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-HQRCRA-2011-0392, and EPA-HQ-RCRA-2012-0028)

Volume 15: Compendium of Damage Cases

December 2014
2

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 Bevill Regulatory and May 

2000 Bevill Regulatory Determinations regarding CCR and to list CCRs as special wastes 

subject to hazardous waste regulations under subtitle C of RCRA when destined for disposal in 

landfill or surface impoundments. Under the second 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 monitoring, structural stability requirements, corrective action, 

and closure/post closure care. 

EPA also solicited comments on all aspects of both proposed options. The Agency 

received over 450,000 comments on the proposed rule. The majority of the comments focused on 

which regulatory path the Agency should pursue for regulating CCRs, i.e., RCRA’s subtitle C or 

subtitle D. EPA also conducted eight public hearings and took additional comments on the 

proposed rule. EPA has established three dockets for this regulatory action under Docket ID No. 

EPA-HQ-RCRA-2009-0640, Docket ID No. EPA-HQ-RCRA-2011-0392, and Docket ID No.

EPA-HQ-RCRA-2012-0028. All documents in these dockets are available at 

http://www.regulations.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 Room 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 volumes of summarizing comments on major 

topics covered in the proposed rule (see table below) and the Agency’s responses to those 

comments, as well as a separate volume summarizing comments provided during public 

hearings. Since EPA is 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 (Legal issues/Self-implementing 

Design/Reliance on Certifications by an Independent Professional 

Engineer/Recordkeeping, State Submissions, Posting to the 

Internet/Finance Assurance/Alternative Approaches) 

3

Scope and Purpose/Effective Dates/Applicability/Off-site 

Disposal/Definitions 

4 Location Restrictions 

5 Design Criteria: Liners and Leachate Collection Systems

6 Design Criteria: Structural Integrity 

7

Operating Criteria: Endangered species/Surface water/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 Use 
4

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

Organization1:

Commenter1: 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 150 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 state regulators.

Comment Number: EPA-HQ-RCRA-2009-0640-04022-1

Organization1:

Commenter1: 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 all 

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

Organization1: Waccamaw RIVERKEEPER

Commenter1: 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 levels 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 contamination 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 groundwater 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

Organization1: Comite Dialogo Ambiental

Commenter1: Ruth Santiago

Commenter Type: Advocacy Group

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 damage 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 contamination. 

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

Organization1: Kentucky Department for Environmental Protection

Commenter1: R. Bruce Scott

Commenter Type: State Government

Classification: Substantive
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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 plants 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 exceedance 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 

requirements 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 the final rule.

Comment Number: EPA-HQ-RCRA-2009-0640-06260-13

Organization1: Kentucky Department for Environmental Protection

Commenter1: 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 that 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 management, 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

Organization1: Kentucky Department for Environmental Protection

Commenter1: R. Bruce Scott
7

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 aware 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

Organization1:Tennessee Department of Environment and Conservation (TDEC)

Commenter1: Paul L. Sloan

Commenter Type: State Government

Classification: Substantive

Comment Excerpt Text:

The Tennessee Department 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 

in 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. Environmental 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 2008 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

Organization1: Tennessee Department of Environment and Conservation (TDEC)

Commenter1: 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 period of time CCRs have been generated. The extent of risks posed 

appears minimal based on the current regulatory methodology used by EPA to determine the 

release potential. Tennessee, like other 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 acrefeet or more or a height of 20 feet or more, are also required to perform 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, triggering a timely, preventative and/or 

remedial action by the facility’s owner/operator.

Comment Number: EPA-HQ-RCRA-2009-0640-06314-13

Organization1: Earthjustice et. al. (analyses prepared for Earthjustice et. al. by Russell 

Boulding, Boulding Soil-Water Consulting, and submitted by Earthjustice)

Commenter1: 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 

from 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 ATTACHMENT 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

Organization1: Earthjustice et. al. (analyses prepared for Earthjustice et. al. by Russell 

Boulding, Boulding Soil-Water Consulting, and submitted by Earthjustice)

Commenter1: Lisa Evans

Commenter Type: Advocacy 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 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 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 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) [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 microorganisms 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 therapy. These effects include thyroid abnormalities (mainly as 

hypothyroidism and goiter), weight gain, edema, gastrointestinal pain, diarrhea, tremor, polyuria 

(excessive or abnormally large production or passage of urine), and renal tubular damage. Longterm lithium therapy is essentially analogous to a long-term cumulative dose of lithiumcontaminated drinking water. Michigan, possibly the only State in the union that has adopted a 
10

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

Organization1: Earthjustice et. al. (analyses prepared for Earthjustice et. al. by Russell 

Boulding, Boulding Soil-Water Consulting, and submitted by Earthjustice)

Commenter1: 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 or 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 is 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 

data 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 impoundments (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 

composite 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 monitoring 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 has 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 shallow 

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 twice 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 for 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 clay 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 liners. 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-2009-0640-06314-24

Organization1: Earthjustice et al. (analyses prepared for Earthjustice et. al. by Russell 

Boulding, Boulding Soil-Water Consulting, and submitted by Earthjustice)

Commenter1: Lisa Evans

Commenter Type: Advocacy Group

Classification: Substantive

Comment 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-ofproof 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 damage 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 report) 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

Organization1: Earthjustice et. al. (analyses prepared for Earthjustice et. al. by Russell 

Boulding, Boulding Soil-Water Consulting, and submitted by Earthjustice)

Commenter1: 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 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 

ATTACHMENT 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/unlined/?), 

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 parameters 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 report. 

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 
13

from the same plant (Port Washington and Cedar Sauk LF), the Dairyland 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. The 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. Information was not available 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 to 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

Organization1: Earthjustice et. al.

Commenter1: 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 when 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 cases. 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 identify “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 1980 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: Wastes 

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 underlying 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 only 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 these 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 2000 

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.]

Response: 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 submitted 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-2009-0640-06349-4

Organization1:

Commenter1: 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 caused 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 waste 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/OutofControlMountingDamagesFromCoalAshWasteSites.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 in 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 federal 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 as 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 also 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 provide 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 disposal).

Comment Number: EPA-HQ-RCRA-2009-0640-06352-1

Organization1: Dayton Power & Light Company (DP&L)

Commenter1: 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 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 characteristics 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 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 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 function of 

the material managed at the impoundment but of a failed outfall gate. Proper management and 
17

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 surface 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 weekly 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 assessment of 

structural stability and factors of safety every five years. 

Comment Number: EPA-HQ-RCRA-2009-0640-06360-79

Organization1:ARIPPA

Commenter1: 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 Health 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 proposed 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

Organization1: ARIPPA

Commenter1: Jeff A. McNelly
18

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 comment excerpt EPA-HQ-RCRA2009-0640-06360-81.

Comment Number: EPA-HQ-RCRA-2009-0640-06360-85

Organization1: ARIPPA

Commenter1: Jeff A. McNelly

Commenter Type: Trade Association

Comment Excerpt Text:

Accordingly it is unreasonable to make any comparison between 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 dangerous voids, high walls, and pools of water at 

AMLs. 

Response: Thank you for your comment. See response to comment excerpt EPA-HQ-RCRA2009-0640-06360-81.

Comment Number: EPA-HQ-RCRA-2009-0640-06362-4

Organization1:

Commenter1: 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 this 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 coal 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 109 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 prevent 

leachate from migrating to groundwater.

Comment Number: EPA-HQ-RCRA-2009-0640-06398-67

Organization1: Duke Energy

Commenter1: Mike Stroben

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Excerpt Text:

Another significant 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 improperly 

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 

conducted 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

Organization1:

Commenter1: 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 and 
20

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 

specific 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 documented, 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 potential 

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 responsible 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 the 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 “Standards 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 case 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 dedicated 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 advocacy 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

Organization1:

Commenter1: Anonymous
21

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 this 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 

submitted 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: 

<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 specific damage to human health or the environment. In cases of comanagement 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, 

<Potential 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 standards 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 that have been confirmed by the cited review process.

Comment Number: EPA-HQ-RCRA-2009-0640-06502-1

Organization1:

Commenter1: 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, "the 
22

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, lead 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

Organization1:Lafarge North America Inc.

Commenter1: 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 filed 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-RCRA-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 and 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 statements 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 facility. 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 hundreds 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, “that 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 cement 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 monitoring 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 respective 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 permanently 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

Organization1:Large Public Power Council (LPPC)

Commenter1: 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 landfills, 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 handling 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. Following 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 one 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 lined 
24

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 established 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 and 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

Organization1: Saint-Gobain Corporation / CertainTeed Corporation

Commenter1: 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 CCRs. 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 position 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 

exclusion 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

Organization1: Portland Cement Association

Commenter1: 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 instead 

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 following 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 from 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 contends 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 RCRA 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 entity 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=000000000001020554
26

Comment Number: EPA-HQ-RCRA-2009-0640-06817-59

Organization1:Portland Cement Association

Commenter1: 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 "Evaluation 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

Organization1: SCANA Corporation

Commenter1: 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 considerations 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 Health, 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 address 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 surface 
27

impoundments (and to a lesser degree, CCR landfills), which impact 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-2009-0640-06841-5

Organization1: Michigan Technological University, Michigan Tech Transportation Institute

Commenter1: 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 the 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 steps 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; all 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 impoundments (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 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-2009-0640-06851-19

Organization1:American Electric Power (AEP)

Commenter1: 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 use cases that meet the statutory criteria 
28

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 is 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 emission 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 future 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 to 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 unless such an approach is taken.")

Comment Number: EPA-HQ-RCRA-2009-0640-06883-26

Organization1: Headwaters Resources, Inc.

Commenter1: 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 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, the Agency does not bar nor regulate CCR 

structural fill projects but rather advises practitioners to thoroughly study the material and site 

properties prior to the execution of the project. 

Comment Number: EPA-HQ-RCRA-2009-0640-06885-4

Organization1: Hoosier Environmental Council (HEC)

Commenter1: Jesse Kharbanda
29

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

Organization1: Hoosier Environmental Council (HEC)

Commenter1: 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 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,” 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

Organization1: Entergy Services, Inc.

Commenter1: 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 “unsatisfactory” 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: Environmental 
30

Protection Agency. EPA Coal Combustion Residuals 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 units 

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 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 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 the 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

Organization1: Missouri Joint Municipal Electric Utility Commission

Commenter1: 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 environment 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 grandfathered 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

Organization1: Missouri Joint Municipal Electric Utility Commission

Commenter1: 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 require 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 CCR 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-2009-0640-07001-5

Organization1: Vectren Corporation

Commenter1: 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 current 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

Organization1: Great River Energy

Commenter1: Erik Silvola

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Excerpt Text:

The unfortunate incident at the 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 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 

adverse impacts to groundwater and surface water.
32

Comment Number: EPA-HQ-RCRA-2009-0640-07489-9

Organization1: Council of Industrial Boiler Owners (CIBO)

Commenter1: Robert D. Bessette

Commenter Type: Trade Association

Classification: Substantive

Comment Excerpt Text:

Damage cases do not provide factual 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 health 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. Department 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 in 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. Taken 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 hazardous 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 conclusions. 

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 

"additional 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] These 
33

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 previous 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 these 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 

determination 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 demonstrate 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 for 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

Organization1: Municipal Electric Authority of Georgia (MEAG Power)

Commenter1: 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 survey 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 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 System for Dams provide a sufficient 

justification for the rule’s requirements for structural integrity of surface impoundments, 

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 damage to property 

under failure caused by extreme loading conditions.

Comment Number: EPA-HQ-RCRA-2009-0640-07799-6

Organization1: Municipal Electric Authority of Georgia (MEAG Power)

Commenter1: 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 Valley 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 details, see unit IV 

of the preamble to the final rule.

Comment Number: EPA-HQ-RCRA-2009-0640-08211-13

Organization1: North Dakota Department of Health

Commenter1: 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

Organization1: North Dakota Department of Health

Commenter1: L. David Glatt

Commenter 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 management, including transportation. 

Comment Number: EPA-HQ-RCRA-2009-0640-08213-7

Organization1: Central Alabama Electric Cooperative

Commenter1: 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 struggling 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 requires 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

Organization1: Dixie Electric Cooperative

Commenter1: Gary Harrison

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Excerpt Text:

From the information I have obtained, the ash spill at TVA’s Kingston 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

Organization1: Gypsum Association

Commenter1: 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 involve 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 2007), Docket No. EPAHQ-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 disposal 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 levels 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-Tec 
37

liner. This evidence indicates that FGD has the potential 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

Organization1: Gypsum Association

Commenter1: 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 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 facilities. 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 evidence 

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 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 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 analysis, 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: See response to comment excerpt EPA-HQ-RCRA-2009-0640-08227-133.

Comment Number: EPA-HQ-RCRA-2009-0640-08244-20

Organization1: Edison Mission Energy, LLC

Commenter1: Basil G. Constantelos

Commenter Type: Electric Utility Company
38

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 be 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 under 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 

CCR 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 thatspecific conditions do not pose risks to human health or the environment, 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 the 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 illustrate 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 these 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 Subtitle 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

Organization1:Stinson Morrison Hecker LLP on behalf of Kansas City Board of Public 

Utilities

Commenter1: 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 others 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 need 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

Organization1: Stinson Morrison Hecker LLP on behalf of Kansas City Board of Public 

Utilities

Commenter1: 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 caused 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 adding 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 perform 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

Organization1: Oklahoma Department of Environmental Quality
40

Commenter1: 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 Coal 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 case 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 Oklahoma 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-liner/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 Subtitle 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

Organization1: Deseret Generation and Transmission Co-operative

Commenter1: 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 Kingston 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 spill 
41

U.S. history caused 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 

been 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 adverse 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 golf 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

Organization1: National Mining Association (NMA)

Commenter1: 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 fall 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 because 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 contaminated. 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 Regulatory 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 

exceedances 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 Regulatory 
42

Determination, it has identified six alleged potential damage cases involving 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 that 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 suggests 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 this 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 make 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 agrees 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 subject 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-2009-0640-08857-17

Organization1: Department of Electric, City of Hamilton, Ohio

Commenter1: 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, itself, 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 slurry 
43

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 109, 2.7 x 108, 1.3 x 108,

and 1 x 108 gallons of CCR slurry by the spills of the 2008 Kingston 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 releases (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 management 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 System 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

Organization1: National Ready Mixed Concrete Association (NRMCA)

Commenter1: 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 Valley 

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 unit IV 

of the preamble to the final rule.

Comment Number: EPA-HQ-RCRA-2009-0640-09239-13

Organization1:Prairie State Generating Company, LLC (PSGC)

Commenter1: 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 under current RCRA regulations), but to 

how it is managed. EPA has assessed various damages cases and determined that certain disposal 
44

practices pose a potential threat to human health and the environment - not that the material itself 

is hazardous. In response 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 and 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 whether 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 risks. 

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

Organization1: Prairie State Generating Company, LLC (PSGC)

Commenter1: 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 and 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

Organization1: Altaview Concrete

Commenter1: 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 failure 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 to 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

Organization1: Texas Industries, Inc. (TXI) Operations, LP

Commenter1: David Perkins

Commenter Type: Beneficial User

Classification: Substantive

Comment Excerpt Text:

4. Imposition of Subtitle D management practices will appropriately 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 

regulatory 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 foundation 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). Further, 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 nonhazardous industrial waste were developed subsequently with different requirements 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 engineering 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 design 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 are 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 sufficient 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, environmental 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, however, 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

Organization1: Intermountain Power Service Corporation (IPSC)

Commenter1: 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

Organization1: Electric Power Research Institute (EPRI)

Commenter1: 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 association 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 the 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 waste 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 assessments 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 remediation, 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 the 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 

monitoring 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 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. This scenario reflects the 
48

damage cases, but is markedly different from 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 

probabilistic 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 water 

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 completed, 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 case 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, several 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 

maximum 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 regulatory 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 record 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

Organization1: Electric Power Research Institute (EPRI)

Commenter1: Ken Ladwig

Commenter Type: Trade Association

Classification: Substantive

Comment Excerpt Text:

US EPA suggests in the preamble that the damage cases offer support 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 

results, 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 continue to release 

constituents for 10,000 years or until the constituents are completely depleted from the disposal 
49

site. The calculated risks are predicated on the continued long-term exposure to individuals 

living near the sites, which is not supported by 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

Organization1:Otter Tail Power Company 

Commenter1: W. Uggerud

Commenter Type: Electric Utility 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 recategorization 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

Organization1: PMI Ash Technologies, LLC (PMI)

Commenter1: 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 RCRA subtitle D: for further details, see unit IV 

of the preamble to the final rule.

Comment Number: EPA-HQ-RCRA-2009-0640-09886-6

Organization1: PMI Ash Technologies, LLC (PMI)

Commenter1: 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 human 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 preamble to the final rule.

Comment Number: EPA-HQ-RCRA-2009-0640-10483-19

Organization1:Utility Solid Waste Activities Group (USWAG) et al.

Commenter1: 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 the 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 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 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).

While 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 identified 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 identified.” 65 Fed. Reg. at 32216. In 
51

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 information 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 

completed 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, there 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 “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-2009-0640-10489-40

Organization1: Harsco Minerals International, a division of Harsco Corporation

Commenter1: Gene Iannazzo

Commenter Type: Beneficial User

Classification: Substantive

Comment Excerpt 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 rulemaking 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 

regulations 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

Organization1:Harsco Minerals International, a division of Harsco Corporation

Commenter1:Gene Iannazzo

Commenter Type: Beneficial User

Classification: Substantive
52

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 reaction 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 

source 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. 

Comment Number: EPA-HQ-RCRA-2009-0640-10528-1

Organization1: Upper Chattahoochee Riverkeeper (UCR)

Commenter1: 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.

Response: 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

Organization1: Arizona Rock Products Association (ARPA)

Commenter1: 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 combustion 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 conduct 
53

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

Organization1: Maryland Energy Report

Commenter1: 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 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 reporting 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 likely 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

Organization1:

Commenter1: 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 Texas 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 discharge of selenium-enriched, CCR wastewater into cooling 
54

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. 

Comment Number: EPA-HQ-RCRA-2009-0640-10809_DA-039-6

Organization1:

Commenter1: 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

Organization1:

Commenter1: 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 this 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 instances 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

Organization1: Ohio Environmental Protection Agency

Commenter1: 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 

regulations 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

Organization1: Ohio Environmental Protection Agency

Commenter1: 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 four 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 ground water monitoring. 

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

Comment Number: EPA-HQ-RCRA-2011-0392-0280-4

Organization1: Strategic Environmental Analysis, LC

Commenter1: Richard Fortuna

Commenter Type: Other Company

Classification: 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: Poovey, 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 been 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, 2010, 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 of 
56

nearby residents. You won’t need to conduct a risk assessment 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 subtitle D: for further details, see unit IV 

of the preamble to the final rule.

Comment Number: EPA-HQ-RCRA-2011-0392-0286-4

Organization1: FirstEnergy Corp.

Commenter1: Mike Horvath

Commenter Type: Electric Utility Company

Classification: Substantive

Comment 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 caused by poor design, poor drainage, and poor operation."

Response: The Agency concurs with the comment.

Comment Number: TRANS-KNX-0128-2

Organization1: Central Alabama Electric Cooperative

Commenter1: 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

Organization1: Kentucky Department of Environmental Protection

Commenter1: Bruce Scott

Commenter Type: State Government

Classification: Substantive
57

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 requirement 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 vertical 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 preamble to the final rule.

Comment Number: TRANS-LVL-0117-2

Organization1:

Commenter1: 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 their 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) Using 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 full 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 the 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

Organization1:
58

Commenter1: 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 Services 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 the 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 metals 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 Department 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 damage cases are substantial

Comment Number: EPA-HQ-RCRA-2009-0640-00358-16

Organization1: Citizens for Clean Power (CCP)

Commenter1: 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 south of landfill; Well MW-14D adjacent the unlined South Ash Pond, 2170 ug/L As 
59

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 Landfill – 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 slurry 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 achieving 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 create 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 riparian 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 health 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 during 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 arsenic 
60

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

2009. 

Comment Number: EPA-HQ-RCRA-2009-0640-03275-2

Organization1: Public Employees for Environmental Responsibility

Commenter1: 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

Organization1: Public Employees for Environmental Responsibility

Commenter1: 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. Prior 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 CCRs, 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 lead 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

Organization1: Green Century Capital Management

Commenter1: 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 standards for coal 
61

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 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. For further details, the commenter is referred to Unit IV of the preamble to the 

rule. 

Comment Number: EPA-HQ-RCRA-2009-0640-05693-1

Organization1: North Carolina House of Representatives

Commenter1: 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 

pollutants 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 corroborate 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

Organization1: Comite Dialogo Ambiental

Commenter1: 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 Pines, 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 damage 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, reduction 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, the Agency developed four 

criteria against which prospective projects 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 not 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, 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.

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 importantly) 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

Organization1: Clean Water Network

Commenter1: 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 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: 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 case 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

Organization1: Earthjustice et. al. (analyses prepared for Earthjustice et. al. by Russell 

Boulding, Boulding Soil-Water Consulting, and submitted by Earthjustice)

Commenter1: 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 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 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 state that has been proactive in requiring monitoring, ranks first in number of 
64

damage cases with 13, but ranks 30th 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: 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 Number: EPA-HQ-RCRA-2009-0640-06314-14

Organization1: Earthjustice et. al. (analyses prepared for Earthjustice et. al. by Russell 

Boulding, Boulding Soil-Water Consulting, and submitted by Earthjustice)

Commenter1: 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 (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 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 attributed to the rarity with which such monitoring is required at 

CCR disposal facilities.

Levels of Groundwater 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 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 
65

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 established. 

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 standards (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 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 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 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 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 
66

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 

not 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 times 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 programs 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 exceeded 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 healthbased 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 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) 

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 
67

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 

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 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, additional 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 adversely 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 report 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 cases 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 waste 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 environment (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

Organization1: Earthjustice et al. (analyses prepared for Earthjustice et. al. by Russell 

Boulding, Boulding Soil-Water Consulting, and submitted by Earthjustice)

Commenter1: Lisa Evans

Commenter Type: Advocacy Group

Classification: Substantive

Comment Excerpt Text:

Table 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 SMCL 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 sites. 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 sites (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 conditions (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 of 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

Organization1: Earthjustice et al. (analyses prepared for Earthjustice et. al. by Russell 

Boulding, Boulding Soil-Water Consulting, and submitted by Earthjustice)

Commenter1: 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.

- Another 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 

undocumented 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 significant 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 200 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, 

Oklahoma (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 the 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 indicate only that it has moved to 
70

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 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, states 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 

characteristics 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

Organization1: Earthjustice et al. (analyses prepared for Earthjustice et. al. by Russell 

Boulding, Boulding Soil-Water Consulting, and submitted by Earthjustice)

Commenter1: Lisa Evans

Commenter Type: Advocacy Group

Classification: 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 ponds, 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 that 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 Environmental 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 capping 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 Agency (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

Organization1: Earthjustice et. al.

Commenter1: 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 of 
72

RCRA is Warranted.

In section 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 analysis, 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. The 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 identification 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 handling, 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 risk 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 prospect 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 “danger” 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 water 

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 Club. [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/ejeipreportout-of-controlfinal. pdf; Envtl. 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 EIP, 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 damage 
73

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 practices. 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 threat 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 investigate 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/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, 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-2009-0640-06356-5

Organization1: U.S. Chamber of Commerce

Commenter1: 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 as 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 exceeding 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.

Comment Number: EPA-HQ-RCRA-2009-0640-06425-6

Organization1: City of Chesapeake, Virginia

Commenter1: 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 eliminate 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 is 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

Organization1: City of Chesapeake, Virginia

Commenter1: 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 final 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 require 
75

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 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-2009-0640-06434-1

Organization1:

Commenter1: Mass Comment Campaign 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 damages 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

Organization1:

Commenter1: Mass Comment Campaign sponsoring organization unknown (272)

Commenter Type: Private Citizen

Classification: Substantive

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 until 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 EPAHQ-RCRA-2009-0640-06425-6. As to regulating CCR disposal, this final rule is introducing 

effective measures – including location, design, and operational requirements for CCR 

management units, to protect human health and the environment. 
76

Comment Number: EPA-HQ-RCRA-2009-0640-06554-2

Organization1:

Commenter1: Kristina Keeling

Commenter Type: Private Citizen

Classification: Substantive

Comment Excerpt Text:

One only needs 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

Organization1:

Commenter1: 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 unacceptable 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, the 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 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. In 

addition, one of the operational aspects addressed in the rule is control of CCR fugitive dust. 

Comment Number: EPA-HQ-RCRA-2009-0640-06858-1

Organization1: Association of Canadian Industries Recycling Coal Ash (CIRCA)

Commenter1: Anne Weir

Commenter Type: Trade Association

Classification: Substantive

Comment Excerpt Text:

The Association of Canadian Industries Recycling Coal Ash (CIRCA) appreciates the US EPA’s 
77

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

management and regulatory 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

Organization1:

Commenter1: 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 probably 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

Organization1:

Commenter1: 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-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 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 the 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 of 
78

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 

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. 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 constituents 

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

commenter 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. 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 
79

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 state 

programs before it is in a position to make a final Bevill Regulatory Determination.

Comment Number: EPA-HQ-RCRA-2009-0640-10495-47

Organization1: Earthjustice et al.

Commenter1: 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 contaminants 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 management.” 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 at 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 as 
80

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/lawsuit-claims-dominion-saw-golf-course-coal-ashdump and http://hamptonroads.com/2009/05/dominion-kept-7year-secret-fly-ashsenvironmental-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 causes 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 hazard.” 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 least 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 to 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 disposed 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-report20090507.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 also 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. Surface 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 the 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 voluntary, 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 ponds 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 require 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 

Surface 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 sufficiently 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 impoundments 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: See 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 ponds 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 that 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 only “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, discusses 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 landfills 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 composite 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 three 
83

liner types: (1) a liner consisting of a minimum of two feet of compacted soil with a hydraulic 

conductivity of more than 1x10-7cm/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 

surface 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 257 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 prematurely 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 Assessments (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 environmental 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 surface 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 in 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 allowed 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-waste-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 111, 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 of 
84

“structural fill” projects. [Footnote 307: See, e.g., the Copicut Road Project in Freetown, 

Massachusetts described in EPA’s Coal Combustion Waste Damage 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 agrees 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 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 to the requirements of this rule for 

a CCR landfill.

iii. Unlined CCR landfills

EPA estimates that there are over 337 currently operating 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 extrapolate 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 Waste 

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 sufficient 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 values.

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 many 
85

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 environment 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 required 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 10-7cm/sec. The lower component must also be a recognized liner material; e.g., soil, clay, 

or Geosynthetic 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 landfills 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 environment 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 Landfills.” 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 CCRgenerating 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 levels 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 gray 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 fill 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 performance-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 minimize 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 on 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; operating 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 effectiveness 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. The Agency is promulgating the requirement for owners and 
87

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 and 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 dust 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 not 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 EPA’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 

likely 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 designed 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 impoundments 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 annual 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 generally 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 unsafe 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 disposal 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 of 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 at 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 Georgia 

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, July 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. Similarly, 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 

siting 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 quantified 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 five 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 restrictions 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 not 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. New 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 40 
89

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 the 

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 landfills: 

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 that 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 environmental 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 comments. 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 Combustion 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 

placement 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 Interior 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 used 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 toxic substances. Regardless of the regulatory mechanism 
90

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 December 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

Organization1: Earthjustice et al.

Commenter1: 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 these 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 reports 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 human 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 CCR 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

Organization1: Physicians for Social Responsibility (PSR)

Commenter1: 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 

exposed. 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 my 
91

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 exposure 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. Exposure 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 selenium. 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 Kingston 

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 where 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 environment.

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 environmental 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 noted 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 

consequences.

Comment Number: EPA-HQ-RCRA-2009-0640-10736_DEN-048-3

Organization1: Earthjustice

Commenter1: 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 where 
92

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 

unregulated ‘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 ‘structural fill’ prior to 

becoming a regulated CCR surface impoundment disposal site. 

Comment Number: EPA-HQ-RCRA-2009-0640-11229_CHI-100-1

Organization1: Physicians for Social Responsibility and Earth Justice

Commenter1:

Commenter Type: Advocacy Group

Classification: 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, landscape 

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 CCRs. 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 on 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 needs additional information on state 

programs before it is in a position to make a final Bevill Regulatory Determination. 

Comment Number: TRANS-ARL-0060-1

Organization1:

Commenter1: Mary Fox
93

Commenter Type: Private Citizen

Classification: Substantive

Comment 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 need 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 mixture 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 constituents 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 several 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 

management 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 

data 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

Organization1: EarthJustice

Commenter1: 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 with 

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 nothing 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 data 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 you 

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 

as 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 requires 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

Organization1: EarthJustice

Commenter1: 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 United 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 technical 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 and 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 there 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 think, 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've 
95

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 integrity. 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 have 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 behind.

Response: We appreciate your comment. See response to comment excerpt TRANS-ARL-0060-

1.

Comment Number: TRANS-ARL-0146-1

Organization1: League of Conservation Voters

Commenter1: 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 do 

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 unnecessarily 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 states. 

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.
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Comment Number: TRANS-CHI-0118-2

Organization1:

Commenter1: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 that broke the camel's back.

Response: Thank you for your comment.

Comment Number: TRANS-CHI-0125-3

Organization1: Environmental Integrity Project

Commenter1: 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 

voluntary 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

Organization1:

Commenter1: 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 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 count 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

Organization1:

Commenter1: 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 the 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 proven or suspected environmental damage cases, 

as determined by EPA and other investigators. What the damage cases show is that currentlyused 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 surface 

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 socalled 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 selenium-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 rule (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

Organization1: Earthjustice

Commenter1: 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 country, 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 facilities 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 monitored. 

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 state, 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 regulation 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 water 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 barbeques, 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 trapped. 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-ARL-0060-

1.

Comment Number: TRANS-CLT-0112-1

Organization1: Appalachian Voices

Commenter1: Willa Mays

Commenter Type: Advocacy Group
99

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 failure 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 Emory, 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 reviewed 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 dissolved 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

Organization1:

Commenter1: 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 the 

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, making 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 storage 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 Authority'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 per 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 pulmonary disease or 
100

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 healththreatening 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-ARL-0060-

1.

Comment Number: TRANS-KNX-0001-1

Organization1:

Commenter1: 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 stored 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

Organization1: Earthjustice

Commenter1: 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 that'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, looking 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 country; 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 losses 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 this 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 beautiful 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 contaminating 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 surface 

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 about 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

Organization1: Greenpeace USA
102

Commenter1: 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 from Big Coal, prior administrations have allowed the industry to police itself or selfregulate 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 protect 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 expand to about 5.7 million cubic yards of CCW on site. This number of highhazard 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 probably 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

Organization1:

Commenter1: 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 resident 

-- 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. 

The 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 coal ash piles in Kentucky, like many states, are located on the banks or proximate 
103

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 December 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 Resource 

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 -- from 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-

1.

Section 8.3 - Damage case data are unreliable

Comment Number: EPA-HQ-RCRA-2009-0640-05751-2

Organization1: Savannah River Nuclear Solutions, LLC (SRNS)

Commenter1: 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 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 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 located. 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 correlate most closely to the description at FR 35238 is 
104

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 body 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 from 

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 given 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 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 where 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 South 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 landfill. 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 information 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 surface 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 other 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 periodically 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 pond.

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).

http://ecophys.fishwild.vt.edu/wp-content/uploads/2012/11/hopkins-et-al.-1997-GCE.pdf
105

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 Elements 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 Combustion Waste: The Cost 

of Poisoned Fish and Wildlife, A. Dennis Lemly, December 15, 2010. Comment Document ID EPAHQ-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-Environmental-Damage-fromCCW.pdf

Comment Number: EPA-HQ-RCRA-2009-0640-06202-33

Organization1: American Coal Ash Association (ACAA)

Commenter1: 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 guidance 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 illustrated than by the Gambrills, BBSS CCR quarry 

reclamation site in Mayland that was permitted by the State and operated between 1995 and 
106

2007; and the Battlefield Golf Club, Chesapeake, Virginia, where a large structural fill project 

has been carried out between 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 2007 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 rule, 

“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 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 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 should 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 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 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 quarry, 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 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.
107

It is also instructive to note that remediation has been completed 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 

contemplated 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 existing 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 

and 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 Course 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 indication of drinking water impacts

6. Yorktown Power Station, Chisman Creek Disposal Site, Virginia

• Sand & gravel quarry – 27 acres

• Operation 1957 to mid-1970’s
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• 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

• Remediation on-going

• State oversight

• No indication of drinking water impacts – urban area

19. Yard 520 Landfill (Brown’s Landfill), Township of Pines, Indiana
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• 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 Use 

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 (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 1984
110

• 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 determined that this is Not a Damage Case, because non-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 concentrations 

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 concentrations 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, and 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, 

Manitowoc County, Wisconsin, U.S.EPA Region 5, Chicago, Illinois, July 2010: 

http://www.epa.gov/superfund/sites/fiveyear/f2010050003650.pdf, the 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 wells 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

Organization1: American Coal Ash Association (ACAA)

Commenter1: Thomas H. Adams

Commenter Type: Trade Association
111

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 Resource 

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 Risk 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 the 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 example, 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 (approximately 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 resulting 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 composition of the CCRs, the availability of runon, 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 deploy more than 12,400 ton of CCRs. 

Comment Number: EPA-HQ-RCRA-2009-0640-06398-64

Organization1: Duke Energy

Commenter1: Mike Stroben

Commenter Type: Electric Utility Company

Classification: Substantive
112

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 factual, 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 facilities (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 

reports’ 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 shellfish from the Dan River downstream of the 

spill site.

Comment Number: EPA-HQ-RCRA-2009-0640-06851-18

Organization1: American Electric Power (AEP)

Commenter1: John M. McManus

Commenter Type: Electric Utility Company

Classification: Substantive

Comment 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 warrant 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, according to 75 Fed. Reg. at 35131, "means those cases with (1) 

Documented exceedances of primary maximum contaminant levels (MCLs) or other healthbased 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 (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 by 
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environmental activist groups on February 24th and on August 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 damage 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 on 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

Organization1: Constellation Energy

Commenter1: 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 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. 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 
114

new regulatory proposals. 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 meet 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 that "[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 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 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 potential 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 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 CCRs 

management to Subtitle C regulation. 

Attachment 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 scientific 

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.

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

Organization1: Constellation Energy

Commenter1: Charlene Zaruba on behalf of Paul Allen
115

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 administrative 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 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 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 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 accuracy 

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 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 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 clarify 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 
116

information that led to the indeterminate classification, the information needed for further 

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 initially 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 regulatory 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 determination 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 danger 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 wells," 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 sheet 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 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 solely 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 scientific31 
117

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 

specific 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 conclude 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 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 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 administrative basis for designating 

the BBSS Gambrill’s site as a proven damage case:

1. On 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 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 additional; 

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 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 meeting 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 would 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 for 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 installed by the end 

of 2013.

In general, the 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

Organization1: Texas Coal Combustion Products Coalition (TCCPC)

Commenter1: Michael J. Nasi

Commenter Type: Trade Association

Classification: Substantive

Comment Excerpt Text:

A. EPA Listed Texas "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 Electric 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 scientific 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 scientifically proved or 

demonstrated a causal connection between those facilities and elevated selenium levels in those 
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reservoirs. Further, in 2003, after reviewing fish tissue samples from the previous nineteen years 

(eighteen years for the Brandy Branch Reservoir), 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 1980s. 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 findings 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 management 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 cases.

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 Southwestern 

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

Organization1: Alpha Natural Resources

Commenter1: 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 egregious 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.

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

of the preamble to the final rule.
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Comment Number: EPA-HQ-RCRA-2009-0640-08244-40

Organization1: Edison Mission Energy, LLC

Commenter1: Basil G. Constantelos

Commenter Type: Electric Utility Company

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. 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 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 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.

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 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 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 environment 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 justify 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 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 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 Standard 
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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:

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 by 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 standard 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 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 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 “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 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 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 regulations, 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 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 
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(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 established 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 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 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 groundwater 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. 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 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 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 an 
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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 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 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 degradation 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 

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” 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, 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 existed “as of 

early 2007” and would have monitored flows to the south does not support EIP’s claim. The offsite 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 contaminants, EIP may 
124

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 operation 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 (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 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 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 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 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 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 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 
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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 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 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 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. [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 channeled 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 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 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 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. In addition, an interim groundwater management zone (GMZ) is being 
126

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 Landfill 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 residents. Only limited sampling has been done by IEPA to assess 

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 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 “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 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, J.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 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 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 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 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 obtain 
127

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 

new 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 does 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 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 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 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 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 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 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 

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 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
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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 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 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 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 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 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 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 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.
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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 correct 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 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 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 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 
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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. 

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 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 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 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 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, 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 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 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 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 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 or 
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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. 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 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 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 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 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 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 residential 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 
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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 

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 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 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 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 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 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 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 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 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 
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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 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 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 Annual 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 information 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 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 exceeded 

the AGQS (KPRG, 2008c).

Clarification: As noted above, this statement identifies groundwater monitoring results from onsite wells G47S and G48S located at the southeast side of the Quarry facility. Please see 

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 system 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 

exceedances].

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 finalized or issued. As Mr. Cobb told the Herald 
134

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 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 field. 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 

detected 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 exceedances 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 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. 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 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, 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 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 the AGQS, however, compliance wells further downgradient of 
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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 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 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. 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 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 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 May 

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, 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, barium, 

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 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 EIP 
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does not identify any basis for its opinion that 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 

reference 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 applies 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 Outfall 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 NOV 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 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 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 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 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 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 
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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, 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 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 have 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 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 

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 approved 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 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 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 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 

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 proceeds with 5 bullet items summarizing AGQS values relative to 
138

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 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 

that 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 

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 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 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 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 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 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) Environmental 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 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 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 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 only 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 
139

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 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 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 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 (including 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 associated 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 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 

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 its 

attempt to characterize Midwest Generation as an “unconcerned” landfill operator. But more 

importantly, 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 any information or 

data provided in the EIP report. Relevant site data and direct sampling of Smiley Subdivision 
140

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 

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 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 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 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: EPA appreciates the detailed arguments raised by Edison Mission Energy, LLC 

(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 site 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 groundwater 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 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. 

EIP claims that on August 31, 2009, IEPA issued a NOV to MG for “failure to operate a leachate 

collection and management system that assures 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, in 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

Organization1: Association of State and Territorial Solid Waste Management Officials 

(ASTSWMO)

Commenter1: Stephen A. Cobb 

Commenter Type: State Government

Classification: Substantive

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 cases 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 report 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 the 

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 contaminant levels which exceed drinking water 

standards." But, there is no requirement that a scientific study has determined whether the 
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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 healthbased 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 enough 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 contamination 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 damage 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 operating 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 codisposal facilities 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 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 Combustion 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 covers, compaction, liners, and other characteristics ... of RCRA compliant 

landfills ..."

Other points from the NAS report: 

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 structures with covers, compaction, and other characteristics discussed in the 

definition of landfills..., but rather are less engineered locations used to store wastes 
143

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 technical 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 details, see unit IV of the preamble to the final rule.

Comment Number: EPA-HQ-RCRA-2009-0640-08858-2

Organization1: Cogentrix Energy, LLC

Commenter1: 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) explicitly 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 note 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 factor (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 and 

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 under RCRA subtitle D: for further details, see unit IV 

of the preamble to the final rule.

Comment Number: EPA-HQ-RCRA-2009-0640-09728-4

Organization1: Intermountain Power Service Corporation (IPSC)

Commenter1: Jon A. Finlinson

Commenter Type: Electric Utility Company
144

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 do 

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 proven. 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

Organization1: Electric Power Research Institute (EPRI)

Commenter1: 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 EPA 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 similar 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.
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 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 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 reducing 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 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 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 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 facilities that did not have receptors were usually 

either in a remote location, served 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).

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).
146

Response: The Agency generally concurs with EPRI’s conclusions about the design 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 Case 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 deposited 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

Organization1: Utility Solid Waste Activities Group (USWAG) et al.

Commenter1: James R. Roewer

Commenter Type: Trade Association

Classification: Substantive

Comment Excerpt Text:

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, including 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 

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 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 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 the 
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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 environmental 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 

“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 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 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 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 

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 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 Pennsylvania 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 Earthjustice 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 

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 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 fully 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 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

Organization1: Entergy Services, Inc. (Entergy)

Commenter1: 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, 

2010) (“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 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, 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) (EPAHQ-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 2000 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 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 
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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, 

off-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 disputes 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 subset 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 continued 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 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 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. Consistent 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 Data
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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 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 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 in 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 (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 1991-1996 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 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 waters (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 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 
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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 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 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 impacts 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 different 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 compliance 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 since 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 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 quarterly 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 list of 16 analytical parameters, which ADEQ 

approved by letter dated May 18, 2004. In 2009, the list of analytical parameters was expanded 
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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 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 nonmandatory water quality standards for six site-related contaminants. 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 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 

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 “worst” 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 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 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 landfill 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 an 
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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-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 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 the 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 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 documented in reports submitted to ADEQ by Entergy.

The EIP report raises concerns about boron concentrations in groundwater because boron is a 

coal ash indicator. 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 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 states 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 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., 
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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 suspended 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 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 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 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 the 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 mechanism 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 

concentrations 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 not 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 correspondence 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 “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 
155

is crucial to the detection monitoring hypothesis and use of interwell, upgradient-todowngradient 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 located 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 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 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 the 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 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 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 corrective 

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 monitoring 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 regarding 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 controlling 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 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 voluntary 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 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 process 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 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 occurring;

• No regulatory enforcement or corrective action is necessary; and

• Entergy has voluntarily implemented best management practices/corrective actions 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) and 
157

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-2011-0392-0249, 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 around 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

Organization1: Duke Energy

Commenter1: 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 damages 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 unfounded 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

Organization1: Duke Energy

Commenter1: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. EPA 
158

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 findings. 

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-0021-2.

Comment Number: TRANS-PIT-0107-2

Organization1: Ohio Coal Association

Commenter1: 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 industry 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 environment. 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 plants 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

Organization1: Public Service Commission (PSC) - State of North Dakota

Commenter1: 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 two 
159

North Dakota 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

Organization1: American Coal Ash Association (ACAA)

Commenter1: 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 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 guidance are now available 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 better 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 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 rule, 

“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 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 a 
160

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 should 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 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 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 quarry, 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 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 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 

contemplated 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 existing 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.
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 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 Course 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 indication of drinking 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 buildings
162

• 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-going

• 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 Use 
163

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 (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 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 Beneficial Use.”

Comment Number: EPA-HQ-RCRA-2009-0640-06202-45

Organization1: American Coal Ash Association (ACAA)

Commenter1: Thomas H. Adams

Commenter Type: Trade Association

Classification: Substantive
164

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

Organization1: American Coal Ash Association (ACAA)

Commenter1: 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 unencapsulated 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 structural 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 quarries 

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 for 
165

properly engineered projects, and bear no resemblance to the uses 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, such as the composition of the CCR, the availability of runon, 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 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

Organization1: American Coal Ash Association (ACAA)

Commenter1: Thomas 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

Organization1: American Coal Ash Association (ACAA)

Commenter1: Thomas H. Adams

Commenter Type: Trade Association

Comment Excerpt Text:

EPA Question: We encourage 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' 

alleged 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 combustion 
166

residuals under a subtitle D program within RCRA that will allow 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 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 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-2009-0640-06202-73

Organization1: American Coal Ash Association (ACAA)

Commenter1: 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

Organization1: American Coal Ash Association (ACAA)

Commenter1: Thomas H. Adams

Commenter Type: Trade Association

Classification: Substantive

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.
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 practices 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 

hazardous.

Response: See response to comment excerpt EPA-HQ-RCRA-2009-0640-06202-71.

Comment Number: EPA-HQ-RCRA-2009-0640-06203-15

Organization1: Arizona Public Service Company (APS)

Commenter1: Scott Davis

Commenter Type: Electric Utility Company

Classification: 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 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.

At the time of the final 2000 Regulatory Determination, EPA had identified 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 management unit to indicate that 
168

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 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 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 newer, 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 requirements - 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 

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.

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 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 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 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

Organization1: Ohio Utility Group

Commenter1: 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 December, 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 regulation 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

Organization1: Kentucky Department for Environmental Protection

Commenter1: 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 great concern to the 

Agency. Furthermore, considering 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

Organization1: Dayton Power & Light Company (DP&L)

Commenter1: 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 
170

oversight for CCRs is " ... driven 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 characteristics 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 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 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 function 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

Organization1: Hoosier Energy Rural Electric Cooperative (REC), Inc.

Commenter1: 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 certified 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 submitted 
171

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 was 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

Organization1: Lafarge North America Inc.

Commenter1: Brian Gasiorowski on behalf of Craig S. Campbell

Commenter Type: 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 regulation 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 

occurred 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 comment excerpt EPA-HQ-RCRA-2009-0640-06260-104.

Comment Number: EPA-HQ-RCRA-2009-0640-06726-1

Organization1: The North American Coal Corporation

Commenter1: 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 Subtitle 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

Organization1: Michigan Department of Natural Resources and Environment (DNRE)

Commenter1: 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 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 quality, 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 Action 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 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 these 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

Organization1: Portland Cement Association

Commenter1: 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

Organization1: Portland Cement Association

Commenter1: 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 instead 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 median 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 cases 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 nonhazardous 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 utilities.

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

Organization1: Constellation Energy

Commenter1: 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 Unsupported 

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 has 
174

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 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 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 accuracy 

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 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 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 clarify 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 further 

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 initially designated as 

"indeterminate" (in the July 9, 2007 Damage Case Assessments). However, for BBSS, there is no 
175

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 regulatory 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 determination 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 danger 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 wells," 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 sheet 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 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 solely 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 scientific31 

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 

specific 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 conclude 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 

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 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 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 a sufficient record to satisfy the Agency’s scientific and 

administrative test of proof criteria for designating the BBSS Gambrill site in Maryland as a 

proven damage case:

5. On 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 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 additional; 

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 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 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 source 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 banning 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 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 installed by the end 

of 2013.

Finally, whereas the data developed since the 2012 groundwater 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 complete 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

Organization1: Great River Energy

Commenter1: 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 monitoring 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 dewatered 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

Organization1: Texas Coal Combustion Products Coalition (TCCPC)

Commenter1: Michael J. Nasi

Commenter Type: Trade Association

Comment Excerpt Text:

B. EPA Has Not Given Appropriate 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 practices.” [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 practices 
178

that are taking place in the industry. The TCCPC believes that EPA's conclusions regarding state 

regulatory authority and industry practices do not 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 Surface 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/DOE 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 [Footnote 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 

[Footnote 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 and 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 implications 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, EPAHQ-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 other 
179

measures. By 2008, 75% 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 the 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 Utilities; 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 

unwarranted.

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

Organization1: North Dakota Department of Health

Commenter1: 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 source 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 units 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

Organization1: North Dakota Department of Health

Commenter1: L. David Glatt
180

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 overstated 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 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 impoundments 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-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 North 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 fly-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 arsenic 
181

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 ponds 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

Organization1: Edison Mission Energy, LLC

Commenter1: 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 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 [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 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 release 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 environment posed by CCR disposal sites. This 
182

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. 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 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 

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

Organization1: Massachusetts Department of Environmental Protection

Commenter1: James C. Colman

Commenter Type: State Government

Classification: Substantive

Comment Excerpt Text:

Coal Ash Management in Massachusetts 

In the Federal 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 
183

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 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 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 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 old, 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 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 

(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, 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 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 years: 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 systems. 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 information 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, all three sites were rejected as CCR damage cases 

because their waste management units recieved, in addition to CCRs, also significant amounts of 
184

other waste types, such as oil combustion waste and hazardous waste. Such instances of comingled 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

Organization1: Xcel Energy

Commenter1: 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 also 

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 longer 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 constructed since 1990. Furthermore, considering 

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

Organization1: Association of State and Territorial Solid Waste Management Officials 

(ASTSWMO)

Commenter1: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 cases 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 report 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 the 
185

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 contaminant 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 healthbased 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 enough 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 contamination 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 damage 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 operating 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 codisposal facilities 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 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 Combustion 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 covers, 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 structures 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 damage 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 includes about six percent of the CCR management units associated with 

groundwater impacts damage cases that have been constructed since 1990. Furthermore, 

considering 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-2009-0640-08850-6

Organization1: Lansing Board of Water & Light (BWL)

Commenter1: 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. 

We 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

Organization1: Maryland Department of Natural Resources Power Plant Research Program 

(PPRP)

Commenter1: 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 waste. 

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 fill 
187

projects. It is reasonable to assume that the inclusion of 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 

burdensome 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

Organization1: Exelon Power

Commenter1: 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 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 damage to the environment can be attributed to CCRs, such incidents 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 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 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 D 
188

program which, as proposed, would 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 which 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 management 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 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 details, see unit IV 

of the preamble to the final rule.

Comment Number: EPA-HQ-RCRA-2009-0640-09284-63

Organization1: Virginia Department of Environmental Quality

Commenter1: Jeffery A. Steers

Commenter Type: State Government

Comment Excerpt Text:

Two Virginia 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 1980'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

Organization1: Interstate Power and Light Company (IPL) and Wisconsin Power and Light 

Company (WPL)

Commenter1: Kathleen A. Lipp

Commenter Type: Electric Utility Company

Comment Excerpt Text:

3. EPA's assertion that increased CCR "proven damage cases" support the Subtitle 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 rule. 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 currently 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 

Generating 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 management 

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 the 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 case 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 just 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 ash 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 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-2009-0640-09614-1

Organization1: City of Fitzgerald, Georgia, and Fitzgerald/Ben Hill County Chamber of 

Commerce, Georgia

Commenter1: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 technology, 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, Subtitle 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 waste 
190

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

Organization1: Waste Permits Division, Louisiana Department of Environmental Quality 

(LDEQ)

Commenter1: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, unfortunately, 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

Organization1: Porter Wright Morris & Arthur LLP

Commenter1: 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 cases" 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 regulatory 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 duplicative 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

Organization1: Electric Power Research Institute (EPRI)
191

Commenter1: 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 EPA 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 similar 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 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 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 reducing 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 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 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 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 facilities that did not have receptors were usually 

either in a remote location, served by a public water supply, or located adjacent to a surface 
192

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).

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 comment excerpt EPA-HQ-RCRA-2009-0640-09765-41.

Comment Number: EPA-HQ-RCRA-2009-0640-09765-42

Organization1: Electric Power Research Institute (EPRI)

Commenter1: 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 collected 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 damage case sites.

Response: Thank you for your comment.

Comment Number: EPA-HQ-RCRA-2009-0640-09765-9

Organization1: Electric Power Research Institute (EPRI)

Commenter1: 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 nature and extent of groundwater 

impacts at the damage cases listed in the 2007 US EPA report, and to evaluate any common 
193

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 should 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

Organization1: Luminant

Commenter1: 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 regulatory 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 the 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

Organization1: Progress Energy, Inc.

Commenter1: Caroline Choi

Commenter Type: 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 2000 
194

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 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 proposed 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, and 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 identified 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 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 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 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 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 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.

Even 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 comprehensive evaluation, of the 
195

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 

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 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 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 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 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 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 controls 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 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 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.

While 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 identified in the 2000 

Regulatory Determination, all of these 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 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 information indicates that remediation is complete or underway at all sites where 

remediation 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 

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

Organization1: Utility Solid Waste Activities Group (USWAG) et al.

Commenter1: James R. Roewer

Commenter Type: Trade Association

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 cases 
197

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 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 identified 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 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. 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 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 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 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 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 

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 

Research 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 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 § 8002(n)(4) (emphasis added). 

EPA has acknowledged this statutory limitation, observing in its final 2000 Regulatory 
198

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 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 

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 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). 75 Fed. Reg. at 35147. 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. Id.

Even 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 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 residential 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, 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 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 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 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 units and represent 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” 

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” 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 

downgradient receptors; and (3) off-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: 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

Organization1: Exelon Corporation

Commenter1: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 February 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 environmental 

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 
200

Americans And Their Environment," (hereafter, "Alleged Damage Case Reports") can be 

considered proven, [Footnote 3: By referencing and discussing the Alleged Damage Case 

Reports, these 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 terms 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 department 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 disposal 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 reasonable 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 represent 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 attempt 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 the 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 pre1990 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 standards). Accordingly, 

Exelon continues to believe that EPA's promulgation of a Subtitle D regulatory program can 
201

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

Organization1: Northern Indiana Public Service Company (NIPSCO)

Commenter1: 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, permanently 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, Conducted 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 summarizing 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 to resolve the debated conclusions of the Gamma Count Rate Survey cited by 

the commenter, in spring 2014 a preliminary soil testing 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 approximately 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

Organization1: Northern Indiana Public Service Company (NIPSCO)

Commenter1:Dale Helmers

Commenter Type: Electric Utility Company

Classification: Substantive
202

Comment Excerpt Text:

From : Matthew Ohl/R5/USEPA/US 

To : pkysel@live . 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 president 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 methodology 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 instrument. 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 concentration of radionuclides of interest, quantitative interpretation of 

instrument readings is not possible. The probe was calibrated using cesium 137 (Cs-137), a manmade radionuclide. Cs-137 is not a radionuclide of interest in the Pines surveys. No calibration 

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 offers 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 be 
203

determined. 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 increase 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. Selection 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 detectable concentrations of 
204

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 material 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 gamma- 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 occurring 

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 human 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

Organization1: Associated General Contractors of America (AGC)

Commenter1: Melinda Tomaino

Commenter Type: Trade Association

Classification: Substantive

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 associated 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-2011-0392-0005: 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 Rocky 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 rulemaking 

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 course. 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 CCRs. (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 the 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 (assessing $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: Evaluation 

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 to 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 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.” 

“Review of available and assembled information on the 63 CCP damage cases 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 do 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 probability 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 commenters 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 runon and the permeability 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 

‘beneficial use’ project that involve the use of CCRs represent older, ‘legacy’ operational 
207

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 Battlefield 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 drinking water wells of the adjoining properties.

Comment Number: TRANS-DEN-0053-2

Organization1: Association of State and Territorial Solid Waste Management Officials

Commenter1: 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 comment 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

Organization1: Earthjustice et al. (analyses prepared for Earthjustice et. al. by Russell 

Boulding, Boulding Soil-Water Consulting, and submitted by Earthjustice)

Commenter1: Lisa Evans

Commenter Type: Advocacy Group

Classification: Substantive

Comment Excerpt Text:

Contamination is Not an Artifact of Past Practices. The electric power 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 impoundments 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 the 
208

recession, industry’s reluctance to invest in older generating boilers to comply with the 

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-RCRA-2009-0640-06314-21

Organization1: Earthjustice et. al. (analyses prepared for Earthjustice et. al. by Russell 

Boulding, Boulding Soil-Water Consulting, and submitted by Earthjustice)

Commenter1: 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, Michigan, 

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 action.

- 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 liners 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 Reclamation, 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 Reclamation, 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 (Permit 07-SDP-20-02X) – Waterloo 

[Approved/Started April 25, 2002]. Receives CCR from 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, Midwest 

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 groundwater 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

Organization1: Earthjustice et. al. (analyses prepared for Earthjustice et. al. by Russell 

Boulding, Boulding Soil-Water Consulting, and submitted by Earthjustice)

Commenter1: 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

Organization1: Earthjustice et al.

Commenter1: 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 the 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 

historical 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 previously 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 highly 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 that 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 

environmental 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

Organization1: Earthjustice et. al.

Commenter1: 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 the 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 dry 
211

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-fourth 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 identified 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—mismanagement 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 footnote 

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.

Response: 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

Organization1:

Commenter1: 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 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 impacted. 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 commenter’s statement.

Comment Number: EPA-HQ-RCRA-2009-0640-06346-6

Organization1:

Commenter1: Kelly Spencer

Commenter Type: Private Citizen

Classification: Substantive
212

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 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-2009-0640-10807_DA-037-1

Organization1: Earthjustice, EIP and Sierra Club

Commenter1:

Commenter Type: Advocacy Group

Classification: Substantive

Comment Excerpt Text:

[See original comment for copy 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

Organization1: Physicians for Social Responsibility

Commenter1: 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 and become a part of the CCR 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 disposal sites are so toxic they have been added to the national priorities 
213

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 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 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 analysis 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 Consumption 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 to 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 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 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

Organization1:

Commenter1: 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 directive? 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, we 
214

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 been 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

Organization1: Sierra Club

Commenter1: Bruce Nilles

Commenter Type: Advocacy Group

Classification: 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 problem 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 that 

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 environment.

Comment Number: TRANS-CHI-0083-1

Organization1: New Age Fastening Systems

Commenter1: Steve Swartz
215

Commenter Type: Other Company

Classification: Substantive

Comment Excerpt Text:

Earlier, there was a testimony from Harsco Corporation, an environmental 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 Exhibit 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 Lisa 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 material 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 released 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 thing. 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 the 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 signed in September 2015.

Comment Number: TRANS-CHI-0170-1

Organization1:

Commenter1: 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 cadmium 
216

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 contaminated. 

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-workers. 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 The Southern Illinois 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). 

In 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 adjusted 

standard, IEPA instructed the Plant to conduct further assessment of groundwater impacts. 

Comment Number: TRANS-CLT-0073-1

Organization1:

Commenter1: 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 force 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 sampling 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 of 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 to 
217

continue up to two 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

Organization1: Appalachian Voices

Commenter1: 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 

groundwater. 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 standards 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 study 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 been 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 research 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

Organization1: Environmental Integrity Project

Commenter1: Ilan Levin

Commenter Type: Advocacy Group

Classification: Substantive
218

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 mounting 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 sites 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 Institute, 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 

potential 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 commenter’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 CCR management units, both existing and prospective.

Comment Number: TRANS-KNX-0096-1

Organization1: Appalachian Voices

Commenter1: 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 state 
219

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 only 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 the 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 and 

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 continue 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 adequately 

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

Organization1: Solar Valley Coalition

Commenter1: 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 simply 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 that essentially leak back into the Tennessee River. So that's the state of -- of 
220

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 

essentially 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 migration 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

Organization1: Environmental Integrity Project

Commenter1: 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 Princeton 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 neighbors 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 to 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's 
221

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 -- this 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 the 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 cases identified by EPA, focusing on off-site contamination (35148, 35224)

Comment Number: EPA-HQ-RCRA-2009-0640-06298-14

Organization1: Tennessee Department of Environment and Conservation (TDEC)

Commenter1: 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.

- The physical properties of CCR vary greatly depending upon moisture content, particularly for 

fly ash. Too little moisture and fly ash acts like sand. Too much moisture and fly ash acts like 

liquid. The TVA Kingston failure demonstrates that CCR must be disposed 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 location requirements to prohibit the construction of new impoundments in 

seismically unstable areas. 

Comment Number: EPA-HQ-RCRA-2009-0640-06298-15

Organization1: Tennessee Department of Environment and Conservation (TDEC)

Commenter1: 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 million.

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

Organization1: Tennessee Department of Environment and Conservation (TDEC)

Commenter1: 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 Ridge 

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 Health 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) 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 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 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

Organization1: Tennessee Department of Environment and Conservation (TDEC)
223

Commenter1: 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 coal 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 maintenance 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

Organization1: Tennessee Department of Environment and Conservation (TDEC)

Commenter1: Paul L. Sloan

Commenter Type: State Government

Classification: Substantive

Comment Excerpt Text:

The December 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 structural 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 safety 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 concerns about the stability of the Kingston ash storage 

facilities."

This information was not communicated to the regulatory agency. TVA's failure to report its own 

internal warnings about a pending failure of the landfill to the department did not allow the

department to take the actions needed to 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

Organization1: Tennessee Department of Environment and Conservation (TDEC)

Commenter1: Paul L. Sloan

Commenter Type: State Government

Classification: Substantive

Comment Excerpt Text:

The TVA OIG report also noted that the culture 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 General, 

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 operational 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

Organization1: Tennessee Department of Environment and Conservation (TDEC)

Commenter1: 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 contribute 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

Organization1: Tennessee Department of Environment and Conservation (TDEC)

Commenter1: 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 subsequent 

coal ash exposure (http://www.orau.org/documents/kingstonproject/Kingston-Fly-Ash-ResultsReport.pdf). The Tennessee Department of Health conducted a Public Health Assessment for the 

coal ash spill at the TVA Kingston Coal Fired Power Plant and published a 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.pdf). 

The fact sheet, in italics below, states that based on the sampling results by all agencies, the 

Tennessee Department of Health is confident that:

- No harm to health should have occurred from touching the coal ash. People had an opportunity 

to be exposed to the coal ash for about one month before TVA either relocated families or fenced 

off the coal ash. While coal ash might cause skin irritation, the irritation will stop as soon as the 

coal ash is washed off.

- Although arsenic was found at concentrations above health comparison values for chronic 

exposure to children, no harm is expected from a child accidentally eating the coal ash. Chronic 

health effects from exposure to arsenic require exposures more long term than the type of 

exposure experienced in this setting. The period of exposure to the coal ash was very short. 

Small children had little opportunity for direct contact with the coal ash because of the cold, wet 

weather and the fencing of the ash to prevent contact, as well as the diligence of parents in 

keeping their children away from the coal ash. The exposure frequency and exposure duration 

were not long enough to cause harm to the health of children or adults.

- Except in the immediate vicinity of the coal ash release, the coal ash or the metals in the coal 

ash have not affected surface water in the Watts Bar Reservoir. TVA and TDEC have an 

advisory for use of the Emory River in the area near the coal ash release. The Army Corps of 

Engineers and the Coast Guard are patrolling this area to prevent any harm to people. The 

Emory River from mile marker 1.5 to mile marker 3 is closed to river traffic until February 15, 

2010.

- Municipal drinking water from the 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 within 
226

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 limits for concentrations of 

radionuclides in air and water that are protective of public health.

The only way people could have been exposed to the coal ash from late December 2008 through 

the middle of January 2009 was through direct contact with the coal ash or by accidentally 

eating some of the coal ash.

The airborne coal ash could affect people exposed to higher concentrations of particulate 

matter, especially those with pre-existing respiratory or heart conditions. Such effects could 

include upper airway irritation and aggravation of pre-existing conditions such as asthma, 

emphysema and other respiratory conditions.

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

TVA is taking include:

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

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

- washing cars leaving the site; and

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

Response: The commenter 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 

and 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 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 mercury 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-2009-0640-06298-6

Organization1: Tennessee Department of Environment and Conservation (TDEC)

Commenter1: Paul L. Sloan

Commenter Type: State Government
227

Classification: Substantive

Comment Excerpt Text:

The December 22, 2008 Tennessee Valley Authority Kingston disaster -- in which 5.4 million 

cubic yards of coal ash was released into the Emory River, 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 infrastructure, 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 Department 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 oversight 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

Organization1: Tennessee Department of Environment and Conservation (TDEC)

Commenter1: 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 samples of raw water and treated water have been collected and 

analyzed to check for problems stemming from the coal ash release. All samples taken indicate 

public drinking water was and remains safe.

- On January 12, 2009, Commissioner Jim Fyke of the Department of Environment and 

Conservation issued an order requiring TVA to clean up the spill, monitor and repair damage to 

the environment and develop a short- and long-term ash management plan for the Kingston 

Fossil Plant and its six other coal fired plants in Tennessee. The order also required TVA to 

assess the structural integrity of all of its coal combustion residue surface impoundments and 

landfills and to make structural improvements to all regulated units found to have integrity 

concerns.

- In May 2009, EPA issued an Administrative Order on Consent outlining cleanup requirements 

under the Comprehensive Environmental Response, Compensation and Liability Act. Both 

orders remain fully enforceable.

- An extensive environmental monitoring network was implemented following the spill, and has 

evolved with progress at the site. Monitoring activities include surface water, well water, soil, 

air, ash and fish tissue to ensure the protection of the public and site workers, and to determine 

the extent of the release in both the short and long term. TDEC provides independent monitoring 

in addition to reviewing TVA monitoring results and the department enlisted the assistance of the 
228

U.S. Army Engineer Research and Development Center to provide independent analysis of 

whether dredging activities would release metals from the ash and pose additional risk to the 

environment.

- TVA installed and operates air monitoring systems that help ensure coal ash does not leave the 

site as dust and affect local public health. TDEC operates independent monitors and audits TVA 

results. To date, the monitors have not indicated an exceedance of National Ambient Air Quality 

Standards for particle pollution.

- Oak Ridge Associated Universities and Vanderbilt University Hospital examined more than 

200 local residents and found no adverse effects in human health due to coal ash exposure.

- The Tennessee Department of Health visited the local community to share and collect 

information in the days following the spill and remain involved. They also performed a 

comprehensive public health assessment in partnership with the federal Agency for Toxic 

Substances and Disease Registry. Based on the agencies' review of the data, the coal ash release 

should not have caused harm to the community's health. The Department of Health continues to 

work with TDEC to analyze and review state environmental samples from the site.

- EPA and TDEC agreed that coal ash recovered during the TVA Kingston remedial action could 

be disposed in an EPA approved RCRA Subtitle D landfill. The agencies agree this method of 

disposal is safe, effective and environmentally protective.

- More than 3.8 million tons of coal ash has been removed from the Emory River and its 

tributaries. Nearly 400 train loads of coal ash have been shipped off site for disposal at the EPAapproved 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/reinstalled.

- 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 

violations of the Tennessee Water Quality Control Act and the Tennessee Solid Waste Disposal 

Act.

- The department has collected approximately $3.5 million from TVA for its cost in response to 

this release as well as the first $2.5 million payment of the civil penalty outlined in the June 2010 

order.

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 administrative 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

Organization1: Earthjustice et al.

Commenter1: Lisa Evans

Commenter Type: Advocacy Group
229

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 

disposal 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 of 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 related 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 disposal 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 & Development (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 illustrated 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. [Footnote 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 for $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 lawsuits 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 400 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 McCabe, 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 also 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 Ridger, 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 protective 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 additional 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-ashsite.] Northern Indiana Public Service 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_sites/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 Response document. 

Comment Number: EPA-HQ-RCRA-2009-0640-06311-41

Organization1: Earthjustice et al.

Commenter1: Lisa Evans

Commenter Type: Advocacy Group

Classification: Substantive
231

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# EPAHQRCRA-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 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, 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 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 

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. The 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 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 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 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 assessments to date have underestimated cancer and non-cancer health 
232

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 (Exposure by Ingestion): Decreased fetal weight

Information Source: EPA IRIS

CCW Constituent: Cadmium

Health Effect(s) of Concern (Exposure by Ingestion): Significant proteinuria
233

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 Effect(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 (Exposure by Ingestion): Neurological

Information Source: CDC 2005

CCW Constituent: Manganese
234

Health Effect(s) of Concern (Exposure by Ingestion): Neurological

Information Source: EPA IRIS

CCW Constituent: Mercury

Health Effect(s) of Concern (Exposure by Ingestion): 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 Ingestion): 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 IRIS
235

CCW Constituent: Thallium

Health Effect(s) of Concern (Exposure by Ingestion): Change in blood chemistry

Information Source: EPA IRIS

CCW Constituent: Vanadium

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 Source: 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

Organization1: Duke Energy

Commenter1: 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, 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 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: Contrary to the commenter’s observation, EPA found a score of new 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 that 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

Organization1: The North American Coal Corporation
236

Commenter1: 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 reason 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 

December 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, including 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 accidentally 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 health 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

Organization1: National Solid Wastes Management Association (NSWMA)

Commenter1: 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 it 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 Fossil 
237

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 harm 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 because 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 cubic 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 

Conservation 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 preamble to the final rule.

Comment Number: EPA-HQ-RCRA-2009-0640-06844-2

Organization1: Intermountain Power Agency (IPA)

Commenter1: 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 Valley 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 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 
238

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 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 of 

the ash release. It appears that it was not the "toxicity" or the environmental "hazard" 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 dam 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 May 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 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, the EPA should work with other federal 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 Number: EPA-HQ-RCRA-2009-0640-07802-4

Organization1: Alpha Natural Resources

Commenter1: 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 egregious 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 regulate 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, Virginia 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) 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) elevated levels of 

arsenic and mercury were found in reduced sediments of the Clinch and Emory rivers downstream of the spill. The methylation potential of mercury 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

Organization1: Tennessee Valley Authority

Commenter1: John W. Myers

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Excerpt Text:

Extensive data collection and analysis during recovery from the Kingston 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. These 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 Subtitle 
240

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

Organization1: Tennessee Valley Authority

Commenter1: John W. Myers

Commenter Type: Electric 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 Kingston 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 potential 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. Monitoring, 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 Vanderbilt University Medical Center (VUMC) physician medical toxicologists. 

(http://www.orau.org/documents/kingstonprojecUKingston-FIyAsh-Results-Report.pdf) 

• 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. (httpJ/health.state.tn.us/Environmental/PDFs/pha-e-TVA 

Kingston 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 

constituents. 

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 suspended 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 treatment 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 producing 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 (River 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 Assurance 

• 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 & TDEC; 

o 55 Standard Operating Procedures for environmental data collection and management 
242

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; 

• 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 with researchers at Brigham Young University, US Army Corps of EngineersEngineering 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, ecological 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. 

Scientific Investigations 

TVA began a comprehensive assessment of potential ecological effects of the 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 combination 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 investigations include studies 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. 

Fish and Benthic Invertebrates 

• Fish and benthic invertebrate community structures and population densities. and fish health 
243

TVA periodically conducts sampling throughout the 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 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 longterm 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 ORNL 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 incidence 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 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, Mammals, 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 aquatic 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 and 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 
244

periphyton -the algae that grow on rocks and bottom surfaces around the edges of water bodies. 

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, TVA developed studies in 

consultation with regulators and natural resources agencies to evaluate the potential for arsenic 

and selenium dissolution and chemical transformations 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 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 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 

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 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 highintensity 

acoustic waves to penetrate the sediments -for mapping sediment depths. Through a combination 
245

of these procedures TVA developed a map of the 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 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 related 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 does 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 mouth. 

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 problems 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 after 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 what 
246

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 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 midOctober. 

• 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 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 has 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 immediately after the spill and during highflow events in 

January and February 2009, extensive water sampling (-3000 samples and -2.9 million direct, insitu 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 metals 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 suggest a limited potentialfortoxicity...giventheextremeconditions represented 

byoxidized elutriates in this study." 

• TVA's extensive toxicity testing during hydraulic dredging showed no obvious ashrelated 
247

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 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 be 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 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) 

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 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-2009-0640-09536-3

Organization1: Tennessee Valley Authority

Commenter1: John 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 from the contamination of sediments in Lower Watts Bar 
248

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 resource 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 

compensating 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 for 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 consisted 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 will 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 Kingston 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 

response 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 volume 16 of the Comment Summary and 

Response document.

Comment Number: EPA-HQ-RCRA-2009-0640-09765-38

Organization1: Electric Power Research Institute (EPRI)

Commenter1: Ken Ladwig

Commenter Type: Trade Association

Classification: Substantive
249

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 an 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 truck 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 US 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 worst 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 volcanic 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 Air 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 concentrations, while the NAAQS are for 24-hr and annual 

based concentrations. The SCREEN3 results would have to be adjusted by a scaling factor in 
250

order to be compared to the NAAQS. A better modeling approach may have been to use the US 

EPA recommended air dispersion 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 

monitoring 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 health 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 document.

Comment Number: EPA-HQ-RCRA-2009-0640-09765-42

Organization1: Electric Power Research Institute (EPRI)

Commenter1: 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 collected 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 damage case sites.

Response: The Agency concurs with the comment.

Comment Number: EPA-HQ-RCRA-2009-0640-09889-5

Organization1: Texas Association of Business

Commenter1: 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 wellpublicized failure in December 2008 of the containment structure at the Tennessee Valley 

Authority (TVA) Kingston Plant in Roane County, Tennessee. While there should be no 
251

understatement of the serious impact of the impoundment failure on downstream property 

owners 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 except 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 

appropriate 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 Number: EPA-HQ-RCRA-2009-0640-09994-2

Organization1: Department of Water and Power the City of Los Angeles (LADWP)

Commenter1: 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 Valley 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 Kingston 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 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 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 of 
252

the ash release. 

Potential risks from CCRs can be properly addressed by 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 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 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 federal 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 Number: EPA-HQ-RCRA-2009-0640-11641_K-056-2

Organization1: Tennessee Valley Authority (TVA)

Commenter1:

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 and 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. We 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 partial 

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 independent 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 developed 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 perform 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 embayment 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 Ridge 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 independent 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 approval 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 for 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 Community 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 University 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 3,147,012 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 

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 groundwater 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 disposal 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 and 

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 

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;

- 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 potential 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 

EngineersEngineering Research and Development Center (USACE-ERDC), Virginia Tech, and 

Oak Ridge National Laboratory (ORNL) for investigations of fate and transport of ash and ashrelated 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 Chemistry (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 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 combination 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 studies 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 community 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 richness 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 longterm 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 ORNL 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 

incidence of deformities.

Bioaccumulation: For years, TVA, TDEC, TWRA, and ORNL have collaborated in 

investigations of contaminants in fish throughout 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 aquatic 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 and 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 that 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 for 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, examining 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 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 

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 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 VibeCore 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 combination 

of these procedures TVA 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 multiple 
258

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 

independent 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-material 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 modeling 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 Direct 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 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.

-- ORAU/VUMC: No evidence of physical health effects related to components of ash; “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.”
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- Monitoring has demonstrated no effects on public or private water supplies.

Ecology

- Immediately following the ash spill, TVA and Tennessee Wildlife Resources Agency 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 mouth. 

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 problems 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 ashrelated 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 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 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 midOctober.

- 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 undigested 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 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 immediately 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 (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 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 suggest a limited potential for 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 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.

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

Organization1: Environmental Intergrity Project (EIP)

Commenter1: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 wellexecuted, 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 until 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 carcinogens 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 riskminimizing bias reflected by the statement is troubling.]

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 the 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 the 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 exposure 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 coal ash.

- Arsenic ingestion was evaluated with a health comparison value that ignores carcinogenicitythe appropriate comparison value would have been roughly 40 times lower and would have been 

exceeded by most soil and ash samples. [Footnote 18: The treatment 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 noncarcinogenic 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 

effects, 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 slope 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. Comparing 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 magnitude 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 incorrectly 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 cited 

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” dust. 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 metals 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 data 
263

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 available 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 

arsenic. 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 no 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 [concentrated 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 and 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. 

Commenter’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

Organization1: North Carolina Department of Environment and Natural Resources 

(NCDENR)

Commenter1: Dexter Matthews

Commenter Type: State Government

Classification: Substantive

Comment Excerpt Text:

NC Department of Environment and Natural Resources, Division of Waste Management (DWM) 

Comments 
264

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 became 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 (CCB0019). 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 housing. 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 MCLs 

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, not 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 cooling 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 rescinded 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 requesting 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 groundwater 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 Active 
266

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 operate 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 consist 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 background 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 is 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, BC29, BC-30, BC-31 

- 1 surface water location – SW-1 

- BC-23A and BC-28 background wells 

- 1 leachate monitoring location 

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.

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.
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Comment Number: EPA-HQ-RCRA-2011-0392-0267-5

Organization1: North Carolina Department of Environment and Natural Resources 

(NCDENR)

Commenter1: 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, Arden 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 issues 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 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 program. 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 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 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 groundwater 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 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. 

4K Catawba River, Asheville plant, NC 

- River contamination, GW pollution, and threat to the recreation and tourism industries due to 

Duke Energy 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 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 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 program. 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 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 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 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 for this facility that will be 

included in the permit upon renewal. Future planned actions include evaluating groundwater 
269

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. 

- 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 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 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 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 groundwater monitoring wells at the Compliance Boundary in 

February 2011. 

Are there any on-going 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 corrective 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 this 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 were 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’ deep, 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 Energy 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 were 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 was 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 monitoring 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 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 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 required at a 

specified horizontal distance from the outer perimeter of the ash pond at or beyond which 
272

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 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 groundwater monitoring wells at the 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 permit 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 would 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 groundwater, 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 taken 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 actions 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), NC 
273

- 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 associated 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 facility 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 program. 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 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 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 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 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 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 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, Progress Energy Asheville Steam Electric Plant 

(NC0000396), became effective on November 1, 2007. 

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 μg/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 sampling 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 Asheville 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. Occasionally 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 smallest 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 collected 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 preoperation to post-operation of the Asheville FGD system (December of 2005) have occurred. 

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 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 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 permitrequired groundwater monitoring data to DWQ since 1995. In addition to the permit-required 

monitoring, this facility has been submitting groundwater 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 quality 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 2010. 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 installation 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 this 

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 technical support documents on damage cases in the docket of the final 

rule.

Comment Number: TRANS-CLT-0134-1

Organization1: Appalachian Voices

Commenter1: Sandra Diaz
276

Commenter Type: Advocacy Group

Classification: Substantive

Comment Excerpt Text:

I personally 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 heavy 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. 

Response: 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.

Section 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

Organization1: Green Century Capital Management

Commenter1: 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 Authority (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 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 
277

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-2009-0640-06260-123

Organization1: Kentucky Department for Environmental Protection

Commenter1: 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 

CCRs; 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 site 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 regulate 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

Organization1: Earthjustice et al.

Commenter1: Lisa Evans

Commenter 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 cases, the analytical capabilities for measuring selenium have matured 

considerably in recent years. All these mean there are simply more and better data, more 
278

thorough and well documented scientific investigations, and recognized cases of actual 

biological damage 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 into 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 human 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 such 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 sediments 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

Organization1: Earthjustice et al.

Commenter1: 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 structures 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, nowburied, contiguous channels in the same areas. Outside the veins the ash fill is a stratified 
279

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 the 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 into 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

Organization1: Earthjustice et al.

Commenter1: 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 ash 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 of 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 piezometer (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

Organization1: Earthjustice et al.

Commenter1: Lisa Evans

Commenter Type: Advocacy Group

Classification: Substantive
280

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 gather 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 1990s, 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 coal 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

Organization1: Earthjustice et. al.

Commenter1: 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 stipulated 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

Organization1: Earthjustice et. al.

Commenter1: 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 ash 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 considerable 

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 consequently 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

Organization1: Earthjustice et al.

Commenter1: 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 millivolts (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 deposits. 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 releasing 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 similar 
282

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 Martins 

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 the 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 Kingston 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 conditions. 

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 not 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 releases 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 in 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 2009, 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 the 
283

piezometer was constructed 3 months before the initial sampling. Based on the 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 nondetectable levels. Selenium did not begin to rise until the 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 dissolved 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

Organization1: Earthjustice et. al.

Commenter1: 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, however, 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 into 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 effects 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

Organization1: Earthjustice et al.
284

Commenter1: 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 effectively 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

Organization1: Earthjustice et al.

Commenter1: 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 water probably exceeded acceptable levels. 

Response: Thank you for your comment.

Comment Number: EPA-HQ-RCRA-2009-0640-06313-5

Organization1: Earthjustice et. al.

Commenter1: 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 in ash basin effluent of 50 

ppb, and estimated basin water infiltration rates (see 3. below), it followed that over the 
285

approximately 25 days the basin contained ash slurry water (24 August to around 20 September 

2005) roughly 18 pounds (0.7 lb/day) of selenium 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 operations 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 discharge 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 likely 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, potentially 

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 plants 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 affect 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 

application 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 their 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 of 

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 latter concern.

Comment Number: EPA-HQ-RCRA-2009-0640-06315-59

Organization1: Earthjustice et. al.

Commenter1: 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 hydrogeologists, 

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 health 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 statistically 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 confirmed 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, have “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 (corrected 

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 Assessment:
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 documented 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 Lifetime 

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 sulfate. 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 perform 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 the 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 and 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 catastrophic 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 river 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

Organization1: Earthjustice et al.

Commenter1: 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 every 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 thallium, all of which are highly toxic and 

persistent in the contaminated environments at ash sites. [Footnote 327 6(renumbered and 

corrected 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 selenium. [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 date, 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 frequently monitored appendix VIII parameters have exceeded their 
289

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 times, 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 current 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 and 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 damage 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 in 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 would 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 commonly 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 radioactivity 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 maximum 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 site in that state.
290

Sites with high manganese and sulfates are only identified by EPA as exceeding non healthbased Secondary Maximum Contaminant Levels (SMCL) when, in actuality, the groundwater 

may have been contaminated by CCR with concentrations of these 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 exceeded 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 exceeded 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 notably 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 criterion 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 Contaminants 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. Rather 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 migration 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, public 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 geologic 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 feet 
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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 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, a contaminant plume with measured concentrations of arsenic 

up to 3.838 (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 of 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 and 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 Ohio 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 times. 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 exceeded 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 the 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 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 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 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 downgradient of the fill.

- At the Hatfield’s Ferry Plant coal ash landfill in Pennsylvania, total arsenic has been measured 
292

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 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 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) 

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 beyondat least 1,000 feet if not 

substantially further (corrected per #10492 technical corrections, with deletions in strikeout 

and additions 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 nonCCR 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

Organization1: Earthjustice et al.

Commenter1: 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 beyond 
293

assessment 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). Efforts 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 action 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 

Rodemacher 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 drinking 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 itsit 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 

times 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 monitoring 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 remaining 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 neighborhoods 

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 been 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 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, antimony, 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 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 Groundwater 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 

Generation 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 standard 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, boron 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, chloride, 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 has 
295

conducted 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 of 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 contaminated 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 Energy’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 sodium 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 contaminated 

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 the 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 drain 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 Assessment (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 assisted 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. There 

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. [Footnote 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 private 
296

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 

replace 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 residents 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, the 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 regulations 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, 35,234–35,239 (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, and 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 Industrial 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 variety 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: EPA-HQ-RCRA-2009-0640-06316-2

Organization1: Earthjustice et al.

Commenter1: Lisa Evans

Commenter Type: Advocacy Group

Classification: Substantive
297

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 preamble 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

Organization1: Wisconsin Department of Natural Resources (WI DNR) and Public Service 

Commission of Wisconsin (WI PSC)

Commenter1: Matthew Frank (WI DNR) and Eric Callisto (WI PSC)

Commenter Type: State Government

Classification: 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 copy 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 brief 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 

Combustion 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 and 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

Organization1: Wisconsin Department of Natural Resources (WI DNR) and Public Service 

Commission of Wisconsin (WI PSC)

Commenter1: 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 acknowledge 
298

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 standpoint 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 pits 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 mid-1980’s along with a switch to burning mostly lowsulfur 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 are, 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 report 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

Organization1: Wisconsin Department of Natural Resources (WI DNR) and Public Service 

Commission of Wisconsin (WI PSC)

Commenter1: Matthew Frank (WI DNR) and Eric Callisto (WI PSC)

Commenter Type: State Government

Classification: Substantive

Comment Excerpt Text:

Appendix – Section D 

GROUNDWATER IMPACTS FROM COAL 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 coalpowered electric generating plants and the corresponding ash disposal sites. These sites range 
299

from active, engineered landfills to closed, unlined disposal sites located 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 procedures 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 under administrative code chapters referred to as the 

NR500 series (NR500NR590). 

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 10% 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. Samples 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 similarities 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 monofills 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 the 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 groundwater 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 commonly 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 exceedances 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 for the most impacted well 

at each site. The report listed the lowest and highest reported sample results and calculated the 
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mean of all samples collected. A summary of these findings is listed in Table 2. 

[See original attachment, at end of Appendix -- Section 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 wells 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 

values 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 GEMS 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 content 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 was 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 

enforcement standard (ES) of 250 mg/l at 10 of the 12 sites studied. Only one site, the NSPWoodfield Landfill, had a downgradient well that never recorded a value above the ES. Two 
301

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 from 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 

before 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 documented 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 

sites. 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, were 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 third 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 study attempting to 

quantify the impacts of CCB disposal on groundwater and was therefore not included in this 

report. 
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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 42acre 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 response 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 inspections 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 likely 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 into 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 levels 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 the 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 geomembrane 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 an 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 moderately 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 a 
303

relatively 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 landfill 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 deposits 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 glacial 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) in 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 table 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 the 

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 vertical 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, 

sulfate 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 limited 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 W4 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 from 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 of 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 presented 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. However, 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 effectively 

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 by 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 differently. 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 months (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 Landfill 
305

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 

landfill 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 originally 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 landfill. The ash has pozzolanic properties but was not selfcementitious (Ladwig, 1989). Waste thickness ranged from less than 10 ft in the southern onehalf 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 southern 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 old, 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 generally 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-till (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 serves 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 standards 

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 various monitoring wells and private drinking water 
306

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 cars 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 building 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 assessing 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 groundwater 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 cover 
307

design consists of 3-inches of existing cover fill, a 4-inch sand 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 increased 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 

conservative 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 inconclusive, 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 measurable 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 true 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 impacts 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 documenting 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 suggests 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 waste 

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 power 
308

utilities have switched to dry handling and have aggressively pursued beneficial reuse options for 

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 subsequent 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 specific 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 combined 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 and 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 capacity. 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, the 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 

remediation 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 bedrock 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 Energies 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. 

Kammerer, 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-Supply 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 properties 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 straddlepacker 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 

hydraulic 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 southeastern 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 Shallow 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 Philip 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

Organization1: Michigan Department of Natural Resources and Environment (DNRE)

Commenter1: 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: 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 Presque 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 available 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 docket to 

the final rule.

Comment Number: EPA-HQ-RCRA-2009-0640-07000-1

Organization1: Earthjustice et al.

Commenter1: Lisa Evans

Commenter Type: Advocacy Group
311

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-RCRA-2009-0640-07002-7

Organization1: Alabama Environmental Council

Commenter1: 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. Pollutants 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 should 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. There 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. 

There 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 for 
312

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

Organization1: Alabama Environmental Council

Commenter1: Michael J. Churchman

Commenter Type: Advocacy Group

Classification: Substantive

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 Infrastructure 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 management 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 corrective 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 public 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-wind 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 medical 
313

care; therefore, they are even more less likely to get the needed 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 responsibility 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 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 state programs before it is in a position to 

make a final Bevill Regulatory Determination.

Comment Number: EPA-HQ-RCRA-2009-0640-07785-1

Organization1: Nicholas School of the Environment, Duke University

Commenter1: 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) including 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 rivers 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 

concentrations 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-charged 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 confirm 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 Carolina, 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 MGD 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 reducing 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 decision-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

Organization1: Nicholas School of the Environment, Duke University

Commenter1: Avner Vengosh

Commenter Type: Academia

Classification: Substantive
315

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 potential 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 CommentWorks -- 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

Organization1: Maryland Department of the Environment (MDE)

Commenter1: 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 cases 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 postclosure uses that address this site effectively allowing it to be used 

after closure in a safe and protective manner. Also, Maryland has promulgated 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, 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 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-2009-0640-08218-81

Organization1: Maryland Department of the Environment (MDE)

Commenter1: Shari T. Wilson
316

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 Department 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 postclosure 

uses that require cleanup and closure that is protective pf public health 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 already 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 health 

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

Organization1: Massachusetts Department of Environmental Protection

Commenter1: James C. Colman

Commenter Type: State Government

Classification: Substantive

Comment Excerpt Text:

Coal Ash Management in Massachusetts 

In the Federal 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 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 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 offlue 
317

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 old, 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 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 

(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, 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 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 years: 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 systems. 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 information 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 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 this rule, see Units III and XI of the preamble to the final rule. 
318

Comment Number: EPA-HQ-RCRA-2009-0640-09533-1

Organization1:

Commenter1: 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-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 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 the 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 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 

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. 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 constituents 

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 greater 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 transitional cell carcinoma and arsenic in drinking 

water: a follow-up study of 8,102 residents 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 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 

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 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 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-2009-0640-09770-2

Organization1: Upper Cumberland Group of the Sierra Club, et al.

Commenter1: 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 

environment 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 have 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 not take seriously the long-term effects of selenium 

discharges on fish and aquatic life (including fish reproductive capabilities) downstream of the 
320

Kingston coal ash disaster. We know that selenium’s threat is from bioaccumulation in fish and 

in the food chain 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 recently 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 levels 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 endnote 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 Fossil 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 

consortium 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 for Fish and Aquatic Life and DWS were exceeded for 

selenium.

Comment Number: EPA-HQ-RCRA-2009-0640-09770-4

Organization1: Upper Cumberland Group of the Sierra Club, et al.

Commenter1: Mary M. Mastin and Brian Paddock

Commenter Type: Advocacy Group

Classification: 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 the 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 acres. 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 life 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 period; 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 insignificant) 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 collections 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 dredging 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 fish 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/Appalachian 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 the 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

Organization1: Sierra Club

Commenter1: 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 the 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 they 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 Americans 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

Organization1:

Commenter1: 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 had 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, consultants 
323

and state regulators, caused the dike 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 TCLP 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 spill 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 similar 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 the upcoming steam industry ELG rule in 2015.

Comment Number: EPA-HQ-RCRA-2009-0640-10718_DEN-030-1

Organization1: Rocker Six Cattle Company

Commenter1: Clint McRae

Commenter Type: Other Company

Classification: Substantive

Comment Excerpt Text:

My name is 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 disposal 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 that 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) have 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 Power and Light (PP&L) now owns 
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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 Creek 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 that 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 another 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 (MTDNRC) 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 impact 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 known 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 least 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 motivated 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 an 
325

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 toxic 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 and 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 also 

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

Organization1: Rocker Six Cattle Company

Commenter1: 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 level 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 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 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 additional information on state programs before it is in a position to make a 

final Bevill Regulatory Determination.

Comment Number: EPA-HQ-RCRA-2009-0640-10983_CHA-018-2

Organization1: Appalachian Voices

Commenter1: 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 Number: EPA-HQ-RCRA-2009-0640-11000_CHA-035-1

Organization1:

Commenter1: 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 this 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 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. 

This disaster was caused by incompetency and willful negligence at multiple levels but mainly 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 dollars 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 never 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 and 
327

Clinch Rivers now belong to the Tennessee Valley Authority and the people moved away... The 

lucky ones only 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 true 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

Organization1: Appalachian Voices

Commenter1: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 testing 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 River 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 levels 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

Organization1: People In Need of Environmental Safety (PINES)

Commenter1: 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, landfill. 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 was 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 October, 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 per 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

- Determination 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 only (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 exposure 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 Contingency 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. This 
329

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 radium228 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

Organization1: People In Need of Environmental Safety (PINES)

Commenter1: Larry Jensen

Commenter Type: Advocacy Group

Classification: Substantive

Comment Excerpt 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 material 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, 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 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-2009-0640-11180_CHI-011-3

Organization1: People In Need of Environmental Safety (PINES)

Commenter1: Larry Jensen

Commenter Type: Advocacy Group

Classification: Substantive
330

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

Organization1: PINES Group

Commenter1: 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 input 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 power 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 nearby 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 Federal 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 EPA 

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 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 the speciation of arsenic in the environment, and the 

potential impacts of recent Agency regulations on the chemical composition of CCR. In 
331

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-0084-2

Organization1:

Commenter1: Bryce Payne

Commenter Type: Private Citizen

Classification: 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 confirm 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 rigor. 

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 released 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 fish. 

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 two 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 were 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 relied 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 covers 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. EPA 
332

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

Organization1: PINES Group

Commenter1: Paul Kysel

Commenter 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 Company 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 by 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 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 still are a significant number of residents who are still dependent upon bottled drinking 

water) 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 nearly 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. 

Contaminated 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 the 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 migrating 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 

regulations 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 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 
333

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 state programs before it is in a position to 

make a final Bevill Regulatory Determination.

Comment Number: TRANS-CLT-0076-1

Organization1: Duke University

Commenter1: 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 concentration 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 arsenic. 

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 water 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 discharged 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 affecting 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 

decision-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

Organization1: Savannah River Nuclear Solutions, LLC (SRNS)

Commenter1: 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. Bullfrog 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 located. 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 correlate 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 body 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 from 

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 given 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 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 where 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 South 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 
335

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 landfill. 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 information concerning study conditions and conclusions to be 

read by interested persons.

Response: See response to comment excerpt EPA-HQ-RCRA-2009-0640-05751-2.

Comment Number: EPA-HQ-RCRA-2009-0640-06202-127

Organization1: American Coal Ash Association (ACAA)

Commenter1: 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 management 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 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”.
336

These findings combined with the fact that hundreds of millions of tons of CCP have been 

beneficially 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 and 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 performance 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 the 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. 

Consequently, 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 clarify 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 envisioned 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 extremely 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 submitted 

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 adjacent 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 operators to meet strict water quality standards. State water 

quality programs, along with the Federal Safe Drinking Water Act, offer further groundwater 
337

protection (see 30 C.F.R. 816.42; 40 C.F.R. Part 434).

The unfortunate TVA ash impoundment accident was 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 serve 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 unscientific 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 dangerous 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 true “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 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-2009-0640-06260-107

Organization1: Kentucky Department for Environmental Protection

Commenter1: 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's 
338

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 administrative 

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 documented 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 inconsequential. 

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 groundwater 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.

Response: 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 is 
339

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 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. 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 site’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 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 

RAP proposed as a remedy the collection of leachate from the site’s active CCR landfill.

Comment Number: EPA-HQ-RCRA-2009-0640-06298-49

Organization1: Tennessee Department of Environment and Conservation (TDEC)

Commenter1: 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 

Tennessee'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 impact 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 groundwater 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

Organization1: ARIPPA

Commenter1: Jeff A. McNelly
340

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 accident. 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 that “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: See response to comment excerpt EPA-HQ-RCRA-2009-0640-06298-16.

Comment Number: EPA-HQ-RCRA-2009-0640-06526-4

Organization1: Utility Solid Waste Activities Group (USWAG)

Commenter1: 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 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 

Mitchell 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 Number: EPA-HQ-RCRA-2009-0640-06851-17

Organization1: American Electric Power (AEP)

Commenter1: John M. McManus

Commenter Type: Electric Utility Company
341

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, 

corrosivity, 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 should 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 handling 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 County, 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 was 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 consumption 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 the 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-based 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 list 
342

The 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 active 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 the 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 stabilization 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 should 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 fish populations in 2007, despite 

changes in angler 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 wholebody selenium threshold of 6-μg/g for fish and as a result the state of Texas has rescinded 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 from 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 period 

(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 species naturally exposed to coal 

 

1 Dennis 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 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 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 fish 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 EPRI study documented the circumstances leading to 

groundwater impact as follows: the emergency FGD sludge pond, operated since January 1977 in 

conjunction with the sludge management system, received filtrate water produced during vacuum 

filtration of the raw 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 over 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

Organization1: Constellation Energy

Commenter1: 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 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 
344

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. 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 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 meet 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 that "[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 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 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 potential 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 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 CCRs 

management to Subtitle C regulation. 

Attachment 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 scientific 

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

Organization1: Constellation Energy

Commenter1: 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 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.2 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" 

should not be taken lightly. Instead, EPA's policy and the law requires 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." A re-designation should be based upon further investigation, to provide a basis 

for EPA's change in position. 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 overstates 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 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 proposals. In fact, EPA's determination 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 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 
346

damage to human health, the record does show that: 1) groundwater 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

Organization1: Headwaters Resources, Inc.

Commenter1: 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 Battlefield 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/reg3hscd/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 wells 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.)

In 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 the neighboring residential division to the water supply system of the City of 

Chesapeake.

Comment Number: EPA-HQ-RCRA-2009-0640-06917-24

Organization1: Texas Commission on Environmental Quality (TCEQ)

Commenter1: 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 early 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 Electric 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 worked 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, unpermitted 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 Concentration 
348

selenium levels in fish at these three reservoirs have exceeded the recommended allowable levels 

(4-μg/g for fish) established by two of the 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

Organization1: Miltech Energy Services, Inc.

Commenter1: 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 

beneficial 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 hazardous). 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 than 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 final rule because it involved minefilling.

Comment Number: EPA-HQ-RCRA-2009-0640-06991-14

Organization1: East Kentucky Power Cooperative (EKPC)

Commenter1: 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 chronic 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 wells 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 MW-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 

exceeding 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 the 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 requirements 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 docket of the final rule.

Comment Number: EPA-HQ-RCRA-2009-0640-08225-13

Organization1: Minnesota Power (ALLETE)

Commenter1: Michael G. Cashin

Commenter Type: Electric Utility Company

Classification: Substantive
350

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 300 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 statement 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 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 (the day after the coal ash spill). 

 Private well and spring water within 4 miles of the coal 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 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 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 that 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

Organization1:Gypsum Association

Commenter1: 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 Gypsum
351

EPA references 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. 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 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 evidence 

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 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 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 analysis, 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 will 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

Organization1:Edison Mission Energy, LLC

Commenter1: 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 162: 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 Ash 
352

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 accordance 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), available 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 hazardous 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 disposal – 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, agreeing 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 Action 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%20and%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 was 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 contradiction 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 the 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 a 
353

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 cleanup 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 any 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 independent 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 walls 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/rca/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 Watts 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 directly 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 Cell 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 function 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 failure 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 of 
354

their characteristics or composition, caused 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 foundation 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 nearby 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 AUTHORITY (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 no 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 Toxic 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 from 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 metals 

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 the 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 accidentally 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,[Footnote 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, everyday 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 presence 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 advisories 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 analysis of the effects on human health and the environment in the reports 
355

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 its 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

Organization1:Edison Mission Energy, LLC

Commenter1: 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 Demonstrates 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 case 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 include: 

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 Utilities 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 fails 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 eastern 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 

atypical 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 rate at which leaching 

occurs depending almost entirely on site-specific conditions unique to the disposal unit, like the 
356

pH of the surrounding soil [Footnote 189: U.S. EPA, Characterization of Coal Combustion 

Residues from Electric Utilities Using Wet Scrubbers for Multi-Pollutant Control, EPA/600/R08/077 (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 faster 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 support 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

Organization1:Edison Mission Energy, LLC

Commenter1: 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 study 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 edges 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 potential 
357

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 example of sitespecific 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 should 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 

release, 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 scenario 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 wastes 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

Organization1:Allegheny Energy

Commenter1: Randy Cain

Commenter Type: Electric Utility 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 Generating 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 Station 

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 and 
358

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

Organization1:LG&E and KU Energy LLC

Commenter1: 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 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 EPA. 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 poses 

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 to 

the final rule.

Comment Number: EPA-HQ-RCRA-2009-0640-08930-6

Organization1:Citizens for Recycling First

Commenter1: 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 coal 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 contact 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 health 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 people?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 people'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 the 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 particulate 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 people'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 medical 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 Donna 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 medical 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 examination 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 coal 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 

threat 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 into 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 their 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 picture. 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 drinking 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 wells 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 sediments on the Battlefield Golf Course site 
361

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-RCRA2009-0640-06883-25. 

Comment Number: EPA-HQ-RCRA-2009-0640-09284-67

Organization1: Virginia Department of Environmental Quality

Commenter1: 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 EPA 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 residential 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 appear 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

Organization1: Arizona Department of Environmental Quality (ADEQ)

Commenter1: 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 operates 

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 monitoring, 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. Groundwater 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 

potentially 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 exceed 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 CoalFired 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

Shomo 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, Arizona, 

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=ePdyLxIH7Sl5y2wsU9ICi39GD8&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

Organization1: Full Circle Solutions, Incorporated

Commenter1: 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 the 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) . Yet 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 

groundwater. 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 indicated 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 causing 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 does 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 because 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, properly 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 based 

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

Organization1: PPL Services Corporation

Commenter1: 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 Basin #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. This 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 the 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 since 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, Pennsylvania 
365

In August 2005, a dam confining a 40 acre CCR surface 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 

primary 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 continued 

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 arsenic—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 Protection (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 surface 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 wells 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 monitoring 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 directly 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 PA 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 

monitoring 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 has 
366

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 no 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 that 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, 2005. 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 results 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 Section 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 

metals 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 

downstream 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 that 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 USEPA 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 sediments. 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 

ongoing 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 DEP 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 collected 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 quality 

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 described 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 ash 

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

Organization1: Midwest Coal Ash Association (MCAA)

Commenter1: Gary P. Haney

Commenter Type: Trade Association

Classification: Substantive
368

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 surface 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 approximately 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 disasters 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 conditions. 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 expected 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 waste, 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 Valley 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 children 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 water 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 conclusions 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 suggested 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 

unsafe 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

Organization1: Consumers Energy Company

Commenter1: Gary A. Dawson

Commenter Type: Electric Utility Company
370

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 compliance 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 found 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 environment. 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 was 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

Organization1: American Coal Ash Association (ACAA)

Commenter1: 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 combustion 

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 surrounding 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 last 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 

spill. 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 latter, 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

Organization1: ARIPPA

Commenter1: 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 and 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 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.

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

of the preamble to the final rule.
372

Comment Number: EPA-HQ-RCRA-2009-0640-11042_CHA-077-2

Organization1: Utility Solid Waste Activities Group (USWAG)

Commenter1: 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 

disposed 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 Health 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, September 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

Organization1: Ebensburg Power Company

Commenter1: 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 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 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 standards 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

Organization1: Sunbury Generation LP

Commenter1: 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 

"proven 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 EPA'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 disposal 

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

Organization1: Allegheny Energy, Inc.

Commenter1: David C. Cannon, Jr.

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Excerpt Text:

Damage Cases

Two Allegheny sites are referred to in recently 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 the facts about disposal operations and effects on drinking water supplies. They seemingly 
374

abjure state and federal water laws and regulations and incorrectly invoke drinking water 

standards where they have no state or federal applicability. They further ignore 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 basic 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 permitted, 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

Organization1: Dominion Resources Services, Inc.

Commenter1: 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 comments 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 Evaluation 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 Energy, Southern Environmental Law 

Center, Physicians for Social Responsibility (EPA-HQ-RCRA-2011-0392-0132)
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EPRI Reports

The two EPRI reports referenced above provide a technical assessment and interpretation of the 

July 9, 2007 EPA report "Coal Combustion 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 EPRI'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 migrated 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 intended 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 converted 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 Commonwealth 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 absence 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 and 
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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 Station, 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 Power, 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-site 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 coal 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 onsite MCL exceedance does not qualify this 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 implication 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 generating station in New England. Oil-fueled plants are 

outside the scope of this rule.
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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 statement 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 site, 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 disagrees 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 reflects 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

Organization1: American Coal Ash Association

Commenter1: 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 cases 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, Tennessee 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-term 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 these 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 the 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 Number: TRANS-ARL-0074-1

Organization1: ARIPPA

Commenter1: Jeff A. McNelly

Commenter Type: Trade Association
378

Classification: Substantive

Comment Excerpt Text:

EPA's motivation to propose these rules appears to be based on what EPA has termed proven 

damage cases, 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 the 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 capricious 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 already reported to EPA)

Comment Number: EPA-HQ-RCRA-2009-0640-00378-1

Organization1:

Commenter1: John Austin

Commenter Type: Private Citizen

Classification: Substantive

Comment Excerpt Text:

For the record, recent FOIA data has found significant groundwater 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 10/22/97. 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 in 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 down 
379

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

Organization1: Sierra Club Oklahoma

Commenter1: 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 

Mines 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 Oklahoma, 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 Reclamation) 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 

incorporated 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 “fugitive 

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 neighbors’ 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 has 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 technical 

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 requirements for controlling fugitive dust (Air 

Quality). 
380

Comment Number: EPA-HQ-RCRA-2009-0640-04041-8

Organization1: Environment Maryland Research & Policy Center

Commenter1: 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, Maryland, 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 volume 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 consumption. 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 drinking 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 collection 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 accumulation 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 hazardous 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 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 
381

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 state programs before it is in a position to 

make a final Bevill Regulatory Determination.

Comment Number: EPA-HQ-RCRA-2009-0640-06130-1

Organization1: Mecklenburg County, North Carolina

Commenter1: 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 from 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 reassessment 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 site 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 the 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

Organization1: Comite Dialogo Ambiental

Commenter1: Ruth Santiago

Commenter Type: Advocacy Group

Classification: Substantive
382

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 to 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 migratory 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 proximity 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 pCi/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 

Caribbean 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 Agency 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

Organization1: Alaska Community Action on Toxics, et al.

Commenter1: Sarah B. Petras
383

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 residents 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 public 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 Health, 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 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 state programs before it is in a position to 

make a final Bevill Regulatory Determination.

Comment Number: EPA-HQ-RCRA-2009-0640-06314-26

Organization1: Earthjustice et. al. (analyses prepared for Earthjustice et. al. by Russell 
384

Boulding, Boulding Soil-Water Consulting, and submitted by Earthjustice)

Commenter1: 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 Juan 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 standards 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 surface 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 involved 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 cases 
385

in Attachment B include another Superfund 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 EPA 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 ash-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 available 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 Power 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

Organization1: Alaska Community Action on Toxics (ACAT)

Commenter1: 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 landfills, 

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 due 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 regulatory 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-todate 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, and 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, nickel, 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 EPA 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-proof 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

Organization1:

Commenter1: 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 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 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 December 2010 merger with RRI Energy (formerly, Reliant Energy) to 

form GenOn Energy, the Agency cannot verify nor refute the commenter’s statement.

Comment Number: EPA-HQ-RCRA-2009-0640-06545-1

Organization1:

Commenter1: 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 impervious 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 an 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 every 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 the 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 remain 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 if 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

Organization1: Sierra Club Michigan Chapter

Commenter1: Rita Chapman

Commenter Type: Advocacy Group

Classification: Substantive

Comment Excerpt Text:
388

This is a specific comment about a Coal Ash Spill that occurred 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 article, 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 material 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

Organization1: Sierra Club Michigan Chapter

Commenter1: 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 

levels 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 that 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 about 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 discharged 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 samples 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 one 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 into 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 

comment 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 witchhunt 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 happened” 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 semimetal, 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 devastate 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. 16 “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

Organization1: Michigan Department of Natural Resources and Environment (DNRE)
390

Commenter1: 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 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 quality, 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 Action 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 releases 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 plan to address the releases.

Comment Number: EPA-HQ-RCRA-2009-0640-06815-39

Organization1: Michigan Department of Natural Resources and Environment (DNRE)

Commenter1: 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

Organization1: Hoosier Environmental Council (HEC)

Commenter1: Jesse Kharbanda

Commenter Type: Advocacy Group

Classification: Substantive
391

Comment Excerpt Text:

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 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 disposal 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 regulations 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 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 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-2009-0640-06917-25

Organization1: Texas Commission on Environmental Quality (TCEQ)

Commenter1: 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 required, 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

Organization1: Ohio Environmental Protection Agency

Commenter1: 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 of 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 state regulatory programs which this rule is 

set out to remedy. 

Comment Number: EPA-HQ-RCRA-2009-0640-08226-9

Organization1: Ohio Environmental Protection Agency

Commenter1: 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 risk 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, Ohio. 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 
393

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 

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 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 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: 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 commenter 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 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 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 to 
394

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

Organization1:

Commenter1: 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 management 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, in 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 support 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, Inc. 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., Coal 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 WMGR052. 

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 permeability cementitious) material for placement 
395

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 results 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 was 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, manganese 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 sale 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 reclamation, it was decided that the LaBelle 
396

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 decided 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 byproducts that had a beneficial 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 October 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 application 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 and 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 LPC 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 described 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 drilling 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 falling 
397

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 Pennsylvania 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, Permit 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 (Dam 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 disposal 

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. Garcia, 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 conference, 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 quality 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 they 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 approved 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 instituted 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? Could 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 disposal 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 Department 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 certification 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 placement 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 groundwater 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 

material 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 LaBelle 
400

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 downstream 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(1997).] 

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 supplies 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 

Fredricktown – 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 – approximate 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 

Why 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 asked 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 associated 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 supplies 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 

application 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 Material 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 Construction, 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 (November 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 spoils 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 Joseph 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 yards 

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 area = 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 soil 
402

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, approximately 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 standard 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 15, 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 Refuse 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 water 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 

presenting 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 

general? 

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 following 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 contamination 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 report notes that “[c]ompletion of the project, involving the approved coal combustion byproducts, 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 measured 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 the 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 (underdrain): 

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, total 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 consultants 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 contamination 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 necessary 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 has 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 necessary, 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.” [Footnote 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 in 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 General 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 suitable 

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 

more 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 complaints 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 contact 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 Violations 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 posed 
406

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 failing 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. 

Earthtech 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 the 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 releases, 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 decades 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 

the 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

Organization1:

Commenter1: 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 comment excerpt EPA-HQ-RCRA-2009-0640-08243-3.
407

Comment Number: EPA-HQ-RCRA-2009-0640-08261-3

Organization1: Black Warrior Riverkeeper, Inc.

Commenter1: Eva Dillard

Commenter Type: Advocacy Group

Classification: Substantive

Comment Excerpt Text:

Because scientific 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, EPA 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 Electric 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 ash 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 study 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 threshold 

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 335 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 lead 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 beryllium.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 investigation 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.17 
408

Residents of the communities that 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 EPA 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 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 state programs before it is in a position to 

make a final Bevill Regulatory Determination.

Comment Number: EPA-HQ-RCRA-2009-0640-09244-1

Organization1:

Commenter1: Joanna Miller

Commenter Type: Private Citizen

Classification: 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 Township?

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-displacement-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 outside 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

Organization1: Waterkeeper Alliance

Commenter1: 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, cadmium, 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 human 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, bringing 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 Combustion 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.pd] 

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 environment, 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 damage, 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 Earthjustice, 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 incumbent 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 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 Bevill Regulatory Determination.

Comment Number: EPA-HQ-RCRA-2009-0640-10019-1

Organization1: Spalding & Hilmes, PC

Commenter1: 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 throughput 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 current 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 attached 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 CCR 
411

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 

discussed 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 nearby 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 humans. They can also harm and kill wildlife, especially fish and other waterdwelling species. 

Typically, coal ash contains arsenic, lead, mercury, cadmium, chromium and selenium, as well 

as aluminum, antimony, barium, beryllium, boron, chlorine, cobalt, manganese, 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 problems, 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 systems, 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 particles 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 

inflammation, 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 rates. People with preexisting 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 toxicants in combination. While the 

properties of coal ash toxicants are understood as they function individually, little is known 
412

about what happens when these toxic substances are mixed -as routinely happens in coal ash. 

Concurrent exposure to multiple contaminants 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 is 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 developing 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. Among 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 levels 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 Pathways, 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 estimated 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 Fugitive 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 insides 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 locations 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 

reviewed 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 normal 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 wife 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 with 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 relatives 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 was 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 are 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 E1. 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. Why 
415

should I or my fellow 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 honestly 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 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 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 fugitive 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

Organization1: Spalding & Hilmes, PC

Commenter1: 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 and 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

Organization1: Spalding & Hilmes, PC

Commenter1: 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 Energy 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: 

• The 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 Indiana 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 ensure 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 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 
417

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-2009-0640-10019-3

Organization1: Spalding & Hilmes, PC

Commenter1: 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 filled 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 NPDES 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 subject 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 years. 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 quality. 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 Indiana'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 spots 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 Creek 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 reports of deformed fish and dead wildlife (see photograph attached as 
418

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 with 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

Organization1: Spalding & Hilmes, PC

Commenter1: 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 includes "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 source 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 Monitoring 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 concentrations 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 increased 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 reported to cause reproductive failure, among other toxic impacts, in warmwater fishes 

(Lemly 1999 and 2002)." Lemly A., "Guidelines for evaluating selenium data from aquatic 
419

monitoring and assessment studies." Environ. Monit. Assess. 1993:28(83-100). Mean selenium 

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 waterways 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 

above, 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 only 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 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. 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 cited by the commenter.

Comment Number: EPA-HQ-RCRA-2009-0640-10029-1

Organization1:

Commenter1: 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/newspolitics/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 American 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 public health threat is urgent

thank you J Henry Fair 
420

[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 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 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-2011-0392-0258-2

Organization1: Environmental Integrity Project (EIP)

Commenter1: 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 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 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, selenium, 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 described in Appendices A1 and A2. Most of the 
421

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 were 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 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 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 

1,200 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 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 

higher than the MCL and exceeding the toxicity characteristic (1,000 ppb), in groundwater 
422

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 occurred 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 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 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 

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 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 

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 (15 pCi/L) has been exceeded at three 

sites, with the maximum value (1,497 pCi/L) almost 100 times the standard. Very few 
423

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 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 ponds, 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 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

Organization1: Environmental Integrity Project (EIP)

Commenter1: 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 appear 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 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, 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 qualify 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 surrounding 
424

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

Organization1: Environmental Integrity Project (EIP)

Commenter1: 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 18 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 Water, 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 Power--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

Organization1: Environmental Integrity Project (EIP)

Commenter1: Eric Schaeffer

Commenter Type: Advocacy Group

Classification: Substantive
425

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 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

Organization1: Environmental Integrity Project (EIP)

Commenter1: Eric Schaeffer

Commenter Type: Advocacy Group

Classification: Substantive

Comment Excerpt Text:

Monitoring Data Shows Significant Risks

We have provided EPA with 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 

nineteen 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 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.

Response: Thank you for your comment. EPA has assessed all the alleged damage cases 

included 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

Organization1:

Commenter1: 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 wells, irrigation canals, streams, farms, wetlands, beaches, and other 

sensitive areas. The aquifer is the sole source of potable water for approximately 53,000 
426

residents of Salinas and Santa Isabel, and many more thousands of people in neighboring 

municipalities. 

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 selenium 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 addition 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 lowlying, 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 clayrich confining layer facilitating contact 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 landfill. 

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 harmful. 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

Organization1: Environmental Integrity Project

Commenter1: 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 coal combustion waste 
427

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 follows. 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 sites 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 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 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 than 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, 

operators 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 property 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 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.

In addition, 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 
428

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 state programs before it is in a position to 

make a final Bevill Regulatory Determination.

Comment Number: TRANS-ARL-0054-1

Organization1: Environmental Integrity Project

Commenter1: 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 

regulate 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, was 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 families 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 

country, 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 Pennsylvanians 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 regulate 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, 35224)
429

Comment Number: EPA-HQ-RCRA-2009-0640-06260-104

Organization1: Kentucky Department for Environmental Protection

Commenter1: 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-2009-0640-06314-31

Organization1: Earthjustice et. al. (analyses prepared for Earthjustice et. al. by Russell 

Boulding, Boulding Soil-Water Consulting, and submitted by Earthjustice)

Commenter1: Lisa Evans

Commenter Type: Advocacy Group

Classification: Substantive

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 EPRI 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 the 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 well 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

Organization1: Duke Energy

Commenter1: 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 primary 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 Waste 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

Organization1: Lafarge North America Inc.

Commenter1: 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-2009-0640-07047-19

Organization1: Great River Energy

Commenter1: 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 were 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 Power 
431

proactively and voluntarily 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 

the 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 preamble 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

Organization1: Edison Mission Energy, LLC

Commenter1: 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 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 [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 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 release 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 environment posed by CCR disposal sites. This 
432

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. 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 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 

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-2009-0640-09281-3

Organization1: Exelon Power

Commenter1: 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 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 damage to the environment can be attributed to CCRs, such incidents are primarily 
433

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 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 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 D 

program which, as proposed, would 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 which 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 management 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 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 details, see unit IV 

of the preamble to the final rule.

Comment Number: EPA-HQ-RCRA-2009-0640-09765-41

Organization1: Electric Power Research Institute (EPRI)

Commenter1: Ken Ladwig

Commenter Type: Trade Association

Classification: Substantive

Comment Excerpt Text:

US EPA Damage Cases
434

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 EPA 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 similar 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 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 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 reducing 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 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 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 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 facilities that did not have receptors were usually 

either in a remote location, served 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 comment excerpt EPA-HQ-RCRA-2009-0640-06398-65.

Comment Number: EPA-HQ-RCRA-2009-0640-09765-9

Organization1: Electric Power Research Institute (EPRI)

Commenter1: 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 nature 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 

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 should 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-2009-0640-09885-11

Organization1: Progress Energy, Inc.

Commenter1: Caroline Choi

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Excerpt Text:

The damage cases do not support the Subtitle C option
436

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. 

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.”

Some of the damage cases identified by EPA have had environmental impacts. At the same time, 

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 

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, and 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 identified 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 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 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 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 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 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.

Even assuming for purposes of argument that it is appropriate to include the potential damage 
437

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 

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 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 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 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 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 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. 
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 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 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 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.

While 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 identified in the 2000 

Regulatory Determination, all of these 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 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 information indicates that remediation is complete or underway at all sites where 

remediation 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 

option.

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 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 to the final 

rule. In addition, this rule will regulate CCRs under RCRA subtitle D: see Unit IV of the 

preamble to the final rule.

Comment Number: EPA-HQ-RCRA-2009-0640-10483-18

Organization1: Utility Solid Waste Activities Group (USWAG) et al.

Commenter1: James R. Roewer

Commenter Type: Trade Association
439

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 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.] 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 identified 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 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. 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 contaminant 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 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 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 

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 

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 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.” 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 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 

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 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). 75 Fed. Reg. at 35147. 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. Id.

Even 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 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 residential 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, 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 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 installed 
441

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 units 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” 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 

downgradient receptors; and (3) off-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-HQ-RCRA-2009-0640-09885-11.

Comment Number: EPA-HQ-RCRA-2009-0640-10494-3

Organization1: Electric Power Research Institute (EPRI)

Commenter1: 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 Conclusions, EPRI Report 1020553].

Response: See response to comment excerpt EPA-HQ-RCRA-2009-0640-06398-65.

Comment Number: EPA-HQ-RCRA-2009-0640-10494-4

Organization1: Electric Power Research Institute (EPRI)

Commenter1:Ken Ladwig
442

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 Case 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-HQ-RCRA-2009-0640-06398-65.

Comment Number: EPA-HQ-RCRA-2009-0640-11177_CHI-008-2

Organization1: Duke Energy

Commenter1: 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 cases, 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 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 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 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 whose programs the groups allege are deficient. The states are contesting these 
443

allegations and charging that the activist groups have improperly characterized the effectiveness 

of their state controls.

Response: See response to comment excerpt EPA-HQ-RCRA-2009-0640-06398-65.

Comment Number: EPA-HQ-RCRA-2009-0640-11479_L-056-2

Organization1: Duke Energy

Commenter1: 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 conclusions. 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 Notice 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 offsite 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 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 contesting these 

allegations and charging that the activist groups have improperly characterized the effectiveness 

of their state controls. 

Response: See response to comment excerpt EPA-HQ-RCRA-2009-0640-06398-65.

Comment Number: EPA-HQ-RCRA-2011-0392-0198-12

Organization1: Electric Power Research Institute (EPRI)

Commenter1: 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 
444

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 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 their 

reliability is described below.

Response: See response to comment excerpt EPA-HQ-RCRA-2009-0640-06398-65.

Comment Number: EPA-HQ-RCRA-2011-0392-0198-4

Organization1: Electric Power Research Institute (EPRI)

Commenter1: Ken Ladwig

Commenter Type: Trade 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 observe 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 

related 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 affected, 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 similarities 
445

among the sites that 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 cases, 

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 sites, 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 

observations 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 releases 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-HQ-RCRA-2009-0640-06398-65.

Comment Number: EPA-HQ-RCRA-2011-0392-0219-15

Organization1: Commonwealth of Kentucky, Department for Environmental Protection, 

Division of Waste Management

Commenter1: Anthony Hatton

Commenter 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 Coal 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– HQ–RCRA–2009–0640–0326, and 

EPA–HQ–RCRA–2009–0640–0327, 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-HQ-RCRA-2011-0392-0258-1

Organization1: Environmental Integrity Project (EIP)

Commenter1: 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 Cases: 

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 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." 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 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 regulation 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 

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 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. Many 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 part, 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 

states 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 renewed 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 operating 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 cases 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 

beneficial 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, out 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 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”.
448

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 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 is 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 impoundments 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 1x10-7 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. 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 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 for 

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 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) 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 state 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 arsenic has been measured at twice the 
449

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 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 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 

downgradient 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 Lifetime 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 horizontal 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 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 

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 and boron, and impacts were generally contained on site. Nearly twothirds 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.
450

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-HQ-RCRA-2009-0640-06398-65.

Comment Number: EPA-HQ-RCRA-2011-0392-0258-2

Organization1: Environmental Integrity Project (EIP)

Commenter1: 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 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, selenium, 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 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 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 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 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 groundwater 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 
451

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 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 

higher 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 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 occurred 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 
452

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 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 

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 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 

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 (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 ponds, 

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 receipt 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

Organization1: Environmental Integrity Project (EIP)

Commenter1: 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 EPRI 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 cases), 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 

SMCLs 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 water 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 

exceedances 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 concentrations 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 

children, 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 this category if lower state healthbased 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 molybdenum 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 molybdenum (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 is 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 the 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 effects. 

[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. 

[Footnote 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 sodium 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 sodium 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 nickel 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 increasingly 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 damage 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.]

Furthermore, 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:

- Although 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. Although 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 7439-92-1), 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 linked 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 insufficient 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: 

Boron 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 same 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 lung 
456

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, fluoride, 

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 substantial, 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 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, symptoms including nausea, 

vomiting, diarrhea, mouth ulcers, 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 from 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 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 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 

that 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 solids 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 of 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 the 
457

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

Organization1: Environmental Integrity Project (EIP)

Commenter1: 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 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 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, such 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 systems 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 credible 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 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 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, 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 
458

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‘), Uniontown 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 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 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 discharge 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 

beyond 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 activity. 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 Oklahoma, 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 and 

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, in 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 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) 

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.

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 

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 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 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 

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 considered EPA’s test of proof 

criteria, 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 monitored 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. For 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

Organization1: Environmental Integrity Project (EIP)

Commenter1: 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 potential 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 more 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, or 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 served 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 brought 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 groundwater flow direction. In most cases, this was determined based on information 

obtained during the evaluation, such as monitoring well groundwater levels or narrative 
461

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 writer 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 dismissing 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

Organization1: Environmental Integrity Project (EIP)

Commenter1: 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 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). 
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 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 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 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 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 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 Electric Utilities; Proposed Rule, 75 Fed. Reg. 35128 (June 21, 

2010) 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 to 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 or 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 

setting 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 river 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 contaminated 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 closest 
463

river or lake can be easily identified, and seemingly contradictory evidence 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 further 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

Organization1: Environmental Integrity Project (EIP)

Commenter1: 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 

required”.

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 disposal 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 some 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, 

and 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 EIP 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 actions 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 further 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 that 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 contaminated 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 Agency 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 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-CHI-0021-3

Organization1: Duke Energy

Commenter1: 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 these 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 offsite 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 some 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

Organization1: Duke Energy

Commenter1: 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 
465

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. 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 findings. 

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

Organization1: Duke Energy

Commenter1: 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 involved 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 speculate 

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

Organization1: Kentucky Department for Environmental Protection

Commenter1: R. Bruce Scott

Commenter Type: State Government

Classification: Substantive
466

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. The 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 Regulatory 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 

satisfaction 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 contains 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 impacts 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 Kentucky 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 documents on 

damage cases in the docket of the final rule.

Comment Number: EPA-HQ-RCRA-2009-0640-06260-107

Organization1: Kentucky Department for Environmental Protection

Commenter1: 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.
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 under 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 surface 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 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 inconsequential. 

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 groundwater 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.

Response: Some of the information included in the comment, when combined with EPA’s

damage case records suggests 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 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 
468

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 chloride 

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 site’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 monitoring 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

Organization1: Clean Water Network

Commenter1: 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 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. Vetting against EPA’s test of proof criteria, the Agency has 

confirmed around 150 damage cases, 40 of them proven. 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.
469

Comment Number: EPA-HQ-RCRA-2009-0640-06314-11

Organization1: Earthjustice et al. (analyses prepared for Earthjustice et. al. by Russell 

Boulding, Boulding Soil-Water Consulting, and submitted by Earthjustice)

Commenter1: 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 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 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 state that has been proactive in requiring monitoring, ranks first in number of 

damage cases with 13, but ranks 30th 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 30th in CCR generation.” The only caveat is that according to EPA’s records, 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 technical support document on 

damage cases included in the docket of this rule. 

Comment Number: EPA-HQ-RCRA-2009-0640-06314-12

Organization1: Earthjustice et al. (analyses prepared for Earthjustice et. al. by Russell 

Boulding, Boulding Soil-Water Consulting, and submitted by Earthjustice)

Commenter1: 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 damage 
470

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 data 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 monitoring 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 Agency 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

Organization1: Earthjustice et al. (analyses prepared for Earthjustice et. al. by Russell 

Boulding, Boulding Soil-Water Consulting, and submitted by Earthjustice)

Commenter1: 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 (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 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 attributed 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 established. 

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 standards (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 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 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 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.
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 

not 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 times 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 programs 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 exceeded 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 healthbased 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 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 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 

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 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: Thank you for your comment. 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 Agency also assessed the 90 ‘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 include 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 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-2009-0640-06314-28

Organization1: Earthjustice et. al. (analyses prepared for Earthjustice et. al. by Russell 

Boulding, Boulding Soil-Water Consulting, and submitted by Earthjustice)

Commenter1: Lisa Evans
474

Commenter Type: Advocacy 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 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 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 

ATTACHMENT 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/unlined/?), 

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 parameters 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 report. 

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 Dairyland 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. The 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. Information was not available for all sites to be certain whether they involved an 
475

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: 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 established 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 

assessment/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 damage case designation 

decisions, see the technical support documents on damage cases in the docket of the final rule.

Comment Number: EPA-HQ-RCRA-2009-0640-06314-29

Organization1: Earthjustice et. al. (analyses prepared for Earthjustice et. al. by Russell 

Boulding, Boulding Soil-Water Consulting, and submitted by Earthjustice)

Commenter1: 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 review 
476

of state regulatory programs found Tennessee, Kentucky and Alabama to be among the weakest 

in terms of regulations and enforcement. At the time 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, 

available 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 and 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 monitoring. 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 currently 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 groundwater 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 Tennessee 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 to 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 as 

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 WQC 
477

exceedances in the other three damage cases for plants operated by TVA.

This report is highly subjective, uses very select data and does not discuss 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 are 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 obtained. 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 

disagree. 

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 their 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 metals 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. Currently, 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

Organization1: Earthjustice et al. (analyses prepared for Earthjustice et. al. by Russell 

Boulding, Boulding Soil-Water Consulting, and submitted by Earthjustice)

Commenter1: Lisa Evans

Commenter Type: Advocacy Group

Comment Excerpt Text:

Attachment D. Response to South Dakota Department of Environment and Natural 
478

Resources Criticisms of the Big Stone Damage Case (In Harm’s Way, pp. 184-193): [part of 

ATTACHMENT 1 (or 6314.1)]

Staff 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 monitoring 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 boron 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). Arsenic 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 exceeding 

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” to 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 set 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.

The 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 leachate 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 River 
479

offsite. That DENR makes this argument repeatedly without a single monitoring point that 

demonstrates shallow 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 assertion. 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 wastes 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 Regulations 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 treatment process: CCRs 

cannot be directly implicated as a source of the contamination.

Comment Number: EPA-HQ-RCRA-2009-0640-06315-60

Organization1: Earthjustice et al.

Commenter1: 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 specifically 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 investigated 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 the 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 

provide information on 37 additional cases and note 10 more sites on the National Priority List 
480

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 Agency 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 “indeterminate” 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 that 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 recognition 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 90 ‘newly alleged’ damage cases submitted to the Agency by environmental 

organizations 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 referred to Unit XI in the 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

Organization1: Duke Energy

Commenter1: 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, 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 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 February
481

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

Organization1:

Commenter1: Anonymous

Commenter Type: Anonymous

Classification: Substantive

Comment Excerpt Text:

EPRI’s report and data should be subject to an audit by a third party group 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 and 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 information 

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. An 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 site, 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). This 

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 groundwater, such actions 

were construed to support the reported damage record. The 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

Organization1: Plains Justice, Iowa Environmental Council, Iowa Interfaith Power & Light, 

Iowa Physicians for Social Responsibility

Commenter1: 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 damage 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 

disposal 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 groundwater 

monitoring.

Comment Number: EPA-HQ-RCRA-2009-0640-06526-4

Organization1: Utility Solid Waste Activities Group (USWAG)

Commenter1: 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 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 report

addressing the Mitchell 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 of the final rule.

Comment Number: EPA-HQ-RCRA-2009-0640-06534-22

Organization1:Lafarge North America Inc.

Commenter1: 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

Organization1: Michigan Department of Natural Resources and Environment (DNRE)

Commenter1: Liane J. Shekter Smith
483

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 Michigan'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 the 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 

definition 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 and 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

Organization1: Florida Department of Environmental Protection (FDEP)

Commenter1: 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 coal 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 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. The Department believes this characterization of these four facilities 
484

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 with 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 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 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 drinking 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 landfill. 

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 mentioned 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 within 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. Much 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 Lakeland, 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 on 
485

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. 

Response: Based on an assessment of the Curtis Stanton Energy Center, the Seminole Electric 

Cooperative Inc., the Tampa Electric Company, Big Bend, and the McIntosh 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

Organization1: Nebraska Department of Environmental Quality (NDEQ)

Commenter1: 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 the 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 additional 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 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 concluded 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/Contaminants of Concern

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 

upgradient of Ash Pit #3. Similar observations have been made in downgradient and upgradient 
486

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 being 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 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 population” 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 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 uppermost 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 the 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. The owner/operator has 

agreed to install additional monitoring wells to further determine possible attribution to the site 

and assess the possibility 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 publicowned power plant facility is voluntarily conducting additional groundwater investigation with 
487

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 

monitoring and/or restricted groundwater use.

Response: Based on an assessment of the Sheldon Station Ash Pit #3 site against EPA’s test-ofproof criteria, the Agency designated this site as a potential damage case. For a summary of 

stakeholder arguments addressing 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

Organization1: South Dakota Department of Environmental and Natural Resources

Commenter1: 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 Quality 

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 numerous 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 being 
488

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, with 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 Stone 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 Dakota 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 more 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 remnants 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 Big 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 disposal. 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 occurring 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 typical 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 disposal 
489

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 closed 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 inaccurate 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 regulation 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

near 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

Organization1:

Commenter1: 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 report 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 states 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

Organization1: North Dakota Department of Health

Commenter1: 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 the 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 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 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 impoundments 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-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 North 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: 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: Thirtynine 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 mined 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 decisions, see the technical support 

documents on damage cases in the docket of the final rule.

Comment Number: EPA-HQ-RCRA-2009-0640-08226-9

Organization1: Ohio Environmental Protection Agency

Commenter1: 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 monitoring. 

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 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 

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 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 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 agrees with the commenter that the Industrial Excess Landfill in 

Uniontown, Ohio, disposed of various industrial wastes in addition to CCR; as a result, EPA

rejected this 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 management 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 River 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

Organization1: Edison Mission Energy, LLC

Commenter1: 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 The 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 entitled “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 significant 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 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, 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 protection [Footnote 194: 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 195: 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 
493

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 equal 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 groundwater 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 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 the 

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 [Footnote 197: 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 198: Id.]. The standards applicable to the LSQ facility 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 presumes 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 groundwater”. 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 implemented 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

Organization1: Edison Mission Energy, LLC

Commenter1: Basil G. Constantelos

Commenter Type: Electric Utility Company
494

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. 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 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 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.

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 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 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 environment 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 justify 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 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 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 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:
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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 by 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 standard 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 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 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 “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 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 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 regulations, 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 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 establishing site-specific AGQSs 

pursuant to 811.320.]

The groundwater program that is established under Part 811 requires an in-depth investigation of 
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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 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 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 groundwater 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. 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 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 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 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 groundwater 

standards, then the AGQS is set at a level that is more stringent than the Class I groundwater 
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standard. Thus, the AGQS achieves its purpose of protecting against degradation 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 

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” 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, 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 existed “as of 

early 2007” and would have monitored flows to the south does not support EIP’s claim. The offsite 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 contaminants, 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 operation 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 (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 
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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 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 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 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 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 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 portion 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 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 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 
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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 channeled 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 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 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 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. 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 Landfill 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 residents. Only limited sampling has been done by IEPA to assess 

the extent of contamination in private drinking water wells.
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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 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 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 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, J.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 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 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 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 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 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 

new 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 does 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 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 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 
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of the CCW Landfill operating permit.

Correction: This statement 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 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 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 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 

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 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, 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 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 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 sampling 
502

“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 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 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 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.

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 correct as it states that there is an outward 

gradient from the Main Quarry to the south, west and north. However, the existence of an 
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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 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 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 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. 

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 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 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 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 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, 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 sampling results did confirm that none of these wells were being affected by the 
504

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 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 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 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 or 

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. 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 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 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 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 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 
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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 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 residential 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 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 

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 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 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 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 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 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.
506

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 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 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 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 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 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 Annual 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 information 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 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 exceeded 

the AGQS (KPRG, 2008c).

Clarification: As noted above, this statement identifies groundwater monitoring results from onsite wells G47S and G48S located at the southeast side of the Quarry facility. Please see 
507

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 system 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 

exceedances].

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 finalized 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 wells 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 field. 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 

detected 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 exceedances 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 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. 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 located 
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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 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 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 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 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. 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 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 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 May 

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, an 
509

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, barium, 

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 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 EIP 

does not identify any basis for its opinion that 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 

reference 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 applies 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 Outfall 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 NOV 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 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 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 
510

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 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 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, 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 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 have 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 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 

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 approved 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 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 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 
511

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 

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 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 chart 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 

that 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 

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 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 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 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 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 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) Environmental 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 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 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 

Management 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 only 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 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 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 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 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 (including 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 associated 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 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 

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 its 
513

attempt to characterize Midwest Generation as an “unconcerned” landfill operator. But more 

importantly, 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 any 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 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 

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 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 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 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

Organization1: LG&E and KU Energy LLC

Commenter1: Robert J. Ehrler on behalf of Dorothy E. O'Brien

Commenter Type: Electric Utility Company

Classification: Substantive
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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 EPA. 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 poses 

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 Number: EPA-HQ-RCRA-2009-0640-08288-20

Organization1: Oklahoma Department of Environmental Quality

Commenter1: 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 additional 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 identified. 
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 high 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 facing 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 identify 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 "upgradient" 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 resulted 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

Organization1:

Commenter1: Greg A. VanDerwerker
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Commenter Type: Private Citizen

Classification: Substantive

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

Organization1: Association of State and Territorial Solid Waste Management Officials 

(ASTSWMO)

Commenter1: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," even 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 based 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 a 
517

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 groundwater 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 naturally 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 to 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 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-2009-0640-09274-19

Organization1: RRI Energy Inc.

Commenter1: 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 and 
518

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 have 

been, operated by RRI Energy, they include the Fern Valley Disposal Site in Alleghany 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 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."

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 was 

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 limits 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 included 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 discharges 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 wells, 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 these 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" when 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 

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 well screen. Water elevations in this well 

average 919 feet, about even with the elevation of the original Fern Valley stream level and 
520

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 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 elevations and the likely mounding effect of groundwater moving outward from 

the landfill clearly do not support 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 

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 inception of filling."

Response:

A review of the water levels in the monitoring wells in the valley determined 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 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 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 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 water 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 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 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 was 
521

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 would 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, there should not 

be groundwater mounding underneath the landfill site.

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 groundwater 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 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 

positions.

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 site, 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 convey 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 wetlands 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 ditches that one sees 
522

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 landfill. 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 

regulatory 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

Accusation:

"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 MCLs, 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 and 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 been 
523

left on the ground surface from the mining operation, had leached a variety of constituents into a 

clay 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 circulating 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 update 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 is 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 modeling 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.

All 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 exceedences 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 above, 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 the 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 require 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 

remediation 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, 

which 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 with 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 remediation 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 present 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 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 exceedences of Pennsylvania's Water Quality 

Criteria 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 application 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 012, 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 012 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 permit 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 false 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 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 
526

leachable arsenic 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 fully 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, rather 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 approximately % mile away from the siteHartzell'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 not 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 pollutant 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 the 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 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. An acute (or maximum) criterion applies after a 15 minute 

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

Organization1: North Carolina Department of Environment and Natural Resources

Commenter1: Dexter R. Matthews

Commenter Type: State Government

Classification: Substantive

Comment Excerpt Text:

The February 24, 2010 report “Out 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, NC 
528

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 establishes 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 determine 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 Progress 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).

Belews 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 permitted 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 landfill 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 extreme 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 lined 
529

landfills. Craig 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 Swift 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 power 

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

Organization1: Virginia Department of Environmental Quality

Commenter1: 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

Organization1: Basin Electric Power Cooperative (BEPC)

Commenter1: 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 analysis 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 (MP12A, 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 level 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 monitoring 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 over 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 appears 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 boron 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 upgradient 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 roughly 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 North 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 the 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 advance 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 monofill 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 documents to damage cases included in the docket of the final rule.

Comment Number: EPA-HQ-RCRA-2009-0640-09712-13

Organization1: Basin Electric Power Cooperative (BEPC)

Commenter1: 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 Project, 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 passage. 

"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) about 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 groundwater 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 well'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 consume 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 wells 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 by 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 according 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. Additional 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

Organization1: Electric Power Research Institute (EPRI)

Commenter1: 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 Sierra 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 that 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

Organization1: Electric Power Research Institute (EPRI)

Commenter1: 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 management 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 or 
534

consultant 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 extent 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 Table 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 site.

- 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 sites. 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 

monitoring (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 typically 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 Impacts 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 instances (16 cases in Out 

of Control, 19 cases in In Harms Way), groundwater contamination is said to be “moving offsite.” 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 these sites don’t have off-site wells. Without offsite 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 “...major 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 square 
535

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 units (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 contamination 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 concentrations 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 directly 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 they 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 slightly 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

Organization1: FirstEnergy Corporation

Commenter1: 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 or 
536

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, are 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 Integrity 

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 for 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 be 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., nonutility) CCR. 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-2009-0640-09880-20

Organization1: FirstEnergy Corporation

Commenter1: 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 this fecal 

contamination could not have come from LBR. Yet that information was not mentioned in their 

testimony.

Also, LBR was named as a damage case by the Environmental Integrity Project, in the report 

mentioned previously. The report presented unsubstantiated claims that many coal ash facilities, 

including LBR, posed significant threats to nearby water sources. Those claims regarding LBR 
537

are simply not true. Many of the EIP report's claims were for water wells that could not be 

impacted by LBR, because they were up-gradient or otherwise geologically separated from LBR.

LBR 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 LBR 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 report, 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." Review 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 LBR are unfounded.

Response: FirstEnergy’s Bruce Mansfield Little Blue Run has a poor track record of regulatory 

compliance. For years it has been impacting neighbor’s drinking water wells and releasing 

abundant seepages 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 

contamination 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, the LBR impoundment is to cease receiving CCR by the end of 2016 and conclude 

closure by 2028. For a summary of the Bruce Mansfield Little 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

Organization1: Progress Energy, Inc.

Commenter1: Caroline Choi

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Excerpt Text:

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, including assertions made by the Environmental Integrity Project (“EIP”) and 
538

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. 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 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 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 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 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. After evaluating these allegations, close to half (62) were 

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 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 there are similar factual errors and/or lack of a factual basis for 

classifying these sites as damage 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 that 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.

Response: 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 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.
539

Comment Number: EPA-HQ-RCRA-2009-0640-09951-26

Organization1: Full Circle Solutions, Incorporated

Commenter1: 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 to 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 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 groundwater. 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 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 permeability 

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 oversight. 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 necessary to prevent groundwater 

contamination.

Comment Number: EPA-HQ-RCRA-2009-0640-10483-20

Organization1: Utility Solid Waste Activities Group (USWAG) et al.

Commenter1: 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, including 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 

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 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 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 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 environmental 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 

“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 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 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 
541

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 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 

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 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 Pennsylvania 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 Earthjustice 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 

Earthjustice 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 scientific 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 fully 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 necessary 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

Organization1: Seminole Electric Cooperative, Inc. (Seminole)

Commenter1: 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 numerical 
542

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 under 

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 more 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 of 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 groundwater 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 area. 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 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 

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 Seminole 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 

cases in the docket of the final rule.

Comment Number: EPA-HQ-RCRA-2009-0640-10498-20

Organization1: Florida Electronic Power Coordinating Group, Inc. (FCG)

Commenter1: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 numerous 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

Organization1: Florida Electronic Power Coordinating Group, Inc. (FCG)

Commenter1: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 “thirtynine new damage cases of contamination from improperly disposed coal combustion waste” (EIP 

Report). This review and analysis leads Lakeland to reach the following relevant 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 this 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 

groundwater 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 compliance 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 Order 
544

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 authorized 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 resulting 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 modified 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 public 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 waste 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 additional 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 which 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 accurate 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 have 
545

been repeatedly taken out of context by EJ in its reports. The exceedances 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 Department 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 provided 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-interpreted 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, existing 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 detected 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 regulations, 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 capped 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 Electric 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 Remedial 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 the 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 

implementing 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 approved 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, the 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. Moreover, 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 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 of 

arsenic above primary 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 

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 area. 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 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 

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 Seminole Electric Cooperative, Inc., Big Bend, and McIntosh sites in 

Florida. For a summary of the available site evidence and the rationale for the Agency’s 

designations 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

Organization1: Maryland Energy Report

Commenter1: 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 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 reporting 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: 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 agrees that this is so because the documented damage 

cases represent only the 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

Organization1: Sierra Club

Commenter1:Lyndsay Moseley

Commenter Type: Advocacy Group
548

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 federal 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 identified 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 Number: EPA-HQ-RCRA-2009-0640-10636_DC-076-2

Organization1: Sierra Club

Commenter1: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 Club.

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

Organization1: League of Conservation Voters (LCV)

Commenter1: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 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 

unnecessarily being threatened. In fact a report released just last week by the Environmental 
549

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 your comment.

Comment Number: EPA-HQ-RCRA-2009-0640-10656_DC-095-1

Organization1: Environmental Integrity Project (EIP)

Commenter1: 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 and 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 contaminated sites comprises some 137 sites 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 groundwater was readily 

apparent.

2) Levels of contamination are toxic. At everyone 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 standard 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 Excess 

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 

from 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 contamination 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 requiring 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 poses to rural populations that 

rely on private drinking water wells.

Comment Number: EPA-HQ-RCRA-2009-0640-10705_DEN-017-2

Organization1: Sierra Club - Rocky Mountain Chapter

Commenter1: 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 those 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 right 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 healthbased 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 conclusion 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 devastating havoc being wreaked on the socalled '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 states. 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 the speciation 
551

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

Organization1: Earthjustice

Commenter1: 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 where 

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 agrees with the commenter that there are quite a few documented 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 rather advises practitioners to thoroughly study the material- and site properties prior to the 

execution of such projects. 

Comment Number: EPA-HQ-RCRA-2009-0640-10796_DA-026-1

Organization1: Environmental Integrity Project, Earthjustice and Sierra Club

Commenter1: 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 designated as

confirmed damage case. For a discussion of the damage case 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

Organization1:

Commenter1: 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

Organization1: League of Women Voters of Columbia, South Carolina

Commenter1: 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 astounding.

Response: Whereas EPA concurs 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 

verified the information contained in the report and/or judged 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 Number: EPA-HQ-RCRA-2009-0640-11177_CHI-008-2

Organization1: Duke Energy

Commenter1: 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 cases, 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 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 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 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 whose 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: 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. For 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

Organization1: MidAmerican Energy Holdings Company

Commenter1: 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 with 
554

arsenic and we “are poisoning the 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 either 

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), against 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 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 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.

Comment Number: EPA-HQ-RCRA-2009-0640-11218_CHI-087-1

Organization1:Environmental Integrity Project

Commenter1:Jeff 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 November 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 damage 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 designation 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

Organization1: Midwest Generation, LLC

Commenter1: Maria Race

Commenter Type: Electric Utility Company

Classification: Substantive
555

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 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, in particular, regulation of coal ash as 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 have 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 from 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 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 any opportunity to correct these 

mistakes before they were 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 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 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 groundwater 

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 consistently taken a 
556

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

Organization1: Allegheny Energy, Inc.

Commenter1: David C. Cannon, Jr.

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Excerpt Text:

Damage Cases

Two Allegheny sites are referred to in recently 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 the 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 ignore 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 basic 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 permitted, 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 summary of stakeholder arguments 
557

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

Organization1:

Commenter1: 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 enforcement 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 justconducted 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 contamination 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 comprehensively 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 Louisville 
558

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 says 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 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 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-2009-0640-11479_L-056-2

Organization1: Duke Energy

Commenter1: 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 conclusions. 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 Notice 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 offsite 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 
559

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 whose 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 (October 2011) NODA 

that involve 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 criticism 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 cases 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 further 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

Organization1: Boulding Soil-Water Consulting

Commenter1: 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 maximum 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 waste

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. Includes FGD 
560

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 samples 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), Muskingum

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: The 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

Organization1: Boulding Soil-Water Consulting

Commenter1: 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 disposal 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 (Kosson et al. 2009). The maximum concentration in an off-site 

private drinking 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 maximum 
561

onsite groundwater concentration is 77 times higher. Furthermore, the latest 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 nickel, silver, strontium and vanadium (additional 

information provided in Attachment C).

Response: The commenter claims that the Kosson et al., (2009) leaching procedures (known also 

as the LEAF protocol) “underestimate(s) the potential for lead contamination 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.4In 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 behavior 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 

confidence 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

Organization1:

Commenter1: 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/R10/170, 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 Protection 

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. Leaching Test Relationships, Laboratoryto-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.
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implement regulations for coal combustion waste. The 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, Illinois. 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 

groundwater 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 10,000 people who live in the subdivisions 

around Lake of Egypt.

Response: EPA assessed the evidence on 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 source 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 

failing 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

Organization1:

Commenter1: 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 air, 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 few 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 support 

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

Organization1: Cumberland Chapter of Sierra Club

Commenter1: 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: 
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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

Organization1: Ohio Environmental Protection Agency

Commenter1: 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, Ohio. 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 

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 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 with 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 also 
565

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 production 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 exceedances 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 exceedances 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 potential 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 October 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 documents on damage cases in the docket of the final rule.

Comment Number: EPA-HQ-RCRA-2011-0392-0163-9

Organization1: Ohio Environmental Protection Agency

Commenter1: 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 Integrity 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: Mounting 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 Business by 
566

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 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: 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 industrial 

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.

Comment Number: EPA-HQ-RCRA-2011-0392-0190-2

Organization1: Full Circle Solutions, Inc.

Commenter1: 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 groundwater. 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 verified 

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 

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 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 drainage 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

Organization1: Michigan Department of Environmental Quality (MDEQ)

Commenter1: 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 2010 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 impoundments 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 studies 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 River 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 Transect 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 both 
568

the Karn and Weadock 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 this 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 sediments 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 water 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 combustion 

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 Rejected 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 proven 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

Organization1: Oklahoma Department of Environmental Quality (DEQ)

Commenter1: 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 Federal 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 case 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

Comment Number: EPA-HQ-RCRA-2011-0392-0197-6

Organization1: Oklahoma Department of Environmental Quality (DEQ)

Commenter1: 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 facility, 

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-RCRA-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

Organization1: Electric Power Research Institute (EPRI)

Commenter1: 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 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 their 

reliability 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

Organization1: Electric Power Research Institute (EPRI)
570

Commenter1: 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 comments, 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 the 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 information 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

Organization1: Little Blue Regional Action Group

Commenter1: Roni Kampmeyer

Commenter Type: Advocacy Group

Classification: Substantive

Comment Excerpt Text:
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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 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 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 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 

evacuation route that indicates those routes being flood 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 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 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-2011-0392-0201-10

Organization1: Commonwealth of Pennsylvania, Department of Environmental Protection 

(DEP)
572

Commenter1: 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 Pennsylvania

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 Disposed 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 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 two facilities located 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 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 the Department on a quarterly basis.) Since 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.
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 

concentrations 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 to 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 contamination. 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 coalfired unit ceased operations and UGI ceased sluicing ash into the basin; 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 floating 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, dissolved 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 well (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 total 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. 

However, 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 additional action is necessary to 
575

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 the 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 groundwater 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 MW7 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 MW-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 upgradient monitoring points, although none are exceeding any 

health-based standards.

DEP Response
576

Downgradient concentrations of barium, lithium and boron are elevated above background. 

Wells with reported concentrations of lithium exhibited a significant percentage 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 completed 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 impoundment 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 downgradient 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 increases 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 the 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 zones (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-site 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 have 
577

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 characterized 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 condition. 

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, depending 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 exhibited 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 dissolved 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 sufficient locations to 

fully determine groundwater impacts in order to determine the scope of abatement necessary 
578

under closure. 

DEP Response

Ongoing assessment requirements include data review incorporated with site activities and 

correlation with contaminant 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 and 

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, aluminum, 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 annually 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 secondary 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 monitoring 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 exceedances 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 is 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 impacted 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 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).

DEP Response

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 

(§288.523(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 USEPA 
580

[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.” 

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 trend 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 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. Our 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 comment.

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 trend 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 indicates 

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 

downgradient 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 dissolved 
581

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 upward 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 

downgradient 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 than 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 μg/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 than double. 

DEP Response
582

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 boundary. 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 surface 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 

guidelines 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 Response

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 activities. 

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 are 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 not 
583

affected by the ash disposal site. 

Response: Thank you for the information pertaining 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 these two Pennsylvania 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

Organization1: Commonwealth of Pennsylvania, Department of Environmental Protection 

(DEP)

Commenter1: 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 Landfill

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 Ash 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

January 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 Regulations 
584

Endangers Americans 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 

Energy’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 groundwater 

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 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. 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 beyond 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 referring 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 groundwater 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 support 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 between 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 remediation 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 groundwater and surface water from the 1,300-acre ‘Little Blue’ surface 
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impoundment have exceeded MCLs for arsenic and 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 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 facility 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 regard 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 of 
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0.021 mg/L at another family’s well.

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 be 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 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 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 for 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. 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 

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 samples. Most of the samples did not 

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 would suggest any impacts from the impoundment. Arsenic is 

found in soils of 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 Secondary 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’ residential 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 MCL 
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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 WQC 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 sample 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 contain 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 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.

DEP Response

FirstEnergy began regularly analyzing water samples for arsenic in 2006 and 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 subsequent 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 

monitoring 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 monitoring wells immediately downgradient of MW-16A do not 

contain arsenic above MCLs. Therefore, groundwater leaving the Little Blue Run Impoundment 
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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 

and 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 also 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 aluminum. 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 area 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 area 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 Pennsylvania 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 and 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 contamination:

“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 

sampled. 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 are 
591

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 expansion 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 – Page 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 be 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 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 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 for 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 water 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 samples. Most of the samples did not 
592

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 would 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 

increased 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 be 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 

samples 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 development 

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 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. 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 dry 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 MCLs 
593

and SMCLs for groundwater in monitoring wells. FirstEnergy monitors drinking water wells as 

required by the residual waste permit. 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 monitoring 

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 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 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 Surface 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 about 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 increase 
594

in arsenic concentrations as EIP implies. Of the 18 quarterly 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 Case 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 from 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 seep 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 continuous 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 impoundment 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 2,000 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 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 facility. With regard to the alleged 

exceedances of hexavalent chromium and lead, there are no references to where this data was 
595

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 boron 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 references 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 downgradient 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 Pennsylvania); S-28 ( a spring in West Virginia): S30 (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 regard 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) 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 specific monitoring point, nor is the 

specific data provided.

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, 
596

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.

D. This table provides no substantiated data and cannot be verified. As a matter of scientific 

standards, a summary 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 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 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 locations 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 is 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, respectively.

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 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. Turbidity in monitoring wells is not a function of the impoundment, but 
597

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 conclusions 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 (collected 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 dam); 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 industrial 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 permit. 

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 impossible 
598

between the allegations and corresponding data.

27. Damage 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 “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 facility. 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 and 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 

exceedances 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 locations 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 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.

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 original 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 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.

C. This table provides no substantiated data and cannot be verified. As a matter of scientific 

standards, 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 exceedance 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

Permitted 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 CCW 
600

pollutants 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 alleged 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 general 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 drinking 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. Shortly 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

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 comprehensive 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.

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 arsenic). In 
601

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 Damage 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 monitoring 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 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, MW20B, 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 

detectable 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 property. 

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 arsenic 
602

concentrations in 10 monitoring points immediately adjacent to the impoundment. FirstEnergy 

demonstrated that no trends in arsenic were readily 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 continued 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 2009, 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 Claim - 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 located 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 

meet 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 slightly 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 167
603

(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 

compounds, 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 Lawrenceville 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; MW23A; 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 sodium 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 environmental 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 level (‘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, 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, 1994a):

‘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 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 analyses 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 affected 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 comprehensively 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 times 

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 controls 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 the 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 on 
606

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 noted, 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 constituents 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 Little 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 123.2 (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 landfill 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 mg/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, 

1991b).

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 into 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 Little Blue 

impoundment include:” “February 16, 2010: PADEP sent a letter to FirstEnergy requesting resampling 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 Wells 
608

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, appropriate 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 property. 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 arsenic concentrations in 10 monitoring points immediately adjacent to 

the impoundment. FirstEnergy demonstrated that no trends in arsenic were readily 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 continued 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 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.

53. Damage Case Claim – Page 169

March 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 

penalty 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 Department’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-2010, 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 flow 
609

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 flow 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 FirstEnergy 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. Damage 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: PADEP 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, addressing 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 requirements.

58. Damage Case Claim - Page 169

It is important to note that, through a Memorandum of Understanding entered into in 2006 (when 
610

the impoundment was expanded) by PADEP and the West Virginia DEP, PADEP is the lead 

permitting and enforcement agency for Little 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 Claim - 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, copper, 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 by 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 Trigger 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 statement 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 without 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 spilling 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 determination. 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 Glenshaw 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, 1996). ‘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 units 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 mines 
612

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 admitted 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 discharges 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 these 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 along 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 northwest 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 Response

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 pipeline 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, including 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 determine 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 approximately 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 impoundment 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 decisions 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 

Combustion 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 environmental 

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. Damage 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 that 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 comprehensive 

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 completed, DEP concluded that the 
615

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 activities 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 double 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 Response

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 used for human consumption. Arsenic has been 
616

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 area 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 option 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 landfill.

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 Case 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 impoundment, 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 NPDES 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 there 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, which 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 specifically 

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 stateof-the-art use of passive technologies to treat the discharge of the active 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 Agreement 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 mg/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 mg/L; a 

0.0028 mg/L monthly average concentration versus a 0.0021 mg/L limit for monthly average 

(August 2005).

DEP Response 
618

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 average 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 original 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, with 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 regular 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 are 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, separate system designed to treat leachate. The sedimentation pond 
619

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 addressed 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 results 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 Whiteley 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 to 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, 

calcium, 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 the 
620

unnamed tributary because it is intermittent. 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 molybdenum, 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 therefore 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 abundance in the soils and groundwater of western 

Pennsylvania and are not solely related with coal combustion waste.

19. Damage Case Claim – Page 176
621

While there are no numeric water quality criterion for molybdenum in Pennsylvania surface 

waters, the concentrations 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 standards. 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 

sedimentation 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 suboptimal 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 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 
622

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 tributaries 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 sedimentation 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 limitations 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 Greene 

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 non-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 leachate 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 show 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 sumps, 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 fundamentally 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 criteria 
624

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 Claim – 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 permit, 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 the 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, sulfate, 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 presented 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 178

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 Response

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 health 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 consistent 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 disposal 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 groundwater 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 MW206A and MW-207A are actually situated downgradient of Phase 3 of the landfill and at least in 

part, downgradient 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 Solid 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 modify 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 refuse 
626

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-disposal 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 addition 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 Response

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 abandoned 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. Damage 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 monitoring 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 monitoring 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 correct.

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 the 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 MW218A 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 requirements 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 quality correspondingly reflects miningrelated 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 standards 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-217A, and MW218A, 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 downgradient 
628

groundwater since at least 2005.

DEP Response

This statement is misleading. The claim that “multiple samples” showed arsenic in well MW213A 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. Allegheny 

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 mine 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 these 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 March 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 detected 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 parameters 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 investigation 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 resultant 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 the 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 wells 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 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 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 of MCLs and health 

advisories in groundwater have been measured from at least as far back as April 2001.

DEP Response
630

This claim is unsubstantiated. The report does not cite any specific data values for any NPDES 

violations. The Hatfield’s Ferry Power Station 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 effects 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 corrective 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 Allegheny 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 analytical 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 plan 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 “analytical 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 violations of 

NPDES permit limits are still unclear.

DEP Response

The submitted corrective action plan is currently being implemented.

47. Damage Case Claim – Page 181
631

Fly ash, bottom ash, pyrites, wastewater treatment sludges, pond sediments, refractory materials, 

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 byproduct) 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 lined 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 the 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 geocomposite 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. FGD 
632

disposal 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 been 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 within 

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 Phases 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 statements 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 southwest -

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 and 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 Data
633

[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 collected 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 with 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 known 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 results 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 concentration 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 degree 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 analyzed 

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 the 
634

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 groundwater 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 northwest 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 original 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 these two Pennsylvania sites against EPA’s test of proof 

criteria, the Agency designated them as potential damage cases. For a summary of stakeholder 

arguments addressing these two 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-2011-0392-0201-12

Organization1: Commonwealth of Pennsylvania, Department of Environmental Protection 

(DEP)

Commenter1: 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 is provided below]

Commonwealth of Pennsylvania
635

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 Damage 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

Executive 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 facilities 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 allegation point by point for each of the abovereferenced 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 basis.) 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 information 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.................................1
636

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 the 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 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 EPA 

Child Health Advisory of 3.0 mg/l. 

DEP Response

This statement 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 regarding 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 downgradient 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 between 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 to 
637

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 trends 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 65
638

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 requiring 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 degradated 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 regardless 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 levels 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 boron 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 between 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 past 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 65
639

Elevated levels of molybdenum and nickel were detected 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 μg/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, twelve 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 sodium.

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 tracking 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 

groundwater 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 monitoring 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 monitoring 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 higher 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 downgradient 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 highest 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 2007 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 nickel 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 the 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 respect 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 approved 

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 diverted 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 66
641

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 not 

been exceeded. This argument missed the point that degradation from groundwater moving offsite has occurred, and that this damage would not have been identified if PADEP had not 

required groundwater monitoring.

DEP Response

All groundwater data is evaluated 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 

secondary (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 

upgradient 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 

impoundments 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 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 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 Claim – 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 treatment 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 discharge 

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 correct 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: 

Monongahela 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 1980’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 initiated 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 decommissioning 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 levels 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 power 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, and 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 original 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 moving off-site (ash landfill)

DEP Response

As previously stated, Total Dissolved Solids is not a primary health-related drinking water 
645

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 Company (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 drinking 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-related 

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 

Heights 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 covered about 157 acres, of which 

about 50 acres were used for coal combustion waste (CCW) disposal.

DEP Response
646

This is a correct statement.

8. Damage Case Claim – Page 68

In 1975, DLC received Solid Waste Disposal Permit No. 300440 from PADEP, which included 

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. Damage 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 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, 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 period 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 Residual Waste Regulations concluded that chloride and sodium 
647

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 

sodium 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 – Page 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 exceedance 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 limited 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 performance of the hot water heaters of residents served by the 

Cresswell Heights Joint Authority. DEP notes, however, that TDS is not a primary, healthrelated 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 

contamination 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 groundwater 
648

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 

groundwater 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 Waste 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 157 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 Inactive 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 decommissioned 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. Damage 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 corresponding 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 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.

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 compacted 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 was 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 DEP 
650

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 Sites 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 statement 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 contamination 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

Groundwater 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 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.

DEP Response

As part of the remediation project for the coal refuse piles, DEP required that wells be installed 

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 and 
651

Aquatic Life. There were 27 exceedances 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 Response

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 company 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 company 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 statement 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 the 

“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 

abandoned 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 damage 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 Response
652

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 pile 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 infiltration 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 capped 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 MW7R.

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 primary 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 MW7R.

• Secondary MCLs were exceeded at very high levels in all downgradient wells in almost every 

quarter 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 Iron 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-8R 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 

performance 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 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. Remediation of these coal refuse 
654

piles has occurred to stop/reduce contamination.

10. Damage 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 Continuous 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 results 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 permit 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 before 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 Response
655

This statement 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, 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 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 - Page 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 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 with 

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.

DEP Response
656

EIP’s description of the closure of Ash Disposal Site No. 1 is correct.

16. 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 statement 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 combustion 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. 

Alkaline 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 Sites 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 Response
657

This 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 Disposal 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 which 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 

refuse 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 pits.

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 or 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 the 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 the 
658

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 alluvial 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 

confirm 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 

upper 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 surface 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 leachate 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 and 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 groundwater 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 regularly 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 

condition 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 County
660

1. Damage Case Claim - Page 76

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. 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 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.

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 notes that the Fern Valley 

Disposal Site was constructed downgradient of an abandoned 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 high 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 limits 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 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.

4. Damage Case Claim - Page 76
661

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. 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 River.

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 addition, 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 that 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 Proof
662

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. Sporadic 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 

presented 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 in 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 arsenic 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 were 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 present 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 in 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 76
663

• 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 regularly 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 the 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 

established 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 aesthetic 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 around 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 

of 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 Disposal 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 trend 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 from Monitoring Well MW21. 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 secondary 
664

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 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 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 well 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 drainage 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 elevations 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 from 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 inception 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 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 
665

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 water 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 upgradient 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 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’

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 portion 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 would 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 not 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 groundwater 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 groundwater 
666

levels should be less on the hillsides 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 

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 leachate 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 secondary 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 treatment 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 the 
667

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 water 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 culvert 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 commonly 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 surface 

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 disposal 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 surface 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 Disposal Site.

18. Damage Case Claim – Page 78
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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 life 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 submitted 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 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 environmental indexes, mean species diversity and equitability, the downstream 

location (SW 2) was degraded 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 water 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 landfill and add to the leachate load.

• For water that does discharge from the controlled outlets, there are no discharge limits for 
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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 controls, 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 downgradient 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 notes 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 information pertaining to the Mitchell Power Station, the Phillips 

Power Station/Landfill, the Seward Generating Station, and to the Fern Valley Disposal sites 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 these 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 decisions, see the technical support documents on damage cases in the docket of 

the final rule. 

Comment Number: EPA-HQ-RCRA-2011-0392-0201-13

Organization1: Commonwealth of Pennsylvania, Department of Environmental Protection 

(DEP)

Commenter1: Michael Krancer

Commenter Type: State Government

Classification: Substantive
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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 Disposal 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

Pennsylvania 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 Their 

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 facilities, and have prepared detailed pointby-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. Scientists 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 makes misleading comparisons, referring to regulatory standards interchangeably 

and inaccurately, for example, by comparing impoundment discharge samples to drinking water 

standards.
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2. 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 critical facts such as the direction 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 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. 

- Yet, EIP 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 largely 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 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 downplay or ignore contrary evidence.

- Yet, EIP often ignores sampling and other data which indicate that its assumptions and data are 

wrong. EIP makes 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 Little Blue Run Surface Impoundment

1. EIP's February 24, 2010 report, p. 162 ("For example") claims:
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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 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 that 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 clearly 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 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 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 wells (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 offsite 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 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 
673

operations. Finally, surface water discharges are monitored and reported under the NPDES 

permit 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 Mark'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 

impoundment. 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 report, 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 water 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 does 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 historic 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 the 
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disposal impoundment (prior to discharge) to Fish and Aquatic Life Criteria. 

7. EIP's February 24, 2010 report, p. 162, claims: 

MCLs were also exceeded 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 samples 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 Station

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 degradation 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 Regulations, 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 wells 
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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 of 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 report 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 Pittsburgh 

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 landfill 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 Energy 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 

not 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 Generating 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 Seward 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 and adjacent river.
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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 wells 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 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 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 report 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, 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 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 surface 

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, groundwater 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 refuse 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, 2010 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 water 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 disposal 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 Station 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 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. The EIP report has not presented any supporting data that coal 

combustion waste has contaminated 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. 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-
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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 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 

mining 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 

designed 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 

remove 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 combustion 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 to 

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 worst 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:
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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. EIP'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 

every 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: Hexavalent 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 chromium 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.
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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 

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 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 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 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 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, 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 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 for 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 in 
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wells upgradient to the facility, and 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 these 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 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 three Public Water Supply Wells (PWS) that are less than a mile 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 Brook 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 groundwater. As a result of the groundwater assessment, PADEP required groundwater 

monitoring to continue after final cover and grading of the landfill.
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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 groundwater 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 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. 

In fact, in comparing the water elevations in the seven wells, the 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 the 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, the 
683

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. 

Examples 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 excess 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 gas 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-site 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: 
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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, MW20B, 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 continued 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 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].

In fact, later data demonstrated that this preliminary conclusion 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 laboratory 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 – Hatfield’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 (conducted 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 ash 

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, and 
685

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 flow 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 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.

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 

assessment 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. Fern 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. 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 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 and 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. (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 
686

primary MCL.

In fact, sporadic low levels of arsenic have been identified in upgradient wells, and this has been 

shown 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 presented with an elevated level 

of arsenic for MW-20. No statistical analysis or trends have been demonstrated.

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 environmental 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 surface 

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 landfill 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 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 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 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).
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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 (§ 288.523(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 manganese, 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 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 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 these 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 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 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. 
688

6. EIP's February 24, 2010 report claims: 

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. 

In fact, there are 3 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 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 credibility, 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") claims:

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 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 that 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 clearly indicates the well is located up gradient 

(background) from the impoundment. 
689

Further, while 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 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. 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 water 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 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 monitoring 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 – Mitchell 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 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. 
690

• 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 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 upward 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.

In 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 period.

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 violation 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, claims: 
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 August 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 MW218A, 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 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 

mining in the area has had an unrelated negative impact on groundwater. Monitoring wells MW217A and MW-218A are for the new leachate storage impoundment, and are screened in mine 

spoil from past surface mining activities.

E. PPL Martins 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 Basin 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 dissolved 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 and 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 Concentration (CMC), in Mark's Run and other offsite 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 residential 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 has 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 total dissolved solids (TDS).

In fact, EIP's report does not cite specific names, locations or sample dates for the alleged "offsite" residential drinking water well contamination. Further, the primary constituents of lead, 

cadmium and barium are only found 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 exceedances 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 “Chart 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, 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. This table 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, claims: 

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 Blue. 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 sampling 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 2.69 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.

In fact, EIP’s report contains 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 offsite 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 parameters 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. 

However, 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 report, 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 comprehensive 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) indicated 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 basis 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 EPA 

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 

boron 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 presented 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 parameter. 

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; specific 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 are 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 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.

C. RRI Energy - Seward Generating Station

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 activities 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 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.

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 from 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 is no impact on the groundwater from the 
697

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 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.

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 landfill)

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 review 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, 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.

In fact, EIP fails to disclose any specific parameter value(s), or monitoring well(s) for the years 

referenced, so the data cannot 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 discharged 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 February 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 to 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 these 

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 specific 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 chromium 
699

contamination. 

IV. SUMMARY

In summary, due to the inaccuracies and flaws contained in the reports identified above, they 

should not be used to make any 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 in 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

Organization1: Commonwealth of Pennsylvania, Department of Environmental Protection 

(DEP)

Commenter1: 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 reports 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

Organization1: Commonwealth of Pennsylvania, Department of Environmental Protection 

(DEP)

Commenter1: 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 programs 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 

November 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

Organization1: American Electric Power (AEP)

Commenter1: 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 Environmental 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 additional 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 those 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 

administrative 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 Control", 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 Plant.

• 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 claims 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 Scary 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 observation was reported for a stream in 
702

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 previously, 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 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 

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.) 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. Willet. 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 Disruption 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 tissue 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, WV

("Out of Control", Site #31, Page 110)

• Earthjustice claims that two facilities in West Virginia having coal combustion byproduct 
703

(CCB) impoundments have caused "serious water quality damage" in the immediate receiving 

streams. Ohio Power Company's Mitchell 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 correctly 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 this 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 regulations. 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 indications 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 pond 

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 aquatic 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 impacts 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 limitation.

• 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 this 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 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 

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.) 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. Willet. 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 Disruption andEnvironmental Assessment, Volume 8. American 

Society for Testing and Materials, 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, Southwestern Electric Power Company, Gentry, AR ("In Harm's Way", 

Site #1, Page 1)

• Elevated concentrations of coal combustion 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 landfill. 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 to 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 nature 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 operating 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 collection 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 monitoring 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 comparisons to downgradient groundwater data. Groundwater data from 

monitoring well S-2 is not used in evaluating upgradient to downgradient groundwater quality.
706

• Monitoring well S-2 does have elevated levels of arsenic, boron, and molybdenum relative to 

the facility'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 occurred.

• 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 located 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 FAR 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 process 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 

concentrations. 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 aquifer 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 

TiddDale 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 

April 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 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 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 

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 
707

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".

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 

permeability 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 significant 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 within 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/treatment 

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) toxicity 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 monitoring 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 water 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 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".

• There are no slope stability issues at the Gavin landfill. 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 statistically significant increase (SSI) for alkalinity at one down gradient well (M9603); 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 confirmed 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/Pittsburgh 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 constituents 

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 August 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 

molybdenum, 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 Way", 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 

established 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 landfill, 

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 precipitation 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, Cleveland, 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 Clinch 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 -

Wastes 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 industrywide 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 completely 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 

discharges 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 Plant, 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 cited 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 controls 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.

Response: 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 sites. The Agency has assessed all 

the ‘newly alleged’ damage cases included in these 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

Organization1: Tennessee Valley Authority (TVA)

Commenter1: 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 environmental 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 

entitled “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 are 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 “Out 

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 

· The 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 the 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 incidence 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 is 
713

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 wells. 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 to 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 intent 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 contained 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 Environment, 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 below emails, 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 two 
714

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 for 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 the 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, technetium 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 Little 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 from 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 sent 
715

you. 

Well D-77 is located at -88.77396W and 37.15197N. 

As I recall, D-77 is located in such a position that, although 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 adjacent 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 affect 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 their 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 they 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 that 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 harmed 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 that 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 radius, are not within the potential path of 

impacted area for surface impoundment failures. As of September 2011, the previous ‘high 
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hazard’ ranking for the Cumberland Fossil Plant surface impoundments was downgraded to 

‘moderate/significant hazard’. “Significant 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 

Groundwater 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 monitored 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 Fossil 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 1990’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 2010 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 for 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 part 

of a compliance monitoring network for monitoring the closed DuPont Dredge Cell. The results 
717

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 lead. 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 are 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 representative 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 rulemaking process.

Response: Thank you for the rebuttal of the arguments two environmental advocacy groups

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 these two reports against the Agency’s

test of proof criteria. Based on this assessment, 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 

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-2011-0392-0209-1

Organization1: East Kentucky Power Cooperative (EKPC)

Commenter1: 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 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), 

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 Spurlock 
718

Landfill.

The total permitted area of the Spurlock Landfill 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.

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 

boundary. Area C is located down-gradient of Areas A and B, also within the 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 Way, 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 drinking 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 limit. 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 by 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 impacts 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 demonstrated 
719

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 ECKPC’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

Organization1: Utility Solid Waste Activities Group (USWAG), et al.

Commenter1: 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 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 second report, entitled In Harm’s 

Way: Lack Of Federal Coal Ash Regulations 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 Americans And Their Environment (Aug. 2010) (EPA-HQRCRA2011-0392-0006).] 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 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.

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 characterize 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 the requisite degree of proof to substantiate the claims. Indeed, as 
720

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 organizations 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 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 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 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 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.” RCRA 

§ 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 identification 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 provide 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 

identified 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 

Agency 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 human 
721

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 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 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 Waste 

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 environmental 

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 has 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, Kelron reviewed all of the allegations presented in Out of 

Control and In Harm’s Way, including those allegations such as secondary MCLs and other nonhealth based criteria and advisories that are ultimately irrelevant to the analysis because they 

cannot serve 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 performed 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 its 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 insufficient 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 potential 

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 damages from “surface 
722

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 constitute 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 Waste 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 that 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 

support 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 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 with respect to 

specific 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 damage 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 regarding 

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 thus 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 have 
723

been fully remediated (indeed, 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 

and 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, also 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 

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”, (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 groundwater 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 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 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 for 
724

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). While the Subtitle D regulations 

will be effective in preventing future damage cases, as explained above, any of the alleged 

damage cases 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 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. Therefore, nothing presented in Out of Control 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 to 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

Organization1: Utility Solid Waste Activities Group (USWAG), et al.

Commenter1: James Roewer

Commenter Type: Trade Association

Classification: Substantive

Comment Excerpt Text:

[ATTACHMENT: see original comment for Attachment 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 Control: 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 presented 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 test 
725

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 allegations 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/operators 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 where 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 damages 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 five 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 

was 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 stakeholder 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

Organization1: Utility Solid Waste Activities Group (USWAG), et al.

Commenter1: 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 illustrate 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 practical 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 stigma 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 improvements 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

Organization1: Consumers Energy Company (Consumers Energy)

Commenter1: 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 alleged 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, 2010)), 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 provide 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 support 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 samples 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), this report is 

erroneously attributed to the Michigan Department of Environmental Quality (MDEQ) in the 

alleged 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 requirements 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 

landfills 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 and 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 found any reaching it above water 
728

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 concentrations 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 reaching 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 reaching 

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, there 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 discharges 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 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.

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 noted 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 

Michigan 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 solidification 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 surface impoundments that are being 
729

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 structural 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 above. 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 conversion 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 respect 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 Seasonal 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 Endangers 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. 

French 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 concentrations 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, and 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 clearly 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.

The 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 over 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 Woodtick 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 average (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 Bay 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 other 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 summer 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 sporadic 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 other sources of contamination, and 

in the determination of damage to water quality (it wasn't measured) or to biota. EPA was correct 
731

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 cases. EPA has assessed, among others, these 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 designated 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

Organization1: Duke Energy Business Services, LLC (Duke Energy)

Commenter1: 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 Project, 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 Waste 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 numerous 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 establish 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 exceedances 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 constitutes 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 with 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/cgibin/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 as 

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 exceedances 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 Damage 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 maximum 
733

concentration 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, the 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 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 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 manganese 

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 is 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 have 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 not 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 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 
734

Proven Damage Case

The EIP Report contends that Gibson Station qualifies as a proven damage case because there 

are adverse off-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 allegation 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 and 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.]. Moreover, 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 current 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 insufficient 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 related 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 of 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 warranted 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 cooperation 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 2005 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 voluntarily 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 long. 

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 impoundment. 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 at 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 majority 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 caused 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 (“Belews 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 or 
736

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. Indeed, the Report only speculates that there might be off-site 

groundwater impacts. This is insufficient 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 caused 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 given 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 property. 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 is 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 impoundment, 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 to 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 the 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 concentrations 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 

at 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 adverse 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 groundwater 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 management sites and the rationale for their damage case 

designation decisions, see the technical support documents on damage cases in the docket of the 

final rule.

Comment Number: EPA-HQ-RCRA-2011-0392-0217-2

Organization1: Nebraska Department of Environmental Quality

Commenter1: 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 Station 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: 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 Sheldon Station Ash Pit 

#3 site should be designated as CCR damage case. EPA has assessed, among others, these
738

‘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 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-2011-0392-0217-3

Organization1: Nebraska Department of Environmental Quality

Commenter1: 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 Americans 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 listed 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, Earthjustice, 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 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 additional 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 

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 concluded 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/Contaminants of Concern 
739

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 being 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 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 population" 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 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 uppermost 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 the 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 December 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 publicowned power plant facility is voluntarily conducting additional groundwater investigation with 
740

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/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 would be continued groundwater 

monitoring and/or restricted groundwater use. 

Response: See response to comment excerpt EPA-HQ-RCRA-2011-0392-0217-2.

Comment Number: EPA-HQ-RCRA-2011-0392-0219-14

Organization1: Commonwealth of Kentucky, Department for Environmental Protection, 

Division of Waste Management

Commenter1: 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, relating 

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 presents 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

Organization1: Commonwealth of Kentucky, Department for Environmental Protection, 

Division of Waste Management

Commenter1: 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 cases. 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 Plant 
741

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 sampling 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 monitoring 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 groundwater 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 wells 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 exceeded 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 report 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 information. 

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 value 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 a 
742

hydrogeologic connection 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 site 

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 radius 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 waste 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 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 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 MW3A downgradient and outside waste area 3, which is downgradient of Areas A and B. Arsenic 
743

has not 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 information 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” received 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 criteria 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 with 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 was 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 destination 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 readings 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 the 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 750 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 inside 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 interbedded 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 relatively 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 require 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 risk 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 

characteristics, 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: 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 cases. EPA has assessed, among others, these ‘newly alleged’ 

damage case sites against the Agency’s test of proof criteria. Based on this assessment, these

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

decisions, see the technical support documents on damage cases in the docket of the final rule.

Comment Number: EPA-HQ-RCRA-2011-0392-0219-22

Organization1: Commonwealth of Kentucky, Department for Environmental Protection, 

Division of Waste Management

Commenter1: 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-RCRA2009-0640-6315] 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 considered 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 potential 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

Organization1: Commonwealth of Kentucky, Department for Environmental Protection, 

Division of Waste Management

Commenter1: 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 & ElectricMill Creek Plant that “Groundwater contaminated with arsenic 1.5 times the MCL 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 selenium 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 D74B while the 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

Organization1: Commonwealth of Kentucky, Department for Environmental Protection, 

Division of Waste Management

Commenter1: Anthony Hatton

Commenter Type: State Government

Classification: Substantive

Comment Excerpt Text:

Third area, found under VI on page 63256, “What reports regarding 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 to 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 constituents 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 evaluate 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 property. 

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 the 
747

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 non-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 state 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 cases. The Agency has assessed, among others, these ‘newly alleged’ 

damage case sites against EPA’s test of proof criteria. Based on this assessment, these 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 decisions, see 

the technical support documents on damage cases in the docket of the final rule.

Comment Number: EPA-HQ-RCRA-2011-0392-0220-3

Organization1: NRG Energy, Inc. (NRG)

Commenter1: 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 should 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 the 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 (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 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-RCRA2011-0392-0006).]. These reports have not undergone rigorous scientific review to ensure that all 

data is accurate 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 proven 
748

damages cases, and as a result, application of Subtitle C to address damage case concerns 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 groundwater 

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

Organization1: NRG Energy, Inc. (NRG)

Commenter1: Verne Shortell

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Excerpt Text:

Section III. Basis for NRG Site Evaluation and Determinations

To support 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 brief 

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 levels (MCLs) or other healthbased 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, 

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 
749

(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 waste 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 evidence 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 investigation. 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). Scientific 

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 standards.

(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 damages.

(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: Millsboro, 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 proven 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 Cleanup 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 nature 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) 

which 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 action 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 receptors 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, manganese, 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 soil 

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 pathway 
751

for on-site groundwater to migrate to off-site groundwater (residential wells 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-site 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 fishermen) 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 health 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 food 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 decision 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 Americans 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 showing 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 oil 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 been governed 

by the Connecticut Transfer Act and RCRA Corrective Action programs. NRG Energy has 
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completed an Ecological Risk Assessment, which has been approved by both the USEPA and the 

CTDEEP. 

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 / 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: Comment 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 private 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 wastewaters) 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 evidence 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 sulfates, arsenic, barium, cadmium, iron, manganese, and lead in 
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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 concluded 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 principal 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 

property.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 constituents 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 

documented 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 Cajun 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 monitoring 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 property 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 discussions 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 Population: This section discusses public drinking water sources within 2-5 miles of the 

Cajun II site. 

Comments: Comment 4 
755

-There is no documented evidence that contamination is moving off-site and has impacted any 

public wells. There is also no documented evidence 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 Power 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 accurate. 

-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 issued. 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 upgradient, 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. 

Comments: 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 the 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: Table 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 increase (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. 

Comments: 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 addition 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 designated as CCR damage 

cases. The Agency has assessed, among others, these ‘newly alleged’ damage case sites against 

EPA’s test of proof criteria. Based on this assessment, these three sites were designated as 

potential damage cases. The commenter also addresses 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. Based 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 decisions, see the technical 

support documents on damage cases in the docket of the final rule.

Comment Number: EPA-HQ-RCRA-2011-0392-0221-2

Organization1: Exelon Corporation

Commenter1: 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 February 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 environmental 
757

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, these 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 terms 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 department 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 disposal 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 reasonable 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 represent 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 attempt 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 the 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 pre1990 construction. Thus, even if one assumes that the damage cases alleged in these reports were 
758

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 standards). 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

Organization1: Exelon Corporation

Commenter1: 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 Project, 

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 Generating 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 Station 

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 these four sites and the rationale for their damage case 

designation decisions, see the technical support documents on damage cases in the docket of the 

final rule.

Comment Number: EPA-HQ-RCRA-2011-0392-0223-3

Organization1: Ameren Corporation

Commenter1: 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 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: 
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 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”) [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).] 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 

Control 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 groundwater 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 that 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 documentation 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 concentrations 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 south 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 groundwater, 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 rebuttal of the arguments made in In Harm’s Way, the August 2010 

environmental advocacy groups’ report to support their claims that the Venice Energy Center 
760

should be designated as CCR damage case. The Agency has assessed, among others, this ‘newly 

alleged’ damage 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 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-2011-0392-0223-7

Organization1: Ameren Corporation

Commenter1: 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

Organization1: Entergy Services, Inc. (Entergy)

Commenter1: Myra Glover

Commenter Type: Electric Utility Company

Classification: Substantive

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, 

2010) (“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 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, 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) (EPAHQ-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 Subtitle 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 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. 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, 

off-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 disputes 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 subset 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 continued 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 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 were subsequently submitted to ADEQ between 

1996 and 2008 form the basis for reducing the site-wide monitoring program and were 
762

apparently ignored by EIP. Consistent 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 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 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 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 where 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 currently 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 1991-1996 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 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 waters (surge pond, recycle ponds, and cooling tower sump) 

are approximately an order of magnitude below the EPA screening level, thus strontium levels 
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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 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 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 impacts 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 different 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 compliance 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 since 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 of 
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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 quarterly 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 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 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 nonmandatory water quality standards for six site-related contaminants. 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 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 

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 “worst” 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 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 are 
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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 landfill 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 an 

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-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 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 the 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 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 documented 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 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 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 states 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 concentrations in groundwater.
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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., 

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 suspended 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 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 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 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 the 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 mechanism 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 

concentrations 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 not 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 correspondence 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 
767

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 the detection monitoring hypothesis and use of interwell, upgradient-todowngradient 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 located 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 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 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 the 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 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 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 corrective 

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 monitoring the plant area and surge pond, 

Entergy continues to voluntarily sample select plant area and surge pond monitoring wells and 
768

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-effective 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 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 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 voluntary 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 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 process 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 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 occurring;

• No regulatory enforcement or corrective action is necessary; and
769

• 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 support 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, 

this site was designated 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 

docket of the final rule.

Comment Number: EPA-HQ-RCRA-2011-0392-0228-2

Organization1: Virginia Department of Environmental Quality (DEQ)

Commenter1: 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 State 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 confidence 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 outfalls 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 from 
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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 principle 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 currently 

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 concentration of Aluminum in its discharge. The 

most recent reported Aluminum concentration for outfall 003 is 0.16 mg/l. Although this end-ofpipe 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 003 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 late 

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 mid1990s and the seepage quantity has reduced significantly. DEQ has 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 water 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 mg/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 impaired 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 advocacy 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 of 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 the 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

·Virginia 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 Surface 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 outfall 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 system 
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and has not had any discharges from the overflow 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 Permit 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 

required 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: cadmium, 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 are 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: 

http://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 comments 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 improvements 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 Lyn 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 benthic 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 

criteria. 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 the 
773

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-2011-0392-0230-1

Organization1: Santee Cooper

Commenter1: 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 decisions, see the 

technical support documents on damage cases in the docket of the final rule.

Comment Number: EPA-HQ-RCRA-2011-0392-0233-4

Organization1: MidAmerican Energy Holdings Company

Commenter1: 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, 2010, 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, Earthjustice, 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 document based on accusation (to 

which no response was requested) designed to inflate the number of damage cases in an effort to 
774

advance a more stringent regulatory scheme. MidAmerican strongly disagrees that the George 

Neal Station North and George Neal Station 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 Determination 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 Register 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, MidAmerican 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 were 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 measured 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 groundwater 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 Survey – 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 2006-2008 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 Well 

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 2010 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, such 
775

as pyrite, in the glacial till and rock parent material.” [Footnote 7: Iowa Department of Natural 

Resources, The Iowa State-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 determination 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 both 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 the “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 

consider 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’ damage case sites against The Agency’s

test of proof criteria. Based on this assessment, these 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 decisions, see the technical support documents on damage cases in the docket of the 

final rule.

Comment Number: EPA-HQ-RCRA-2011-0392-0234-2

Organization1: Wisconsin Electric Power Company (We Energies)

Commenter1: 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 in 
776

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 supports 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-RCRA2011-0392-0024. 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 Way: 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 Power 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 of 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 

speculation 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 no 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 of proof criteria. Based on this assessment, 
777

this 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, see the technical support documents on damage cases in the 

docket of the final rule.

Comment Number: EPA-HQ-RCRA-2011-0392-0234-6

Organization1:Wisconsin Electric Power Company (We Energies)

Commenter1: 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- FID# 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", dated 

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 

Groundwater Quality Evaluation, Oak Creek Power Plant 

From: Bruce Hensel 
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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. 

Background 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 supply 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 readily 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 continue 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 semi-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 constituent of concern in the dolomite aquifer investigation. The table below 

summarizes the analytical results for these three constituents: 

W45A (intermediate sand), April2010 
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Boron: 0.31 

Sulfate: 51 

Molybdenum: 0.044 

W45A (intermediate sand), June 2010 

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 monitoring 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 representative 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 boron 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 end 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 concentrations 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 higher 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 measurement 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 position 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) boron 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 

Investigation 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 where 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. 

Boron 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 concentration 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

Organization1: Lower Colorado River Authority

Commenter1: 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 the 
781

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 Power 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 report 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 potential 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 potential for future risk from these sites.

In EPRI 2010, EPRI also performed 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 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 management facilities requires sufficient time and data to adequately define 

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 quality 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...

LCRA 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 90 ‘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 these 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 arguments addressing the 
782

assessed sites and the rationale for their damage case designation decisions, see the technical 

support documents on damage cases in the docket of the final rule.

Comment Number: EPA-HQ-RCRA-2011-0392-0236-15

Organization1: Iowa Department of Natural Resources (IDNR)

Commenter1: 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 Attachment 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 Station 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 decisions, see the technical support documents on damage cases in the 

docket of the final rule.

Comment Number: EPA-HQ-RCRA-2011-0392-0236-2

Organization1: Iowa Department of Natural Resources (IDNR)

Commenter1: 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 organizations 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

Organization1: Iowa Department of Natural Resources (IDNR)
783

Commenter1: 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 

Endangers 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 data 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).

What 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 North 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 Station 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. Where 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, sample 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 durations 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 alleging 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

Organization1: Edison Mission Energy, LLC

Commenter1: 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 CONTENTS

SECTION PAGE

EXECUTIVE SUMMARY .......................................................................................... ES-1

1.0 INTRODUCTION .................................................................................................. 1
785

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 prepared 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 Utilities” (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 updated 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 

includes 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 may 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 Coal 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 more 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 EIP’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 Quarry 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 standards, 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 effluent 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 corrective 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 approval. 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 Quarry 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 Quarry’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.
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The EIP falsely claims that Midwest Generation “bought out” its neighbors to the south. In truth, 

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 because 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 

operations 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 Endangers 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, Illinois 

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 discussions 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” PUBLICATION
788

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. 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 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 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.

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 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 the 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 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 effects considered 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 “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 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 by 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 standard 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 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 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 EIP 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 Project 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 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 regulations, 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, 
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 811will 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 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 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 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 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 six additional off-site groundwater assessment wells. Since the 2010 Report, four of 

the off-site assessment wells have been installed and are being routinely 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 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. 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 a 
791

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 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 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 degradation 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 

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” 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 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 existed “as of 

early 2007” and would have monitored flows to the south does not support EIP’s claim. The offsite wells are G38S, G38D and G39S. Our review included an evaluation of arsenic, boron and 
792

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 contaminants, 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 operation 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 

routinely 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 addresses offsite 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 issued 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 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 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 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 
793

number of potential exceedances 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 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 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 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 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 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 [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 
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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 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 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 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 the 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 addition, 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 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 Landfill 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 residents. Only limited sampling has been done by IEPA to assess 
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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 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 “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 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 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 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 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 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 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 

new 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 does 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 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 
796

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 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 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 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 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 

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 

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 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, 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 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 
797

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 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 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 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 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 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.

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 
798

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 correct 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 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 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 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 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 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 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 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 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 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, 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 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 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 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 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 or 

anthropogenic sources such as coal ash [Footnote 10: Ruhl, L.A., Dwyer, G.S., 2009. Boron and 
800

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 (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 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. 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 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 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 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 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 residential wells were well within the overall range of the Will County boron 
801

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 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 

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 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 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 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 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 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 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 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 at 
802

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 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 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 Annual 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 information 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 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 exceeded 

the AGQS (KPRG, 2008c).

Clarification: As noted above, this statement identifies groundwater monitoring results from onsite 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 off-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 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 

exceedances].
803

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 finalized 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 wells 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 field. 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 

detected 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 exceedances 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 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. 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 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 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 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 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 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 west 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 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. 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 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 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 May 

2009, pH exceeded the AGQS (6.14 to 8.56) in 7 of the 17 sampling events (maximum pH of 
805

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, 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, barium, 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 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 EIP does not identify any basis for its opinion that 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 

reference 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 applies 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 Outfall 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 NOV 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 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.
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 additions 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 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 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 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, 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 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

· Application 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 by 
807

IEPA as Permit Modification 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 Permit 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 off-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 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 

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 approved 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 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 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 were not approved for removal from List G2 monitoring and continue to 
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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 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 chart 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 

that 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 

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 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 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 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 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 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) Environmental 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 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 
809

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 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 only 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 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 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 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 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 (including 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 associated 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 
810

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 

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 its 

attempt to characterize Midwest Generation as an “unconcerned” landfill operator. But more 

importantly, 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 any 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 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 

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 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 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 
811

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 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 Stone 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 its 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 numerous 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 regulations.

- 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 Illinois 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 program 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 groundwater 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 there 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 side of the facility due to unrelated dewatering activities at the Laraway Quarry 

located approximately 1,000 feet southeast of the Quarry. Midwest Generation implemented a 
812

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 Quarry. 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 performed 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 

monitoring 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 northeast. 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-compliance 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-HQ-RCRA-2009-0640-08244-19.

Comment Number: EPA-HQ-RCRA-2011-0392-0237-4

Organization1: Edison Mission Energy, LLC

Commenter1: 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, ARE 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 environmental 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, such 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 was 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 damage 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, on 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 Integrity 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 Illinois 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 incorrectly 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, attached 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 provided 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 protection [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 46: 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 parameters 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 Standards, 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.]. 

Midwest 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 the 
814

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 is 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 

damage 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 might 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 the 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 environmental 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-RCRA-2009-0640, at 49-50 

(November 19, 2010).] Further, 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 excerpts EPA-HQ-RCRA-2011-0392-0237-10 and EPAHQ-RCRA-2009-0640-08244-19.

Comment Number: EPA-HQ-RCRA-2011-0392-0238-9

Organization1: Southern Company

Commenter1: 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 for 
815

Social Responsibility (“NGO Comments”). [Footnote 20: Comments of Earthjustice, et al., Doc., 

No. EPA-HQ-RCRA-2009-0640-6315.1 (Nov. 19, 2010) (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 Crist 

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 language: 

“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 for 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 requirements 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 outlined 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 Comments, 

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 groundwater 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 to 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 constituent 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 monitoring 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 Cases.” [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 damage 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 for 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 secondary 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 case. 

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 summary 

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

Organization1: Tri-State Generation and Transmission Association, Inc.

Commenter1: Barbara Walz

Commenter Type: Electric Utility Company

Classification: Substantive

Comment Excerpt Text:

Information on Additional Alleged Damage Cases

The appropriateness and quality of 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 

the 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 record 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 reasonable 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 monitoring 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, the 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 any 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 Secondary 
818

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 cause 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 CCRs 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 levels 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 there 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 proscribed 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 determination 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 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 
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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 received 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

Organization1: PPL Services Corporation

Commenter1: 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 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”). 76 Fed. Reg. at 63256. Specifically, Colstrip is included 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 undermines 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 Wells

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 occasions 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 other 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 Well
820

While the one 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 cases, 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 disagreed 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 allegations 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 related 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 the 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 monitoring 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 Administrative 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 comprehensive 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 requirements. 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 to 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 has 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 information.

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 90 ‘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. 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 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

Organization1: Glasgow Borough, Midland, PA

Commenter1: 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 Blue 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. As 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 point, 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

Organization1: Novetas Solutions, LLC

Commenter1: Paul Mellon
822

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 the 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 of 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 used 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 submission: 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 

various 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 added 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 they 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 contain 
823

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 known 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 estimated 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 laboratories 

would substitute away from beryllium alloys completely with any new standard. OSHA also 

preliminarily estimates that abrasive blasting operations would shift away from berylliumcontaining coal and copper slags to other abrasive blasting media. Benefits 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 copper 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 beryllium 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 facilities/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 abrasive 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 berylliumcontaining 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 industry. 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 is 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 also 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 BLASTING 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 equipment 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 suppressant 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 beryllium 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 total 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 their 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=101
825

47 

1910.1200(g)(2)(i)(C)(2) 

The chemical and common name(s) of all 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 established 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 companies 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 they 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 

the 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 Safety 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 these 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

President 

[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 Comment Response Volumes 12 

(Beneficial Use) and 13 (Risk assessment).

Comment Number: EPA-HQ-RCRA-2011-0392-0247-1

Organization1: Little Blue Regional Action Group

Commenter1: 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 impoundment. 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 

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 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 evacuation 
827

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 ash 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 above 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 irresponsible 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

Organization1: Arkansas Department of Environmental Quality (ADEQ)

Commenter1: 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 

regulatory 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 management. 

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

Organization1: Arkansas Department of Environmental Quality (ADEQ)

Commenter1: Teresa Marks

Commenter Type: State Government
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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. Currently 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 Collection: 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 above 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 & extent 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 semi-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 10 monitoring wells. The first full report for the newly 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, both 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 groundwater 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 northwest to southwest 
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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 secondary 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 regulation 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 Primary 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 

southeastern 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 detected 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 measures. 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. 

Selenium 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 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. 
830

Future Investigation of Groundwater 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 and 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 and 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 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 in the document "In 

Harm's Way" 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 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 sections "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: The 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 recent 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 leachate 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 gravel 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. 

Groundwater 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, molybdenum, 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 

concentrations 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. Of 
832

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 beneath 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. 

Plant 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. 

Actions 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 underground 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 the 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 monitoring 

parameters in 2004. 

Response: The 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 these 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.

Comment Number: EPA-HQ-RCRA-2011-0392-0249-2

Organization1: Arkansas Department of Environmental Quality (ADEQ)

Commenter1: Teresa Marks

Commenter Type: State Government

Classification: Substantive

Comment Category:

Current Task: Examine Context Assigned/Due:
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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 reports 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

Organization1: ARIPPA

Commenter1: 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 

“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.” Page 2-3 

“In conclusion, DEP urges EPA to carefully consider the full extent 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 developed in recognition of the entire body of relevant data and practices 

rather than on practices of past generations.” 

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 
834

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

Organization1: LG&E and KU Energy LLC

Commenter1: 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 the 

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 Environment, 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 Mill 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 lowered 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 Secondary MCLs for total dissolved solids and 
835

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 use 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 not 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 users 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 perspective 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 monitored 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 concern 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 collect 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 second) 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 been recognized as having this ability and has 

been used extensively in other industrial applications for this purpose. The 2009 expansion at the 
836

Mill Creek facility was designed to collect and manage leachate, to prevent it from migrating 

outside of the liner, 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 installation 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 irreparable 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 placed 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, there 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 material 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 flow 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 Management. 

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 supports 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 of 
837

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 of 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 evaluated 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 were 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 minute. 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 ground 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 wells 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 

evaluating 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 somehow 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 program 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 facilities 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 whether additional investigation is warranted. 

Based on this process, the Division of Waste Management required LG&E to install additional 
838

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 documents to 

damage cases in the docket of the final rule.

Comment Number: EPA-HQ-RCRA-2011-0392-0254-5

Organization1: Dominion Resources Services, Inc.

Commenter1: 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 regulators" (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 surrounding 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 

facilities. 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 contamination 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 were 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

Organization1: North Dakota Department of Health

Commenter1: 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 contains 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, cursory 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 new 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 to 

discuss the state solid waste and CCR regulations. 

Response: Thank you for your comment.

Comment Number: EPA-HQ-RCRA-2011-0392-0256-2

Organization1: Louisiana Department of Environmental Quality (LDEQ)

Commenter1: 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 Project, Earthjustice and the Sierra Club, August 26, 2010 

Louisiana Generating - Big Cajun II 
840

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 implies 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 riskbased 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 current 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 was 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 confirm 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 report 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 evaluate domestic and public supply wells. 

Pursuant to the LDEQ Solid Waste regulations (LAC 33 :VII.709.A.l0a), only water wells within 
841

1 mile of the facility are to be evaluated. 

Regulatory Actions 

7. The report implies that Big Cajun II always listed as 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 report 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 readings 

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. Thus, 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. This 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 employs 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 currently 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 advocacy 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 Unit 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

Organization1: Environmental Integrity Project (EIP)

Commenter1: 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 Cases: 

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 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." 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 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 regulation 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 

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 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. Many 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 part, remain completely unregulated by states nearly three years 

after the disastrous impoundment 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 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 renewed 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 operating 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 cases 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 

beneficial 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, out 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 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 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 is 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 impoundments 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 1x10-7 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. 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 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 for 

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 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) 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 state 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 arsenic has been measured at twice the 
845

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 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 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 

downgradient 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 Lifetime 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 horizontal 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 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 

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 and boron, and impacts were generally contained on site. Nearly twothirds 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 warrants 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 closed/been deactivated or are soon about to do so, the number of active CCR 

management units with a record of regulatory infractions has decreased. Still, 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 newly 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 groundwater 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 preamble to the final rule.

Comment Number: EPA-HQ-RCRA-2011-0392-0258-2

Organization1: Environmental Integrity Project (EIP)

Commenter1: 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 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, selenium, 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 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 arsenic 
847

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 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 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 groundwater 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 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 

higher 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 Louisiana was contaminated by selenium at concentrations up 
848

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 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 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 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 

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 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 

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 (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.
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 leached 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 commingled 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, Pekin, 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 damage case designation decisions, see the technical support 

documents on damage cases in the docket of the final rule.

Comment Number: EPA-HQ-RCRA-2011-0392-0258-4

Organization1: Environmental Integrity Project (EIP)

Commenter1: 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 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 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, such as at the Highway 59 Landfill
850

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 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 credible 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 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 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, 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).

- 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‘ 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 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 dozen private wells and low areas 

– although WE Energies disputes this) and Bruce Mansfield SI, Pennsylvania (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 discharge 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.
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 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 activity. 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.

- At the Northeastern Plant in Oklahoma, 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 and 

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, in 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 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) 

downgradient of an unlined FGD sludge landfill, had a chloride concentration of 590 mg/L 
852

(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.

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 

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 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 property 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 determined 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 occurred 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 Assessments 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 suggested 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

Organization1: Environmental Integrity Project (EIP)

Commenter1: 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 
853

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 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 downgradient 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 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 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 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 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 Electric 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

Organization1: Environmental Integrity Project (EIP)

Commenter1: 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"
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 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 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, 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: See response to comment excerpt EPA-HQ-RCRA-2011-0392-0258-2.

Comment Number: EPA-HQ-RCRA-2011-0392-0259-12

Organization1: Environmental Integrity Project (EIP)

Commenter1: 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 Consulting, 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

Organization1: Environmental Integrity Project (EIP)

Commenter1: 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 EIP 

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

Organization1:Environmental Integrity Project (EIP)

Commenter1: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 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 

nineteen 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 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

Organization1: Florida Electric Power Coordinating Group, Inc.

Commenter1: 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 wrongly 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 convenience. 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 FOEPapproved zones of discharge (“ZOD”). 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 groundwater is 

afforded.” Rule 62-520.200(27), F.A.C. The default dimensions 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 is 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 facilities 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. 

Rule 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 layer 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 protection 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 not 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 of 

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 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 

rationale for the Agency’s damage case designation decisions, 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

Organization1: Florida Electric Power Coordinating Group, Inc.

Commenter1: 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 submitted 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

Organization1: Constellation Energy

Commenter1: Paul Allen

Commenter 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 actual 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 rationale for the Agency’s damage 
858

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

Organization1: Department of Environmental Quality, State of Wyoming

Commenter1: 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 at 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 

incomplete 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 

reassessment, 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 summary 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 Number: EPA-HQ-RCRA-2011-0392-0267-3

Organization1: North Carolina Department of Environment and Natural Resources 

(NCDENR)

Commenter1: 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 Solutions 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

Organization1: Indiana Department of Environmental Management (IDEM)

Commenter1: 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 upgradient 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 appropriate actions to protect the citizens. The Station is 
860

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 the 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 ground 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 was 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 their 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 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-2011-0392-0269-8

Organization1: Indiana Department of Environmental Management (IDEM)

Commenter1: 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.

Comment Number: EPA-HQ-RCRA-2011-0392-0271-18

Organization1: Association of State and Territorial Solid Waste Management Officials 

(ASTSWMO)

Commenter1: Ed Thamke

Commenter Type: State Government
861

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 which 

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 location 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 significantly 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 the 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 important, 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 in 

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 facility. 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 sample 
862

results 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 level 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 0.00748 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 installation. 

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 the 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 site 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 coal 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 groundwater 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 literature 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 elevated, 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 

within 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 proof 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

Organization1: Association of State and Territorial Solid Waste Management Officials 

(ASTSWMO)

Commenter1: Ed Thamke

Commenter Type: State Government

Classification: Substantive

Comment Excerpt Text:

Tennessee Valley Authority 

John Sevier Fossil Plant 

Class 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 

monitoring 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 until 
864

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 Combustion 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 

EPA 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 quality 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 aluminum 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 Drinking 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 three 
865

different labs, it is apparent that only one of the three labs is reporting high levels of cadmium. 

This is attributed to the 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 samples 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 groundwater 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 Report 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 human 

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 levels 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 Commissioner 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 any 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 

assessment of corrective measures. Such an assessment must be completed within a reasonable 
866

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 reported 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: In 1998, TVA installed a leachate collection system approximately 700 feet in length 

adjacent to the Holston River. 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 report 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 

leachate 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 Plant 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

Organization1: Progress Energy

Commenter1: Caroline Choi

Commenter 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 

rulemaking 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 other 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 

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, or

3) 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 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 be 

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 results 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 of 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

• Iron 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 assessment 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 Electric 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 

supersede 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 standards 

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 accordance with current state regulations. Environmental impact offsite 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 agencies 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 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, 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

Organization1: SCANA Corporation

Commenter1: Jean-Claude Younan

Commenter Type: Electric Utility Company

Classification: Substantive
869

Comment Excerpt Text:

ADDITIONAL ALLEGATIONS OF DAMAGE CASES FROM THE MANAGEMENT OF 

CCR

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, entitled Out of Control: Mounting Damages From Coal Ash Wastes Sites (Feb. 24, 

2010) (“Out of 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 requirements 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 provide 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 evidence 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 study 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 Station‘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 a 
870

Groundwater Mixing Zone Agreement to address elevated concentrations of metals in 

groundwater surrounding Wateree Station’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 monitoring 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. There 

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 

property”.

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.

Claim-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 upstream 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. This 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 

SCE&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 considered 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 indicated 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 

Service 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 indicating 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 Mixing Zone Agreement in 2001 have not 
871

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 Station 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 Damage 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 groundwater 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 provided 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 exceedances 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 requirements 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 discharges 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 wetland. Moreover, the groundwater level at the subject well (MW3B) 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 

that 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/nearsurface wetland feature.

Claim-2 "SCE&G is currently required to complete 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 

submission 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 laboratory 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 interaction 

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 provide 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 contain 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 submitted 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 

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. The point 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.

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 decisions 
873

of these sites, see the technical support documents on damage cases in the docket of the final 

rule.

Comment Number: EPA-HQ-RCRA-2011-0392-0278-1

Organization1: Cleco Corporation

Commenter1: 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 author’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 here 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 sampling 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 

concentration 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 claims 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. While 
874

statistically significant increases (SSI) in both 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 resolved 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 specific 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 sampling 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 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). 

As mentioned above, IHW also reports that there is demonstrated damage to the ground 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 states 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 numerous 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. Therefore 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 secondary 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 respect to the 

arsenic MCL (W4, W15, W17, and W7) did not show in combination with the up-gradient wells 
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that a statistically significant increase had occurred. This indicated the arsenic was most likely 

from natural variation and not from the CCR units. 

For 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 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 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 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 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 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 conclusions. 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 programs 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 Subtitle 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.
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Comment Number: EPA-HQ-RCRA-2011-0392-0285-4

Organization1: Florida Department of Environmental Protection (DEP)

Commenter1: 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

In 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 inappropriate. 

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

Organization1: Florida Department of Environmental Protection (DEP)

Commenter1: 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 Coal 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, DEP 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 are 
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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 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 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 require bottom liner systems for any future disposal units at their onsite 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 concentrations 

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 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 DEP approved Interim Remedial Action Plan, 

requiring the 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 groundwater. 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 the 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 Industrial 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 designated 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 designated zone of discharge where primary and secondary 

groundwater standards do not apply. The facility entered into a Consent Order with DEP on 
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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, respectively), 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 Agency’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

Organization1: FirstEnergy Corp.

Commenter1: 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 

obtained 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 cases." 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 Harm's Way") EPA-HQ-RCRA2011-0392-0006 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-HQRCRA-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 misstatements 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 Ohio 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, Hatfield'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 Residual 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 updated 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 

negatively 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 MCLs for fluoride and lead.

Response from PADEP Report (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 

NICLs 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 concentrations 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, CCR 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 from 1984 to 2001. The CCR leachate discharges 

caused exceedances in 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 surface 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, boron, 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 landfill 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:

MCLs 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 Hatfield's Ferry landfill. In 
881

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

boundary 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 and, as previously stated, 

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.

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 indicated 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 one-quarter mile away from the landfill. The intake water is treated prior to being 

distributed to residents.

10. Pgs. 98,99, and 100, Claims regarding Bruce Mansfield Little Blue Run disposal

facility.

EIP has documented contamination that has traveled beyond 1,000 feet from 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 numerous 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 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. PADEP and FirstEnergy entered into a settlement agreement in 1994 to 

address groundwater 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, antimony, 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 been 
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contaminated above MCLs, SMCLs, and health 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 consider 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 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 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 EIP report to support 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."

Response: Based on an assessment of FirstEnergy’s Bruce Mansfield Power Plant and the 

Hatfield's Ferry Power Station in Pennsylvania 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 documents on damage cases in the docket of the final rule.

Comment Number: EPA-HQ-RCRA-2011-0392-0289-1

Organization1: Indiana Kentucky Electric Corporation (IKEC)

Commenter1: 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 Landfill 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 defining 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 to the extent that they could cause human 

health concerns (but not secondary MCL standards), and/or; (ii) where a scientific study 
883

demonstrates there is documented evidence of another type of damage to human health or the 

environment (e.g., ecological damage) [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 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) where there has been an administrative ruling or court decision with an explicit 

finding 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 

contaminants 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 submits that there are no documented exceedances of a primary MCL or other healthbased 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 secondary 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 decision 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 

included 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 West 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 toward the Madison Well Fields, which are located onehalf (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 two 
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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 Creek 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 applicable 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 groundwater 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, the 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-2011-0392-0289-2

Organization1: Indiana Kentucky Electric Corporation (IKEC)

Commenter1: 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 2002, 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 being 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 operation. 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, as 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 disputed 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 to 
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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 Adjudication 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 limits 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.” (Attachment 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 expansion 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 response to comment Excerpt EPA-HQ-RCRA-2011-0392-0289-1.

Comment Number: EPA-HQ-RCRA-2011-0392-0289-3

Organization1: Indiana Kentucky Electric Corporation (IKEC)

Commenter1: 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 

qualified 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 simulation, 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

Organization1: Alliant Energy Corporate Services, Inc. on behalf of Interstate Power and 

Light Company and Wisconsin Power and Light Company
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Commenter1: 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 cited 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 required "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 damage 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 site 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 landfill. 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 arsenic 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 further 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 receiving wastewater discharge from the CCR 

ash ponds. Subsequent changes to the power plant operations have led to significant restoration 
887

of the receiving stream aquatic environment. This included elimination of wet sluicing of fly ash 

in favor of dry fly ash 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, EPA-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 an 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 

Columbia 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

Organization1: Environmental Integrity Project

Commenter1: 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 mean 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 their 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 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. 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 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

Organization1: Midwest Generation

Commenter1: 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 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 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 boron 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 the 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 they 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 

groundwater 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 consistently 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 rule’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 management 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

Organization1: Environmental Integrity Project

Commenter1: 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, Environmental 

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 water 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 shallow 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 

groundwater 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: 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 
890

stakeholder arguments addressing the Joliet 9 CCR management 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: TRANS-DEN-0017-1

Organization1: Earthjustice

Commenter1: 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 properly 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 surrounding 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. 

Thus 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 regulations 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 and 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 Mexico, 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 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. 
891

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. 

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 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 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 the 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 Best Management Practices and for the preparation of an annual fugitive dust 

management 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 practitioners 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 Units IV and VI of the preamble to the final 

rule.

Comment Number: TRANS-DEN-0120-3

Organization1:

Commenter1: 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 additional 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 action, and 

closure/post closure care to be applied to these facilities.