text:

II. THE ALLEGED DAMAGE CASE PRESENTED BY ENVIRONMENTAL GROUPS FOR

PPL MONTANA COLSTRIP PLANT IS NOT PROVEN AND DOES NOT SUPORT THE

SUBTITLE C OPTION

The NODA identifies two reports prepared by environmental groups that together allege that 70 CCR sites are “damage cases” that should be considered in the CCR rulemaking. The report, entitled Out of Control: Mounting Damages From Coal Ash Wastes Sites (Feb. 24, 2010) (“Out

of Co ntrol”), presents 31 alleged CCR damage cases that EPA explains were not included or recognized as proven damage cases in EPA’s July 2007 Coal Combustion Waste Damage Case Assessments (“EPA 2007 Report”). 76 Fed. Reg. at 63256. Specifically, Colstrip is in cluded in the Out of Control report, even though it simply does not meet the criteria for a “damage case.” As discussed below, nothing presented in Out of Control regarding the Colstrip site supports the regulation of CCR under RCRA Subtitle C or undermine s EPA’s original decision in the 2000 regulatory determination that the best means to address the damage cases is to “develop national Subtitle D regulations.” 65 Fed. Reg. at 32216.

A. Environmental Groups Claim Significant Affects on Drinking Water Well s

Claims of negative impacts to multiple private wells are unsubstantiated. Claims that residents became ill after drinking water from the one specific private well are also unsubstantiated. The owner/operators of this private well had stated on several o ccasions that well at issue was not used for drinking water purposes in the time that it contained elevated constituents related to plant operations. It was replaced with a deeper well shortly after affects from plant operations

were first confirmed. No ot her drinking water wells were affected by plant operations, but to alleviate residents’ concerns, the plant installed city water in the area of the one affected private

well.

B. Environmental Groups Claim Health

- Based Affects on Private Well820

While the on e private well was found to contain elevated constituents (boron, sulfate, and total dissolved solids) related to plant operations, none of the constituents exceeded a state or federal

health

- based drinking water standard. Furthermore, none of the Colstrip monitoring well or private well data cited in Outof

- Control show any constituents that exceeed a state or federal

health

- based drinking water standard.

C. Environmental Groups’ reference to settlement of lawsuit

In the USEPA’s 2007 report on damage cas es, they made no determination that Colstrip was a damage case. The 2003 lawsuit, which resulted in a settlement in 2008 was a legal settlement and was the result of a ruling on the plaintiffs’ discovery motions. Although the defendants vehemently disagree d with that ruling, the procedural implications were so great that a tentative settlement resulted days after it was issued. . Technical judgment was not reached and there were no findings of “specific damage to human health or the environment”. The allega tions for this case contain no new information regarding human health or ecological health risk information regarding the site that were not already available to USEPA when it released its 2007 report.

D. Environment Groups’ reference to actions taken by Montana DEQ

MDEQ has always required the Colstrip Steam Electric Station to monitor and, if observed, remediate seepage of waste water into groundwater. Specifically, MDEQ issued two NOVs to the plant in 1998 at the time the elevated levels of operation r elated constituents in the one private well referenced above was confirmed. Both of the NOVs related to MDEQ’s concerns regarding seepage from the plant’s ash impoundments, and one specifically required evaluating the cause of declining water quality in th e one private well addressed above. As a result, MDEQ required that the plant implement a more robust system of identifying and remediating seepage in the area of the plant’s ash impoundments. In response, the plant designed and implemented such

a monitori ng and remediation system. It also implemented corrective actions, including groundwater capture and installation of a deeper replacement well for the one private well at

issue to be used as a non

- drinking water well.

Out

- of

- Control refers to an Administr ative Order on Consent (AOC) proposed by the Montana Department of Environmental Quality (MDEQ) in February 2010. PPL Montana and MDEQ began discussing the idea of the referenced Administrative Order on Consent to MDEQ in 2005. This AOC establishes a compr ehensive process to investigate and remediate any potential impacts related to the wastewater facilities at Colstrip. It formalizes the process that PPL Montana has historically engaged in with MDEQ, in order to comply with the plant’s water protection req uirements. By imposing a comprehensive process with clear responsibilities and schedules, the AOC brings clarity and certainty to PPL Montana’s ongoing efforts to address seepage from certain wastewater ponds at the plant. It also establishes a mechanism t o obtain public feedback in the process. MDEQ and PPL Montana are in the process of finalizing this

AOC.

Additional efforts to work together with MDEQ to protect the quality of area groundwater include an ash impoundment liner replacement program, which h as resulted in installation of composite liners or double synthetic liners with leachate collection under the synthetic liners.821

The plant also provides semi

- annual water quality data reports, which are reviewed by MDEQ and are available as public informati on.

Summary of Alleged Damage Case Claim by Environmental Groups for Colstrip

The bottom line is this case does not meet the criteria for a damage case because the allegations do not contain any documented evidence of off

- site groundwater monitoring data or off

- site groundwater monitoring data showing exceedances of an MCL, other health

- based standard or state groundwater standard

.

Response: Similarly to all the 9 0 ‘newly alleged’ damage cases, submitted by environmental advocacy groups in their three 2010 /2011 reports ( Out of Control

, In Harm’s Way

, and Risky

Business

, respectively), the Agency assessed PPL’s Colstrip site against EPA’s test of proof criteria. Based on this assessment, the Agency designated the Colstrip site as a proven damage

case. F or discussion of the damage case assessment methodology, please refer to Unit XI of the preamble to this rule. For a summary of stakeholder arguments addressing the Colstrip CCR management site and for the rationale for the Agency’s damage case designation decision, see the technical support documents on damage cases in the docket of the final rule.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0244

- 2 

### Organization 1 

### : Glasgow Borough, Midland, PA


### Commenter 1 : Gary Craig Commenter Type: Local Government

Classification: Substantive



### Comment Excerpt Text: The spillage information in the report, “ In Harm’s Way ,” is also significant and we can verify the leakage and discharge into the Ohio River and the surrounding communities as it relates to

the Little Bl ue Impoundment. One of our residents had witnessed first hand from the river bank close to where the discharge occurs. One can see the white residue on the shoreline. When approaching the mouth of the creek, the water appears to take on a different look. A s you enter from the river, you can see the bottom begin to mirror the same effect on the “lake” where there is no life. As you round the bend, you could see the water get unbelievably cloudy and blue/greenish with a scum of sort floating on top. At this p oint, the spillway from the retention pond becomes visible and the cause is obvious. Additionally, you can see contaminated water leaking from the dam and in spots where the water stopped flowing. There are white deposits (fly ash) left on what is left of the vegetation, which is very sparse.

Please accept this documentation into the US EPA’s Notice of Data Availability regarding Little Blue Run coal ash impoundment.

Response: See response to comment excerpt EPA

- HQ

- RCRA

- 2009

- 0640

- 09880

- 20.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0245

- 1 

### Organization 1 

### : Novetas Solutions, LLC


### Commenter 1 : Paul Mellon822

Commenter Type: Other Company

Classification: Substantive



### Comment Excerpt Text: Please note that the TCLP test does not test for beryllium which is why Novetas as well as the EPA’s Office of Inspector General have commented in various reports that the EPA has in the past improperly allowed this test to be used by the CCR Industry as t he sole test that would show any CCR is safe for human health when used above ground. The EPA has also since admitted to the EPA Office of Inspector General that the TCLP test alone is not a good predictor of whether Unencapsulated CCRs are safe for human health. The following information from OSHA and NIOSH will prove the potentially high toxicity to human health to include cancer from beryllium exposure concerning the use of coal slag abrasives which are an Unencapsulated CCR as stated by the EPA Office o f Inspector General.

The information will also show that the EPA should immediately announce that when the new CCR Beneficial Use Program is created, coal slag abrasives will not be in the program due to the fact they are not safe for human health when u sed as intended according to OSHA and NIOSH
and the EPA’s own scientific studies. There is no need to for EPA to wait until the new CCR National Rule is promulgated to make this change which would immediately be protective of

human health.

Abridged submi ssion: Novetas Request to OSHA for Action on Beryllium in Coal Slag Abrasives Original Submission Date to OSHA August 4 2011: (attachments are in pdf format)

Good afternoon, my name is Paul Mellon President of Novetas Solutions. My company makes a

variou s products from 100% recycled glass. One of those products is New Age Blast Media which is used for abrasive blasting. I have been working with the EPA for 2 years regarding the issues surrounding the toxicity of coal and copper slag abrasives. In fact, we recently had the EPA enact a new rule in the Metal Fabrication Industry which advocated switching from abrasives with high levels of MFHAP to products with low or no MFHAP. Based on information from OSHA I sent to the EPA in April 2008, the EPA actually a dded a recommendation to companies to use crushed glass. However the EPA while acknowledging that coal and copper slags do contain HAP’s the EPA asked me why the MSDS’ of these products do not list known carcinogens that are in the product. The EPA said th ey follow the OSHA guidelines exactly when writing rules about defining what is considered a carcinogen.

Basis that discussion, I am sending you a request concerning this issue in regards to the one carcinogen that is widely known to the government to be in coal and copper slag abrasives, beryllium. You appear to be the lead contact on the issue of beryllium so I am sending this information to you for review and action. If you are not the contact point to review this information, please advise who at OSHA I should be sending this information and the additional follow up materials I have.

I have reviewed the information that OSHA has been working on regarding Beryllium exposure and coal/copper slag abrasives. One major issue that I have been dealing with the EPA is the fact that currently none of the MSDS’s or bags of product of coal or copper slag actually contain823

warning labels for the HAPs in the product. While I realize that OSHA is still in the process of promulgating a final rule on beryllium it now seems blatantly obvious that the company’s that sell coal slag abrasives are in direct violation of the CURRENT OSHA guidelines for the listing

of a know n carcinogen on the products they manufacture. In this case your office has years of

studies that coal slag contains beryllium that when used as intended, exceeds the current PEL of 2.0 g/m3.

This issue is quite serious as your attached document OSHA Preliminary Flexibility Analysis for OCC Exposure to Beryllium from Sep 1997 details how workers are being exposed to beryllium in coal and copper slag abrasives. In fact based on the below comment in your report, I think that OSHA should consider taking immediate action to rectify this situation because in addition to thousands of workers who are unknowingly exposed every day to beryllium in coal and copper slag dust, thousands of people in the general public are also being exposed to coal slag dust by driving/walking/working near blast job sites or buying coal/copper slag at retail stores! I will send you an email detailing this issue of the impact coal slag is having on the general public.

Here are some very interesting comments from OSHA in your Sept 2007 Report Prelim Flexibility Analysis for OCC Exposure to Beryllium

Page 33

- 35

The Agency has estima ted that any of the alternative PELs in the preliminary draft standard, if published, would result in dramatic shifts in exposures for two operations or occupations: dental lab technicians and abrasive blasters. OSHA preliminarily estimates that dental lab oratories would substitute away from beryllium alloys completely with any new standard. OSHA also preliminarily estimates that abrasive blasting operations would shift away from beryllium

containing coal and copper slags to other abrasive blasting media. B enefits for abrasive blasters were calculated based on estimated mean exposures outside the blasting helmet of 1

- 2 g/m3

Novetas Comment: In order for companies to “ shift away “ from using coal and copper slag abrasives they have to know they are using a product that contains beryllium. That also goes for the general public who are buying these products in major retail stores like Menards. If employers, workers and the general public do not know and are not told that beryllium is in the

dust of coal and c opper slag at levels that routinely exceed the CURRENT OSHA PEL then this situation will not change in the use of the products regardless of new OSHA rules on beryllium

Page 64

In the construction industry, abrasive blasting operations that employ bery llium containing coal and copper slags used as blasting media have been identified by the Agency as principally the operations with high exposures to beryllium. (DOE has reported considerable beryllium exposure from construction activities, but those DOE f acilities/operations are not generally within OSHA’s jurisdiction.) In the shipbuilding industry, likewise, only abrasive blasting operations have been identified as the principal sources of high exposure. The Agency has preliminarily

concluded that abrasi ve blasting operations will probably switch to blasting media that do not contain beryllium to meet the requirements of a standard.824

Alternatively, the Agency is considering whether or not the protection required under its standards for abrasive blasting [29 CFR 1910.94(a)] is sufficiently protective when beryllium

containing blasting media are used.

Novetas Comment: OSHA clearly understands how high the berylliums levels are in coal and copper slag and the impact it has on the workers in the blast indus try. However what about the people who buy coal and copper slag at retail stores and over the web? Again the Agency states that blast companies “will probably switch” to blast media that do not contain beryllium. That comment was written in Sept 2007, it i s now 4 years later and I can personally attest to the fact that very few companies have switched from using coal and copper slags. Unless OSHA enforces their own MSDS guidelines for hazardous carcinogens, how is the public to know about

this issue?

I al so attached a pdf of a study funded by OSHA and NIOSH that was published in August 1997, one month before your Report on Beryllium used by the SBA Review Panel.

CONTROL TECHNOLOGY AND EXPOSURE ASSESSMENT FOR OCCUPATIONAL

EXPOSURE TO BERYLLIUM: ABRASIVE B LASTING WITH COAL

- SLAG

Here is the stated reason for the report: page 4

Beryllium has been reported in mineral slag abrasives, including coal slag (Stettler et al. 1982, NIOSH 1998, Meeker et al. 2006). Stettler et al (1982) reported the results of the analysis of 12 coal slags; 9 contained beryllium, ranging from 7

- 48 micrograms per gram (μg/g). Meeker et al. (2006) found beryllium in clean coal slag samples, and found task

- weighted personal exposures outside of the blasters’ personal protective equipm ent that ranged from 2.5

- 9.5 micrograms of beryllium per cubic meter of air (μg/m3). They reported a geometric mean beryllium exposure of 5 μg/m3. NIOSH (1998) evaluated coal slags (including Black Beauty) with and without the addition of a dust suppressan t compound and reported a geometric mean airborne concentration of 2.040 milligrams (mg)/m3 for the entire coal slag category tested.

This study tested Harsco’s Black Beauty coal slag abrasives for levels of beryllium and compared it to the OSHA berylliu m PEL.

CONCLUSIONS AND RECOMMENDATIONS page 11

Although the percentage of beryllium in the fresh abrasive was relatively low, the blaster exceeded the NIOSH REL and OSHA PEL for beryllium in construction on the first day. He

exceeded the OSHA PEL for t otal dust on both days.

Based on the extensive knowledge OSHA has on beryllium in coal slag abrasives, I am confused why OSHA did not contact Harsco immediately after this report was released and advise them they needed to add a beryllium warning to thei r MSDS and product bags per the procedures for

under OSHA 29 CFR 1910 Part Z Toxic and Hazardous Substances http://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=STANDARDS&p_id=101825

47

1910.1200(g)(2)(i)(C)(2)

The chemical and common name(s) of a ll ingredients which have been determined to be health hazards, and which comprise less than 1% (0.1% for carcinogens) of the mixture, if there is evidence that the ingredient(s) could be released from the mixture in concentrations which would

exceed an es tablished OSHA permissible exposure limit

Based on the above OSHA documents alone there is conclusive proof that the airborne beryllium dust in coal slag abrasives exceed the current OSHA PEL for beryllium.

Request: I am requesting that OSHA review the attached MSDS sheets from some of the below companies that make coal and copper slags. I am asking that based on OSHA own current regulations regarding the listing of carcinogens that exceed established OSHA PEL’s, OSHA

should contact each of the below co mpanies and insure they do the following regarding beryllium exposure in their products:

1. Issue a letter to each company advising them that they need follow the guidelines set forth in the Sept 2, 1999 OSHA Beryllium Safety Bulletin on Beryllium http:/ /www.osha.gov/dts/hib/hib_data/hib19990902.html a. Here is an example beryllium warning that OSHA has on their bulletin. This warning should appear on both the MSDS and the product bags of coal and copper slag

WARNING!

INHALING BERYLLIUM DUST OR FUMES MAY CAUSE SERIOUS, CHRONIC LUNG DISEASE AMONG EXPOSED WORKERS; THIS LUNG DISEASE CAN BE FATAL.

BERYLLIUM CAN ALSO CAUSE LUNG CANCER.

2. Based on the fact that thousands of people have been using coal and copper slags without any direct knowledge that the y have been potentially exposed to unsafe levels of beryllium, OSHA should issue a public press release or updated an updated Health Bulletin that explains to workers who have used or still currently use coal and copper slag abrasives to fully read about

t he consequences of become beryllium sensitized and the steps that they can take to see if they are sensitized or suffering from the effects of CBD per the guidelines already published by

OSHA since 1999.

3. OSHA should contact the US Consumer Product Saf ety Council so they can issue an alert to companies that are selling coal and copper slag to the general public via retail stores and the web that the products bags need to contain warning labels for beryllium In addition, stores that have been selling the se products should have to send out a public notice to the public advising them that they and their family members may have been exposed to unsafe levels of beryllium contained the bags of coal slag sold at their stores.

Regards,

Paul J. Mellon Jr.826

Pre sident

[Please see original attachment for Black Beauty Material Safety Data Sheet] [Please see original attachment for msds sheet

- reed black beauty] [Please see original attachment for msds sheet

- marco coal slag

- WOODBURY, mn] [Please see original attachment for Control Technology and Exposure Assessment for Occupational Exposure to Beryllium: Abrasive Blasting with Coal

- Slag] [Please see original attachment for Black Blast Material Safety Data Sheet] [Please see original attachment for PRELIMINARY INITIAL REGULATORY FLEXIBILITY

ANALYSIS OF THE PRELIMINARY DRAFT STANDARD FOR OCCUPATIONAL EXPOSURE TO BERYLLIUM] [Please see original attachment for Blasting Abrasive Material Safety Data Sheet]

Response: For a response to this comment please see Commen t Response Volumes 12 (Beneficial Use) and 13 (Risk assessment).



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0247

- 1 

### Organization 1 

### : Little Blue Regional Action Group


### Commenter 1 : Roni Kampmeyer Commenter Type: Advocacy Group

Classification: Substantive



### Comment Excerpt Text: I am the Chair of a 500 plus non

- profit organization called Little Blue Regional Action Group. We represent the tri

- state (PA, OH, WV) area that has been impacted by for almost 40 years by First Energy's Little Blue Run Dam coal ash impoundm ent. That impact has grown most severe since the most recent expansion of the site that occurred in 2004. I am writing to you regarding the report In Harm's Way by Earth Justice, Physicians For Social Responsibility, Sierra Club and Environmental Integrity Project.

I am very familiar with this report and its findings and am an eye witness to these findings and their accuracy. I personally assisted the EIP research team at the PA DEP Solid Waste office in Pittsburgh, saw the First Energy reports to the DEP, saw the DEP inspection reports and saw the DEP's lack of enforcement of violations, unauthorized discharges, spikes of arsenic and other heavy metals and toxins known to be found in coal ash at on and off site monitoring wells. I am witness to the damage, hazards and life disturbing events taking place in on the WV side where an unauthorized discharge (admitted in writing by First Energy to the PA and WV DEP) continues to go unabated. I am witness to odors and particulate in residential drinking wells of

G reene Township residents, corroded pipes, mold from seepage into basements, and the cancer, thyroid, heart and lung disease that runs rampant in our community. I have seen the impoundment flood its boundaries in rainy seasons, seen slurry shooting into the air from discharge lines, seen slurry spilling unchecked all over the ground from broken lines, had my eyes and throat burn from ambient particulate, replaced personal property damaged by fugitive coal ash from ash storms on the impoundment. I am witness to a pre

- 2004 emergency evacuation827

route that indicates those routes being flood in the event of a dam breach block the escape of humans. ...And, in their assumption that I am an idiot, I have personally been told by management at First Energy that coal as h is no different than soil. Last but not least, I and my fellow residents are victim to depreciation of property values rendering us essentially unable to

sell our investments.

All of the facts in the report In Harm's Way and the facts I have listed abov e are the proof that federal regulations and enforcement regarding the classification and disposition of coal ash are long overdue. To disregard this testimony in the EPA's determination of the pending coal ash rule is not only undemocratic but irresponsib le on the part of the EPA to base its decision on the facts over the unscientific opinion of an industry and the state agencies mandated to monitor those industries. In Harm's Way may be the most incriminating document that industry and state

environmental agencies have ever had to wear on their backs, but the facts are irrefutable. I need not remind you that the EPA's sole purpose is protect human health and the environment. In Harm's Way, gives the EPA the tools needed to do its job.

Response: Thank you for your comment. EPA has designated the Little Blue Run Impoundment as a proven damage case. For a summary of stakeholder arguments addressing the Little Blue Run Impoundment and for the rationale for the Agency’s damage case designation decision, see

the technical support documents on damage cases in the docket of the final rule.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0249

- 1 

### Organization 1 

### : Arkansas Department of Environmental Quality (ADEQ)


### Commenter 1 : Teresa Marks Commenter Type: State Government

Classification: Substantive



### Comment Excerpt Text: The following comments are provided by ADEQ to address what we believe are inaccuracies in the characterization of the regulation of two facilities located in Arkansas referenced in Earthjustice's report, entitled "In Harm's Way: Lack of Federal Coal Ash Regulations Endangers Americans and Their Environment." We hope these comments correct the record on these two facilities. We also hope that it is clear from these examples that we have a comprehensive

regu latory program for solid waste disposal in Arkansas that is protective of human health and the environment. As part of these comments, we incorporate by reference Arkansas Pollution Control and Ecology Commission's Regulation 22 governing solid waste manag ement. Regulation 22 is available on the ADEQ website at: http://www.adeq.state.ar.us/regs/files/reg22_final_080426.pdf

Response: Thank you for your comment.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0249

- 10 

### Organization 1 

### : Arkansas Department of Environmental Quality (ADEQ)


### Commenter 1 : Teresa Marks Commenter Type: State Government828

Classification: Substantive



### Comment Excerpt Text: SWEPCO Flint Creek Power Plant near Gentry, Arkansas Summary

- September 2011

General Site Information

Start Up: The power plant & landfill began operation in 1978

Landfill Permit: The landfill was first permitted through the agency in 1994. Currentl y placing

waste in same landfill which is 40 acres.

Landfill Liner: From 1978 to 1994 in situ clay was used as liner and now underlies the eastern

two

- thirds of the landfill. From 1994 to present the liner is six inches of compacted clay.

Leachate Coll ection: The landfill started collecting leachate from a retrofitted collection system in April 2010. A permit modification has been submitted to ADEQ to cover the existing ash with an intermediate liner and install a leachate system for the ash placed abov e current ash grades.

Geology: The site is underlain by the limestone and chert of the Boone Formation.

Groundwater Monitoring: Groundwater monitoring has been performed by facility from 1994 to Present. The number of wells and parameters sampled have steadily increased over time, while the frequency of sampling has increased.

Wells: 1994 to 2001

- 4 wells; 2001 to 2007

- 5 wells; 2007 to 2009

- 7 wells; and 2009 to 2011

- 10 monitoring wells; Facility installed 6 additional wells for the nature & ext ent investigation in June 2011 bringing total to 16.

Parameters & Frequency: 1994 to 2006

- 17 parameters semi

- annually; 2006 to 2008

- approximately 30 parameters quarterly; 2008 to present

- 20 parameters quarterly in wells over the GWPS, 20 parameters se mi

- annually in the remaining wells, and 31 parameters triennially.

Current Groundwater Impacts

The most recent full groundwater monitoring report is from 2nd Quarter 2011 and includes

results from 1 0 monitoring wells. The first full report for the newl y installed 6 monitoring wells is due in October 2011. The current (2nd Quarter 2011) groundwater monitoring results show that two wells at the facility have concentrations that are above the groundwater protection standards (GWPS): wells B

- 02 and NE

- 3, bo th for selenium with concentrations of 108 and 123 ug/L, respectively. The geochemistry of these two wells is similar to each other. Both of these wells also have high sulfate and total dissolved solids. The remaining eight monitoring wells do not show gro undwater impacts over the GWPS. Well B

- 02 is located approximately 50 feet west

of the landfill and well NE

- 3 is located to the southwest of well B

- 02, at approximately 360 feet from the landfill. Five of the new investigation wells are located in an arc n orthwest to southwest829

of well NE

- 3 at distances of 600 to 800 feet from the landfill.

National Secondary Drinking Water Standards are guidelines for cosmetic or aesthetic effects in drinking water. The number of wells with water quality that exceeds seco ndary guidelines are: TDS (total dissolved solids)

- 2 wells (B

- 02 & NE

- 3); Sulfate

- 2 wells (B

- 02 & NE

- 3); Manganese 3 wells; Iron

- 2 wells; and pH

- 3 wells.

History of Groundwater Impacts

The facility entered Assessment Monitoring in 2005 per regula tion due to statistically significant increases in several wells. ADEQ required the site to start sampling more often and for more parameters. Per regulation, groundwater protection standards (GWPS) were set at this time. The

GWPS are based on National Pri mary Drinking Water Regulations Maximum Contaminant Levels (MCLs) if one exists for the parameter, otherwise risk based concentrations are generally

used.

A leachate seep or spring (SW

- 1) was discovered discharging 3 to 5 gallons per minute from the

sout heastern comer of the landfill in December 2006. The leachate was high in selenium, arsenic, chromium, boron, and molybdenum and had a high pH. The water was flowing toward the facility's ash pond, but most infiltrated into the ground before it reached the pond. The ash pond discharges into SWEPCO Lake. This leachate seep/spring was collected and treated starting in April 2010.

Selenium statistically exceeded the GWPS in a monitoring well for the first time during the first quarter sampling event in 2009

- within well B

- 02. Notice was provided to public officials in April 2009. Monitoring well B

- 02 is located on the western side of the landfill.

Nature & Extent Investigation: The regulation requires if one or more assessment monitoring

constituents are de tected at statistically significant levels above the established ground water protection standard, then the facility must characterize the nature & extent of the release by installing additional wells as necessary and initiate an assessment of corrective m easures. In August 2009, the facility installed 3 wells down

- gradient of B

- 02 to determine if impacted groundwater had migrated past well B

- 02. To date eight samples have been taken from each of the wells. Selenium has been found in new monitoring well NE

- 3, to the southwest of well B

- 02. The other two wells are not impacted. In June 2011, six additional wells were installed at the site to help delineate any impacted groundwater. The groundwater monitoring report for these wells

is due in October 2011.

Se lenium and sulfate are the main concerns at the site. The site does not have elevated barium or cadmium in the sampled wells. Reports of elevated cadmium and barium are based on one or two early sampling events in 1995 and 1996 and may have been the result of sampling or laboratory errors. Approximately 25 to 30 clean samples have been taken from each of these wells over the last 10 to 15 years. Chromium and lead have never statistically exceeded the MCL in any well at the site. There have been very few occ asions where these even exceeded the MCL during the sampling period. Cadmium and lead are also very low to non

- detect in the leachate, though chromium in the leachate is above the MCL during about half of the sampling periods.830

Future Investigation of Gro undwater Impacts & Corrective Measures

Additional monitoring wells will be required by ADEQ at the site to further define the nature and extent of groundwater impact. Per regulation, the facility must continue to install wells until the

nature and extent of the release is defined.

The facility is performing an assessment of corrective measures. A status of this study is to be submitted in January 2012. The facility is already taking actions to stop a source of the groundwater impact through collection a nd treatment of the leachate spring. They have also designed an intermediate liner and leachate collection system for the landfill. This liner would be placed over the ash currently in the landfill and should help isolate the lower ash from precipitation a nd therefore further leaching. Per regulation, the facility must implement other corrective actions as necessary until the groundwater concentrations are below groundwater protection standards.

Response to Statement from "In Harm's Way"

Selenium and su lfate are the main concerns at the site. The site does not have elevated barium or cadmium in the sampled wells. Reports of elevated cadmium and barium in the document "In Harm's Way" are based on one or two early sampling events in 1995 and 1996 and may h ave been the result of sampling or laboratory errors. Approximately 25 to 30 clean samples have been taken from each of these wells over the last 10 to 15 years. Chromium and lead have never statistically exceeded the MCL in any well at the site. There hav e been very few occasions where these even exceeded the MCL during the sampling period. Cadmium and lead are also very low

to non

- detect in the leachate, though chromium in the leachate is above the MCL during about half of the sampling periods.

See sect ions "Current Groundwater Impacts" and "History of Groundwater Impacts" above for summary of site groundwater monitoring data.

Entergy Arkansas

- Independence Plant near Newark, Arkansas

Summary

- September 2011

General Site Information

Start Up: T he power plant & landfill began operation in 1983.

Landfill Permit: the landfill was first permitted through the agency in 1982 and began operation in 1983. The facility is still placing waste in the same landfill which has 70 acres used for ash disposal . The total permitted acreage is 335 acres. The facility is regulated under Permit Number

0200

- S3N which has been in effect since February 14, 2002.831

Landfill Liner: The liner under most ([around] 90%) of the landfill is in situ clay. Half of the

most rec ent cell was built with 18 inches of compacted clay with a maximum hydraulic conductivity of 1x10

- 5 cm/sec.

Leachate Collection: The landfill does not currently have leachate collection. A permit modification has been submitted to ADEQ to include leachat e collection.

Geology: The site is located on Quaternary alluvium of the White River. The surficial materials consist of a silty clay bed that is about 15 to 30 ft. thick, which overlies a sandy gravel unit ranging from 45 to 65 ft. thick. The sandy grav el unit is bounded below by Paleozoic rocks consisting of consolidated chert, limestone, sandstone lenses, and carbonaceous shale. Groundwater is present approximately 20 below ground surface. The sandy gravel unit is a major aquifer in the area.

Groundw ater Monitoring: A monitoring system for the entire power plant site was installed and sampled from 1991 through 2008. Groundwater monitoring has been performed at eight wells around the landfill from 2002 to present.

Current Monitoring Wells Sampled: 8 wells surrounding the landfill.

Current Parameters & Frequency: The current permit requires semi

- annual monitoring of 16 parameters, which includes general water quality parameters plus strontium, boron, and arsenic. Samples from the most recent sampling events were also analyzed for chromium, molybdenum, mercury, and selenium in anticipation of future changes to the groundwater sampling plan in connection with the proposed permit modification. Statistical analysis is not currently run on chromium, molybd enum, mercury, and selenium but the data for these metals are presented in summary tables in the appendices.

Results of Current Groundwater Monitoring at Landfill

Current groundwater monitoring results (May 2011 sampling event) have no wells with

conce ntrations that exceeded a primary drinking water Maximum Contaminant Level (MCL). The eight wells around the landfill were sampled for four parameters with MCLs

-- arsenic, chromium, mercury, and selenium.

National Secondary Drinking Water Standards are guidelines for cosmetic or aesthetic effects in drinking water. Of the 8 wells around the landfill, the number wells with water quality that exceeded secondary guidelines are: TDS (total dissolved solids)

- 5 wells; and Iron

- 2 wells; and pH

- 2 wells.

The landfill is currently in detection monitoring.

Results of 2007

- 2008 Site

- Wide Groundwater Monitoring

Within the 2007

- 2008 site

- wide report, sulfate is considered the primary indicator of impacts to groundwater quality. Natural background wells have sulfate concentrations below 50 mg/L. Of832

the 35 wells sampled for the report, 5 of the wells had mean concentrations above the National Secondary Drinking Water Standard for sulfate (250 mg/L). The highest sulfate concentrations occurred in groundwater be neath the recycle and surge ponds, the coal yard, and in the area where underground water pipes have leaked in the past. The size of the sulfate plume appears to have decreased compared to the 2005

- 2006 report with a decrease in sulfate concentrations.

P lant operations are considered a source of elevated TDS with 15 of the 35 wells sampled having mean concentrations above the National Secondary Drinking Water Standard for TDS (500 mg/L).

None of the analyzed parameters within this report have MCLs.

Ac tions Taken to Reduce Concentrations of Parameters with Secondary Standards

Entergy has been periodically locating and repair significant leaks that occur at pipe joints and in cooling tower basins. In 2007 & 2008, 102 joints were repaired in the undergr ound piping. Entergy reports that it also performed repairs to the recycle pond liners .

Response to Statement from "In Harm's Way"

The document "In Harm's Way" says that arsenic, lead, & cadmium exceeded the MCL

-- with five locations presented from t he early 1990's and one from 2006. All six of these locations had only one or two samples that exceeded the MCL out of numerous samples taken. All of the locations had at least six samples that were clean

- (arsenic, lead, & cadmium all below the

detection limit) after the concentration that exceeded the MCL. Therefore, these concentrations are not considered significant. High concentrations of arsenic, lead and cadmium have not been seen at the other monitoring locations. Cadmium and lead were dropped as mo nitoring parameters in 2004.

Response: T he Agency has assessed all the ‘newly alleged’ damage cases submitted by environmental advocacy groups in In Harm’s Way against EPA’s test of proof criteria. Based on this assessment, EPA designated both the SWEPCO Flint Creek Power Plant near Gentry and the Entergy Arkansas Independence Plant near Newark, Arkansas, as potential damage cases. For discussion of the damage case assessment methodology, please refer to Unit XI of the preamble

to this rule . For a summary of stakeholder arguments addressing the se two assessed CCR management sites and for the rationale for the Agency’s damage case designation decisions, see the technical support documents on damage cases in the docket of the final rule.



### Com ment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0249

- 2 

### Organization 1 

### : Arkansas Department of Environmental Quality (ADEQ)


### Commenter 1 : Teresa Marks Commenter Type: State Government
Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:833



### Comment Excerpt Text: EPA has received data submittals from Earthjustice pertaining to Arkansas CCR Landfills, including the SWEPCO Flint Creek Plant Landfill and the Entergy Independence Plant Landfill. Specifically, the damage case report s are contained in a report entitled "In Harm's Way: Lack of Federal Coal Ash Regulations Endangers Americans and Their Environment," August 26, 2010. This report includes some statements which mischaracterize the groundwater monitoring and reports on file for these sites. Attached are the fact sheets developed by ADEQ

- Solid Waste Management Division.

Response: See response to comment excerpt EPA

- HQ

- RCRA

- 2011

- 0392

- 0249

- 10.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0250

- 3 

### Organization 1 

### : ARIPPA


### Commenter 1 : Jeff McNelly Commenter Type: Trade Association

Classification: Substantive



### Comment Excerpt Text: (iii) Recently published comments November 9, 2011 PA Department of Environmental Protection (DEP) Secretary Michael

Krancer Comments on: EPA NODA

- CCR’s

“S pecific to the October 12, 2011, NODA, DEP has carefully reviewed the following reports

identified for

comment:

- Out of Control: Mounting Damages from Coal Ash Sites, Environmental Integrity Project and EarthJustice, February 24, 2010, and

- In Harm’s Wa y: Lack of Federal Coal Ash Regulations Endangers Americans and Their Environment, Environmental Integrity Project, EarthJustice and Sierra Club, August 26, 2010.

Generally DEP believes those reports mischaracterize the issue and stretch the data to come to unfounded conclusions regarding the cause, effects and alleged impacts from the identified facilities. The authors are quick to assess blame on present coal ash management practices while ignoring the legacy of historical coal mining and past ash manag ement practices. Further, the authors confuse readers and themselves by comparing data related to ongoing remedial action and cleanup actions to new coal ash management practices.” Page 2

- 3

“In conclusion, DEP urges EPA to carefully consider the full ext ent of the comments offered herein and by others as well as the benefits that effective state programs can provide to ensure the safe and effective use of this resource. Further, it is important as illustrated by our comments that present policy be develop ed in recognition of the entire body of relevant data and practices rather than on practices of past generations.”

Response: The Agency assessed all the 9 0 ‘newly alleged’ damage cases, submitted by environmental advocacy groups in their 2010 reports ( Out of Control and In Harm’s Way

, respectively) and in their November 2011 report ( Risky Business) , against EPA’s test of proof834

criteria. Based on this assessment, the Agency designated some of the CCR management sites as proven damage case, some others

– as potential damage cases, and still some others were rejected. For discussion of the damage case assessment methodology, please refer to Unit XI of the preamble to this rule. For a summary of stakeholder arguments addressing the individual CCR management sites and for the rationale for the Agency’s damage case designation decisions, see the technical support documents on damage cases in the docket of the final rule.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0251

- 1 

### Organization 1 

### : LG&E and KU Energy LLC


### Commenter 1 : Gary Revlett Commenter Type: Electric Utility Company

Classification: Substantive



### Comment Excerpt Text: I. Alleged Damage Case for Mill Creek Station (Louisville, Jefferson County, Kentucky)

In determining appropriate regulation of CCRs, EPA is required to consider proven damage cases, rather than potential damage cases. Resource Conservation and Recovery Act, Section 8002(o)(4). EPA has defined the term “proven damage case” to require: (1) documented exceedances of Primary Maximum Contaminant Levels (MCLs) or other health

- based standards in groundwater at sufficient distance from a waste management unit to indicate that hazardous constituents have migrated to the extent that they could cause human health concerns; (2) where a scientific study demonstrated documented evidence of another type of damage to human health or the environment (e.g., ecological damage); or (3) where there has been an administrative ruling or court decision with an explicit finding of specific damage to human health or t he environment. The Mill Creek Station, owned and operated by LG&E/KU’s subsidiary Louisville Gas and Electric Company, is included as an alleged damage case in the report: In Harm’s Way: Lack of Federal Coal Ash Regulations Endangers Americans and their E nvironment, Jeff Stant. Environmental Integrity Project, Earthjustice, and Sierra Club, August 26, 2010 (hereinafter “In Harm’s Way” or “the Report”). The report provides no information sufficient to demonstrate a proven damage case with respect to the Mil l Creek Station.

A. There Are No Actual Exceedances of a Legally Applicable Primary MCL. The Report alleges that arsenic exists in three wells downgradient of a CCR landfill at the Mill Creek site at levels 1.5 times the Primary MCL. The report fails to consider that similar MCL exceedences for arsenic were observed in other compliance wells before landfilling activities began and in background wells not influenced by any CCR placement at the site. This information suggests that arsenic levels at the site may be at least partly the result of naturally occurring conditions. In addition, the report fails to note that the MCL “exceedences” identified were not actual MCL exceedences at the time the results were collected because the specific

arsenic MCL was lo wered by USEPA from 0.05 mg/L to 0.01 mg/L in 2001 (after the date of the relevant sampling).

B. The Report Alleges Secondary MCL Exceedances That Are Irrelevant to Demonstration of a Proven Damage Case. The Report also alleges exceedances of the Secondar y MCLs for total dissolved solids and835

sulfates in these background wells. The Report implies there is equivalence between Primary and Secondary MCL standards. However, Secondary, MCLs are not health

- based standards that can be used to demonstrate a proven damage case. Instead, they are qualitative standards established to make drinkable water more desirable, by limiting a chemical’s potential to influence taste, odor, clarity, and other subjective metrics. Secondary MCLs do not reflect any type of threat to

human health or the environment.

C. The Facility's CCR Constituents Cannot Migrate in a Manner Causing Human Health

Concerns. The Report states that “...the horizontal extent of the contamination is approximately one

- mile wide ... affecting off

- site human u se of shallow groundwater...” The Report exaggerates the scope of “contamination” by including data on non

- health

- based Secondary MCLs in its analysis and assuming the impacted area is the distance between the two most distant wells at the site.

This does no t provide a defensible measure of potential impacts posed by the site. Significantly, the Report fails to consider the central fact the Mill Creek Station is located directly on the Ohio River and there are no adjacent properties between Mill Creek and the river. Consequently, there are no human users of shallow groundwater between the locations where CCRs are placed on the property and the Ohio River, which is the presumed discharge point for shallow groundwater. Moreover, there is no potential for human u sers in the future. This makes it impossible for CCR constituents to migrate from the Mill Creek property in a manner which could cause human

health concerns.

D. There is No Trend Suggesting Endangerment to Human Health The Report fails to provide perspe ctive associated with the unusual nature of cited events of alleged “contamination”. Existing data indicate that from 1981 through 1996, the six presumed “CCW metals” (including arsenic, cadmium, chromium, lead, mercury, and selenium) were routinely monito red by LG&E over more than 20 episodes in each of six downgrade wells at the site. With nearly 1,000 opportunities to evaluate publicly

- available data for Primary MCL exceedences, In Harm’s Way cites only five specific events with a Primary MCL exceedence. To apply some perspective to this argument, each sample collected from a downgradient well during

the 16

- year period from 1981 to 1996 had about a 0.5% chance of the analytical outcome resulting in a value that was sufficient to merit an expression of con cern in the document. When given perspective, this information does not indicate a pattern of contamination or a trend towards the endangerment of human health.

E. The Report Fails to Consider Upgraded Facility Controls On page 57, the Report states that the “...clay liner was designed to allow CCW leachate seepage...” The document ignores the fact that the 2009 expansion incorporated a composite liner design, with a drainage collection layer and a compacted clay liner. The drainage layer is designed to colle ct and isolate leachate from the monofill so that it can be evaluated and handled as allowed under the existing regulations. The compacted clay liner has inherently very low permeability (likely with a permeability of less than 1 x 10

- 6 centimeters per sec ond) which also has significant cation exchange capacity. In layman’s terms, cation exchange capacity is a measure of the ability of the clay to capture and retain metals (including the “CCW metals” to which the Report frequently refers). Clay has long bee n recognized as having this ability and has been used extensively in other industrial applications for this purpose. The 2009 expansion at the836

Mill Creek facility was designed to collect and manage leachate, to prevent it from migrating

outside of the line r, and to capture and hold any metals that the leachate might contain

F. The Report Suggests Additional Measures That Are Unnecesssary and Unwarranted. Page 59 of the Report includes the statement that “...the liner is leaking...” that is supposedly supported by data from monitoring well MW

- 6. However, it should be noted that the new liner system was installed and implemented for all new phases of the landfill construction. There was no permit condition requiring removal of previously placed CCRs and installat ion of a new liner system in those areas. Such action would have involved removal and replacement of approximately 10 million tons of previously placed CCRs at ratepayer expense. In addition, disturbance of previously landfilled materials would result in i rreparable damage of the pozzolonic bond that was inherent to those materials. By damaging the pozzolonic bond, the permeability and leachability of the landfilled materials would increase significantly. Removal of previously placed materials to extend the composite liner into these areas would not be a prudent measure, especially given that previous studies did not find any potential threat to human health

or the environment. Page 61 of the Report includes a statement that”...no daily or interim cover is pla ced on...” the CCRs which are landfilled. This statement implies that cover is prudent, necessary, and/or required for this type of facility and again creates an implication that a CCR monofill is similar to a garbage or hazardous waste landfill. In general, the placement of cover at a landfill is implemented to prevent disease vectors (rodents, birds, flies) from accessing the facility, to reduce odors, and to prevent fires. Since the monofilled materials are inert and do not contain any putrescible waste, t here is no need for odor controls or to discourage disease vectors. All CCRs have already been burned so the risk of fire is non

- existent. In fact, a common beneficial reuse of CCRs under serious consideration is the use as a daily or interim cover materia l for garbage landfills. The Report repeatedly implies a need for off

- site sampling and off

- site drinking water well investigations but does not acknowledge that extensive hydrogeologic data has been collected

from this site since the initial construction of the facility. The current groundwater monitoring program or the substantial equivalent have been in place since 1981 and have resulted in nearly 200 sample collection events for each well and a similar number of opportunities to evaluate groundwater flo w direction. Soils at the site have been surveyed many times at various depths and evaluated to determine their characteristics. The site has been subject to a comprehensive groundwater assessment under of the oversight of the Kentucky Division of Waste Ma nagement. A well survey of potential users was performed in 2006 for properties within one mile of the facility. All of this information supports the conclusion that adequate data is available to fully understand site hydrogeology. This information also su pports the conclusion that extensive data with respect to on

- site conditions render further off

- site investigation unnecessary.

G. The Structural Stability of the Mill Creek Ash Pond Has Been Demonstrated The Report refers to the Mill Creek ash treatment basin as a “significant hazard” without providing any specific information to support such a conclusion. The Mill Creek ash pond was evaluated by EPA representatives during 2010 and received the agency’s second highest rating for structural stability. All of the recommendations included in EPA’s inspection report have been implemented which presumably would allow the basin to achieve EPA’s highest rating for structural stability. Additionally, the U.S. Army Corps of Engineers has incorporated the walls of837

the Mill Creek ash pond into the local flood protection levee which indicates a high level of confidence in its structural stability. It should be noted that the embankment is structurally

evaluated bi

- annually by representatives of the Kentucky Division o f Water. Facility personnel also inspect the structure daily and evaluate the ash pond for structural integrity on a monthly basis and document those inspections through written reports. The Report includes no structural stability information that supports the alleged damage case in any way.

H. A. Criticisms of Facility’s Groundwater Monitoring Program Are Unfounded Page 58 of the Report criticizes the elimination of production wells from the regular groundwater monitoring program, the parameters evaluate d during the course of monitoring events, and the statistical processes used to evaluate analytical results. The Report does not take into account the fact that production wells were eliminated from the site’s groundwater monitoring program because they we re not suitable for monitoring the environment for potential effects caused by CCR handling. The facility’s production well locations were not selected to optimize their ability to monitor CCR placement, nor were the wells constructed in a manner that was conducive to groundwater monitoring. Instead, the wells were constructed as sealed structures and were intended for strictly operational applications. These wells were used nearly continuously and were designed to pump at rates of up to 1,000 gallons per m inute. The production well casings were 12 inches in diameter and the wells extended more than 100 feet below the ground surface; a striking contrast to the 4

— inch diameter monitoring wells that generally were placed at depths of 50 to 75 feet below the gr ound surface. Given the operational parameters and the location of the production wells, it is likely that the zone of influence associated with the wells extended into the Ohio River and so any evaluations of water quality from these three production well s could have been influenced by the condition of water in the river. LG&E’s decision to monitor additional parameters believed to be more suitable for evaluating the effects of CCR storage would seem to be a modification that should be welcomed by those

e valuating this site and the regulatory process. However, since the addition of other parameters was entirely voluntary and not required by permit or regulation, there is no basis to contend that the supplemental protocols adopted by the company were someho w deficient from a regulatory standpoint. LG&E’s approach to reporting statistical exceedences was developed simply to reduce the administrative burdens associated with addressing conditions that were already known

to exist and which had been determined to have no discernible effects on human health or the

environment.

II The Kentucky Division of Waste Management Has Undertaken Proper Regulatory Oversight The Kentucky Division of Waste Management is responsible for oversight of a comprehensive regulatory p rogram for CCR management facilities in Kentucky pursuant to 401 KAR Chapter 45. The Report alleges that the Division of Waste Management “...waived groundwater monitoring for CCW metals, has not required corrective action, and has not conducted any off

site groundwater monitoring.” These statements imply a lack of regulatory oversight of the Mill Creek facility and of CCR management facilities in Kentucky generally. The Report ignores the fact that the Division’s groundwater monitoring program for CCR facili ties is substantially similar to the one proposed by EPA. See 75 Fed. Reg. 35128

- 35264 (June 21, 2010). It requires regular sample collection, analysis of a small set of indicator parameters, and a statistical comparison of those parameters to determine wh ether additional investigation is warranted. Based on this process, the Division of Waste Management required LG&E to install additional838

wells at the site and to monitor for a larger constituent list, including “CCW metals”. The

assessment demonstrated the following:

· There was no trend indicating recurring or ongoing occurrences of Primary MCLs associated
with “CCW metals”

· All groundwater effects attributed to CCR storage and handling were isolated to the site itself

and did not extend off site

Going a step beyond the additional assessment and monitoring, the Division of Waste Management required a risk evaluation and river sampling to demonstrate that the effects of CCR management at the site would not negatively affect human health or water quality in the Ohio River. The results of these additional measures confirmed no impacts to human health or the environment. In the case of the Mill Creek Station, the oversight measures undertaken by Kentucky Division of Waste Management demonstrate that Kentucky has adopted and implemented a CCR regulatory program which fully protects public health and the environment

.

Response: Thank you for your comment. For a discussion of LG& E’s Mill Creek plant site and the rationale for designating it as a potential damage case, see the technical support document s to damage cases in the docket of the final rule.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0254

- 5 

### Organization 1 

### : Dominion Resources Services, Inc.


### Commenter 1 : Pamela Faggert Commenter Type: Electric Utility Company

Classification: Substantive



### Comment Excerpt Text: Comments of Earthjustice, Environmental Integrity Project, Sierra Club, et al

Dominion disagrees with assertions in this report that professional engineers and hydrologists retained by utilities have engaged in "questionable conduct" and with commenters' specific allegation that these professionals "attempted to hide or obscure evidence of contamination from state regulator s" (EPA

- HQ

- RCRA

- 2010

- 0392

- 0132, pg. 189). Commenters fail to cite any evidence or data to support these assertions, and there is none.

Rather, commenters cite two lawsuits alleging groundwater contamination filed by certain residents of a community surrou nding a golf course in Chesapeake, Virginia. The golf course had been permitted and constructed between 2002 and 2007 as a fly ash beneficial re

- use project by private developers using treated ash from one of Dominion's coal

- fired electric generation

facil ities. However, those lawsuits did not establish any improper conduct on the part of any scientists working with the utility involved in that matter. Further, commenters fail to point out that the Court in those cases dismissed the residents' groundwater c ontamination claims, citing a lack of factual or scientific support for them. Following this and other rulings by the Court, the residents voluntarily dismissed the remaining claims in their lawsuits.839

Consistent with the Court's findings described above, the EPA in April 2010 issued a final site inspection report for the golf course site at issue, concluding that residential wells near the golf course had not been impacted by the fly ash used to contour the golf course and that no adverse

health effects we re expected from exposure to surface water or sediments there.

Accordingly, the EPA determined that the golf course property did not qualify for placement on EPA's national priority list of sites where hazardous contaminants could impact public health

and /or the environment

.

Response: This rule will regulate CCRs under RCRA subtitle D: for further details, see unit IV of the preamble to the final rule.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0255

- 11 

### Organization 1 

### : North Dakota Department of Health


### Commenter 1 : Scott Radig Commenter Type: State Government
Classification: Substantive



### Comment Excerpt Text: In conclusion, the NDDoH believes that Earthjustice's comments and report on the adequacy of state CCR regulatory programs is deeply flawed and cont ains numerous factual errors and misrepresentations. The comments and report also alleges several "new" groundwater damage cases in North Dakota, which we have already responded to as largely inaccurate and misleading. The authors may have done poor, curso ry research, or alternatively, they may simply be attempting to advance their own agenda. Regardless, the comments and reports by Earthjustice, et al., are not accurate and should not be considered as valid by EPA in the consideration and promulgation of n ew CCR regulations. We request that EPA independently evaluate existing state programs as to their effectiveness in protecting public and environmental health. North Dakota is willing to assist you in this area and would welcome a visit to our Department t o discuss the state solid waste and CCR regulations.

Response: Thank you for your comment.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0256

- 2 

### Organization 1 

### : Louisiana Department of Environmental Quality (LDEQ)


### Commenter 1 : Sam Phillips Commenter Type: State Government

Classification: Substantive



### Comment Excerpt Text: LDEQ Comments on "In Harm's Way: Lack of Federal Coal Ash Regulations Endangers Americans and Their Environment," ("In Harm's Way report" or "report") by the Environmental Integrity Proje ct, Earthjustice and the Sierra Club, August 26, 2010

Louisiana Generating

- Big Cajun II840

Below are LDEQ's comments corresponding as noted to the sections of the In Harm's Way report on Louisiana Generating

- Big Cajun II:

Summary

1. The report impl ies that groundwater drinking concentrations (Maximum Contaminant Levels, or MCLs) must be met at permitted impoundments. As per Subtitle D requirements (LAC 33:VII.805.B.5, 40 CFR 257.21ff.), groundwater concentrations from downgradient wells are compared to an upgradient background well, not MCLs. In some cases, background concentrations of naturally

- occurring constituents, such as metals, can exceed the MCLs or risk

based standards. The report is misleading in this regard.

2. The summary states that " ... one existing well adjacent to the property line shows that contamination is moving off

- site." MW

- 85A is the only monitoring well located near a property boundary. There is no evidence in the report that contamination is moving off

- site. (See

comments 4 and 7).

3. The report implies that the LDEQ made a finding of inadequacy on the part of NRG because of their monitoring well spacing. It should be noted that the groundwater monitoring system installed exceeded the requirements per the regulations curre nt at the time of the original permit. The only reason why more monitoring wells were required for the new groundwater system was because of new regulations in existence at the time of the permit renewal.

4. The selenium detection in MW

- 85C of 1.32 ppm w as at the time of its detection in 1999, a statistically significant increase (SSI). But a SSI does not automatically trigger an assessment. The prescribed way to evaluate an SSI, as per Louisiana Solid Waste regulations (LAC 33:VII.805.C.6), is first to c onfirm a SSI by verification resampling. Verification re

- sampling is used to verify whether an SSI exists. Subsequent data from the 1999 detection are all below detection limits except a 0.015 ppm detection in September 2000 in well 85C; thus disconfirming the SSI. In fact, with the exception of minor detections of selenium in monitoring wells 85B and 85E in March of 2003, all wells have been non

- detect for selenium since 2001.

Test of Proof

5. Many discussions are presented in this section of the repor t that compare certain time frames with each other, but fail to evaluate the entire database statistically, which is the appropriate method of evaluation as per LAC.33:VII.805.B.5 and B.6. This is especially true in the report's

discussion of selenium when it uses data from the 1990's, but neglects to mention that there has not been a detection of selenium in about 10 years from any of the monitoring wells except as

noted above.

At Risk Population

6. Distances of two miles and five miles are used to eva luate domestic and public supply wells. Pursuant to the LDEQ Solid Waste regulations (LAC 33 :VII.709.A.l0a), only water wells within841

1 mile of the facility are to be evaluated.

Regulatory Actions

7. The report implies that Big Cajun II always listed a s upgradient MW

- 85A, which is on the western side of the facility. In fact, the groundwater flow has always fluctuated from sampling event to sampling event and every time there was a fluctuation change, the gradient of the well was changed accordingly. As far as constituents migrating off

- site, there has never been a SSI for calcium, selenium, or any other parameter at MW

- 85A; therefore, based on the groundwater monitoring data provided, it appears that no contamination has migrated off

- site.

8. The repo rt implies that a background well and an upgradient well are the same thing and seems to imply that Shaw (Big Cajun II's environmental consultant) and LDEQ were in disagreement about establishing a background well. An upgradient well has water level readin gs that are higher in elevation than the downgradient wells. A background well is placed a sufficient distance from the permitted facility and anything else that may be impacting the groundwater; therefore, it is not necessarily hydraulically upgradient. T hus, LDEQ agrees with Shaw when they state that "it is not possible at this time to conclusively specify an upgradient .. . well." That is why LDEQ has required a background well with the new groundwater monitoring system.

Hydrogeologic Conditions

9. T his section of the report corroborates the frequent hydraulic changes at Big Cajun II (see comment 7). The groundwater flow direction within this facility is being evaluated through the use of statistics and the new groundwater monitoring system that emplo ys a background well located away from the impoundments and any other on

- site processes that may impact the groundwater.

10. Table 1 implies all wells on

- site are currently contaminated with 26 times the MCL for selenium. The facility currently monitors groundwater as per LAC 33:VII.Chapter 8. No SSIs

have been detected since 1999.

Table 2 Coal Combustion Waste Damage to Groundwater

11. Table 2 seems to imply that the facility was placed into assessment because of selenium. The facility in not current ly under assessment monitoring pending evaluation of data from the new groundwater monitoring system. The facility is currently in detection monitoring.

Response: The Agency has assessed all the ‘newly alleged’ damage cases submitted by

environmental adv ocacy groups in In Harm’s Way against EPA’s test of proof criteria. Based on this assessment, the Agency designated the Big Cajun II CCR management site as a potential damage case. For discussion of the damage case assessment methodology, please refer to U nit XI of the preamble to this rule. For a summary of stakeholder arguments addressing the Big Cajun II CCR management site and for the rationale for the Agency’s damage case designation decision, see the technical support documents on damage cases in the docket of the final rule.842



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0258

- 1 

### Organization 1 

### : Environmental Integrity Project (EIP)


### Commenter 1 : Jeff Stant Commenter Type: Advocacy Group

Classification: Substantive



### Comment Excerpt Text:

The Environmental Integrity Project appreciates this opportunity to address damage cases resulting from the lax management of coal combustion waste that is allowed by most states today. In its Notice of Data Availability and Request for Comment [Federal Register, Vol. 76,

I ssue 97 (Wednesday, October 12, 2011)], EPA noticed two reports from the Electric Power Power Research Institute (EPRI), "Evaluation of Coal Combustion Product Damage Cases: Volume 1: Data Summary and Conclusions” (finalized in July 2010) and "Evaluation o f Coal Combustion Product Damage Cases: Volume 2: Case Summaries" (finalized in September 2010). The NODA states, "In these reports EPRI claimed that the EPA was inconsistent in applying its own 'test of proof' criteria to determine which of the damage cas es included in EPA‘s July 2007 report qualify as CCRs

- related proven damage cases." While we may concur that EPA has been somewhat inconsistent in applying its "test of proof" criteria to damage cases, the evidence demonstrates that EPA has minimized damag es from the mismanagement of CCRs rather than overstating them as EPRI's two Volumes assert. These Volumes and much of the comments of states in opposition to EPA regulation of coal ash make a number of fallacious assertions about CCR damage cases.

Follow ing are responses to these assertions:

EPRI: “Most damage case facilities are older facilities that were opened before current landfill regulations were promulgated. . . Such sites are not representative of modern nonhazardous waste disposal designs that include liners and leachate collection systems. . . .While the damage cases are relevant to evaluating the potential from older units still in operation today, they provide limited insight relevant to new units or for comparing the technical performance of common designs in use today.”

Response: This statement creates the false impression that most modern coal ash disposal sites today have liners and leachate collection systems. Some 94% of EPA‘s damage cases involve active (currently operating) surface im poundments. While most of them may have been built prior to 1976 without liners or leachate collection systems, they are still operating today without those safeguards. Many have been expanded without those safeguards and will thus operate well

into the fu ture without them. Furthermore new coal ash impoundments can be built in most states today without meeting legal requirements to be certified or inspected by professional engineers, or install liners, monitoring, leachate collection systems or other basic safeguards. For example, the states of Indiana, Kentucky, Missouri, Iowa, Tennessee, Georgia, Alabama and Mississippi have no regulations setting construction, performance or monitoring requirements for surface impoundments even though these states contain large numbers of active surface impoundments. The EPRI report misses entirely the reality that surface impoundments are causing much of the damage and yet for the most part, remain completely unregulated by states nearly three years

after the disastrous i mpoundment collapse in Kingston, Tennessee.843

The EPRI report also fails to account for the fact that many of the damage cases have occurred at landfills that are currently operating. Some 47% of EPA‘s 2007 damage cases and 74% of damage cases identified by EIP and Earthjustice in 2010 involve active landfills. Assuming for the sake of discussion that many of these landfills have been operating since before 1990 and that states have long since started requiring them to have solid waste permits as EPRI and ma ny states would have us believe, it would appear that the state regulations they operate under have allowed them to damage the environment and continue to operate under renewed permits that fail to require the operator to address that damage or prevent mor e of it from occurring. In fact an EIP July 2011 Report, Toxic Waters Run Deep, has found that monitoring data shows at least 33 such coal ash landfills in 19 states are operating as illegal "open dumps" which subtitle D of RCRA requires to be shut down an d cleaned up. Yet states are allowing them to continue to operate with the contamination to groundwater unabated.

There are a large number of relatively recent damage cases that involve the disposal of CCR in unlined fills and even in quarries in direct c ontact with the water table. Much, if not most of the CCR disposed in Iowa, is still dumped into quarries as an unregulated beneficial use without any monitoring or liner requirements. The practice occurs even with receptors nearby such as private or publi c wells that may be using groundwater in direct connection with the quarry.

Other states‘s requirements aren‘t much better. In fact most states still have some type of beneficial use law or regulation that exempts almost unlimited quantities of coal ash b eing used as fill from meeting solid waste disposal regulations. Whether you‘re talking about Chapter NR

538

- 10(8) in Wisconsin, the Illinois Environmental Protection Act, 415 ILCS 5/3.135, Indiana‘s

IC 13

- 19

- 3

- 3, Virginia‘s Coal Combustion Byproduct Regul ations at 9 VAC 20

- 85

- 10 et seq., North Carolina‘s Beneficial Reuse Exemption at 15A NCAC 13B.1708, or any number of similar laws or regulations in other states that burn lots of coal, the basic waiver of common sense waste disposal standards such as liner s and monitoring is available for those who want to get rid of unlimited quantities of coal ash as fill; who want to dump it in some low area or depression out, of site, out of mind without a permit or any requirement to notify the local community. They ju st need to speak the write language; talk about "beneficial use," call it a "structural fill," "flowable fill,"or "a controlled strength application." They also may need to subject a small sample of their ash to a quick leach test that any waste would pass and fill out a one or two sheet registration or form of some type and send it in to the proper state official. Once that is done, the same green light that allowed the contamination of drinking water with arsenic and molybdenum ash dumped in the wetlands of Pines, Indiana, or the Grays Siding fill that contaminated folks‘ wells with lead near Danville, Illinois, or the filling and contamination of a wetland with lead and arsenic called the Swift Creek Fill near Rocky Mount, North Carolina, or the building of a golf course with coal ash leaching arsenic to the underlying groundwater in Chesapeake, Virgina, can just as easily bring this nightmare on to another unwitting community. Just as easily and quietly today as could have occurred 20 years ago.

The laws have not changed.

EPRI: “Most of the damage sites do not have liners and leachate collection systems”.844

Response: EPRI is apparently confused about what the typical reality is at most "modern" coal ash disposal sites in the US. No one is arguing that coa l ash cannot be safely disposed with proper safeguards such as liners, leachate collection systems, siting restrictions, covers, monitoring, etc. Rather it is the lack of them at most coal ash sites in operation today that has led

to the current list of da mage sites and promises to keep generating more of them. There is not a shred of evidence in either of EPRI‘s Volumes that suggests that states are requiring the hundreds of existing surface impoundments, landfills and beneficial use sites without liners, leachate collection systems or other safeguards to be retrofitted to install these safeguards. The

construction of a few new state

- of

- the art CCR landfills or expansion of surface impoundments onto lined ground will do nothing to address the massive potent ial threats to water supplies and the environment posed by the hundreds of CCR disposal units and beneficial use sites currently operating without these safeguards. That is the unacceptable, nationwide condition that EPA‘s regulation must address.

Further more, the existence of a liner does not ensure that damage will not occur. Of the seventy damage cases identified by EIP in 2010, one quarter of the cases, six surface impoundments and twelve landfills, are reported to have liners. The majority of these ca ses involved use of compacted soil, clay, and/or ash as a liner material. It is evident that soil, clay, or ash, even when ostensibly compacted to specifications such as 1x10

- 7 cm/second, do not provide adequate protection of groundwater at CCR disposal si tes. Some cases also involved geosynthetic liners. However, none appeared to involve well designed, installed and maintained composite (geomembrane and clay) liners. Examples of groundwater contamination occurring at lined sites include the following:

- A clay liner under an inactive ash landfill at the Sheldon Plant in Nebraska has not prevented selenium from rising past the Maximum Contaminant Level (MCL) to 0.0728 mg/L in a monitoring well 400 feet downgradient from the waste boundary and sulfate from r ising to nearly double its Secondary MCL in another well at the property line.

- A surface impoundment at the Leland Olds Plant in North Dakota is lined with clay. MCLs for arsenic (0.0789 mg/L) and lead (0.0716 mg/L) have been exceeded in wells downgradi ent from the impoundment.

- At the Gavin Plant in Ohio, an active ash and FGD waste landfill has a clay base with a 30 mil geomembrane liner, and fly ash and bottom ash ponds are both lined. MCLs have been exceeded for alpha particles (1,497 pCi/L), arsen ic (0.057 mg/L), barium (13.8 mg/L), cadmium (0.007 mg/L), and lead (0.051 mg/L) in underlying groundwater, and molybdenum, has been found at 0.409 mg/L, ten times the EPA Lifetime Health Advisory (LHA

– 0.040 mg/L), in a monitoring well 700 feet downgradi ent from the disposal area.

- An active landfill at the Boardman Plant in Oregon is "lined" with a base of hydrated, compacted ash. Vanadium is 3 to 4 times higher than state health standards and rising in the shallow groundwater underneath and downgradie nt of this liner.

- Ponds at the Mitchell Plant in Pennsylvania are lined with concrete sides and a compacted soil/bottom ash base. In downgradient monitoring wells arsenic has been measured at twice the845

MCL (0.02 mg/L) and boron at greater than 6 mg/L, m ore than twice the Child Health Advisory (CHA

– 3.0 mg/L).

- The Bangor Quarry Landfill for the Portland Plant‘s ash in Pennsylvania is lined with a 60 mil LLDPE geomembrane over a 6" fly ash sub

- base. The most recent available groundwater monitoring data from the site showed an upward trend for arsenic, projected to exceed the MCL in a year.

Furthermore liner installations provide only marginally improved protection of groundwater at a site when existing unlined landfills and surface impoundments are con taminating groundwater, as many states are allowing. For example:

- Arsenic has increased to more than four times the MCL for the past few years in groundwater downgradient from the Clifty Creek Coal Ash Landfill in Madison, Indiana. The landfill was

buil t with a composite liner, but unfortunately, the state permitted it over the objections of local residents and the top of an older coal ash landfill and ash pond that were not lined.

- The Cardinal FGD Landfill in Ohio was recently built with a synthetic liner, but on top of an unlined surface impoundment. Downgradient monitoring wells have measured arsenic at ten times the MCL and molybdenum at more than ten times the Lifetime Health Advisory (LHA).

- The landfill at the Spurlock Plant in Kentucky was or iginally permitted as an "inert" landfill in 1979, presumably without any requirements for a liner. In 2005 the KDWM approved a 389

- acre horizontal expansion. The horizontal landfill expansion areas have a 2

- foot thick compacted clay liner with a permeabil ity of 1x10

- 7 cm/sec. The liner has failed to prevent contamination from
the old landfill‘s areas which has continued to worsen. Arsenic has increased from twice the MCL in 2005 to sixteen times the MCL in 2009 in downgradient groundwater.

- The Big Stone Plant in South Dakota has a composite lined brine pond on top of an unlined brine pond. This site has very high levels of groundwater contamination with recent concentrations in shallow groundwater of sulfate more than 112 times EPA‘s Drinking Water

Advis ory, DWA, and boron 34 times higher than the LHA.

EPRI: The contamination at coal ash damage sites is not serious. “The constituents identified most often were sulfate and boron, and impacts were generally contained on site. Nearly two

thirds of the cases have little potential for downgradient receptors.”

The contamination at coal ash damage sites is very serious. Our tabulation of EPA‘s 67 damage cases indicates that MCLs were exceeded in 33 of the 57 cases, (58%), that involved groundwater contamination . We note that at least 13 of these cases have involved exceedances of two MCLs and 8 cases have involved exceedances of three or more MCLs in groundwater. Data from EIPs damage cases identified in 2010 and for which EPA is also soliciting comment in this NODA shows that MCLs were exceeded in 61 of 64 cases (95%) that involved groundwater

contamination. At least 15 of these sites had exceedances for two MCLs and 21of them had

exceedances for three or more MCLs.846

The levels of toxicity found at these sites w arrants a resumarization from our comments submitted a year ago for the proposed regulation.

Response: The Agency concurs with the key points made by the commenter. Considering that a significant number of the coal

- fueled power plants associated with damage cases have either recently close d /

been deactivated or are soon about to do so , the number of active CCR management units with a record of regulatory infraction s has decreased. Sti ll, the Agency estimates that as of 2011, about six percent of the units that are associated with damage cases started operation in 1990 onwards. To address the two key design faults characterizing potentially delinquent units, this rule requires in all ne wly constructed surface impoundments

and their lateral extensions the implementation of mandatory groundwater monitoring and a composite liner or an equivalent alternative liner . In new and laterally expanded landfills, the rule requires mandatory groundwa ter monitoring and a composite liner or an equivalent

alternative liner with a leachate collection and removal system

. For additional details the

commenter is referred to Unit VI (Technical Requirements) and Unit XI (Summary of Damage Cases) of the preambl e to the final rule.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0258

- 2 

### Organization 1 

### : Environmental Integrity Project (EIP)


### Commenter 1 : Jeff Stant Commenter Type: Advocacy Group

Classification: Substantive



### Comment Excerpt Text:
With these comments, EIP is submitting a draft report documenting twenty more previously unrecognized damage sites as Appendices A

- 1 through A

- 3. Nineteen involve groundwater

contamination and a twentieth site involves soil contamination from ash used to construct a

railroad bed. The discussion below will incorporate MCL exceedances documented at these new sites as well as exceedances of MCLs found in new monitoring data available from 2010 damage

sites:

- MCLs for every one of the Part 261 Appendix VIII parameters that EPA must cons ider in it regulatory decision pursuant to Part 261.11(a)(3) have been exceeded in groundwater at three or more of the 140 groundwater contamination damage cases identified by EPA and EIP et. al. (121 as of 2010 and 19 more with these comments). Appendix V III parameters are antimony, arsenic, barium, beryllium, cadmium, chromium, lead, mercury, nickel, selenium, silver, and thallium. Among these, arsenic cadmium, lead, selenium, and chromium, are the toxic trace elements found exceeding MCLs most commonly a t CCR sites, but they are also analyzed for in monitoring more than the other Appendix VIII parameters.

- The MCL for arsenic has been exceeded at 76 sites, more than half, (54%), of the groundwater contamination sites. Eighteen of those sites were EPA da mage cases (EPRI tabulated such exceedances at 14 of the EPA sites) and 46 of them were EIP damage cases identified in 2010. Twelve more sites with arsenic exceedances are described in Appendices A1 and A2. Most of the

EPA sites document whether MCLs have been exceeded but do not provide actual concentrations. Out of the 86 groundwater contamination cases for which EIP has actual arsenic847

concentration data, arsenic levels were at least 10 or more times higher than the MCL in 26 cases (30%). Arsenic levels w ere 100 or more times higher than the MCL in 8 cases (9%). The maximum concentration identified in our 2010 comments was 3,419 ppb, 342 times higher than the MCL, measured between 2005 and 2010 in a well approximately 1,500 feet downgradient

from the waste boundary at the Hatsfield Ferry Landfill in Pennsylvania. Some 1,680 ppb of arsenic was measured in this well in 2010. The dissolved component of this arsenic has ever exceeded 0.1136 mg/L (11 times the MCL) as of 2010.

- However, data previously unavail able from three sites in South Carolina already identified as damage sites has since revealed substantially higher levels of arsenic at one of the sites: 5,100 ppb in groundwater under the Wateree Station‘s ash pond (measured in 2006) and 2,100 ppb and 1,2 00 ppb of arsenic in groundwater under ash ponds at the Grainger and Urquhart Stations respectively (measured in 2010). Appendix A

- 3 discusses these concentrations and those of other metals measured at existing damage sites that indicate the damage is wors e than originally documented at these sites. Multiple recent measurements in the last two years at each of these three sites has documented arsenic at levels exceeding 1,000 ppb. Arsenic higher than 5,000 ppb is exceeding the toxicity characteristic, the t hreshold that defines a hazardous waste (at 100 times the old MCL of 50 ppb). If that standard were revised to reflect the newer MCL for arsenic, these concentrations would be close to or exceeding the toxicity characteristic for hazardous waste provided m ost of the arsenic is dissolved. Of course, groundwater is far more dilute than pure leachate to which this criteria is normally applied and should thus never approach much less exceed these concentrations. The danger posed by such concentrations actually monitored in groundwater under these sites should not be lost on decision

- makers. Arsenic concentration this high can and do expose Americans around ash sites to unacceptable risks. For example,1,000 to 1,200 ppb of arsenic was measured twice in a private well on land adjacent to the Pines Coal Ash

Landfill in Indiana in 1999/2000.

- The MCL for cadmium has been exceeded at 30 sites (21%), with the maximum concentration 170 higher than times the MCL. Cadmium has exceeded the MCL by more than ten times at 4 sites, and more than 100 times at one site. Cadmium exceedances occurred at 16 EIP damage sites and 14 EPA damage sites. The EPRI report (Volume 1) asserts that cadmium exceeded the MCL at only 6 EPA damage sites (in Figure 4

- 2, page 4

- 3).

- The MCL for lead has been exceeded at 37 sites (26%) with the maximum concentration 179 times higher than the MCL. Lead has exceeded the MCL by more than 10 or more times at 8 sites and more than 100 times at one site. Lead exceedances occurred at 26 EIP damage sites and11 EPA damage sites. The EPRI report (Volume 1) asserts that lead exceedances occurred only at four EPA damage sites (Figure 4

- 3 on page 4

- 4).

- The MCL for selenium has been exceeded at 34 sites (24.0%). Four of these sites are among the 19 new damage sites in Appendix A including one site, the Fair Station in Iowa where selenium was measured at 713 ppb, more than 14 times the MCL. The maximum concentration of selenium measured at all of these sites was 1.85 mg/L (or 1,850 ppb) in 2008

- 2009, 37 times

h igher than the MCL and exceeding the toxicity characteristic (1,000 ppb), in groundwater contaminated by the Northeastern Plant‘s coal ash landfill in Oklahoma. Groundwater under the Big Cajun Plant‘s ash ponds in Louis i ana was contaminated by selenium at concentrations up848

to1,320 ppb in one downgradient well and 1,230 ppb in another in 1994

- 1999. At both of these sites numerous substantive exceedances of the selenium MCL occurred at other downgradient wells as well. In all, exceedances of the MCL for selen ium occurred at 21 EIP damage sites and 13 EPA damage sites. The EPRI report (Volume 1) asserts that selenium exceedances occurred at only eight EPA damage sites (Figure 4

- 2, page 4

- 3).

- The MCL for chromium has been exceeded at 23 sites ((16%) with the maximum concentration 16.8 times higher than the MCL. Two sites with MCL exceedances are among the 19 new damage sites. Fourteen of these sites are EIP damage sites and nine are EPA damage sites. The EPRI report (Volume 1) asserts that chromium exceedances occurred at only five EPA damage sites (figure 4

- 2, page 4.3). The failure of states to require monitoring for the toxic species of chromium known as hexavalent chromium is a major concern given the tendency for hexavalent

chromium to leach from coal ash and the new California Public Health Goal (CA PHG) set in July, 2011 for ingestion of hexavalent chromium in drinking water of 0.02 ppb. This standard is intended to reduce the risk of cancer from ingestion of hexavalent chromium in tap water to acceptable levels. The present MCL for chromium (also called total chromium) is 5,000 times higher than the CA PHG. We are currently completing research that supports a presumption that chromium contamination from coal ash sites is almost all hexavalent (see Appendi x B).

- Other highly toxic Appendix VIII parameters (antimony, beryllium, mercury and thallium) are not typically measured, yet have been found to significantly exceed the MCL when they are monitored for in groundwater at CCR disposal sites. Antimony has exceeded its MCL at seven sites with the maximum value of 315 ppb, 52.5 times higher than the MCL, found in private residential drinking water in Uniontown Ohio, polluted by a million tons of industrial (primarily tire industry) coal ash dumped at the Indu strial Excess Landfill, a long

- time Superfund site. Antimony has also been found at 17 times the MCL at the Seward ash site in Pennsylvania. Four EIP damage sites have documented exceedances of the antimony MCL, including two of the new damage cases, and t hree EPA damage sites have. Beryllium has exceeded the MCL at six sites, with the maximum value 30 times higher than the MCL again found in groundwater leaving the Industrial Excess landfill. Four EIP damage sites have had MCL exceedances for beryllium and two EPA damage sites have. Thallium has exceeded the MCL at 5 sites, three EIP and two EPA damage sites with a maximum value 8 times the MCL. The EPRI Report, Volume 1, asserts that exceedances of MCLs at EPA damage sites for these metals, "could not defi nitively be associated with a release from the CCP facility." (page 4.3 The EPRI Report also asserts that there have been no exceedances reported for mercury at EPA‘s damage sites, while our information indicates that two EPA damage sites have had mercury exceedances including exceedances that ranged up to 450 times the MCL at the Kentucky‘s East Bend Scrubber Sludge Landfill on the Ohio River. EIP has found exceedances of the MCL for mercury at two other sites, the Industrial Excess Landfill and the TransA sh Landfill in Tennessee.

- EPA‘s damage case assessment did not address alpha particles as a contaminant at CCR disposal sites. Nevertheless, the MCL for alpha particles (15 pCi/L) has been exceeded at three sites, with the maximum value (1,497 pCi/L) al most 100 times the standard. Very few groundwater monitoring programs require measurement of alpha radiation, and the MCL was

exceeded at all sites where data were available

.849

Response: The Agency appreciates the submittal of the new report : Risky Business: Coal Ash Threatens America’s Groundwater Resources at 19 More Sites, highlighting 20 additional, ‘newly alleged’ CCR damage cases and expanding on groundwater well monitoring results that have been compiled following the issuance of the two environmental advocacy group 2010 reports ( Out of Control and In Harm’s Way ).

The Agency assessed all the 20 ‘newly alleged’ damage cases submitted by EIP in their November 2011 report ( Risky Business) against EPA’s test of proof criteria. Based on this assessment, the Agency designated 16 of the CCR management sites as potential damage

cases ; two sites were rejected because there is not enough information to determine whether

the contaminants are leach ed from CCR or are mobilized from the local soils and /or groundwater ( Georgia Power Yates Generating Plant FGD Landfill, Georgia; and NV Energy and Idaho Power North Valmy Generating Station Ash Ponds, Nevada) ; one site was rejected because the CCR was com mingled with non

- CCRs and a non

- utility waste (Former CSX Rail Corridor, Bloomington, Indiana ); and one site was found to have been already reported in the past and subsequently confirmed by EPA ( Midwest Generation Powerton Generating Station Ash Ponds, Pe kin, Illinois ). For discussion of the damage case assessment methodology, please refer to Unit XI of the preamble to this rule. For a summary of stakeholder arguments addressing the individual CCR management sites and for the rationale for the Agency’s dam age case designation decisions, see the technical support documents on damage cases in the docket of the final rule.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0258

- 4 

### Organization 1 

### : Environmental Integrity Project (EIP)


### Commenter 1 : Jeff Stant Commenter Type: Advocacy Group

Classification: Substantive



### Comment Excerpt Text: In characterizing EPA‘s 2007 Damage Cases, EPRI‘s Volume 1 Report states repeatedly that, "The impacts were generally contained on site.” More specifically in Chapter 4, page 4.2, the

repor t states, "In most cases (35 of the 43 cases with exceedances attributed to CCP management), the exceedances were only detected within the site boundaries.”

It is very misleading to suggest exceedances of water quality standards were contained on site in EPA‘s damage cases when the monitoring systems at these sites in virtually every case have not determined the extent to which contamination has migrated nor whether damage has occurred offsite. Despite the fact that 24 of EPA‘s damage cases are considered, ?proven,? we find no compelling evidence in Volume 2 of the Report, Case Summaries that plume mapping has in fact occurred at the large majority of EPA‘s groundwater damage sites. EPA‘s damage cases include sites where monitoring appeared to be sufficient enough to determine that migration of contaminants had moved a significant distance from the waste boundary, e.g., traveling 250 feet from the landfill at the Port Washington power plant in Wisconsin, 400 feet from the waste boundary of the Miamiview Land fill, in Ohio, into a residential area next to the Chisman Creek Disposal site in Virginia, and beyond the property boundary at the Faulkner Offiste Ash Landfill in Maryland. It also specifically mentioned in a few cases, such as at the Highway 59 Landfill850

and Nelson Dewey sites in Wisconsin, that operators were sampling offsite residential and park wells. However in the large majority of cases including some of these, EPA‘s assessments did not examine whether monitoring systems were adequate to determine h ow far contamination has moved from the disposal unit much less indicate that any systematic efforts to sample offsite wells of neighboring residents, businesses or property owners had occurred. Without presenting

more credible evidence of offsite monitori ng at these sites, EPRI‘s claim that impacts were contained on site amounts to convenient use of the, "null fallacy," i.e. asserting that some event has not happened with certainty even though one has not undertaken the most basic steps to

check to see if it has happened.

Information obtained in the identification of EIP‘s damage cases was sufficient to determine that contaminated groundwater has moved significant distances beyond CCR disposal sites

-- 200 feet to a mile, in 24 cases (37% of EIP‘s groundwa ter damage cases):

- Contamination has migrated from 200 to 500 feet from the waste boundary at nine EIP damage sites (14.1% of facilities with contamination of groundwater): Flint Creek LF Arkansas (360‘), Venice SI, Illinois (200‘ south and 400‘ east), Cape Fear SI, North Carolina (250‘), Lee SI, North Carolina (250‘), Sheldon LF, Nebraska (400‘), Reid Gardner SI&LF (200‘), Muskingum River SI, Ohio (350‘), Hunlock SI, Pennsylvania (240‘), TransAsh LF, Tennessee (400‘ into two private wells).

- Contamina tion has extended 500 to 1,000 feet beyond the waste boundary at seven EIP damage sites (10.9%): Spurlock LF, Kentucky (750‘), Karn/Weadock SI, Michigan (500‘), Belews Creek SI&LF (650‘), James Gavin SI&LF, Ohio (700‘), Uniontown LF, Ohio (900‘ into reside ntial areas on private wells), Northeastern LF, Oklahoma (900‘), Bruce Mansfield SI, Pennsylvania (825‘

— into as many as 22 offsite private wells), Fayette SI&LF, Texas (750‘).

- Contamination has traveled 1,000 feet to one mile beyond the waste boundary at eight EIP damage sites (9.4%): Seminole LF, Florida (1 mile), Dolet Hills SI&LF (1/2 mile), Colstrip, Montana (1,000

- 2,000‘), Boardman LF, Oregon (1,500‘), Hatfield‘s Ferry LF, Pennsylvania (1,500‘), Oak Creek/Caledonia LF, Wisconsin (1,500‘ into at a d ozen private wells and low areas

– although WE Energies disputes this) and Bruce Mansfield SI, Pennsylvan i a (1,490‘ to 1/2 mile into as many as 22 private wells) and Joliet/Lincoln Quarry (1,000 feet into more than a dozen private wells).

The concentratio ns that contaminants have reached in these plumes also warrants mentioning:

- At the Flint Creek CCW landfill in Arkansas, a 2009 groundwater assessment found selenium at 3 times the MCL, sulfate at 8 times the SMCL and 4 times EPA‘s health

- based Drinking Water Advisory (DWA), and TDS at 5 times the SMCL in the monitoring well 360 feet downgradient from the landfill. A leachate seep discharges beyond the landfill into a stream that drains into unmonitored ash ponds which discharge off

- site to a recreationa l reservoir without limits or monitoring of ash metals. Selenium was up to 8.4 times the MCL, chromium up to 3.4 times the MCL, boron up to 4 times EPA‘s Child Health Advisory,sulfate up to 4.5 times the DWA and TDS up to 7.4 times the SMCL in samples of t his seep collected from 2007 to 2010.851

- At the Venice Plant in Illinois, the contaminant plume extending 400 feet offsite measured concentrations of arsenic 26 times the MCL onsite and up 4 times the MCL some 400 feet beyond the boundary of closed ash pon ds offsite.

- At the Sheldon Plant in Nebraska, two wells 400 feet downgradient of a closed, clay

- lined coal ash landfill at the property line have measured steadily rising selenium up to 1.5 times the MCL in one well and sulfate in another up to 1.4 time s the SMCL as of 2008.

- At the Gavin Plant in Ohio underlying groundwater is contaminated with alpha activity, arsenic, barium, cadmium, lead and molybdenum, all exceeding MCLs by several to as much 99 times for alpha activity. Molybdenum has been measur ed exceeding the EPA‘s Lifetime Health Advisory (LTHA) by 2.5 times, manganese and chloride nearly twice the SMCL, and TDS 3

times the SMCL in an off

- site downgradient groundwater monitoring well 700 feet south of the waste boundary.

- At the Spurlock Pla nt in Kentucky, arsenic levels have consistently exceeded the MCL since 2005, reaching as high as16 times the MCL in 2009 in a monitoring well 750 feet downgradient

of the CCW landfill.

- At the Northeastern Plant in Oklahoma, a contaminant plume moving r apidly offsite from a coal ash landfill exceeds the MCLs for arsenic and lead by more than 9 times and chromium by more than two times 900 feet beyond the boundary of the landfill. Closer to the landfill, selenium has been measured at up to 1.85 mg/L, 37 t imes the MCL and nearly twice the toxicity characteristic, barium measured at more 4 times the MCL, thallium exceeding the MCL and average vanadium concentrations 5 to 8 times over state health standards set by Minnesota and

Florida. All concentrations wer e measured in sampling from 2005 to the present day.

- At the Boardman Plant in Oregon, vanadium has been rising since the 1990s in wells monitoring a coal ash fill, reaching 0.126 mg/L, 2.5 times state health standards, in 2006 in a well 1,500 feet downg radient of the fill.

- At the Hatfield‘s Ferry Plant coal ash landfill in Pennsylvania, total arsenic has been measured at 342 times the MCL, and boron and molybdenum have been measured at 5 times and 33 times their LHAs, respectively, in contaminated sha llow groundwater 1,500 feet downgradient of the landfill that is flowing toward the Monongahela River across from a Public Water Supply

Intake..

- At the Dolet Hills Plant in Louisiana, TDS and sulfate concentrations have reached levels more

than four tim es higher than their SMCLs and more than twice the health based DWA for sulfate in a contaminant plume one half mile (2,640 feet) downgradient of bottom ash ponds. Metals have not been normally sampled at the plant‘s CCW sites which have operated since at least 1986, but 2009 sampling found arsenic and lead exceeding their MCLs and selenium exceeding its MCL by more than 3 times in wells closer to the waste units.

- At the Seminole Plant in Florida, groundwater at the property line, one mile (5,280 feet)

d owngradient of an unlined FGD sludge landfill, had a chloride concentration of 590 mg/L852

(twice the SMCL), a sulfate concentration of 780 mg/L (3.1 times the SMCL and more than 1.5

times the health

- based DWA), a TDS concentration of 3,100 mg/L (6.2 times th e SMCL), a boron concentration of 4 mg/L (exceeding the EPA Child Health Advisory and 2.9 times the Florida standard), and 12 mg/L of iron (40 times the SMCL). The source of this plume was unmistakably the FGD landfill, where the shallow underlying groundw ater in the same round of sampling had a chloride concentration of 21,000 mg/L, a sulfate concentration of 1,100 mg/L, a TDS concentration of 59,000 mg/L, a boron concentration of 344 mg/L, and an iron concentration of 29 mg/L.

The above statistics do not provide the complete picture of the extent to which contaminated groundwater is migrating from CCR disposal sites but rather indicate only that it has moved to monitoring wells or private wells sampled at these distances from the waste boundary. At only

o ne of the 24 sites listed above (closed surface impoundment at the Venice Plant Illinois) has the full extent of the contaminant plume been mapped. At many other sites, there are no wells established at appreciable distances from the waste boundary, making it impossible to document the rates or distances of contaminant flow. Despite the evidence of contamination moving appreciable distances, EIP could find evidence that states and operators were monitoring groundwater or sampling drinking water beyond the p roperty boundary at only 17 of the 70 damage cases documented by EIP in Out of Control (Feb., 2010) and In Harms Way (Aug., 2010).

Response: The Agency agrees with the commenter’s opening statement: “It is very misleading to suggest exceedances of water quality standards were contained on site in EPA‘s damage cases when the monitoring systems at these sites in virtually every case have not det ermined the extent to which contamination has migrated nor whether damage has occurred offsite”, as well as with its sequel statement “we find no compelling evidence in Volume 2 of the (EPRI 2010) Report,

Case Summaries that plume mapping has in fact occur red at the large majority of EPA‘s groundwater damage sites.”

In the course of assessing the ‘newly alleged’ damage cases and reassessing those of the damage cases designated as proven or potential in EPA’s July 2007 Coal Combustion Waste Damage

Case Asse ssments report, we designated (or re

- designated, where new information so warranted) damage cases as proven in all instances where we had a reasonable assurance that groundwater with exceedances of primary MCL constituents has migrated offsite. As suggeste d by the

commenter, our ability to do so was constrained by the dearth of cases where a groundwater monitoring network has been placed beyond the CCR management unit’s compliance boundary.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0258

- 6 

### Organization 1 

### : Environmental Integrity Project (EIP)


### Commenter 1 : Jeff Stant Commenter Type: Advocacy Group

Classification: Substantive



### Comment Excerpt Text: By contrast, when EIP researched whether potential human receptors, could be effected by the damage sites for its second report in 2010, In Harms Way, many hours of staff time were spent853

on phone calls with state and local agencies and county offices asking for information on the location of private and public wells, repeatedly discussing locations, sending multiple emails and submitting FOIA requests for such information, conducting internet searches for well registries, etc., etc. Public information was often incomplete, out of date or off limits ostensibly for national security reasons. In several cases our efforts still came to no avail or we received information that we did not feel was reliable enough to use. At the end of this process, we had collected enough records to indicated reasonably that there were approximately, at least, 204 private wells

within one mi le, 4,675 private residential wells within two miles and 169 public wells within five miles of the 35 groundwater damage sites examined in this report and probably many more such wells. We also used the specific data from each site to discern whether these wells were located in the direction of shallow groundwater flow. We found that contaminated groundwater underneath at least 15 of these sites was within two miles of private wells and that there are at least 25 wells within two miles of eight of the sites (Joliet 9

- IL, Gavin

- OH, Lansing

- IA, Muskingum

- OH, Uniontown

- OH, Bruce Mansfield

- PA, Fayette Power

- TX, and Oak Creek

- WI).

At Joliet 9 and Uniontown there are at least 90 wells within one mile of the contaminated disposal sites with many of them in downgrad ient positions relative to the contamination.

Our research also concluded that public wells with much larger withdrawal capacities that often can change the direction of groundwater flow pulling contaminated groundwater from major

distances and all direct ions were within five miles of at least 18 of the 35 sites examined in In Harms Way. In fact, our information indicates there are at least five public wells within a five mile radius of eight of these sites which is not surprising given that many public wa ter supply aquifers located in the same geologic formations under rivers that power plants are located on. We believe that a much stronger, more site specific analysis of the hydrology and geomorphology of river systems must be undertaken before broad brus h assumptions such as those being made by EPRI to dismiss potential human exposure to coal ash contamination along rivers should be considered, much less relied upon. [Footnote 18: See Norris, Charles, H. & Hutson, Mark A., Geo

- Hydro, Inc. Critique of EPRI CCW Risk Evaluation, Geo

- Hydro, Inc., Nov. 5, 2010 submitted as Appendix J to Comments of Earthjustice, et al. on Hazardous and Solid Waste Management System; Identification and Listing of Special Wastes; Disposal of Coal

Combustion Residuals From Electri c Utilities; Proposed Rule, 75 Fed. Reg. 35128 (June 21, 2010) Docket ID No. EPA

- HQ

- RCRA

- 0640.]

Response: See response to comment excerpt EPA

- HQ

- RCRA

- 2011

- 0392

- 0258

- 4.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0259

- 10 

### Organization 1 

### : Environmental Integrity Project (EIP)


### Commenter 1 : Eric Schaeffer Commenter Type: Advocacy Group

Classification: Substantive



### Comment Excerpt Text: [ATTACHMENT: see original comment for EIP Attachment A3 for

-- Appendix A.1,

"Groundwater more toxic than hazardous waste: New eviden ce of groundwater polluted by coal

ash"854

Excerpt from introduction to EIP Appendix A.1: In this report, we identify an additional 20 sites where leaking ash dumps appear to have caused groundwater pollution at levels above primary Safe Drinking Water Act s tandards for arsenic, selenium, and other contaminants. At many of these same sites, levels of boron, sulfate, and other pollutants are far higher than the Health Advisories established by EPA for children and adults. We also present new information about 7 previously recognized damage cases, including stunning evidence of groundwater more toxic than hazardous waste leachate. The data for these sites resulted from a series of Freedom of Information Act (FOIA) requests made by EIP to states in the spring of 2011. The groundwater or soil monitoring reports have been provided to EPA and are available from EIP upon request. The data cover seven sites in Illinois, three in South Carolina, two each in Iowa and Texas, and one each in Florida, Georgia, Indiana, Kent ucky, Nevada, and Tennessee. More detail is provided in Tables 1 and 2 and in the appendices to this report. All data were derived from onsite monitoring wells; this was a practical necessity since there is virtually no offsite monitoring at coal ash dispo sal sites.]

Response: See response to comment excerpt EPA

- HQ

- RCRA

- 2011

- 0392

- 0258

- 2.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0259

- 12 

### Organization 1 

### : Environmental Integrity Project (EIP)


### Commenter 1 : Eric Schaeffer Commenter Type: Advocacy Group

Classification: Substantive



### Comment Excerpt Text: [ATTACHMENT: see original comment for EIP Attachment A3 for

-- Appendix A.3, "More Data Reveals Worse Contamination at Known Damage Sites" compiled by J. Russell Boulding, Boulding Soil and Water Consultin g, October 31, 2011]

Response: See response to comment excerpt EPA

- HQ

- RCRA

- 2011

- 0392

- 0258

- 2.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0259

- 2 

### Organization 1 

### : Environmental Integrity Project (EIP)


### Commenter 1 : Eric Schaeffer Commenter Type: Advocacy Group

Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:

Other Sections: 8.7 

### Comment Excerpt Text: We have also included a detailed response to the Electric Power Research Institute’s critique of

sites that show evidence of damage to groundwater or surface water from coal combustion waste (CCW) disposal sites. Our submission also includes a summary of groundwater contamination at nineteen sites not previously identified, to supplement data from two previous reports from E IP

that were made available in this NODA.855

Response: See response to comment excerpt EPA

- HQ

- RCRA

- 2011

- 0392

- 0258

- 2.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0259

- 7 

### Organization 1 

### : Environmental Integrity Project (EIP)


### Commenter 1 : Eric Schaeffer Commenter Type: Advocacy Group

Classification: Substantive Comment Category:
Current Task: Examine Context Assigned/Due:

Other Sections: 8.7 

### Comment Excerpt Text: Monitoring Data Shows Significant Risks

We have provided EPA with both our analysis of groundwater monit oring results from numerous sites in two previous reports, “Out of Control,” (February, 2010), and “In Harm’s Way,” (August, 2010). We also include yet another compilation of groundwater monitoring data, from nineteen new sites, all of which show exceedanc es of primary MCL’s in one or more downgradient wells within the last several years, as well as numerous exceedances of health advisories. We note again that EPA has been provided with the underlying monitoring reports

– copied from state records

– for all the sites mentioned in our first two reports, and we will provide EPA with the data for the sites identified in the new one.

See response to comment excerpt EPA

- HQ

- RCRA

- 2011

- 0392

- 0258

- 2.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0262

- 3 

### Organization 1 

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


### Commenter 1 : James Vick Commenter Type: Trade Association

Classification: Substantive



### Comment Excerpt Text: II. Alleged Damage Cases

The Earthjustice Comments identify four FCG member facilities as having on

- site groundwater that exceeds Federal Maximum Contaminant Levels (“MCLs”) or RCRA open dumping MCLs. Again, the Earthjustice Comments miss the mark due to its erroneous evaluation of Florida’s regulatory program. These are the same facilities that were wr ongly identified as alleged “damage cases” in reports by the Environmental Integrity Project (“EIP”) and Earthjustice in 2008 and 2010 (collectively “Reports”). Generally, the Earthjustice Comments and Reports contain numerous inaccuracies, omit important facts and data, and ignore relevant FOEP regulatory provisions. Individual FCG member responses to the allegations contained in the Reports were previously provided in the FCG’s comments to the proposed CCR Rules and are

set forth in Attachment “c” for con venience. FOEP also responded to the allegations in the Reports in its comment letter.856

It is important to note that these facilities, and other FCG member facilities, operate with FOEP

approved zones of discharge (“ZOD”). A ZOD is defined as a “volume und erlying or surrounding the site and extending to the base of a designated aquifer or aquifers, within which an opportunity of the treatment, mixture or dispersion of wastes into receiving groundwater is
afforded.” Rule 62

- 520.200(27), F.A.C. The default di mensions of a ZOD for a facility discharging to Class G

- II groundwater [Footnote 4: For ease of explanation, most groundwater in

Florida is classified as Class G

- II.] are set forth in Rule 62

- 520.465, F.A.C. An applicant seeking

a ZOD in G

- II groundwater i s typically provided a ZOD that extends laterally 100 feet from the disposal site boundary or to the facility’s property boundary, whichever is less. Importantly, numerical primary and secondary drinking water standards, including MCLs, do not apply within

an authorized ZOD. Rule 62

- 520.420(4), F.A.C.

Older facilities which were in operation prior to FOEP’s groundwater rules are considered “existing installations” and have been granted a ZOD that often extends to the property boundary. These existing facil ities are required to maintain a groundwater monitoring plan that includes an upgradient well and downgradient detection wells located within the facility’s ZOD, and compliance wells located at or immediately adjacent to the compliance line of the ZOD.

Rul e 62

- 520.600(6}, F.A.C. The number of wells required is dictated by site hydrogeology. Id.

In addition to the groundwater protection standards set forth in Chapter 62

- 520, F.A.C., the Wellhead Protection Rule, Chapter 62

- 521, F.A.C., provides another laye r of protection. This

rule establishes a 500

- foot radius circular Wellhead Protection Area around all wells serving community and non

- transient non

- community public water systems. The rule also prohibits some new installations from locating in wellhead pro tection areas, and specifies additional performance standards for other new installations and activities. The rule is part of a program to prevent pollution and manage underground drinking water sources, as mandated by the federal Safe Drinking Water Act, 42 U.S.C. § 300f et seq., as amended in 1986.

There have been no reported off

- site impacts to drinking water resources in Florida associated with the operation of CCR landfills or surface impoundments. Florida’s groundwater protection program works. It no t only establishes a reasonable point of compliance, but also requires intermediate detection wells. Consequently, potential impacts to groundwater are detected and addressed before applicable water quality standards or criteria are exceeded at the point o f compliance. As such, the Earthjustice Comments and allegations are unjustified

.

Response: In the absence of a reference to the specific CCR management sites alluded in the comment, EPA cannot address the commenter’s site

- specific concerns. However, the Agency assessed all the 90 ‘newly alleged’ damage cases, submitted by environmental advocacy groups in their 2010 reports ( Out of Control and In Harm’s Way , respectively) and in their November 2011 report ( Risky Business) against EPA’s test of proof criter ia. For discussion of the damage case assessment methodology, please refer to Unit XI of the preamble to this rule. For a summary of stakeholder arguments addressing the individual CCR management site s and for the rationale for the Agency’s damage case des ignation decision s , see the technical support documents on damage cases in the docket of the final rule.857



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0262

- 7 

### Organization 1 

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


### Commenter 1 : James Vick Commenter Type: Trade Association

Classification: Substantive



### Comment Excerpt Text:

ATTACHMENT C

[See original comment for Attachment C: Tampa Electric Company Big Bend Power Station information]

Response: The Agency has assessed all the ‘newly alleged’ damage cases s ubmitted by environmental advocacy groups in their February and August 2010 reports, Out of Control and In Harm’s Way , respectively, against EPA’s test of proof criteria. Based on this assessment, EPA has designated the Tampa Electric Company’s Big Bend Power Station site as a potential damage case. For discussion of the damage case assessment methodology, please refer to Unit XI of the preamble to this rule. For a summary of stakeholder arguments addressing the individual CCR management sites and for the rationale for the Agency’s damage case designation decision, see the technical support documents on damage cases in the docket of the final rule.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0264

- 2 

### Organization 1 

### : Constellation Energy


### Commenter 1 : Paul Allen
Com menter Type: Electric Utility Company

Classification: Substantive



### Comment Excerpt Text: Ill. Category 3

- Information on additional alleged damage cases

EPA is seeking comment on the two lists of alleged damage cases submitted by the

Environmental Integrity Project, Earthjustice, and the Sierra Club. Although Constellation cannot provide information specifically to any of the 70 listed sites, we feel it necessary to point out that it is solely EPA's responsibility to properly evaluate and prove actu al damage cases based on valid and complete data. This is not the role or responsibility of any other third party.

If the alleged damage cases are not proven as such by EPA, then they cannot and should not be considered in this rule making

.

Response: In agreement with the commenter, The Agency assessed all the 90 ‘newly alleged’ damage cases, submitted by environmental advocacy groups in their 2010 reports ( Out of

Control and In Harm’s Way , respectively) and in their November 2011 report ( Risky Business) against EPA’s test of proof criteria. For discussion of the damage case assessment methodology, please refer to Unit XI of the preamble to this rule. For a summary of stakeholder arguments addressing the individual CCR management sites and for the rational e for the Agency’s damage858

case designation decisions, see the technical support documents on damage cases in the docket of

the final rule.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0265

- 16 

### Organization 1 

### : Department of Environmental Quality, State of Wyoming


### Commenter 1 : John Corra Commenter Type: State Government
Classification: Substantive



### Comment Excerpt Text: Damage cases in Wyoming

Wyoming is not listed as a state with a CCR facility where on

- site groundwater data exceed maximum contaminant levels (MCLs ) in Earthjustice's November 19, 2010, comments to EPA. Earthjustice cites EPA's July 9, 2007, report titled Coal Combustion Waste Damage Case Assessments which listed the Dave Johnson Power Plant in Wyoming as a potential damage case. The disposal units a t this facility are permitted by the Wyoming Department of Environmental Quality and groundwater monitoring is required. We are actively investigating evidence of potential groundwater contamination at this facility, but our investigation to date is incomp lete and inconclusive. Should contamination be confirmed, appropriate corrective action will be required.

Response: The Agency assessed all the 90 ‘newly alleged’ damage cases, submitted by environmental advocacy groups in their 2010 reports ( Out of Control and In Harm’s Way

, respectively) and in their November 2011 report ( Risky Business) against EPA’s test of proof

criteria. The Agency also reassessed all the proven and potential damage cases included in EPA’s July 2007 Coal Combustion Waste Damage Case Assessments report. Based on this

re assessment, EPA designated the Dave Johnson Power Plant in Wyoming as a potential damage

case

. For discussion of the damage case assessment methodology, please refer to Unit XI of the preamble to this rule. For a su mmary of stakeholder arguments addressing the Johnson Power

Plant CCR management sites and for the rationale for the Agency’s damage case designation decision, see the technical support documents on damage cases in the docket of the final rule.



### Comment N umber: EPA

- HQ

- RCRA

- 2011

- 0392

- 0267

- 3 

### Organization 1 

### : North Carolina Department of Environment and Natural Resources (NCDENR)


### Commenter 1 : Dexter Matthews Commenter Type: State Government

Classification: Substantive



### Comment Excerpt Text:

Comments on Out of Control: Mounting Damages from Coal Ash Waste Sites, February 24,

2010.

DWM Comments:859

Document refers to ReUse Technology, Inc./Full Circle Solutions, Inc./Swift Creek Structural

Fill

- Page 46

– The statement that the coal ash was from six NC and VA power plants is incorrect. The coal ash was generated by Cogentrix plants located in Battleboro, Elizabethtown and Lumberton, NC (3 NC plants) and in Richmond, VA (1 VA plant)

- Page 46

– The stated groundwater sampling data from July 2004 was from June 2004, not July.

- Page 46

– The stated groundwater sampling results from January 2008 was from 2009, not

2008

- Page 46

– Rule 15A NCAC 13B .1700 (Structural Fill Rule) does not require groundwater monitoring at structural fill sites. Full Circle Solution s had to install monitoring wells because of

other rule violations.

- Page 47

– DWM does not “approve” CCB structural fills, they are issued a notification. The SWS only gets involved when violations occur at the issued notification site.

- Page 48

– The stated site inspection on February 1997 where ash dust had reportedly accumulated on a neighbor’s property occurred in 2002, not 1997.

Response: Thank you for your comment.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0269

- 14 

### Organization 1 

### : Indiana Department of Environmental Management (IDEM)


### Commenter 1 : Thomas Easterly Commenter Type: State Government
Classification: Substantive



### Comment Excerpt Text: Technical Comments Regarding "Out of Control: Mounting Damages From Coal Ash Waste Sites" Report

1. Gibson Generating Station

- Reference to Upgradient Wells: On page 21 of the report, the statement about upgradient wells being too close to the landfill to be "reliably considered 'upgradient'" is misleading. While it is generally preferable to have u pgradient wells located some distance from the landfill to avoid influence from any mounding effect of ground water within the landfill site, there is no evidence in this case that any mounding of ground water is occurring within the landfill. Because the Cooling Lake is located upgradient of the landfill the upgradient well for the landfill has to be located between the landfill and the lake. No other locations are acceptable to measure the influence from the Lake on ground water flowing under

the landfill

.

East Ash Pond System: Duke on their own initiative sampled the residential wells in September 2007. Based on the sampling results of boron (5.7 mg/L), Duke began supplying bottled water to

East Mt. Carmel residences in the fall of 2007. Note that boron does not have an enforceable drinking water standard. In fall 2009, Duke completed an 8

- mile water supply line to the affected residents. IDEM has not taken any enforcement action as there were no specific rules being violated and since Duke was taking ap propriate actions to protect the citizens. The Station is860

beginning to dewater the ash ponds with the intent to terminate their use in the next 5 years. The ash pond system does have a ground water monitoring system put in place, completed in fall

2009.

2. Clifty Creek Station Restricted Waste Site Type I Landfill: IDEM's regulations relative to ground water monitoring at this site require a statistical analysis of the ground water data. To date there has not been any testing results that have triggered t he need for corrective action under the solid waste rules. Therefore the facility remains in the current ground water monitoring program. During a 2002 permit renewal appeal, contrary to the representation in the report, an agreement was reached that the g round water from the landfill flows towards the Ohio River rather than north towards the City of Madison therefore any well fields located near Hanover or City of Madison are not downgradient of the landfill.

The permit appeal referenced in the report wa s resolved through an Order issued by the Office of Environmental Adjudication on August 24, 2009, in favor of Clifty Creek Station.

Response: The Agency has assessed all the ‘newly alleged’ damage cases submitted by environmental advocacy groups in thei r February 2010 report, Out of Control , against EPA’s test of proof criteria. Based on this assessment, EPA designated the Gibson Generating Station as a proven damage case, and designated the Clifty Creek Station as a potential damage case. For

discussion of the damage case assessment methodology, please refer to Unit XI of the preamble to this rule. For a summary of stakeholder arguments addressing the Gibson Generating Station and the Clifty Creek Station CCR management sites and for the rationale for th e Agency’s damage case designation decisions, see the technical support documents on damage cases in the

docket of the final rule.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0269

- 8 

### Organization 1 

### : Indiana Department of Environmental Management (IDEM)


### Commente r 1 : Thomas Easterly Commenter Type: State Government
Classification: Substantive



### Comment Excerpt Text: Report titled "Out of control: Mounting Damage from Coal Ash Waste Sites" submitted by the Environmental Integrity Project and Earth justice presents among others 2 additional alleged damage cases located in Indiana: Duke Energy

- Gibson Generating Station and Indiana Kentucky Electric Corporation (IKEC)

- Clifty Creek Station. Please see attached technical document clarifying Indiana's findings relative to both of these sites.

Response: See response to comment excerpt EPA

- HQ

- RCRA

- 2011

- 0392

- 0269

- 14.



### Comm ent Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0271

- 18 

### Organization 1 

### : Association of State and Territorial Solid Waste Management Officials (ASTSWMO)


### Commenter 1 : Ed Thamke Commenter Type: State Government861

Classification: Substantive



### Comment Excerpt Text:

Trans

- Ash Landfill Benton County, Tennessee Class II Disposal Facility

We have reviewed the Environmental Integrity report concerning the Trans Ash Landfill and believe there are several errors and/or omissions of significant facts in the document whi ch distort the picture of environmental conditions at the landfill. Our response to groundwater issues

is below.

Private well impacts

The EI report says there has been a determination of off

- site damage to two private residential drinking water wells. In our opinion, there is still a lack of conclusive evidence that the Trans Ash landfill has impacted private drinking water wells.

Mercury was detected in the Gibson well at levels above MCL. However, the EI report does not

address the issue that the lo cation of the well adjacent to a former gravel mine may play a role in the mercury level detected in the well. The Gibson well is bordered on two sides, and likely recharged, by two gravel mining ponds.

The EI report did not properly address the issue of ‘naturally occurring’ metals in groundwater in the area of the site. The geologic formation of the uppermost aquifer, the Camden chert, typically contains relatively large amounts of both iron and manganese oxides, and in an environment that has been sign ificantly disturbed by gravel mining or well drilling, it is highly possible that metals will leach out of the geologic materials and be detected in the groundwater. The term ‘naturally occurring’ refers to the idea that the source of the metals was from t he natural geologic environment and not from an outside source, such as coal ash. This does not mean that elevated levels of metals will be detected uniformly in all areas of the same geologic formation. The level

of disturbance of the soil and rocks is im portant, as the Trans Ash site is located in a former gravel mine.

It is misleading to conclude, as the EI report did, that since the other 19 private wells sampled in the area did not show elevated Mercury levels, mercury cannot be naturally occurring i n groundwater at the site. The other 19 wells were not located adjacent to the old gravel mining

area.

It is not clear if the second well refers to the abandoned well on the Gibson property. This well was abandoned prior to Trans Ash moving to the facili ty. According to Ms. Gibson, the well dried up when gravel mining pits were dug near her property. We sampled this well primarily to compare the mercury level in this well with the well the Gibsons were using. We attempted to purge the well, however, there was limited recharge and the results may have been impacted by well construction and the well casing and old piping in the well. The results showed a detection of mercury at 0.00073 mg/L, which is below the MCL for Mercury of 0.002 mg/L. The sample862

result s did show a high level of iron, 11.0 mg/L, however, this is consistent with the iron level in the Camden Gravel Co. well and this may also be related to stagnant water and/or degradation of the old well casing and piping. We think it would be erroneous to conclude that the iron level in this well is due to impacts from coal ash at the Trans Ash landfill.

Monitoring well sampling evidence of groundwater impacts

The EI report cites data from the groundwater monitoring program at the site as evidence that waste from the landfill has impacted the groundwater. Much of this evidence is misleading.

The report highlights all the highest levels detected at the site, but does not mention that the highest levels detected were detected prior to waste being placed in the landfill. For instance, the report says Arsenic was detected at 27 times the MCL, while not mentioning that this detection was from a sample taken prior to waste being placed at the landfill, and that arsenic has not been detected, at a detection l evel of 0.010 mg/L, in monitoring wells at the site for the last five years.

The EI report also misleadingly ignores other relevant sampling data. For instance, it mentions that the newly installed monitoring well, MW

- 5, showed a level of mercury of 0.00 748 mg/L in the initial sampling. However, it does not go on to mention that in the two subsequent samplings, mercury levels were 0.000646 mg/L and non

- detect, at a detection level of 0.000301 mg/L.

The fact is that, in almost all cases, newly installed wells at the site have shown higher metal detections in the initial samplings and the levels have decreased over time. Trans Ash’s consultants have explained that this may be due to disturbance of the hydrogeologic environment due to drilling and well inst allation.

The report says that Trans Ash placed coal ash in the quarry prior to determining statistical background concentrations for CCW pollutants, including mercury. While it is true that while there may not have been enough data to do statistics on t he background, the fact that the highest levels of metals came from a sampling prior to waste being placed at the site does lend some credence to elevated ‘natural occurring background’ levels.

The report also says that the piezometers installed at the s ite to characterize the metals which might be leaching from the coal ash were “not drilled deep enough to sample groundwater conditions on top of the landfill liner and within the drainage blanket constructed of bottom ash”. The piezometers were drilled to a depth of approximately two feet above the top of the liner in an effort to avoid any chances of penetrating the liner. It is our opinion that any water sampled from a piezometer at this depth should be indicative of dissolved metals leaching from the co al ash

above the liner.

Finally, the document cites several TVA environmental assessment reports which we have not had a chance to fully review. The document says, “TVA admits that levels of CCW constituents, such as sulfate and boron, in groundwater are associated with coal ash leachate from the landfill” and quotes from one of the reports that “these results indicate that groundwater quality in the Phase I landfill is likely being influenced from the Phase I landfill”. Our response to this is that the g roundwater monitoring reports submitted by both MACTEC, Trans Ash’s initial consultant,863

and Triad, Trans Ash’s current consultant, have never maintained that groundwater quality has been impacted by the landfill. They have cited evidence in geologic litera ture of the possibility of naturally occurring metals in the geologic formation and the sampling results prior to waste being placed in the landfill. With regard to sulfate, Triad’s reports have repeatedly stated that although the sulfate is slightly eleva ted, it is present at levels similar to historical data and that they believe “the sulfate in MW

- 4 is naturally occurring and not indicative of groundwater contamination from the landfill”. They also cite literature which shows the sulfate levels are

withi n a range of naturally occurring levels for the geologic formation.

Response: The Agency has assessed all the ‘newly alleged’ damage cases submitted by environmental advocacy groups in their February 2010 report, Out of Control , against EPA’s test of pro of criteria. Based on this assessment, EPA designated the Trans

- Ash Landfill in Tennessee as a proven damage case. For discussion of the damage case assessment methodology, please refer to Unit XI of the preamble to this rule. For a summary of stakeholder arguments addressing

the Trans

- Ash Landfill site and for the rationale for the Agency’s damage case designation decision, see the technical support documents on damage cases in the docket of the final rule.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0271

- 19 

### Organization 1 

### : Association of State and Territorial Solid Waste Management Officials (ASTSWMO)


### Commenter 1 : Ed Thamke Commenter Type: State Government
Classification: Substantive



### Comment Excerpt Text: Tennessee Valley Authority

John Sevier Fossil Plant

C lass II Disposal Facility

Tennessee Valley Authority (TVA) has a Class II permit (IDL #37

- 104

- 0097) from DSWM to dispose of coal combustion waste generated at TVA’s John Sevier Fossil Plant located in Hawkins County, Tennessee.

Summary of Ground Water Monitoring for TVA John Sevier Ash Disposal Area

The Class II Disposal Facility located at TVA’s John Sevier Fossil Plant has impacted the ground water. The facility was placed into Ground Water Assessment Monitoring under Rule

1200

- 01

- 07

- .04(7)(a)6 due to statistically significant increases of constituents over background on April 5, 2007. The facility remains in Ground Water Assessment Monitoring under Rule

1200

- 01

- 07

- .04(7)(a)6. The monitoring system consists of one upgradient and five downgradient

mon itoring wells that are sampled on a semi

- annual basis. The ground water samples are analyzed for inorganic Appendix II constituents as well as other constituents required by the permit. The results are compared to ground water protection standards (GWPSs) which are the higher of Maximum Contaminant Levels (MCLs) listed in Appendix III of Rule 1200

- 1

- 7

- .04 or statistically determined upper prediction limits (UPLs). If a MCL is not listed in Appendix III of

Rule 12001

- 1

- 7

- .04, then the DSWM used the tap water value in the Region 9 PGRs tables until864

the updated EPA Regional Screening Level Tables were published in December of 2009. The updated EPA Regional Screening Level Tables can be found at http://www.epa.gov/region09/superfund/prg/index.html.

Statements from the report titled Thirty

- one New Damage Cases of Contamination from Improperly Disposed Coal Combustion Waste February 24, 2010 and DSWM information

In a report titled Thirty

- one New Damage Cases of Contamination from Improperly Disposed

Coal Combus tion Waste February 24, 2010, Environmental Integrity Project and Earthjustice (EIPE) made several statements regarding the groundwater monitoring results for the Class II Disposal Facility located at John Sevier Fossil Plant. The following are statements from the EIPE document individually listed followed by information provided by the DSWM:

1. EIPE report states that aluminum is 8 times the highest secondary MCL.

DSWM: There is no MCL for aluminum listed in Appendix III of Rule 1200

- 1

- 7

- .04 and the

EP A Secondary Drinking Water Standard is listed as 0.05 to 0.2 mg/L (50 to 200 ug/L). EPA states at http://www.epa.gov/safewater/consumer/2ndstandards.html that EPA has established National Secondary Drinking Water Regulations that set non

- mandatory water qu ality standards for 15 contaminants. EPA does not enforce these "secondary maximum contaminant levels" or "SMCLs." The highest level detected in a ground water well in the last two years has been 880 ug/L. The Regional Screening Level for tap water for alu minum is 37,000 ug/L.

2. EIPE report states the following regarding arsenic:

a. Exceeds EPA National Recommended Water Quality Criteria (WQC) for human health; and b. That the groundwater monitoring reports from May 2009 show arsenic levels at 2.2 μg/ L, more than 15 times higher than EPA‘s human health criteria for fish consumption.

DSWM: Arsenic was detected at 2.2 ug/L in one monitoring well, but the groundwater protection standard is 10 ug/L which is based on the MCL under the National Primary Dri nking Water Regulations. The MCL is for protection of human health for drinking water. EIPE compared the concentration of arsenic detected in a ground water sample from a monitoring well to a standard

for the maximum concentration of arsenic in fish tissue for human consumption.

3. EIPE report states that groundwater monitoring samples (May 2009, December 2008) show that cadmium levels exceed EPA‘s primary MCL in recent samples (May 2009, December 2008) from groundwater monitoring wells. For example, TVA measured cadmium levels at 6.8 μg/L and 6 μg/L, above the EPA MCL for cadmium of 5 μg/L.

DSWM: In the past four years, cadmium has been detected at levels above the MCL of 5 ug/L three times in a downgradient monitoring well. Confirmatory sampling (which is proper regulatory protocol when a constituent is detected above a ground water protection standard) conducted within six weeks of the initial sampling did not confirm levels above the MCL of 5 ug/L In the April, 2011 Groundwater Monitoring Report, TVA outlines the investigation into the recent and erratic results for cadmium at well W31. Based on having split samples sent to three865

different labs, it is apparent that only one of the three labs is reporting high levels of cadmium.

This is attributed to th e various analytical methods employed and “interference caused by the presence of elevated levels of molybdenum oxide ... and an increased flow of oxygen within the instrument can help control this interference.” Tables 4 and 5 and Figure 1 from this report make this case quite clearly. Although there are still some discreprencies between the results from the three separate labs, it does appear that lab interference is the cause of the cadmium exceedances which are not confirmed by resampling or even split sa mples sent to different labs. This investigation is ongoing, but there is no clear trend or verifiable data to suggest consistent cadmium contamination at W31 or any of the downgradient monitoring wells in recent years.

4. EIPE report states that the gro undwater monitoring reports from May 2009 show manganese levels at 5,700 μg/L, over 50 times higher than EPA’s human health criteria for fish consumption.

DSWM: Manganese was detected at 5,700 ug/L in one monitoring well as listed in the May 2009 TVA Rep ort and it is above the Regional Screening Levels for tap water of 880 ug/L. EIPE compared the concentration of manganese detected in a ground water sample from a monitoring well to a standard for the maximum concentration of manganese in fish tissue for h uman consumption.

5. EIPE report states the groundwater monitoring reports from May 2009 show Boron levels of 18,000 μg/L are far above EPA Superfund Removal Action Levels (RAL) of 3,000 μg/L and 900 μg/L and exceed EPA‘s Drinking Water Health Advisory l evels of 3,000 and 6,000 μg/L.

DSWM: There is no MCL for boron listed in Appendix III of Rule 1200

- 01

- 07

- .04. Boron was detected at 18,000 ug/L in one monitoring well (W 31) as listed in the May 2009 TVA Report and was above the Regional Screening Levels for tap water of 7,300 ug/L. Boron has been and is above the Regional Screening Levels for tap water of 7,300 ug/L in the most recent sampling on April 20, 2011 in monitoring well W 31. The facility remains in Ground Water Assessment Monitoring under Rule 1200

- 01

- 07

- .04(7)(a)6 due to statistically significant increases of constituents over background. However, boron is not listed as a constituent in Appendix II of

Rule 1200

- 01

- 07. Rule 1200

- 01

- 04(7)(a)6(iv) states in part that:

If one or more Appendix II constituents are detected at levels above the ground water protection standard, or statistically significant levels if the standard is based on background concentrations, the owner or operator must within 14 days of this finding give notice to the Commiss ioner of the finding and identify the Appendix II constituents which have exceeded the general ground water protection standard. The owner or operator also:

....................................

Additionally, Rule 1200

- 01

- 07(7)(a)7(i) states:

Within 90 days of finding that an y of the constituents listed in Appendix II to this rule have been detected at a statistically significant level exceeding the ground water protection standards

defined under 1200

- 01

- 07

- .04 (7)(a)1 of this rule, the owner or operator must initiate an

asses sment of corrective measures. Such an assessment must be completed within a reasonable866

period of time.

6. EIPE report states that strontium was measured at 5,300 μg/L and exceeds EPA’s health advisory level for strontium of 4,000 μg/L.

DSWM: Strontium was detected at 5300 ug/L in one monitoring well as listed in December 2008 TVA Report, but does not exceed the Regional Screening Levels for tap water of 22,000 ug/L.

7. EIPE report states that sulfate was measured is 7 times higher than EPA‘s secondary MCL in groundwater wells.

DSWM: There is no MCL for sulfate listed in Appendix III of Rule 1200

- 1

- 7

- .04 and the EPA Secondary Drinking Water Standard is listed as 250 mg/L (250,000 ug/L). EPA states at http://www.epa.gov/safewater/consumer/2ndstandards. html that EPA has established National Secondary Drinking Water Regulations that set non

- mandatory water quality standards for 15 contaminants. EPA does not enforce these "secondary maximum contaminant levels" or "SMCLs." The highest level of sulfate repor ted in the December 2008 TVA Report was 1,300,000 ug/L. Sulfate is a parameter that is analyzed for as an indicator of contamination.

8. The EIPE report states that leachate from the CCW disposal area discharges directly into the

Holston River.

DSWM: I n 1998, TVA installed a leachate collection system approximately 700 feet in length adjacent to the Holston R iver. This collection system has been recently lengthened by approximately 1800 additional feet making the total length 2500 feet. This collection system runs almost the entire length of the embankment. Once collected, the leachate is first pumped into the waste stabilization pond then pumped into the ash pond (surface impoundment) before being discharged under a NPDES permit. TVA is required to repo rt semi

- annually the amount of leachate collected and the analytical results of a sample of the leachate. The leachate is analyzed for the same constituents under the facility’s groundwater monitoring program. Additionally, during 2008

- 2009, TVA installed a geocomposite liner system and leachate collection system over about half of the existing ash disposal area where disposal operations will continue. TVA anticipates that the remainder of the site will undergo closure in less than two years. A lined

leacha te collection pond was constructed and a gravity line then transports the leachate to the waste stabilization pond then it is pumped into the ash pond (surface impoundment) and discharged under a NPDES permit.

Response: The Agency has assessed all the ‘newly alleged’ damage cases submitted by environmental advocacy groups in their February 2010 report, Out of Control , against EPA’s test of proof criteria. Based on this assessment, EPA designated TVA’s John Sevier Fossil P lant in Tennessee as a potential damage case. For discussion of the damage case assessment methodology, please refer to Unit XI of the preamble to this rule. For a summary of stakeholder arguments addressing TVA’s John Sevier Fossil Plant site and for the rationale for the Agency’s damage case designation decision, see the technical support documents on damage cases in the

docket of the final rule.867



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0272

- 1 

### Organization 1 

### : Progress Energy


### Commenter 1 : Caroline Choi
Comm enter Type: Electric Utility Company

Classification: Substantive



### Comment Excerpt Text: Progress Energy believes it would be inappropriate to use the document entitled Out of Control: Mounting Damages from Coal Ash Waste Sites, included in the docket, as a source of information for identification of proven damage cases that are required by the Bevill amendments in RCRA to characterize CCR as a hazardous special waste.

Use of proven, documented damage cases, as defined by EPA, can be a worthwhile tool in

ru lemaking when factors of design, exposure, and risk are involved. Sources for such information should be accurate and adhere to the established criteria. The requirements to establish a proven damage case are:

1) Documented exceedance of primary MCLs or o ther health

- based standards has been measured in ground water at a sufficient distance from the waste management unit to indicate that hazardous constituents have migrated to the extent that they could cause human health concerns. 2) A scientific study has demonstrated that there is documented evidence of another type of damage to human health or the environment (e.g., ecological damage). In determining whether evidence of ecological damage from a CCR unit constitutes a damage case, EPA stated in the

propos ed 2010 CCR rulemaking that it "now believes that ecological damages warranting state environmental response are generally appropriate for inclusion as a damage case," such as information leading a state to issue fish advisories, or 3) There has been an ad ministrative ruling or court decision with an explicit finding of specific damage to human health or the environment. In cases of co

- management of CCR with other industrial waste types, CCR must be clearly implicated in the reported damage as stated by EPA in their 2007 "Coal Combustion Waste Damage Case Assessments."

Four coal

- fueled electric generating plants owned and operated by Progress Energy are included in alleged damage cases identified in Out of Control. The descriptions of the plants appear to b e representative of the incomplete, inaccurate, and misleading descriptions of groundwater monitoring characteristic of the document. Examples of inaccuracies for the plants include:

Asheville Steam Electric Plant

• All the groundwater monitoring resul ts identified as exceedances of state standards were sampled from wells within the compliance boundary, an area in close proximity to the surface impoundment. The compliance boundary is intended by state regulation to provide for natural

soil attenuation o f chemicals that may have been released from the pond and there are no receptors. Therefore, state regulations do not normally apply groundwater standards there. The report provides no documented evidence of exceedances of standards beyond that zone.868

• Ir on and manganese, frequently listed as having levels that exceed standards, are common natural components of groundwater in North Carolina. When background concentrations exceed the published standard, background becomes the standard. Until a complete asse ssment is done (required by NC rules) of groundwater movement, all sources of contamination, and geochemical processes at work, any determination of damages and appropriate corrective actions are premature and likely inaccurate.

Cape Fear and Lee Steam E lectric Plants

• As noted above, all the identified monitoring results are within the compliance boundary and not applicable to determination of a damage case.

• As noted above, it was not established if natural background levels of the detected metals

s upersede listed standards. That will be determined in accordance with state groundwater quality regulations and guidance by the state agency.

Sutton Steam Plant

• Contrary to the implications of the report, arsenic was not detected in exceedance of stand ards outside the ash ponds' compliance boundary. No NOV has been issued by the state agency for groundwater standard exceedances.

• The nature and extent of groundwater movement off

- site, if any, has not yet been determined, but a study is underway in acc ordance with current state regulations. Environmental impact off

site has not been established.

These comments demonstrate that the report Out of Control provides information that cannot be relied upon for proving a damage case. State regulations and agen cies already require virtually all the groundwater monitoring and corrective measures proposed by EPA for Subtitle C or Subtitle D regulation, including monitoring, assessment, and corrective actions

.

Response: The Agency has assessed all the ‘newly alleg ed’ damage cases submitted by environmental advocacy groups in their February 2010 report ( Out of Control ), against EPA’s test of proof criteria. Based on this assessment, the Agency designated Duke Energy’s Asheville Steam Electric Plant, Cape Fear Steam Electric Plant, Lee Steam Electric Plant, and Sutton

Steam Plant as potential damage case

. For discussion of the damage case assessment methodology, please refer to Unit XI of the preamble to this rule. For a summary of stakeholder arguments addressing the four Duke Energy’s CCR management sites and for the rationale for the Agency’s damage case designation decisions, see the technical support documents on damage cases in the docket of the final rule.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0274

- 2 

### Organization 1 

### : SCANA Corporation


### Commenter 1 : Jean

- Claude Younan Commenter Type: Electric Utility Company

Classification: Substantive869



### Comment Excerpt Text:

ADDITIONAL ALLEGATIONS OF DAMAGE CASES FROM THE MANAGEMENT OF

CCR

The NODA identifies two reports p repared by environmental groups that, when taken together, allege that 70 CCR sites are “damage cases” that should be considered in the CCR rulemaking. The report, entitled Out of Control: Mounting Damages From Coal Ash Wastes Sites (Feb. 24, 2010) (“Out o f Control”), presents 31 alleged CCR damage cases that EPA explains were not included or recognized as proven damage cases in EPA’s July 2007 Coal Combustion Waste Damage Case Assessments (“EPA 2007 Report”). The second report, entitled In Harm’s Way:

Lack Of Federal Coal Ash Regulations Endangers Americans and Their Environment (Aug. 26, 2010) (“In Harm’s Way”), presents an additional 39 alleged CCR damage cases.

With regards to the report “Out of Control: Mounting Damage Cases from Coal Ash Waste Sites”, it is SCE&G’s opinion that some of the claims presented in the report for two of SCE&G’s facilities (Wateree Station and Urquhart Station) include false, inaccurate, and misleading claims, as follows:

SCE&G Wateree Station

Pages 89

- 91 of the Report “Out of Control: Mounting Damage Cases from Coal Ash Waste Sites” present information regarding an alleged damage case at SCE&G’s Wateree Station in South Carolina. A simple review of the claim reveals that it fails to meet EPA’s definition and test of proof r equirements for alleged damage cases. Specifically, the reference claim fails to meet EPA’s existing definition and test of proof requirements for damage cases, as follows: (1) the reference claim is void of any documented evidence of off

- site groundwater monitoring data

or off

- site groundwater monitoring data showing exceedances of specified health

- based criteria. The reference claim includes allegations that private testing found leaks in the containment wall between the impoundment and the river but prov ide no information on what type of samples were collected, when samples were collected, or by what entity. Further, the reference claim allege that recent evidence shows that arsenic contamination has migrated to an adjacent property yet provides no eviden ce of any testing or scientific studies for support; (2) the reference claim does not provide surface water sample data; and (3) alleges that there is demonstrated damage to fish based on tissue sample analysis but fails to provide any information

on the s tudy conducted.

In addition to failing to meet EPA’s definition and test of proof requirements for alleged damage cases, the Report also includes the following specific false and/or misleading claims:

Claim

- 1 “Groundwater monitoring around the Wateree St ation‘s coal ash impoundment has measured arsenic at 18 times the federal MCL (Fretwell, 2009a). The South Carolina Department of Health and Environmental Control (SC DHEC) cited the plant in 2001 for violations of state groundwater standards, but did not take any further regulatory action over the contamination”.

Comment

- 1 This claim is misleading. In 2001, SCE&G and SCDHEC entered into a870

Groundwater Mixing Zone Agreement to address elevated concentrations of metals in groundwater surrounding Wateree Stat ion’s coal ash impoundments. The Groundwater Mixing Zone Agreement approved by SCDHEC, and executed in February 2001, sets limits for arsenic in groundwater of 50 ug/L for monitoring wells along the mixing zone boundary, with a less stringent limit for mon itoring wells within the mixing zone. The compliance standards for the Wateree Station with respect to arsenic in groundwater are the mixing zone limits, not the federal Maximum Contaminant Level (MCL), which is 10 μg/L and is a drinking water standard. Th ere have been no violations to date of the arsenic standards set forth in the 2001 Groundwater Mixing Zone Agreement between SCE&G and SC DHEC for Wateree Station.

Claim

- 2 “Recent evidence shows that the arsenic contamination has migrated to an adjacent

p roperty”.

Comment

- 2 This claim is false. Comprehensive review and testing by SCE&G and the South Carolina Department of Health and Environmental Control determined no contamination has migrated from Wateree Station to the adjacent property in question.

C laim

- 3 “Recent evidence shows that the arsenic contamination [is being accumulated in biota in the Wateree River]. Fish living in the Wateree River in close proximity to the plant were found to have elevated tissue levels of arsenic in comparison to upstre am and downstream populations. One catfish was found to have arsenic tissue levels of 500 parts per billion (Fretwell, 2009b)”.

Comment

- 3 There is no evidence that Wateree Station is contributing to arsenic bioaccumulation

in biota of the Wateree River. T his assertion is not supported by available data and is false. The fish tissue analysis results cited in the EIP/EJ report refers to fish sampling conducted by SCE&G in the Wateree River in 1999. The results of the sampling were reported in letters from

SC E&G to SC DHEC dated May 26, 1999 and August 27, 1999. As reported in the referenced letters, the results that included the channel catfish samples collected adjacent to the Wateree Station Plant with reported arsenic levels of 500 parts per billion are co nsidered invalid due to significant variability in the size of fish collected from upstream, adjacent to, and downstream of the plant. Subsequent testing of tissue samples taken from blue catfish caught upstream, adjacent to and downstream of the plant ind icated similar arsenic concentrations in the tissue samples from all three locations. Moreover, the levels of arsenic reported for all samples are within the range of concentrations reported in 1995 by Duke Power and 1990 by the US Fish and Wildlife

Servic e for various fish species collected from river systems in other areas of both North and South Carolina. In conclusion, arsenic levels in fish collected upstream and downstream do not differ significantly from fish caught adjacent to Wateree Station indica ting no measurable contribution from plant operations.

Claim

- 4 "Private testing has indicated that seeps leaking off

- site from the impoundment contain
arsenic levels 5 times the state standard for arsenic..." and "... leaks have been found in the

containment wall between the impoundment and the river that have arsenic levels of 1.9 mg/L, 190 times the primary MCL..."

Comment

- 4 The results of surface water sampling and analysis for samples collected from the

Wateree River since execution of the Groundwater Mix ing Zone Agreement in 2001 have not871

shown measureable concentrations of arsenic. Therefore, no measureable impacts to surface water quality from the coal

- ash storage and polishing ponds have been observed.

Conclusion The damage claim against Wateree Stati on in the report “Out of Control: Mounting Damage Cases from Coal Ash Waste Sites” contains errors and does not meet EPA’s Test of Proof and definition of a proven damage case.

SCE&G Urquhart Station

Pages 92

- 94 of the Report “Out of Control: Mounting Da mage Cases from Coal Ash Waste Sites” present information regarding alleged damage at Urquhart Station in Beach Island, SC. This claim does not meet the criteria for a damage case because the allegations do not contain any documented evidence of off

- site g roundwater monitoring data or off

- site groundwater monitoring data showing exceedances of specified health

- based criteria. Allegations in the reference claim also indicate ecological impacts to a wetland adjacent to the landfill but there is no evidence pr ovided of any testing or scientific studies to support any allegation of ecological damage. Furthermore, the Report documents that groundwater wells nearest the river have not exceeded any drinking water standards and therefore no off

- site groundwater exce edances has been demonstrated. Again, simple review of the report reveals that the reference claim fails to meet EPA’s definition and test of proof requirements for alleged damage cases.

In addition to not meeting EPA’s definition and test of proof requir ements for alleged damage cases, the Report also includes the following specific false and/or misleading claims:

Claim

- 1 "At least one of the contaminated landfill monitoring wells is in a wetland, indicating that contaminated shallow groundwater discharg es to the wetland. Further, monitoring activities at that well indicate that coal ash is present in the soil through which the well was drilled revealing that coal ash was placed in the wetland."

Response

- 1 In the Test of Proof Section, the EIP/EJ report references a groundwater monitoring well (MW

- 3B) that is located adjacent to a wetland and not within a wetland. No monitoring wells at the site are located within a wetland, and therefore, no data exist to support a claim that coal ash was disposed in a w etland. Moreover, the groundwater level at the subject well (MW

3B) is typically 10

- 12 feet below natural ground surface, and therefore the subject wetland feature does not act as a discharge feature for groundwater to surface water. Therefore, the claim

t hat any contaminated shallow groundwater discharges to the wetland at this location is impossible as the groundwater in the area is relatively deep and cannot impact the surface/near

surface wetland feature.

Claim

- 2 "SCE&G is currently required to complet e another assessment to determine the nature and extent of the contamination associated with the ash settling basins." "The second assessment is due on March 1, 2010."

Response

- 2 On November 20, 2009, SCE&G requested an extension of the deadline for

submi ssion of the site assessment report from March 1, 2010 to May 1, 2010. SC DHEC granted approval of the extension request on that date (e

- mail correspondence with Stacey Adams,872

DHEC). Due to general unfavorable weather conditions (significant precipitation, high river levels, etc.) and resulting safety concerns in obtaining sufficient samples for fish tissue analyses (conducted as part of the assessment), a second extension of the deadline for submission of the site assessment report from May 1, 2010 to June 1, 2010 was requested by SCE&G on April 15, 2010 and granted by SC DHEC (e

- mail correspondence with Stacey Adams, DHEC).

SCE&G met twice with SC DHEC in 2009 to develop a scope of work to conduct a hydrogeological assessment of the areas encompassing the coalash sluice and low

- volume waste ponds at Urquhart Station. This work was completed in March 2010 and included installation of 12 new groundwater monitoring wells, aquifer characterization, as well as surface water and groundwater sampling and laborato ry analysis. The results of this assessment were reported to

SC DHEC in June 2010.

Confirmatory groundwater and surface water sampling was conducted in May 2010 and reported to SC DHEC in July 2010. A work plan to conduct supplemental assessment of the in teraction between surface water and groundwater near the northern property line at the site was submitted to SC DHEC in October 2011. The supplemental assessment was conducted and the results reported to SC DHEC in February 2011.

Similar to past attempts by “environmental” groups to inflate the number of proven CCR damage cases in this rulemaking, the overwhelming majority of the allegations regarding the 70 sites are replete with errors, inaccuracies and misstatements and, most importantly, fail to provid e the requisite “test of proof” documentation necessary for EPA to characterize virtually any of the sites as proven damage cases. EPA should therefore review the allegations with extreme care for accuracy given the propensity for the allegations to contai n general accusations of damage without the requisite degree of proof to substantiate the claims. Indeed, as EPA well knows, prior to initiating this rulemaking, the Agency gathered or received information on 135 alleged damage cases, many of which were su bmitted to EPA by the same environmental organizations that prepared Out of Control and In Harm’s Way. After evaluating these earlier allegations, close to half (62) were dismissed “because there was little or no information supporting the concerns

identif ied.” Another six were outside the scope of the rulemaking. Of the remaining 67 allegations, 24 were identified as proven damage cases, but this included the 14 proven cases already identified in the 2000 regulatory determination. The point is that the tra ck record of the validity of these environmental groups’ damage case allegations is astonishingly poor and, as detailed below, the additional allegations proffered by these same groups in Out of Control and In Harm’s Way are no exceptions to this poor reco rd.

Response: The Agency has assessed all the ‘newly alleged’ damage cases submitted by environmental advocacy groups in their February and August 2010 ( Out of Control and In Harm’s Way , respectively) reports, against EPA’s test of proof criteria. Based on this assessment, the Agency designated the SCE&G Urquhart Station as a proven damage case, and the SCE&G Wateree Station as potential damage case. For discussion of the damage case assessment methodology, please refer to Unit XI of the preamble to this rule. For a summary of stakeholder arguments addressing the SCE&G Urquhart Station and the SCE&G Wateree Station CCR management sites and for the rationale for the Agency’s damage case designation decisions873

of these sites, see the technical support documen ts on damage cases in the docket of the final

rule.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0278

- 1 

### Organization 1 

### : Cleco Corporation


### Commenter 1 : Bill Matthews Commenter Type: Electric Utility Company

Classification: Substantive



### Comment Excerpt Text:

Comment II

Alleged damage cases presented in “In Harm’s Way: Lack Of Federal Coal Ash Regulations Endangers Americans And Their Environment,’’ (IHW) are not proven and do not support the Subtitle C option. This is most obvious when examining the IHW auth or’s discussion of Cleco’s Dolet Hills Power Station, in Mansfield, LA, and Cleco’s Rodemacher Power Station (now called the Brame Energy Center) in Lena, LA.

IHW reports that there is demonstrated damage to the ground water moving off site of the Dolet Hills Power Station (DHPS) and the Rodemacher Power Station (RPS). Much of the information cited by the authors of IHW as facts regarding DHPS and RPS is untrue and or leads to invalid

conclusions.

In the DHPS discussion in IHW, some of this includes:

1. Monitoring well MW

- 2A in an April 2008 ground water sampling report was documented with selenium at 0.173 mg/l which IHW pointed out was 3.5 times above the MCL. However,

MW

- 2A was located up

- gradient of the landfill (a background well). So, the claim h ere that this information implied contamination from the landfill was false. 2. Monitoring well OW

- 33 in a December 2009 ground water sampling report was documented with arsenic at 0.0156 mg/l which is above the 0.01 mg/l MCL. However the same well in the August 2009 sampling event and both 2010 semiannual sampling events was found non detect in arsenic. Clearly the December 2009 sample result was an outlier. 3. Monitoring well OW

- 36 was a newly installed well when first sampled during the August

2009 sam pling event. The sampling reports for both the August 2009 and December 2009 sampling events documented the well with lead at 0.023 mg/l and 0.019 mg/l. The lead MCL is 0.015 mg/l. However both of the 2010 semiannual sampling events revealed the lead

conce ntration at this well to be non detect. The lead concentration in this new well declined to non detect over three sampling events suggesting the initial sample results were related to the well being new. 4. It should be pointed out that none of the sample data discussed above in items 2 through 3 revealed a statistically significant increase in concentration above background. This indicates that contamination may be due to natural variation. 5. In addition, the bulk of the information in IHW deals with cl aims of exceedences of the secondary maximum contaminant level (SMCL) for parameters such as total dissolved solids (tds), chloride, sulfate, calcium, pH, conductivity, alkalinity and other parameters. While874

statistically significant increases (SSI) in bot h conductivity and alkalinity (one event for each parameter) was discussed in IHW from the 2009 second semiannual ground water sampling document, further evaluation was subsequently conducted to report and investigate these SSI

events and the events were r esolved as being due to natural variation in groundwater quality.

It must be pointed out that none of these events in item 5 above, described in IHW, are indicative of demonstrated damage. Proven damage cases are those with (i) documented exceedances of primary MCLs or other health

- based standards measured in ground water at sufficient distance from the waste management unit to indicate that hazardous constituents have migrated to the extent that they could cause human health concerns, and/or (ii) where a scientific study demonstrates there is documented evidence of another type of damage to human health or the environment (e.g., ecological damage), and/or (iii) where there has been an administrative ruling or court decision with an explicit finding of spe cific damage to human health or the environment.

In cases of co

- management of CCWs with other industrial waste types, CCWs must be clearly implicated in the reported damage.” EPA, Coal Combustion Waste Damage Case Assessments 2 n.3 (July 2007). But these s ampling events did not involve parameters with MCL’s or other

heath

- based standards. Even if they had, these substances were not shown to have migrated a sufficient distance that could result in human health concerns. That is, they were not shown in

IHW to have migrated off site. EPA has interpreted the portion of the “damage case” definition pertaining to exceedances of MCLs or other health based standards in groundwater that could cause human health concerns to mean contamination “as measured in offsite g round water or in nearby surface waters, the criteria [EPA] used in the [the Report to Congress] to identify proven damage cases.” 65 Fed. Reg. 32214, 32224 (May 22, 2000).

As mentioned above, IHW also reports that there is demonstrated damage to the gro und water moving off site of the Rodemacher Power Station (RPS). Much of the information cited by the authors of IHW as facts regarding RPS is untrue and or leads to invalid conclusions.

In the RPS discussion in IHW, some of this includes:

1. IHW state s that heavy metals are not normally sampled in the groundwater monitoring at RPS. This is untrue. The semiannual groundwater reports to LA DEQ show sampling and analyses for cadmium, copper, lead, nickel, selenium, thallium vanadium and zinc as well as nu merous other
parameters. 2. Discussion of data from wells used for monitoring the two plant metal

- cleaning waste ponds is out of context with respect to coal combustion residuals. These sites are waste water treatment ponds which do not receive ash. There fore this information presented in IHW is not relevant with respect to demonstrated damage due to ash handling and disposal at RPS. 3. Some of the information in IHW deals with claims, involving a 2007 groundwater sampling event, of exceedences of the sec ondary maximum contaminant level (SMCL) for parameters such as total dissolved solids (tds), calcium, pH, conductivity and alkalinity. However, there was no statistically significant increase in these parameters suggesting that the CCR units did not

cause the observed dissolved substances. Also, mention is made in IHW of arsenic concentration in wells, from the two 2009 sampling events, being above the MCL. But two of the wells discussed, W1 and W21, were background wells. The other wells mentioned with res pect to the arsenic MCL (W4, W15, W17, and W7) did not show in combination with the up

- gradient wells875

that a statistically significant increase had occurred. This indicated the arsenic was most likely

from natural variation and not from the CCR units.

Fo r RPS, none of the sampling events discussed in IHW are indicative of demonstrated damage. Proven damage cases are those with (i) documented exceedances of primary MCLs or other

health

- based standards measured in ground water at sufficient distance from th e waste management unit to indicate that hazardous constituents have migrated to the extent that they could cause human health concerns, and/or (ii) where a scientific study demonstrates there is documented evidence of another type of damage to human healt h or the environment (e.g., ecological damage), and/or (iii) where there has been an administrative ruling or court decision with an explicit finding of specific damage to human health or the environment. In cases of co

management of CCWs with other indust rial waste types, CCWs must be clearly implicated in the reported damage.” EPA, Coal Combustion Waste Damage Case Assessments 2 n.3 (July 2007). IHW did not demonstrate any of the monitored substances to have migrated off site. EPA has interpreted the port ion of the “damage case” definition pertaining to exceedances of MCLs or other health based standards in groundwater that could cause human health concerns to mean contamination “as measured in offsite ground water or in nearby surface waters, the criteria [EPA] used in the [the Report to Congress] to identify proven damage cases.” 65 Fed. Reg. 32214, 32224 (May 22, 2000).

In conclusion for Comment II, much of the information presented in IHW for both the Cleco

Dolet Hills Power Station and the Rodemacher Power Station was untrue and/or misinterpreted. The IHW information does not demonstrate a damage case at either DHPS or RPS. It does suggest that the other cases discussed in IHW at other locations most likely also contain false information and wrong con clusions. In view of this, it is clear that IHW does not support the regulation of CCR under RCRA Subtitle C. EPA’s proposed Subtitle D Prime option will effectively address concerns regarding CCR management. The RPS and DHPS solid waste
management program s are adequate evidence of this. Given the underlying goal of the Bevill Amendment that EPA avoid the Subtitle C regulation of CCR “if at all possible” (EDF v. EPA, 852 F/2d at 1314), there is no basis for EPA to rely on the damage case allegations in IHW as the basis for pursuing the Subti t le C option

.

Response: First, This rule will regulate CCRs under RCRA subtitle D: for further details, see Unit IV of the final rule’s preamble.

Secondly, the Agency has assessed all the ‘newly alleged’ damage cases submitted by environmental advocacy groups in in their February 2010 report ( Out of Control ), against EPA’s test of proof criteria. Based on this assessment, the Agency designated Cleco Corporation’s

Dolet Hills Power Station and Rodemacher Power Station sites as potential damage case. For discussion of the damage case assessment methodology, please refer to Unit XI of the preamble to this rule. For a summary of stakeholder arguments addressing the Dolet Hills Power Station

and Rodemacher Power Station CCR management sites and for the rationale for the Agency’s damage case designation decisions of these sites, see the technical support documents on damage

cases in the docket of the final rule.876



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0285

- 4 

### Organization 1 

### : Fl orida Department of Environmental Protection (DEP)


### Commenter 1 : Jeff Littlejohn Commenter Type: State Government
Classification: Substantive



### Comment Excerpt Text: IN HARM'S WAY: Lack of Federal Coal Ash Regulations Endangers Americans and Their

Environment

Throughout the document, various states refer to Florida’s adopted groundwater standard for vanadium of 0.049 mg/L. However, Florida has not adopted a vanadium groundwater standard. The 0.049 mg/L standard is the cleanup target level for vanadium adopted under Florida's Contaminant Cleanup Target Levels rule in Chapter 62

- 777, Florida Administrative Code (F.A.C.), which provides criteria in tables and figures that apply to site rehabilitation.

Out of Control: Mounting Damages From Coal Ash Waste Sites

I n the section Summary of Damage Cases, the authors compare the pollutant levels to Florida's cleanup target levels in Chapter 62

- 777, F.A.C, Since the activities listed in the summary are not subject to these cleanup levels a direct comparison is inappropr iate.

Response: EPA concurs with the commenter that the adoption of Florida’s cleanup target level for vanadium for comparing Florida’s pollutant levels is inappropriate as long as site rehabilitation is not contemplated.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0285

- 5 

### Organization 1 

### : Florida Department of Environmental Protection (DEP)


### Commenter 1 : Jeff Littlejohn Commenter Type: State Government
Classification: Substantive



### Comment Excerpt Text: Response to Concerns Raised About Four Coal

- fired Power Plants in Florida

The Environmental Integrity Project and Earthjustice (collectively called "EIP") have prepared two reports on coal ash waste sites in the country. The first one dated February 24, 2010 is titled, "Out of Control: Mounting Damages From Co al Ash Waste Sites." The second one dated August 26, 2010 is titled, "In Harm's Way: Lack of Federal Coal Ash Regulations Endangers Americans and Their Environment." These reports identify four coal

- fired power plants in Florida that are allegedly "a clear and present danger to public health and the environment" using language directly from both reports. DEP believes this characterization of these four facilities listed in Florida is incomplete and inaccurate. Contrary to the claims by EIP in the reports, D EP is taking necessary enforcement actions to address and correct any environmental issues associated with these facilities. The four facilities and DEP's response to concerns expressed about them are877

presented as follows:

· Curtis Stanton Energy Center, Orange County

- This facility was permitted under the Florida Electrical Power Plant Siting Act (PPSA), Chapter 403, Florida Statutes, Part II, in 1981. At that time, they conducted EP Tox testing to show that their process of adding lime sludge to their a sh and then compacting it in their on

- site, landfill was protective because of the pozzolanic, "cement like," nature of the ash. While EIP is correct that some contaminants have leached from this landfill and impacted water quality near it, this problem is completely contained on

- site and there is no danger of any impacts to human health or potable drinking water wells. DEP is working with the facility to assess the extent of this contamination and conduct corrective actions if necessary. DEP will also requ ire bottom liner systems for any future disposal units at their on

site landfill.

· Seminole Electric Cooperative Inc., Putnam County,

- This facility was permitted under the PPSA in 1978 and is in compliance with DEP's groundwater requirements. While con centrations of some parameters in water quality results mentioned by EIP exceeded their corresponding primary or secondary groundwater standards, these results were based on samples taken from within the facility's designated zone of discharges where these standards do not apply. Data referenced by EIP for surface water were generated from samples taken in ditches adjacent to the facility's flue gas desulfurization (FGD) landfill, where surface water quality standards do not apply. There have been some area s of stressed vegetation identified in the past in an on

- site wetland near the FGD landfill. The cause of this is unknown, but the wetland appears to be recovering. The facility has also implemented a DEP approved Interim Remedial Action Plan, requiring th e collection of groundwater from the surficial aquifer near the FGD landfill that is fed back into the power plant process. The process water ponds and stormwater ponds in the landfill area are lined with a geomembrane liner to stop the leakage to groundwa ter. A liner has been installed over an expanded portion of the FGD landfill and is expected to be put into operation soon. The landfill is monitored by a DEP approved groundwater monitoring system, that is fully protective of the groundwater outside of th e facility's designated zone of discharge. Also, under this plan, the groundwater contaminant wells within the facility have also decreased.

· Tampa Electric Company, Big Bend, Hillsborough County

- Before the PPSA, this facility was permitted under an In dustrial Wastewater permit. In 1979, another unit was added and permitted under the PPSA. Again, much of the groundwater data cited by EIP were taken from micro wells located adjacent to on

- site disposal units of the facility and within the facility's desi gnated zone of discharge, where primary and secondary groundwater standards do not apply. One former disposal unit was believed to have caused stressed vegetation off

- site from the facility. As a result of actions by DEP, this unit has been closed. In 2001 , the facility also entered into a Consent Order with DEP that required a facility

- wide environmental evaluation and corrective actions, if necessary. The facility has been complying with this Consent Order and is implementing appropriate changes as needed to their on

- site management of CCR.

· McIntosh Power Plant, City of Lakeland, Polk County

- This facility was permitted under the PPSA in 1974. Once again, the groundwater data cited by EIP were taken from monitoring wells located within the facility's d esignated zone of discharge where primary and secondary groundwater standards do not apply. The facility entered into a Consent Order with DEP on878

December 7, 2001 which required a facility

- wide environmental assessment and corrective actions, if necessary. The facility is complying with DEP's Consent Order.

Response: The Agency has assessed all the ‘newly alleged’ damage cases submitted by environmental advocacy groups in in their February and August 2010 reports ( Out of Control

and In Harm’s Way , respecti vely), against EPA’s test of proof criteria. Based on this assessment, the Agency designated the Curtis Stanton Energy Center, the Seminole Electric Cooperative Inc., the Tampa Electric Company Big Bend, and the McIntosh Power Plant in Florida as potential damage case. For discussion of the damage case assessment methodology, please refer to Unit XI of the preamble to this rule. For a summary of stakeholder arguments addressing the four assessed Florida CCR management sites and for the rationale for the Age ncy’s damage case designation decisions of these sites, see the technical support documents on damage cases in the

docket of the final rule.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0286

- 1 

### Organization 1 

### : FirstEnergy Corp.


### Commenter 1 : Mike Horvath
Commenter Type: Electric Utility Company

Classification: Substantive



### Comment Excerpt Text: The United States Environmental Protection Agency ("USEPA") published a Notice of Data Availability ("NODA") on October 12, 2011 inviting comment on additional information

ob tained by the USEPA in conjunction with the proposed rule: Identification and Listing of Special Wastes; Disposal of Coal Combustion Residuals From Electric Utilities. Included in the NQDA docket are three documents alleging the existence of 70 "damage cas es." The reports ate entitled Out of Control: Mounting Damages From Coal Ash Waste Sites ("Out of Control")

EPA

- HQ

- RCRA

- 2011

- 0392

- 0005 document, In Harm's Way: Lack of Federal Coal Ash Regulations Endangers Americans and Their Environment ("In Ha rm 's Way") EPA

- HQ

- RCRA

2011

- 0392

- 0006 document, and Comments of Earthjustice, Environmental Integrity Project, Sierra Club, Natural Resources Defense Council, Southern Alliance for Clean Energy, Southern Environmental Law Center, Physicians for Social Responsibility ("Earthjustice et.al") EPA

- HQ

RCRA

- 2011

- 0392

- 0119 document. Those reports refer to two FirstEnergy facilities directly, the Bruce Mansfield Power Plant and the Hatfield's Ferry Power Station.

FirstEnergy appreciates the opportunity to provide comments to EPA on the NODA. Regarding "Out of Control" and "In Harms Way", those documents were not readily available for review by FirstEnergy as they could only be accessed and reviewed in Washington, D.C.

Regarding "Earthjustice et.al.," that report contains many mis s tatements and inaccuracies,

some of which are outlined below:

1 . Pg 23, Ohio excludes virtually all coal combustion residues ("CCRs") from regulation by classifying it as non

- toxic and therefore exempt.

FirstEnergy response: Waste regulation in Ohi o is dictated by a waste's EP Toxicity Test results.879

CCRs exhibit very low toxicity and are therefore regulated, under the lowest classification of waste in Ohio. CCRs are not exempt from Ohio waste regulation as Earthjustice et. al. claims.

2. Pg 53, Hat field's Ferry Power Station, Masontown, Pennsylvania groundwater monitoring data exceeds Appendix I levels for arsenic, with concentrations as high as 3.4 mg/L. Although Pennsylvania has been involved in enforcing surface water laws, it has taken no action on the groundwater issue.

Response from PADEP Report (January 2011) hereby supported by FirstEnergy: The original disposal area for Hatfield was constructed on an abandoned, unreclaimed strip mine from the

pre

- regulation era. In response to the new Resid ual Waste Regulations promulgated in 1992, Allegheny Energy conducted a comprehensive groundwater and surface water assessment and investigation at the disposal site. For compliance with these new regulations, new groundwater wells were installed and updat ed surface water sampling points were established. After the investigation was completed, it was concluded that the past unreclaimed surface mining and the resultant acid mine drainage (and not the ash disposal) within the watershed of the landfill had

neg atively impacted the aquifers beneath the landfill. All landfill construction and disposal activities are now in accordance with applicable DEP regulations.

3, Pg 53, Bruce Mansfield Power Plant, onsite groundwater wells show exceedances of Appendix I MCL s for fluoride and lead.

Response from PADEP Repor t (January 2011) hereby supported by First Energy: "Fluoride concentrations are greatest in a well with groundwater that represents background water quality. This is the only well that contains fluoride at concentrations in excess of its MCL. Several other wells contain fluoride concentrations that are slightly above the SMCL for fluoride. Fluoride is the result of the solution of naturally occurring fluoride present within freshwater

limestone units in the bedrock of the disposal area. Lead is not present in the impoundment at appreciable quantities and cannot be the source of lead detected in the monitoring wells.

4. Pg 53, Bruce Mansfield Power Plant, off

- site residential wells have exceeded Appendix I

N ICLs for barium, cadmium, and lead.

Response from PADEP Report (January 2011) hereby supported by FirstEnergy:

" . . . the primary constituents of lead, cadmium and barium are only found in trace amounts in the waste and could not be producing high conce ntrations in the groundwater."

5. Pgs 57

- 58, Tables

Response from PADEP Report (January 2011) hereby supported by FirstEnergy: MCLs are standards for comparison for groundwater used for public consumption and therefore are not appropriate for comparison for groundwater at landfills. In addition, the groundwater has been affected by past unreclaimed surface mining and the resultant acid mine drainage that occurred in the area currently occupied by the landfill.880

6 . Pg 84, Hatfield's Ferry Power Station, C CR leachate and shallow groundwater that contacted CCR was directed, without any treatment, to an earthen impoundment, and then discharged into an unnamed tributary of Little Whitely Creek f r om 1984 to 2001. The CCR leachate discharges

caused exceedances i n NPDES limits for aluminum, manganese, and thallium.

Response from PADEP Report (January 2011) hereby supported by FirstEnergy: Between the years 1984 and 2001, the referenced earthen impoundment was a settling and

treatment basin and in accordance with PADEP regulations, was determined to be the only necessary treatment. In addition, with the Department's approval, Allegheny Energy added magnesium hydroxide into the leachate to precipitate aluminum, iron and manganese. This operation was conducted for a period of time prior to the installation of the wetlands, which now treat and remove these constituents. The control of pH and treatment of many other parameters occurs in passive wetland treatment technology. From November 2003 to August 2007 (not 1984 to 2001), aluminum, manganese, and thallium violations were noted and a consent order and agreement was developed to address and correct these issues. Allegheny Energy is implementing the corrective actions outlined in the order.

Exceedances of the thallium limit were due to the limit being set at 0.0001 mg/L above the analytical methods detection limit (MDL). The laboratory doing the analytical work for Allegheny Energy has switched to a different analytical method which adheres to a lower

MDL. There has not been an exceedance of thallium since this change. All previous thallium exceedances were attributed to analytical variability due to the closeness of the permit limit to the analytical MDL.

7. Pgs 85 and 88, Hatfield's Ferry Power Station discharges to s urface water have caused exceedances of Pennsylvania Water Quality Criteria (WQC) for arsenic at least eight times in

three locations between 2003 and 2010. There have been numerous offsite surface water contaminations including exceedances of arsenic, bor on, cadmium, lead, and selenium.

"Only one `off

- site' monitoring point, spring S

- 31 was found to contain 0.011 mg/L arsenic. This is not surprising because the spring emanates from a coal seam which has naturally occurring

arsenic."

"EIP makes claim that surface water exceed WQC but fails to indicate that WQC are not applicable because these `surface water' monitoring points include supernatant within the impoundment and are managed through permitted industrial discharges from the facility."

8, Pg 95, MCL Exceedances Measured arsenic concentrations have exceeded the MCL, by more than 10 times at 26 sites, and have been equal to or greater than 100 times the MCL in downgradient groundwater at 6 sites, These include Michigan City ash ponds and Yard 520 landf ill in Indiana, Hatfield's Ferry landfill and UGI Hunlock ash pond in Pennsylvania, Karns and Weadock landfill in Michigan, and Indian River Burton Island landfill in Delaware.

Response from PADEP Report (January 2011) hereby supported by FirstEnergy:

MCL s are standards for comparison for groundwater used for public consumption, As previously stated, groundwater has been affected by past unreclaimed surface mining and the resultant acid mine drainage that occurred in the area currently occupied by the Hatf ield's Ferry landfill. In881

addition, arsenic has been detected above the MCL in several upgradient wells.

9. Pg 98, Examples of off

- site migration At Hatfield's Ferry Plant coal ash landfill in Pennsylvania, total arsenic has been measured at 342

times the MCL, and boron and molybdenum have been measured at 5 times and 33 times their LTHAs, respectively, in contaminated groundwater 1,500 feet downgradient of the landfill. EIP has documented contamination that has traveled beyond 1,000 feet from the waste

bo undary at eight sites. These include the Boardman Plant ash disposal area in Oregon, Hatfield's Ferry Ash Landfill and the Bruce Mansfield Little Blue Impoundment in Pennsylvania.

Response from PADEP Report (January 2011) hereby supported by FirstEnergy: This claim is unsubstantiated. There are no specific sampling data or monitoring wells listed. MCLs are standards for comparison for groundwater used for public consumption, In addition, arsenic has been detected above the MCL in several upgradient wells a nd, as previously stated, the groundwater has been affected by past u nr eclaimed surface mining and the resultant acid mine drainage that occurred in the area currently occupied by the landfill. According to the residual waste regulations, Allegheny Energy was required to identify public and private water supplies within a one

- quarter mile radius of the perimeter of the disposal area. Based on the private water supply survey conducted by GAI/Allegheny Energy in 2005, three individual property owners indicate d they have private water supplies (three wells and one spring) on their property. Public water supply information provided by the DEP indicated that Masontown Borough has a surface water intake along the Monongahela River approximately on e

- quarter mile aw ay from the landfill. The intake water is treated prior to being

distributed to residents.

10. Pgs. 98,99, and 100, Claims regarding B r uce Mansfield Little Blue Run disposal facility. EIP has documented contamination that has traveled beyond 1,000 feet fr om the waste boundary at eight sites. These include . . .the Bruce Mansfield Little Blue Run Impoundment in Pennsylvania . . . .state agencies have sampled off

- site drinking water wells only at the

Uniontown and Bruce Mansfield site. Contamination of numer ous wells has been documented at

both of them. At the Bruce Mansfield's massive unlined Little Blue Surface Impoundment, multiple drinking water wells have been contaminated with cadmium up to 170 times the MCL, lead 120 times the MCL, barium 3 times the M CL, arsenic up to 2.5 times the MCL, and other constituents such as boron, chloride, fluoride, sulfate, manganese, and aluminum exceeding secondary MCLs and Health Advisories. PADEP and FirstEnergy entered into a settlement agreement in 1994 to address gro undwater contamination. Since then, PADEP has issued two Notices of Violations (NOVs) for fugitive dust and required resampling of 10 wells with elevated arsenic. In addition, PADEP permitted an increase in the height of the dam for the impoundment in 2006 to accommodate more fly ash and scrubber sludge from the Bruce Mansfield Plant. The resulting increase in ash water height has increased head (downward) pressure, pushing the groundwater contamination farther offsite and resulting in levels of arsenic, an timony, hexavalent chromium, lead, boron, cadmium, thallium, selenium, and other constituents in off

- site springs and seeps in excess of Pennsylvania's water quality standards. At least 22 private wells have now been882

contaminated above MCLs, SMCLs, and hea lth advisories, and many of the affected homes have been purchased by FirstEnergy. To date, PADEP has not required a remediation plan or assessed penalties.

Response from PADEP Report (January 2011) hereby supported by FirstEnergy:

". . .EIP fails to cons ider what parameter concentrations may represent background conditions and does not consider that some data may represent outliers." "EIP's statement is unfounded and misleading

. First, there have been no confirmed

concentrations in off

- site residential dr inking water wells located near the impoundment in excess of an MCL. Second, EIP improperly concludes that any private water well sampled by FirstEnergy or the DEP is impacted by the impoundment. This conclusion ignores the facts that many of the wells are hydrogeologically separate from the impoundment and/or may be impacted by other sources such as past mining or oil and gas operations

. Third, FirstEnergy to our knowledge has never purchased a property because of impacts to a private water supply well by the impoundment as the Department has never found any drinking water wells to be contaminated by MCL's (primary drinking water contaminants)." "There is no technical data presented in the EI P report to support the claim that additional head
pressures creat ed by the 2006 expansion could be forcing contaminated water away from the impoundment in either groundwater or surface water."

Response: Based on an assessment of FirstEnergy’s Bruce Mansfield Power Plant and the Hatfield's Ferry Power Station in Pennsyl vania against EPA’s test of proof criteria, EPA designated these two sites as proven damage cases. For a summary of stakeholder arguments addressing these two sites and the rationale for the Agency’s damage case designations, see the technical support docu ments on damage cases in the docket of the final rule.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0289

- 1 

### Organization 1 

### : Indiana Kentucky Electric Corporation (IKEC)


### Commenter 1 : J. Michael Brown Commenter Type: Electric Utility Company

Classification: Substantive



### Comment Excerpt Text: Corrections and Clarifications to Inaccurate Claims Identifying the Clifty Creek Landfill as a Damage Claim Case.

Issue 1: In the Summary Section of the “Damage Claim” it is claimed that, “Clifty Creek
Station’s CCW La ndfill has measured high levels of boron, manganese, iron, and sulfate in downgradient groundwater.” In addition, it is claimed that, “The extent of the plume has not been

determined.”

IKEC’s Response: Given the criteria that the U.S. EPA uses for defini ng a proven Damage Case, there needs to be: (i) documented exceedances of a primary MCLs or other health

- based standards measured in groundwater at a sufficient distance from the waste management unit to indicate that hazardous constituents have migrated t o the extent that they could cause human health concerns (but not secondary MCL standards), and/or; (ii) where a scientific study883

demonstrates there is documented evidence of another type of damage to human health or the environment (e.g., ecological damag e) [Footnote 1 In determining whether evidence of ecological damage from a CCR unit constitutes a damage case, U.S. EPA stated in the proposed 2010 CCR rulemaking that it “now believes that ecological damages warranting state environmental response are gen erally appropriate for inclusion as a damage case,” such as information leading a state to issue fish advisories. 75 Fed. Reg. 35128, 35147 (June 21, 2010).], and/or; (iii) where there has been an administrative ruling or court decision with an explicit

fi nding of specific damage to human health or the environment.

IKEC points out that National Secondary Drinking Water Regulations (NSDWRs or secondary standards) are not health

- based standards. Instead, they are non

- enforceable guidelines regulating

contam inants that may cause cosmetic effects (such as skin or tooth discoloration) or aesthetic effects (such as taste, odor, or color) in drinking water. U.S. EPA recommends secondary standards to water systems but does not require systems to comply.

IKEC sub mits that there are no documented exceedances of a primary MCL or other health

based standards at this site, nor is there any evidence to indicate that there is any migration of any parameter off the site that is contributing to any exceedances of the seco ndary MCLs in the nearby off

- site receptors. To the contrary, we have both scientific investigations, (in the form of comprehensive groundwater monitoring assessments performed by competent and qualified professional hydrogeologists) as well as a court dec ision also referenced in the damage case claim that verify this.

The groundwater monitoring assessments were initiated by Applied Geology and Environmental Science (AGES), Inc., in 2004, when they began a hydrogeologic investigation at the site that

incl uded the installation of 28 piezometers, the drilling of 16 soil borings, surveying, and several years of water level monitoring. The results of the investigation indicate that groundwater from the northern end of the landfill discharges to the on

- site Wes t Bottom Ash Pond or the West Branch of Clifty Creek before flowing into the Ohio River. According to the report, the West Branch of Clifty Creek, Clifty Creek and the Ohio River are extremely effective hydraulic barriers to eastward groundwater flow towar d the Madison Well Fields, which are located one

half (0.5) to three (3) miles upstream from the landfill (AGES, 2006). A copy of this report is

included as Attachment 1.

Based on their study, AGES determined that it is not feasible for groundwater from this portion of the landfill to affect the Madison Well Fields because all groundwater from the site discharges to the Ohio River, which flows to west/southwest, away from the Madison Well Fields. In addition, the minimal volume of groundwater discharging from the entire site is diluted in the Ohio River by a factor of approximately 720,000 to over 1,500,000. At this rate of dilution, constituents in groundwater from the site would be undetectable with standard analytical

methods.

In conclusion, based on the extensive hydrogeologic studies conducted at this site, it is not feasible for groundwater from the site to affect groundwater at any nearby municipal water supply well fields due to the minimal volume of groundwater leaving the site, the hydraulic

barriers present, and the level of dilution provided by the Ohio River. Additionally, the two884

municipal drinking water supply well fields that are the closest off

- site receptors that would be impacted by any off

- site migration of groundwater from the Clifty C reek landfill operations undergo regular testing. These two well fields include the Madison Well Fields and the Kent Well Fields (one upstream and one downstream) and both public water supplies have demonstrated that the water consistently meets all applic able regulatory requirements, and shows no trace of contamination associated with the Clifty Creek landfill site.

Given the specific conclusion contained in the AGES study that, “Based on hydrogeologic conditions in the area, it is not possible for groun dwater from the site to adversely impact supply wells at the Madison Well Fields or the Kent Water Company Well Fields”, combined with the actual monitoring data available, it is IKEC’s conclusion that the site presents no risk to the Madison Well Field, t he Kent Well field, any other municipal well field, or any other domestic drinking water wells

.

Response: Based on an assessment of the Clifty Creek Landfill site against EPA’s test of proof criteria, the Agency designated this site as a potential damage case. For a summary of stakeholder arguments addressing the Clifty Creek site and the rationale for the Agency’s damage case designation, see the technical support documents on damage cases in the docket of

the final rule.



### Comment Number: EPA

- HQ

- RCRA

- 201 1

- 0392

- 0289

- 2 

### Organization 1 

### : Indiana Kentucky Electric Corporation (IKEC)


### Commenter 1 : J. Michael Brown Commenter Type: Electric Utility Company

Classification: Substantive



### Comment Excerpt Text: Issue 2: The “Additional Narrative” section of the alleged “Damage Claim” (Pages 23 and 24) has two statements that are factually incorrect. The first incorrect statement is the claim that, “Citizens Groups appealed the renewal permit for the landfill in 2 002, and requested monitoring along the northern end of the landfill and a liner for future expansions (Save the Valley), IKEC and IDEM have rejected these proposed changes.” The second factually incorrect statement is that, “The permit appeal is still bei ng disputed in court.”

IKEC’s Response: While the Citizens Groups did appeal the landfill permit, IKEC did not “reject” the installation of a liner for future landfill expansions

– in fact, IKEC has a Type I landfill that is already permitted and in oper ation. As part of the landfill upgrade, IKEC installed a Flexible Membrane Liner (FML), consisting of 30

- mil PVC membrane, and underlain by a Geosynthetic Clay Liner (GCL), which consists of a sodium bentonite layer sandwiched between geotextile fabrics, a s well as a leachate collection system. The new liner has a nominal hydraulic conductivity of 5x10

- 9 cm/sec, which meets or exceeds all applicable state requirements for a Type I RWS landfill.

Further, the claim that the “permit appeal is still being dis puted in court” gives the false impression that issues related to the environmental impact of IKEC’s permitted landfill are still in dispute. That is not the case. What has been in dispute is the Citizens Groups standing to885

appeal IKEC’s permit. There are no other issues still under appeal. What is relevant to the Citizens Groups’ claim that the IKEC landfill is adversely impacting the Madison City water supply are “Findings the Facts and Conclusions of Law” issued by the Indiana Office of Environmental Adj udication about the claimed impact of IKEC’s landfill on the Madison City water supply. One of the Findings of Fact is the Indiana Office of Environmental Adjudication finding that, “[t]he water from the City of Madison does not exceed any regulatory limit s for pollutants in drinking water” (Attachment 2, Findings of Fact 15, page 3) and “[t]he conclusion after seven years after this Permit was issued, water supplied by the City of Madison meets all federal and state regulatory limits for pollutants.” (Atta chment 2, Conclusion of Law 14, page 5). Again the claims raised by Earthjustice that the permit is still under appeal is misleading as it gives the impression that monitoring along the north end of the landfill and that a liner was needed for future expan sion was rejected by IDEM and IKEC is still in dispute. The August 24, 2009 Final Order of the Indiana Office of Environmental Adjudication clearly debunks the Citizens Groups’ apparent claim that environmental issues are still in dispute

.

Response: See r esponse to comment Excerpt EPA

- HQ

- RCRA

- 2011

- 0392

- 0289

- 1.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0289

- 3 

### Organization 1 

### : Indiana Kentucky Electric Corporation (IKEC)


### Commenter 1 : J. Michael Brown Commenter Type: Electric Utility Company

Classification: Substantive



### Comment Excerpt Text: Issue 3: Earthjustice’s reliance on discredited data: To date, the only study that IKEC is aware of that has been alleged to support the claims of off

- site groundwater contamination is included in a report filed by HNTB, a contractor hired by the City of Madison to perform a well head protection assessment in 1999. This report was rejected by IDEM for several reasons. According to IDEM, “[i]t is clear from the description of the modeling effort that the author is NOT a

qu alified groundwater scientist. The report demonstrates that the groundwater modeling was done without an understanding of: 1) how different boundary conditions are defined and how they control flow, 2) the difference between a transient and steady

- state si mulation, 3) ways to calibrate a flow model, 4) how to determine the appropriateness of the model grid for the task at hand, 5) how river leakance is defined and how it affects the groundwater flow solution near a river, 6) the definition (and the effect) of aquifer anisotropy, 7) the difference between static and pumping water levels.” (Attachment 3, Review of HNTB Delineation report, Madison, IN, page 1, bullet point 3. Emphasis in original.)

Data that is more than a decade old and that has clearly been discredited by the state regulatory agency does not support U.S. EPA’s listing the IKEC site as a damage claim case

.

Response: See response to comment Excerpt EPA

- HQ

- RCRA

- 2011

- 0392

- 0289

- 1.



### Comment Number: EPA

- HQ

- RCRA

- 2011

- 0392

- 0290

- 5 

### Organization 1 

### : Alliant Energy Corporate Services, Inc. on behalf of Interstate Power and Light Company and Wisconsin Power and Light Company886



### Commenter 1 : Douglas Kopp Commenter Type: Electric Utility Company

Classification: Substantive



### Comment Excerpt Text: Alleged Damage Cases by Environmental Groups Remain Unproven and Do Not Support CCR Regulation as a Hazardous Waste:

Section VI of the NODA includes several reports related to alleged CCR management damage cases by Environmental organizations. The two reports cit ed in section Vl.1and Vl.3 of the NODA allege an additional 70 CCR management sites should have been cited by EPA as "proven damage" cases. EPA must treat these general allegations with skepticism, since for most cases, the reports fail to provide the requ ired "test of proof" documentation necessary for EPA to characterize any site as a "proven damage" case. EPA has the responsibility to evaluate each of the alleged cases and to make final determinations as to whether a given site is a "proven damage

case" or not. In this rulemaking, EPA must consider only "proven damage cases". At this time,

these so

- called "potential" damage cases are only speculation by special interest groups, and deserve no consideration in the rulemaking process.

Two of the alleged da mage case locations are owned/operated by Alliant Energy. To further illustrate the misleading information reflected in these reports, Alliant Energy provides the following:

(1) Lansing Landfill: The allegation of CCR damage at the Lansing Power Station s ite is based on arsenic groundwater sampling test results which exceeded the Maximum Contaminant Level (MCL) for drinking water in years 2002, 2003, and 2004 at a single groundwater monitoring well (MW

- 11) located at the perimeter of the on

- site CCR landfi ll. In addition, iron and manganese were measured above Secondary MCLs (SMCL) at this well.

However, arsenic groundwater test results exceeding the MCL have never been detected at any of the other monitoring wells at this CCR landfill, and these high arse nic groundwater test results have not been observed again at MW

- 11 since 2004. All groundwater monitoring sampling results are reported to the Iowa Department of Natural Resources (IDNR) annually. IDNR reviews these results, but has not requested any furth er action related to the sampling results.

While Alliant Energy acknowledges a single groundwater monitoring well located on the power plant site had groundwater sampling results that exceeded the arsenic MCL in years 2002, 2003, and 2004, there has been no evidence reflecting any groundwater quality contamination has extended or is a concern to any off

- site location. Hence, there has been no demonstration of "proven damage".

(2) Columbia Surface Impoundments: The allegation of CCR damage at the Columbia Energy Center site is based on studies in the late 1970's and early 1980's which reflected conditions that no longer exist today. The studies referenced indicated reductions in the number and diversity of aquatic organisms along a stretch of the stream rec eiving wastewater discharge from the CCR ash ponds. Subsequent changes to the power plant operations have led to significant restoration887

of the receiving stream aquatic environment. This included elimination of wet sluicing of fly ash in favor of dry fly a sh management, and re

- use of water to the point that there has not been a wastewater discharge from the ash ponds since 2004.

More importantly, this site was previously reviewed by EPA in their 2007 Coal Combustion Waste Damage Case Assessments Report, EP A

- HQ

- RCRA

- 2006

- 0796

- 0015, (July 2007) which classified this site as "Indeterminate". No new information has been provided in the subsequent NODA information. Hence, this site remains "Indeterminate" and is not a "proven damage" case

.

Response: Based on a n assessment of IP&L’s Lansing Power Station Landfill, IA, and Alliant Energy/Wisconsin Power and Light Company’s Columbia Surface Impoundments (also, known as Columbia Energy Center) sites against EPA’s test of proof criteria, the Agency designated the

Co lumbia Surface Impoundments sites as a proven damage case, and the Lansing Power Station Landfill, as a rejected damage case. For a summary of stakeholder arguments addressing these two sites and the rationale for the Agency’s damage case designations, see the technical support documents on damage cases in the docket of the final rule.



### Comment Number: TRANS

- ARL

- 0002

- 1 

### Organization 1 

### : Environmental Integrity Project


### Commenter 1 : Eric Shaffer Commenter Type: Advocacy Group

Classification: Substantive



### Comment Excerpt Text: Last week, EIP, Earthjustice, and the Sierra Club, released a report documenting another 39 coal ash sites that have contaminated groundwater or surface water adding to the 31 we provided you in February. And when I say "contamination," I me an arsenic, lead, and other toxic metals that exceed drinking water or water quality standards sometimes by a factor of 10 or more. Now, we know most of this data comes from monitoring wells that are on

- site, but that's because states almost never require off

- site monitoring. Where that data exists, it invariably shows

contamination. My question to you is, the law requires you to evaluate this damage. What are you doing to evaluate the information we presented to you? And, more importantly, why aren't you taking the initiative to get this kind of information yourself?

Response: The Agency has assessed all the ‘newly alleged’ damage cases submitted by environmental advocacy groups in their February and August 2010 reports ( Out of Control and In Harm’s Way

, respectively) and the ir November 2011 report ( Risky Business ) against EPA’s test of proof criteria. Based on this assessment, the Agency designated some of the 90 CCR management sites as proven damage case, others

– as potential damage case, and still oth ers were rejected as CCR damage cases because they failed the scrutiny of the test of proof criteria. For discussion of the damage case assessment methodology, please refer to Unit XI of the preamble to this rule. For a summary of stakeholder arguments add ressing all the assessed CCR management sites and for the rationale for the Agency’s damage case designation decisions of these sites, see the technical support documents on damage cases in the docket of the final rule.888



### Comment Number: TRANS

- CHI

- 0113

- 1


### O rganization 1 

### : Midwest Generation


### Commenter 1 : Maria Race Commenter Type: Electric Utility Company

Classification: Substantive



### Comment Excerpt Text: The Joliet 9 landfill was recently identified in the August 2010 publication entitled "In Harm's Way" prepared by certain environmental interest groups to support their claims that federal regulation of coal ash is needed and, in particular, regulation of coal ash as a hazardous waste. I've been personally involved with the Joliet 9 landfill since 2001. The true story of Midwest Generation's Joliet 9 landfill does not support the claim that more federal regulation of coal ash landfills or regulation as a h azardous waste is needed to protect the public health; rather, it shows that current Illinois regulations are protective of the environment and public health. So much of what is contained in the "In Harm's Way" publication is false and misleading that I

w ill not have enough time today to identify and correct all of its errors. However, I will cover the most egregious of their false claims. * In the "In Harm's Way" document, it claims that 18 nearby residential drinking water wells were contaminated with bo ron from Midwest Generation,

and that is not true. * The document claims that there is evidence of offsite contamination in the direction of the Smiley subdivision, and that is not true. * The document claims that there was an enforcement action taken by t he State of Illinois, and that is not true. Because the authors of "In Harm's Way" elected not to discuss any of the contents of their story with Midwest Generation before publishing it, we did not have the opportunity to correct these

mistakes before the y were published. The Joliet 9 landfill has been subject to IEPA regulation since the 1970's. State regulations provide extensive requirements and protections against the outward migration of any impacted groundwater from the landfill. These requirements include quarterly monitoring and reporting for an extensive network of groundwater monitoring wells within the boundaries of the landfill for numerous constituents that are known to be associated with coal ash such as boron, arsenic and

manganese. The "In Harm's Way" document ignores these requirements and the fact that Midwest Generation has consistently complied with them. We have acted ethically with regard to the local communities. We've provided new wells in a deeper aquifer when modeling showed

groun dwater contamination could potentially reach these wells, although sampling of these wells

showed that none of them were contaminated. We submit that the true story of the Joliet 9 landfill is not one which supports the call for federal regulation of coal ash disposal sites or regulation as a hazardous waste. Rather, it shows that states can and do effectively regulate and monitor the operations of coal ash landfills. It also shows that in the operation of its Joliet landfill, Midwest Generation has consis tently taken a responsible, proactive course of action when dealing with the community so the risks, whether real or not, are addressed

.

Response: First, this rule will regulate CCRs under RCRA subtitle D: for further details, see Unit

IV of the final rul e’s preamble.889

Secondly, based on an assessment of Midwest Generation’s Joliet 9 site against EPA’s test of proof criteria, the Agency designated this site as a potential damage case. For a summary of stakeholder arguments addressing the Joliet 9 CCR mana gement site and the rationale for the Agency’s decision, see the technical support documents on damage cases in the docket of the

final rule.



### Comment Number: TRANS

- CHI

- 0167

- 1 

### Organization 1 

### : Environmental Integrity Project


### Commenter 1 : Jeff Stant
Commenter Type: Advocacy Group

Classification: Substantive



### Comment Excerpt Text: I want to respond to some of the statements that were made today assailing the statements made by citizens from Joliet about the contamination at that site, first of all. We, Environm ental Integrity Project, did a report which I'll turn in on that site as part of its "In Harm's Way" report,

we examined that site. There is no question that there were 18 wells at that site that were contaminated with boron. They were offsite drinking wa ter wells. The concentrations were between 1 and 2 parts per million in those wells. To Midwest Generation's credit, they either bought those people out or took them off their wells, but they were contaminated with boron. The natural background for the sh allow carbon rock aquifer in that area for boron is around 0.3. The boron was between 1 and 2 at all of those wells. The claim they made that the offsite groundwater is not moving into the Smiley Subdivision is a claim that we were just repeating

from the consultant of Midwest Energy that was simply saying that if you allow the quarries neighboring the site to be pumped down to the east, you'll have groundwater moving into the Smiley Subdivision within a period of time at that 1 to 2 parts per million level . So, they are the ones, we got that from their documents. The enforcement action they said was never taken. Look, we can't help it if we FOIA IEPA and IEPA finally sends us a notice of violation dated August 31, 2009 citing 50 violations of the groundwat er standard at the site, and then when we call them to get them to explain it further, they never respond to repeated phone calls. We have this NOV. And if their defense about how they're doing a good job is, hey, we've never taken any actions at that site so don't accuse us of having done so, I find that a funny defense for arguing that they're doing their job at a site where

22 offsite wells have been contaminated. And finally, I just point out that the boundary monitoring wells, the ones closest to the wells which are south and southeast of the site, not in the Smiley Subdivision but the drinking water wells to the south, those have arsenic in them at up to 10 times over the drinking water standard, molybdenum 72 times over the health standard, boron up to 5 times over the Illinois standard. So, they know they have a problem, Illinois EPA does, at the boundary of that site. Their documents indicate they can see there's a problem. It's not our fault that IEPA hasn't even seen fit to do one bit of sampling then farther offsite, and it's a statement that they're not doing their job

there

.

Response: B ased on an assessment of Midwest Generation’s Joliet 9 site against EPA’s test of proof criteria, the Agency designated this site as a potential damage case. For a summary of890

stakeholder arguments addressing the Joliet 9 CCR management site and the rationale for the Agency’s damage case designation , see the technical support documents o n damage cases in the

docket of the final rule.



### Comment Number: TRANS

- DEN

- 0017

- 1 

### Organization 1 

### : Earthjustice


### Commenter 1 : Melanie Kay Commenter Type: Advocacy Group

Classification: Substantive



### Comment Excerpt Text: This rulemaking is of monumental importance to the protection of health and the environment. How we deal with enormous volumes of coal ash will have vital implications for the future health of our communities, and for this reason it is imperative we proper ly regulate coal ash via

Subtitle C. Today I'd like to focus on three points particularly relevant to this hearing's location in Denver. First, the current laws of western states governing coal ash disposal are grossly inadequate. Of

the 10 states surroun ding Colorado that generate the largest volumes of ash, seven do not require groundwater monitoring at coal ash surface impoundments. This single regulatory requirement is so important that EPA uses it as a benchmark to predict whether a state will adopt the proposed Subtitle D guidelines. In other words, if a state has not yet required its most dangerous waste dumps to monitor the underlying groundwater, then EPA assumes that these states will not enforce or adopt new guidelines that are not mandatory.

T hus EPA believes that the west, with its booming coal industry, is out of luck for the Subtitle D

scheme. And the status quo of state regulations is indeed dismal. In fact, Kansas, Montana, New Mexico, and Utah exempt coal ash from their solid waste regul ations entirely. Consequently, landfills and waste ponds are not required by law in these four states to employ even the most basic safeguards such as liners, monitoring, corrective action, and financial assurance. Second, the arid west presents unique an d serious problems associated with improper coal ash disposal. Potable groundwater is a particularly precious resource. Yet at numerous sites near western plants, mismanagement of ash has contaminated this scarce resource; for example, at the

Ried Gardner Generating Plant in New Mexico, San Juan Generating Station and Four Corners Power Plant in New Mexico, Northeastern Station in Oklahoma, and Dave Johnston Plant in Wyoming. Further, fugitive dust at western coal ash dumps is a fact of life in our climate . Despite the likelihood of serious NAAQS violations, many western states do not require daily cover, including Arizona, North Dakota, New Mexico, and Oklahoma. In fact, severe fugitive dust problems are currently plaguing communities in Fruitland, New Mex ico, and Bokoshe,

Oklahoma. Third, in view of our proximity to the headquarters of the American Coal Ash Association, it is important to dispel a misconception asserted repeatedly by the ACAA, that there are no damage cases caused by coal ash reuse.

We a sk both EPA and the ACAA to review our report published last February, co

- authored by the Environmental Integrity Project, that describes two sites where the use of ash as structural fill contaminated groundwater.891

In addition, EPA itself documented that c oal ash used as fill contaminated drinking water in Pines, Indiana, and led, in part, to the town's designation as a federal Superfund site. In conclusion, nothing but federally enforceable minimum standards under Subtitle C will work for the west, and I therefore strongly encourage the EPA to adopt these standards

.

Response: EPA decided to regulate the disposal of CCR under subtitle D of RCRA by issuing minimum national criteria. Similar to the subtitle C option, this option would require composite liners, groundwater monitoring, structural stability requirements, corrective action, and closure/post closure care. However, given available statutory authorities, EPA proposed this option to be a self

- implementing rule with no direct federal oversight, with an effective six months after publication in the Federal Register . The A gency is deferring its final Bevill Regulatory Determination with respect to CCRs that are disposed in CCR landfills and CCR surface impoundments until additional information is available on a number of key technical and policy questions, including the ris ks of CCR disposal based on its arsenic content, such as the appropriate safe daily dose for arsenic and the speciation of arsenic in the environment, and the potential impacts of recent Agency regulations on the chemical composition of CCR. In addition, the Agency needs additional information on state programs before it is in a position to make a final Bevill Regulatory Determination.

As to the vexing issue of the effectiveness of state programs, the commenter is referred to the

extensive discussion on t he subject in Unit IV of the preamble to the final rule. EPA has also

addressed the issue of CCR fugitive dust (see Unit VI of the preamble) by introducing requirements for B est M anagement P ractices and for the preparation of an annual fugitive dust

manage ment plan, which shall be amended once CCR handling conditions change and/or in response to complaints by residents adjacent to the site concerning violations of the required

control measures. Finally, EPA has developed guidance to ascertain that practitio ners of large structural fill projects undertake precautionary measures to ensure that the application of large quantities of CCR would be preceded by assessment of the CCR

- and site properties. For additional information, the commenter is referred to Unit s IV and VI of the preamble to the final

rule.



### Comment Number: TRANS

- DEN

- 0120

- 3 

### Organization 1 

### : Commenter 1 : John Foreman Commenter Type: Private Citizen

Classification: Substantive



### Comment Excerpt Text: It's not a matter of some ponds being safe and some not. If a pond has coal ash in it, it also contains toxic poisons. In fact, a new report by the Environmental Integrity Project, Earthjustice, and the Sierra Club, released October 26, identifies 39 addit ional coal ash dump sites in 21 states that are contaminating drinking water or surface water with arsenic and heavy metals.

These sites are in addition to the 67 EPA

- acknowledged sites, bringing the total number to 137 in

34 states

.892

Response: Thank you for your comment. In this rule, EPA is addressing the impact on natural resources caused by the mismanagement of CCR management facilities by requiring composite liners, groundwater monitoring, structural stability requirements, corrective actio n, and closure/post closure care to be applied to these facilities.