Comment Summary and Response Document

Hazardous and Solid Waste Management System;

Identification and Listing of Special Wastes; Disposal of 

Coal Combustion Residuals from Electric Utilities; 

Proposed Rule

(Docket # EPA-HQ-RCRA-2009-0640

Docket # EPA-HQ-RCRA-2011-0392

Docket # EPA-HQ-RCRA-2012-0028)

Volume 17: EPA’s Assessment Program 

December 2014
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.

After reviewing all the comments and additional data received, EPA is promulgating a 

final rule to regulate the disposal of CCR as solid waste under Subtitle D of RCRA. This rule 

addresses the risks from structural failures of CCR surface impoundments, groundwater 

contamination from the improper management of CCR in landfills and surface impoundments 

and fugitive dust emissions. 

The Agency has 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 

13 Risk Assessment 

14 State Authorities, Programs and Regulations 

15 Compendium of Damage Cases 

16 Regulatory Impact Analysis (RIA) 

17 EPA’s Assessment Program 

This volume of the Response to Comments Document summarizes comments received on the 

operating criteria related to EPA’s Assessment Program.

In March 2009, the Agency’s CCR Impoundment Assessment Program (herein referred to as the 

Assessment Program) was initiated. This effort was in response to the December 22, 2008 dike 

failure of a coal ash impoundment at the Tennessee Valley Authority (TVA) Kingston Fossil 

Plant in Harriman, Tennessee where over one billion gallons of coal ash slurry were released, 

affecting more than 300 acres, including residences and infrastructure. The TVA Kingston 
impoundment failure ignited a nation-wide concern over the safety of coal ash impoundments; 

and EPA was tasked with determining whether the potential existed for similar impoundment 

failures at other coal-fired power plants. In response, EPA developed the Assessment Program to 

evaluate the structural stability and safety of all coal ash impoundments throughout the country.1

As of September 2014, 559 impoundments had been assessed at over 230 coal-fired power 

plants. 

The Assessment Program began as a separate effort from the development of this final rule.2

However, the information and experience developed in carrying out the site assessments during 

the Assessment Program is directly relevant to many of the issues addressed in this rulemaking, 

and provide further technical support for many of the technical criteria in the proposed rule. 

Consequently, many of the final technical criteria were developed in direct response to findings 

from the site assessments. For example, several of the technical criteria contained in the 

proposed rule were modified to account for the widely accepted engineering methodologies and 

practices used in conducting the site assessments, as well as current facility practices 

documented during the assessments. In a few instances, the criteria were supplemented to better 

align the technical requirements with the Assessment Program. Included among the final criteria 

that directly rely on the Assessment Program are the provisions relating to structural integrity 

assessments to address factors of safety, periodic reassessments, hazard potential classifications, 

and the hydrologic and hydraulic capacity of CCR surface impoundments. These requirements 

are further discussed in Unit IV of this preamble.

CommentWorks® Issue Report

Comment Number: EPA-HQ-RCRA-2009-0640-06300-70, EPA-HQ-RCRA-2009-0640-

06833-16, EPA-HQ-RCRA-2009-0640-06398-7, EPA-HQ-RCRA-2009-0640-06398-86, EPAHQ-RCRA-2009-0640-06833-16, EPA-HQ-RCRA-2009-0640-06863-35, EPA-HQ-RCRA2009-0640-06987-15, EPA-HQ-RCRA-2009-0640-08253-2, EPA-HQ-RCRA-2009-0640-

08253-29, EPA-HQ-RCRA-2009-0640-08255-1, EPA-HQ-RCRA-2009-0640-09885-23, EPAHQ-RCRA-2009-0640-09885-34, EPA-HQ-RCRA-2011-0392-0215-3, EPA-HQ-RCRA-2011-

0392-0223-2, EPA-HQ-RCRA-2011-0392-0227-1, EPA-HQ-RCRA-2011-0392-0238-8, EPAHQ-RCRA-2011-0392-0240-4, EPA-HQ-RCRA-2012-0028-0057-3, EPA-HQ-RCRA-2012-

0028-0067-3, EPA-HQ-RCRA-2012-0028-0069-4, EPA-HQ-RCRA-2012-0028-0075-3, EPAHQ-RCRA-2012-0028-0079-3, EPA-HQ-RCRA-2012-0028-0080-3, EPA-HQ-RCRA-2012-

0028-0084-4, EPA-HQ-RCRA-2012-0028-0103-7

 

1 The focus of the Assessment Program was to assess the structural integrity of CCR impoundments 

meeting specified criteria. The Agency did not include, as part of its evaluation, the assessment of other 

conditions/characteristics of the impoundment that may present potential risks to human health or the 

environment, i.e., groundwater contamination due to an insufficient liner design. 

2 EPA issued two Notices of Data Availability (75 FR 35128 (October 21, 2010) and 78 FR 46940 

(August 2, 2013)) specifically soliciting comment on the information generated by the Assessment 

Program and the materials posted on our website. 
Organization: Southern Company on behalf of itself and its four subsidiaries: Alabama Power 

Company, Georgia Power Company, Gulf Power Company, and Mississippi Power Company, 

Dominion Resources Services, Inc., Duke Energy, Avista Corp, Entergy Services, Inc, Xcel 

Energy, LG&E and KU Energy LLC, Progress Energy, Inc., Ameren Corporation, Entergy 

Services, Inc. (Entergy), Tri-State Generation and Transmission Association, Inc., American 

Electric Power, Ameren Missouri, National Rural Electric Cooperative Association (NRECA), 

Xcel Energy, MidAmerican Energy Holdings Company (MidAmerican), PPL Services 

Corporation, 

Commenter: Electric Utility Companies

Comment Excerpt Text: EPA’s inspections have yet to identify any situation suggesting a 

discernible risk of failure comparable to the incident at TVA’s Kingston facility. EPA has yet to 

identify any facility as being in “unsatisfactory” condition, i.e., with a structural issue requiring 

immediate attention. EPA’s inspections have shown that facility owners share EPA’s concerns 

for safety and environmental protection and will work cooperatively with EPA and others to 

address any issues of concern

EPA Response: The Agency agrees that the Coal Ash Site Assessment Program did not identify 

any CCR impoundments which had a condition rating of unsatisfactory. The Agency also 

acknowledges that the utility industry was cooperative throughout the Coal Ash site assessment 

program. 

Comment Number: EPA-HQ-RCRA-2009-0640-06300-71

Organization: Southern Company on behalf of itself and its four subsidiaries: Alabama Power 

Company, Georgia Power Company, Gulf Power Company, and Mississippi Power Company

Commenter: Electric Utility Company

Comment Excerpt Text: Southern Company policy requires annual inspections by dam safety 

experts and weekly inspections by plant staff. Southern Company has inspected its ash ponds and 

gypsum ponds periodically for many decades. Ash ponds may vary in size and configuration, 

but each one functions essentially as a dammed reservoir. The primary federal regulator of 

privately owned reservoirs is FERC, and FERC has a long-standing dam safety program. In 

Southern Company’s view, FERC provides a more appropriate model for electric utility ash 

ponds than the MSHA and other agencies.

EPA Response: The Agency acknowledges that the Southern company has implemented a 

comprehensive inspection program of its CCR units. The Agency acknowledges that FERC has 

established sound inspection guidance for reservoirs. The Agency does not agree that MSHA 

guidance on inspections is not relevant to the inspection of CCR impoundments. Rather the 

Agency has adopted elements from both the FERC and MSHA guidances in the development of 

the rule’s inspection requirements. 
Comment Number: EPA-HQ-RCRA-2009-0640-06300-80

Organization: Southern Company on behalf of itself and its four subsidiaries: Alabama Power 

Company, Georgia Power Company, Gulf Power Company, and Mississippi Power Company

Commenter: Electric Utility Company

Comment Excerpt Text: Alabama Power has constructed new impoundments at three of its six 

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

scrubbers. Prior to building those impoundments, Alabama Power reviewed site specific 

conditions and built them in accordance with sound engineering judgment appropriate to the 

local geology, using existing Subtitle D criteria as a guide.

EPA Response: The Agency acknowledges that Alabama Power has constructed three 

impoundments to contain gypsum generated by scrubbers which appear to meet RCRA Subtitle 

D criteria at the time the comment was submitted.

Comment Number: EPA-HQ-RCRA-2009-0640-06315-39

Organization: Earthjustice et. al.

Commenter: Advocacy Group

Comment Excerpt Text: [The coal ash site assessment reports noted] In addition to the NPDES 

violations noted above, some high and significant hazard dams have unpermitted seeps that 

discharge into surface water in violation of the Clean Water Act. Such violations would also 

constitute illegal open dumping under section 257.3-3.

EPA Response: The Agency acknowledges that some Coal Ash Site Assessment reports do note 

that coal ash impoundments were discharging from seeps. The Coal Ash Site Assessment 

reports did not, however, determine if violations of the Clean Water Act were occurring. Such 

determinations are made as a result of Clean Water Act inspections at a specific facility.

Comment Number: EPA-HQ-RCRA-2009-0640-10483-49, EPA-HQ-RCRA-2009-0640-

10483-74, EPA-HQ-RCRA-2011-0392-0211-1

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

Commenter: Trade Association

Comment Excerpt Text: In fact, over the last year and a half since the TVA ash release, EPA 

has been conducting comprehensive structural integrity assessments of utility CCR 

impoundments across the country. The results of EPA‘s investigation have not, to date, identified 

any CCR impoundment that presents the imminent threat of a catastrophic release similar to that 

which occurred at TVA‘s Kingston facility.

It is extremely important to put this designation in the proper context, as many environmental 

and other groups have mischaracterized the designation of a facility as posing a “high hazard 

potential” to suggest that the structure is somehow in imminent danger of collapse. That is a false 

and misleading characterization. As EPA’s assessment report webpage correctly explains, this 

evaluation is based strictly on the probable consequence of a dam failure and does not provide 

any indication of the possibility or likelihood that any particular dam will fail.
Furthermore, of the 47 impoundments that were determined to pose a high potential hazard, only 

9 units at 6 facilities were rated “poor.” From available information, each of these units were 

rated “poor” due primarily to their lack of design and construction data and fairly minor 

maintenance and/or monitoring gaps (e.g., vegetation and animal control at the impoundment) in 

their general operations.

EPA Response: The Agency agrees that the Coal Ash Site Assessment Program did not identify 

any CCR impoundments which had a condition rating of unsatisfactory. 

The Agency agrees with USWAG that a CCR unit classified as having a Hazard Potential Rating 

of High is based strictly on the probable consequence of a dam failure and does not provide 

indication of the possibility or likelihood that any particular dam will fail.

The Agency acknowledges that some CCR impoundments were given condition ratings of fair or 

poor in the Coal Ash site assessment program. It should be pointed out that the main reason 

units were rated poor was the lack of data to confirm their structural stability. 

Comment Number: EPA-HQ-RCRA-2009-0640-10495-6

Organization: Earthjustice, et. al.

Commenter: Advocacy Group

Comment Excerpt Text: EPA evaluated CCR surface impoundments, and found that at least 49 

of these had a “high hazard potential,” which means that a structural failure would likely cause 

loss of human life. ...While a hazard potential rating does not measure the actual condition of the 

impoundment, the structural integrity of 22 of 37 impoundments recently inspected by EPA 

earned a “fair” or “poor” rating.

EPA Response: The Agency acknowledges that some CCR impoundments were given 

condition ratings of fair or poor in the Coal Ash site assessment program. It should be pointed 

out that the main reason units were rated poor was the lack of data to confirm their structural 

stability. The Coal Ash Site assessment program did not identify any CCR impoundments which 

had a condition rating of unsatisfactory.

Comment Number: EPA-HQ-RCRA-2011-0392-0163-10, EPA-HQ-RCRA-2011-0392-

0163-5

Organization: Ohio Environmental Protection Agency

Commenter: State Government

Comment Excerpt Text: Ohio EP submitted comments on a draft Coal Ash site Assessment 

report for the Conesville Generation Station, Muskingum River Power Plant, JM Stuart Station, 

W.C. Beckjord Station, Miami Fort Generating Station, and Kyger Creek Power Station

facilities.

It should be noted that of the ten "poor" ratings noted in U.S. EPA's inspections, seven of the 

reports specifically noted that the rating was based on the need for additional analysis.
EPA Response: All comments on each draft report were placed on the Agency’s website. Each 

facility’s final report responded to each comment submitted by the state or from the utility. See 

EPA, Coal Combustion Residuals Impoundment Assessments Reports, available at 

http://www.epa.gov/osw/nonhaz/industrial/special/fossil/surveys2/index.htm.

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

Comment Number: EPA-HQ-RCRA-2011-0392-0182-1, EPA-HQ-RCRA-2011-0392-0182-

2

Organization: Indianapolis Power & Light Company's (IPL)

Commenter: Electric Utility Company

Comment Excerpt Text: The EPA contractors' dam safety inspection reports provide the 

inspectors' opinion of the hazard rating as well as their opinion of the condition of inspected 

surface impoundments based upon their visual observations of the surface impoundments and the 

condition rating based on whether design data was available for review. For example; the 

conditions of some CCRs surface impoundments are said to be fair based upon site observations, 

but are rated as in poor condition based solely upon the lack of documentation about the design 

of the CCRs surface impoundments. 

Submittal includes specific comments on draft Coal Ash Site Assessment reports.

EPA Response: The Agency acknowledges that the basis for the poor ratings was the lack of 

information. 

All comments on each draft report were placed on the Agency’s website. Each facility’s final 

report responded to each comment submitted by the state or from the utility. See EPA, Coal 

Combustion Residuals Impoundment Assessments Reports, available at 

http://www.epa.gov/osw/nonhaz/industrial/special/fossil/surveys2/index.htm

Comment Number: EPA-HQ-RCRA-2011-0392-0191-8

Organization: Michigan Department of Environmental Quality (MDEQ)

Commenter: State Government

Comment Excerpt Text: The MDEQ agrees with the conclusions and recommendations in the 

[Coal ash site assessment] reports and would note that both the MDEQ and the respective 

utilities had previously undertaken reviews of the stability of the impoundments and identified 

areas of concern. Due to ongoing work by Consumers and Detroit Edison, several of the 

recommendations made in the site assessment reports have already been implemented. For those 

recommendations that have not yet been addressed, the Consumers Energy and Detroit Edison 

have provided timeframes for plan submittals or proposed work that they and the MDEQ believe 

will address the remaining recommendations.

EPA Response: The Agency appreciates that MDEQ agrees with the conclusions and 

recommendations of the reports. The Agency also acknowledges that MDEQ is cooperatively 

working with Consumers and Detroit Edison to address any outstanding recommendations.
Comment Number: EPA-HQ-RCRA-2011-0392-0219-13, EPA-HQ-RCRA-2011-0392-

0219-2

Organization: Commonwealth of Kentucky, Department for Environmental Protection, 

Division of Waste Management

Commenter: State Government

Comment Excerpt Text: the State generally agreed with coal ash Site assessment reports 

conducted in Kentucky. 

The Commonwealth believes that EPA designated some structures in Kentucky as fair or poor 

condition assessment rating because they lacked some information to make a definitive 

determination. Initially, if a facility owner had only Hydrologic and Hydraulic data but no 

geotechnical information, they were given a pending condition (“Conditionally Poor”) and time 

to provide the report. After the allotted time, if the facility owner provided the geotechnical 

report, the agency moved the condition to “Fair”. Otherwise, the condition remained “Poor”. 

While the Commonwealth agrees that the studies should be done for high or significant hazard 

structures, the Commonwealth does not agree with the fair or poor rating. The lower ratings 

could imply to the public that the dam stability is failing or near failure. The agency should 

develop better terminology to describe the different situations. 

EPA Response: Units were given “Poor” ratings based on the lack of information needed to 

independently verify the structural stability of a unit. Companies were given time to submit 

required data to conduct verification, and were only given a “Fair” rating if the submitted data 

still did not include enough data to verify site conditions.

The Agency does not agree that there was a need to better clarify what a “Poor” rating meant 

regarding the safety of a unit. The Agency posted a description of all the terms used in the Coal 

Ash site assessment program on the EPA webpage and reiterated the definition of terms in each 

report.

Comment Number: EPA-HQ-RCRA-2011-0392-0233-3

Organization: MidAmerican Energy Holdings Company

Commenter: Electric Utility Company

Comment Excerpt Text: MidAmerican notes, however, that with respect to the Impoundment

Assessment Reports there remain fundamental disagreements relating to certain conclusions and 

classifications made by EPA’s contractors for the MidAmerican facilities. MidAmerican notes 

that multiple contractors, and in some cases, subcontractors, were utilized to conduct these 

assessments; as such, there is an inherent degree of variability and subjectivity based on the 

individuals and firms utilized to perform these assessments.

EPA Response: The Agency disagrees that the Coal Ash site assessment reports include 

unacceptable variability due to the Agency’s use of multiple engineering contractors. All 

Agency contractors were given specific guidance form the Agency regarding the conduct of each

site assessment report. Since final reports reflect the best professional judgement of Professional 
Engineers, it is expected that some minor degree of variability in final conclusions would occur. 

However, the Agency concludes that such minor variability did not materially alter the general 

findings of each report. Finally, each utility was given an opportunity to submit comments on the 

draft report and those comments along with the final report were posted on the internet in total so 

the public could evaluate how the final report incorporated or disagreed with comments.

Comment Number: EPA-HQ-RCRA-2011-0392-0238-8

Organization: Southern Company

Commenter: Electric Utility Company

Comment Excerpt Text: Alabama Power: EPA’s contractors have inspected the ash and 

gypsum ponds at all six of APC’s coal-fired power plants. EPA also has issued final or draft 

inspection reports for all six plants. In all instances, EPA’s inspectors found the facilities to be in 

satisfactory condition, which is the best possible rating. Georgia Power: EPA’s contractors have 

inspected twenty-five separate CCB management units at ten Georgia Power coal-fired plants. 

The Georgia Power results were very favorable, with twenty-two out of twenty-five CCB surface 

impoundments receiving a satisfactory rating – the highest rating possible. Two Georgia Power 

surface impoundments received a fair rating score, which is still a favorable rating, indicating 

that the ponds are safe. One Georgia Power surface impoundment, located at Plant Hammond, 

received a poor rating. However, this rating was conditional, and the consultants recognized that 

if no changes were made, any ash released to the environment during a seismic event would be 

minimal. Gulf Power: The final inspection report found that the Plant Smith CCB surface 

impoundment and its embankments are satisfactory for continued safe and reliable operation, 

with no apparent existing or potential management unit safety deficiencies. Mississippi Power: 

The final report determined the facility to be satisfactory, which is the best available rating

EPA Response: The Agency acknowledges the favorable results of coal ash site assessments 

conducted at Southern Company facilities.

Comment Number: EPA-HQ-RCRA-2011-0392-0239-16

Organization: Earthjustice, et. al.

Commenter : Advocacy Group

Comment Excerpt Text: Historically the MSHA has not inspected the CCR impoundments and 

lacks authority, jurisdiction and expertise to conduct such inspections. 

Second, the accident and failure experience of several hundred Coal Waste Impoundments have 

in the past and continue to prove hazardous to persons living downstream and in the surrounding 

communities. By analogy, the CCR impoundments similarly pose hazards to persons 

downstream and in the surrounding communities.

The EPA inspection reports strongly suggest that coal ash as currently being managed creates 

risk of large scale releases of toxic constituents.
The fact that EPAs most recent update of ponds posing significant hazards increased from 60 to 

188 coupled with the fact that 102 of the significant hazard ponds were previously unrated again 

suggest that hazardous risks have been undetected for years in the absence of adequate federal or 

state oversight

Further, the EPA inspections have identified improper management of CCRs which increases the 

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

broad scale.

EPA Response: The Agency has not suggested that MSHA should have the regulatory lead to 

inspect CCR impoundments. Rather the Agency reviewed the MSHA inspection guidances to 

determine what components of inspections of earthen embankments should apply to CCR 

impoundments.

The Agency did review the failure rates of coal slurry impoundments. The Coal Ash site 

assessment program did not however find that the failure rate of coal slurry ponds was similar to 

the failure rate of CCR impoundments.

The Agency does not agree that the overall risk of failure was increased solely due to the fact 

that as the coal ash site assessment program proceeded, more CCR units were given hazard 

potential ratings. Such ratings only address what would happen if a failure were to occur. The 

coal ash site assessment reports did issue condition ratings for each unit, and no units were rated 

unsatisfactory.

The Agency does not agree that the Coal Ash Site Assessment reports find that there is 

significant mismanagement of CCR impoundments. These reports did find that in certain 

circumstances CCR units did release wastes into the environment.

Comment Number: EPA-HQ-RCRA-2011-0392-0239-4, EPA-HQ-RCRA-2011-0392-0239-

6, EPA-HQ-RCRA-2011-0392-0239-7, EPA-HQ-RCRA-2011-0392-0239-8, EPA-HQ-RCRA2011-0392-0239-9

Organization: Earthjustice, et. al.

Commenter: Advocacy Group

Comment Excerpt Text: As described below, the results of the EPA contractors’ inspections 

indicate a significant level of mismanagement of high and significant hazard ponds and a 

heightened risk to human health and the environment that was not known at the time of EPA’s 

publication of its proposed rule in June 2010. Therefore EPA should consider all data and 

findings contained in these inspection reports in its determination as to whether CCR should be 

listed as a hazardous waste pursuant to 40 C.F.R. § 261.11(a)(3).

EPA’s most recent updates in February and October 2011, for example, increased the number of 

significant hazard ponds three-fold, from a total of 60 ponds in 2009 to 188 ponds. One hundred 
and two of the significant hazard ponds were previously unrated, as were eight of the ponds that 

are now rated high hazard

EPA’s inspections have not only identified ‘plausible” types of improper management, the 

inspection reports demonstrate that coal ash is actually subjected to widespread improper 

management that substantially increases the risk of large-scale release of toxic constituents listed 

in appendix VIII.

EPA has determined that 103 coal ash ponds (28 percent) are in poor condition.

There have been historical releases at seven ponds that are in poor condition.

EPA must consider the inspection and condition of Tennessee Valley Authority (TVA) surface 

impoundments

The inspection reports of 374 ponds illustrate the causal relationship between the absence of 

adequate state regulation of CCRs and the heightened risk posed to human health and the 

environment through mismanagement of CCRs in poorly maintained surface impoundments.

While some of EPA’s inspection reports include an inundation map, the majority of reports do 

not.

EPA Response: The Agency did review the data contained in the Coal Ash site assessment 

reports in its determination of how to regulate CCRs. 

The Agency does not agree that the overall risk of failure was increased solely due to the fact 

that as the coal ash site assessment program proceeded, more CCR units were given hazard 

potential ratings. Such ratings only address what would happen if a failure were to occur. The 

coal ash site assessment reports did issue condition ratings for each unit, and no units were rated 

unsatisfactory. 

The Agency does not agree that the Coal Ash Site Assessment reports find that there is 

significant mismanagement of CCR impoundments. These reports did however find that in 

certain circumstances CCR units did release wastes into the environment.

The basis for the “poor” ratings was the lack of information not unacceptable performance. No 

units were given a condition rating of unsatisfactory.

The Agency acknowledges that there have been historical releases at seven CCR impoundments 

which have a “poor” condition rating.

EPA did consider the inspection and condition of Tennessee Valley Authority (TVA) surface 

impoundments in the development of this rule.

The coal ash site assessment program did not evaluate how states regulated CCR impoundments. 

These reports should not be used to make conclusions on whether a state regulatory program is 

adequate.

Coal Ash site assessment reports did not require utility companies to provide inundation maps. 

Each report however did establish a hazard potential rating for each CCR unit and in making 

such a rating, the Agency’s contractor engineers did assess the potential effects of a potential 

failure of a unit on downstream environment and population.
Comment Number: EPA-HQ-RCRA-2011-0392-0241-2

Organization: Basin Electric Power Cooperative (Basin Electric)

Commenter: Electric Utility Company

Comment Excerpt Text: The Specific Site Assessment for Coal Combustion Waste 

Impoundments at Basin Electric's Leland Olds Station was completed by the EPA in July 2011. 

The report included recommendations and actions that should be completed to ensure stability of 

the pond. In an August 19, 2011 letter to the EPA (copy attached), Basin Electric set forth a plan 

to address each of the corrective measures. All of the corrective measures will be implemented 

by September 1, 2012.

EPA Response: The Agency acknowledges that Basin electric implemented all of the site 

assessment recommendations.

Comment Number: EPA-HQ-RCRA-2011-0392-0242-1

Organization: PPL Services Corporation

Commenter: Electric Utility Company

Comment Excerpt Text: PPL Montana’s Colstrip plant was inspected by one of EPA’s 

consultants in June 2009. See EPA assessment report webpage for the inspection results. The 

Final Report issued in September 2009 by the consultant rated the impoundments at Colstrip as 

Fair. Fair is defined as “Acceptable performance is expected under all required loading 

conditions (static, hydraulic, seismic) in accordance with the applicable safety regulatory criteria. 

Minor deficiencies may exist that require remedial action and/or secondary studies or 

investigations.” PPL Montana developed an action plan to address the minor deficiencies and to 

complete the secondary investigations. PPL Montana completed all those actions within the next 

6 months and in May 2010 provided a final update to EPA and Montana DEQ, who oversees the 

compliance actions at this site, documenting the actions that were completed.

EPA Response: The Agency acknowledges that PPL did address the recommendations noted in 

the site assessment report.

Comment Number: EPA-HQ-RCRA-2011-0392-0254-3

Organization: Dominion Resources Services, Inc.

Commenter: Electric Utility Company

Comment Excerpt Text: Between April and August 2010, all eight of Dominion's surface 

impoundments were assessed by one of EPA's engineering consultants, O'Brien & Gere. No 

impoundment was identified as unsatisfactory. Two impoundments were provided with 

immediate corrective action recommendations. One impoundment was recommended for erosion 

control and embankment shoring, which Dominion had already self-identified and had 

implemented a corrective measure plan. The other impoundment was recommended for 

enhanced engineering analysis, which also has been completed. One long-term recommendation 

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

authorities to resolve the issue.

EPA Response: The Agency acknowledges that Dominion did address the recommendations 

noted in the site assessment report and is finalizing the one outstanding issue.

Comment Number: EPA-HQ-RCRA-2011-0392-0256-1

Organization: Louisiana Department of Environmental Quality (LDEQ)

Commenter: State Government

Comment Excerpt Text: LDEQ has reviewed responses and action plans from Louisiana 

Generating LLC on the April 2011 EPA assessments of Big Cajun II, and from Cleco 

Corporation on the July 2011 assessments of Dolet Hills Power Station and the Brame Energy 

Center. LDEQ believes that satisfactory progress is being made by both companies to implement 

EPA's recommendations regarding CCR impoundments at each site. 

Moreover, LDEQ does not agree with EPA's characterization of the condition of some 

impoundments as "Poor" based solely on a lack of documentation. A lack of documentation may 

indicate "Insufficient information", but it does not mean a particular impoundment is actually in 

poor condition. Conclusions such as this are misleading and should be revised.

EPA Response: The Agency acknowledges that progress has been made to implement 

recommendation in the Coal Ash site assessment reports for Big Cajun, Dolet Hills, and Brame.

The Agency does not agree that the “poor” ratings need to be altered. A condition rating of 

“Poor” was given to facilities where a lack of information did not allow for independent 

verification that units met Factors of Safety. A “poor” rating did not however mean that any unit 

was structurally unsound.

Comment Number: EPA-HQ-RCRA-2011-0392-0262-4

Organization1: Florida Electric Power Coordinating Group, Inc.

Commenter1:James Vick

Commenter Type: Utility company/Trade Association

Comment Excerpt Text: Gulf Power: On July 6, 2010, EPA’s contractor inspected the CCR 

surface impoundment at Gulf Power’s Lansing Smith Plant (“Plant Smith”) located in Southport, 

Bay County, Florida. The final inspection report found that the Plant Smith CCR surface 

impoundment and its embankments are satisfactory for continued safe and reliable operation, 

with no apparent existing or potential management unit safety deficiencies. Most 

recommendations for the facility had been addressed before the final report was prepared.

Tampa Electric: In March 2011, EPA’s contractor conducted a site inspection and evaluation of 

the operational ash impoundments at the Tampa Electric Big Bend Power Station in Apollo 

Beach, Florida. Although Tampa Electric has not received the final report yet, the draft report 

found that the Tampa Electric CCR surface impoundments and embankments appear structurally 

sound. Nevertheless, in its comments to the draft report, Tampa Electric offered to consider 
enhancements to its inspection and documentation procedures and to conduct geotechnical and 

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

EPA Response: The Agency acknowledges that the site assessment report found that Gulf 

Power facilities were found to be in satisfactory condition and that and Tampa Electric 

impoundments are structurally sound.

Comment Number: EPA-HQ-RCRA-2011-0392-0274-3

Organization: SCANA Corporation

Commenter: Electric Utility Company

Comment Excerpt Text: Structural integrity assessments were performed by EPA for ash pond 

embankments at three (3) of the SCE&G’s facilities including Canadys Station, Wateree Station, 

and Urquhart Station. The EPA assessments for the ash pond embankments at SCE&G Wateree 

Station and SCE&G Urquhart Station found the ash ponds “SATISFACTORY for continued safe 

and reliable operation, with no apparent existing or potential management unit safety 

deficiencies”. SCE&G agrees with these findings.

The assessment for Canadys Station rated one ash pond as poor due only to the factor of safety 

for seismic loading conditions not meeting required standard. SCE&G disagrees with the poor 

rating.

EPA Response: The Agency agrees that CCR units at Wateree Station, and Urquhart Station

have been rated as satisfactory.

The Agency does not agree that the “Poor” rating at the Canady’s Station should be changed. 

Condition ratings reflect issues that existed at the time of the assessment. Canady Station CCR 

unit did not meet seismic Factors of Safety. The report also noted that a deep-seated failure that 

would compromise the overall integrity of the dike during the design earthquake is not likely and 

that the dike will be capable of retaining the coal ash during and immediately following the 

design earthquake event.

Comment Number: EPA-HQ-RCRA-2011-0392-0290-4

Organization: Alliant Energy Corporate Services, Inc. on behalf of Interstate Power and Light 

Company and Wisconsin Power and Light Company

Commenter: Electric Utility Company

Comment Excerpt Text: Alliant Energy was among the utilities selected by EPA for follow-up 

on-site inspections of CCR surface impoundments. None-the-less, the more important fact is that 

following the EPA on-site inspections for the structural integrity of all surface impoundments, no 

Alliant Energy surface impoundment was rated as "unsatisfactory", meaning no CCR surface 

impoundment posed an immediate safety threat. 

EPA Response: The Agency agrees that no Alliant CCR impoundments were rated as 

unsatisfactory.
Comment Number: EPA-HQ-RCRA-2011-0392-0291-1

Organization: Xcel Energy

Commenter: Electric Utility Company

Comment Excerpt Text: The NODA references the coal combustion residuals impoundment 

assessment reports that the USEPA has prepared for two of Xcel Energy's coal fired power 

plants: Sherburne County Generating Plant and the Black Dog Generating Plant. The EPA has 

concluded that the impoundments associated with these facilities are safe.

EPA Response: The Agency agrees that no Xcel CCR impoundments were rated as 

unsatisfactory.

Comment Number: EPA-HQ-RCRA-2012-0028-0057-3

Organization: Southern Company

Commenter: Electric Utility Company

Comment Excerpt Text: While the assessment process has provided useful information on a 

number of existing surface impoundments, the process has shown that the TVA Kingston event 

was an isolated event, and no impoundment assessed since that time has proven to “pose 

immediate safety threats.” Further, the findings of the assessments show the CCR ponds are 

generally structurally sound, and are being safely operated.

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

Comment Number: EPA-HQ-RCRA-2012-0028-0059-3

Organization: Commonwealth of Kentucky

Commenter: State Government

Comment Excerpt Text: The Commonwealth believes that EPA should not use the 

assessments. The Commonwealth notes that several different contractors made the assessments. 

There are no consistent standards for the third-party evaluations.

EPA Response: The Agency does not agree that the assessments should not be used. All EPA 

contractors were given specific direction on how to perform site assessments. Any variability in 

the reports reflects the individual judgments of the Professional Engineers who conducted each 

site assessment. The State of Kentucky was offered the opportunity to participate and comment 

on each draft report. 
Comment Number: EPA-HQ-RCRA-2012-0028-0060-6

Organization: Utility Solid Waste Activities Group (USWAG)

Commenter: Trade Association

Comment Excerpt Text: In fact, the dam integrity experts’ reviews of the condition of the CCR 

surface impoundments determined that not a single CCR surface impoundment was in an 

“unsatisfactory” condition, the lowest condition rating and, according to EPA, the only rating 

which “pose[s] immediate safety threats.” In sum, not a single surface impoundment poses 

immediate safety threats, and nearly all units have fully addressed the dam integrity engineers’ 

recommended changes

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

Agency agrees that nearly all units have fully addressed the dam integrity engineers’ 

recommended changes.

Comment Number: EPA-HQ-RCRA-2012-0028-0065-3

Organization: Basin Electric Power Cooperative (Basin Electric)

Commenter: Electric Utility Company

Comment Excerpt Text: With regard to Basin Electric’s facilities. The recommended slope 

stability, seismic, and hydraulic studies have been completed. Further, the recommended repairs 

have been completed, as well as minor changes in operation and inspection. Basin Electric’s 

impoundments have been studied, repaired or upgraded as recommended and are found to be 

acceptable.

EPA Response: The Agency appreciates that Basin Electric has implemented the site assessment 

recommendations.

Comment Number: EPA-HQ-RCRA-2012-0028-0066-4

Organization: Arizona Public Service Company (APS)

Commenter: Electric Utility Company

Comment Excerpt Text: Moreover, nearly all assessed CCR surface impoundments, including 

the surface impoundments at APS’s Four Corners and Cholla Power Plants, have already 

completed their action plans to implement the dam integrity contractors’ recommended 

improvements to their operations and maintenance, so any concerns with these impoundments on 

which these ratings were based have been addressed.

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

recommendations.
Comment Number: EPA-HQ-RCRA-2012-0028-0090-3

Organization: FirstEnergy

Commenter: Electric Utility Company

Comment Excerpt Text: EPA inspected four (4) FE CCR impoundments and all received a 

rating of “Satisfactory” or “Fair.”

EPA Response: The Agency acknowledges that four (4) FE CCR impoundments received a 

rating of “Satisfactory” or “Fair.”.

Comment Number: EPA-HQ-RCRA-2012-0028-0095-6

Organization: Duke Energy

Commenter: Electric Utility Company

Comment Excerpt Text: The engineering reviews of the condition of all of the CCR surface 

impoundments determined that not a single Duke Energy CCR surface impoundment was in an 

“unsatisfactory” condition which posed any immediate safety threat. A few of the Duke Energy 

surface impoundments were rated “poor” because Duke Energy could not produce certain 

stability analysis documentation during the inspection.

EPA Response: The Agency acknowledges that that not a single Duke Energy CCR surface 

impoundment was in an “unsatisfactory” condition which posed any immediate safety threat. 

The Agency also agrees that a few of the Duke Energy surface impoundments were rated “poor” 

because Duke Energy could not produce certain stability analysis documentation during the 

inspection.

Comment Number: EPA-HQ-RCRA-2012-0028-0105-4

Organization: CME Engineering LP

Commenter: Electric Utility Company

Comment Excerpt Text: The EPA engineering consultants identified approximately 20% of the 

impoundments as “poor.” However, it is important to note that the vast majority of the “poor” 

ratings were primarily attributed to a lack of information regarding structural stability or 

hydrologic/hydraulic conditions and not the actual condition of the facility.

EPA Response: The Agency agrees that the vast majority of the “poor” ratings were primarily 

attributed to a lack of information regarding structural stability or hydrologic/hydraulic 

conditions and not the actual condition of the facility.
Comment Number: EPA-HQ-RCRA-2012-0028-0106-3

Organization: Cleco Corporation

Commenter: Electric Utility Company

Comment Excerpt Text: Cleco believes that the ratings system used by EPA in the 

impoundment assessments was flawed. Many impoundments were classified as “poor” in 

condition in the assessment reports due to particular data not being available at the facility for 

inspection. To classify the condition of an impoundment as “poor” simply due to “missing 

hydrologic, hydraulic or stability documentation” is not logical.

EPA Response: The Agency does not agree that the issuance of a Poor rating due to lack of 

information is not logical. The coal ash site assessment report reflects conditions that existed at 

a facility at the time of the assessment. If information related to a unit’s structural stability could 

not be independently verified by EPA engineering contractors, the unit was rated “poor”. The 

reports also note that a “poor” rating may not reflect that a CCR unit is structurally unsound. 

 

Comment Number: EPA-HQ-RCRA-2012-0028-0109-3

Organization: Hoosier Energy Rural Electric Cooperative, Inc. (Hoosier)

Commenter: Electric Utility Company

Comment Excerpt Text: Although Hoosier’s ponds were rated as poor during the inspections, 

that evaluation included an in-ground pond with zero ability to rupture and other ponds that had 

been evaluated in the recent past. Most of the poor rating determination was made on a lack of 

records for requirements it was never subject to and other documentation from the 1970’s and 

1980’s.

EPA Response: The Agency acknowledges that units were rated “poor” due to lack of 

information.