THE

ENVIRONMENTAL

COUNCIL OF

THE STATES

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444 North Capitol Street, N.W.

Suite 445 Washington, D.C. 20001

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Tel: (202) 624-3660 Fax: (202) 624-3666

Email: ecos@ecos.org
Webpage: www.ecos.org

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Richard Opper

Director, Montana Department of Environmental Quality

PRESIDENT

Thomas Burack
Commissioner, New Hampshire Department of Environmental Services

VICE PRESIDENT

Doug Scott

Director, Illinois Environmental Protection Agency

SECRETARY-TREASURER

Michael J. Linder
Director, Nebraska Department of Environmental Quality

PAST PRESIDENT

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R. Steven Brown

Executive Director November 19, 2010

U.S. Environmental Protection Agency

Mailcode: 28221T 1200 Pennsylvania Avenue, NW Washington, DC 20460

Re: Docket No. EPA-HQ-RCRA-2009-0640 Proposed Rulemaking – Hazardous and Solid Waste Management System; Identification and Listing of Special Wastes; Disposal of Coal Combustion Residuals from Electric

Utilities

Dear Sir/Madam:

On behalf of the Environmental Council of th e States (ECOS), I am pleased to submit this comment letter on the “Proposed Rulemaking – Hazardous and Solid Waste Management System; Identification and Listing of Special Wastes; Disposal of Coal Combustion Residuals (CCR) from Electric Utilities, ” published on June 21, 2010 in the Federal Register

.

ECOS is the non-profit, non-partisan associati on of state and territorial environmental commissioners. The association’s position on th e regulation of CCR is articulated in Resolution 08-14, adopted on September 22, 2 008 and revised on Marc h 23, 2010, entitled, “The Regulation of Coal Combustion Products” (see Appendix 1).

In the resolution, ECOS calls upon the U.S. Environmental Protection Agency (EPA) to

conclude that additional fede ral CCR regulations would be duplicative of most state programs, are unnecessary, and should not be a dopted, but if adopted must be developed

under Subtitle D rather than Subtitle C of the Resource Conservation and Recovery Act (RCRA). ECOS believes that designating CCR a hazardous waste under RCRA Subtitle C could create stigma and liability concerns that could impact the beneficial use of CCR. ECOS thus urges the agency to begin a collaborative dialogue with the states to develop and promote a national framework for beneficial use of CCR including use principles and guidelines, and to accelerate the development of markets for this material.

The ECOS resolution cites EPA’s repeated assessments in 1988, 1993, 1999, 2000, and 2005 that CCR disposal does not warrant regulation as hazardous wastes under RCRA. Moreover, ECOS agrees with EPA’s finding in a 2005 study that “the regulatory infrastructure is generally in place at the state level to ensure adequate management of these

wastes.”

ECOS would draw to EPA’s attention the sep arate comment letter being submitted by its sister association, the Association of State and Territorial Solid Waste Management Officials, which contains key information co llected from the state environmental agencies through an extensive survey effort. ECOS al so wishes to recognize the individual comments on CCR being submitted by many of its member agencies.

ECOS asks that EPA consider carefully the potential regulatory implications and state fiscal impacts of its rule on CCR.ECOS and state environmental agencies have discu ssed with the EPA Office of Policy a number of categories of state implementation costs as a result of implementing new rules. For each new EPA rule, states may incur slightly different implementation cost s. Cost categories may differ from state to state depending on legislative and regulated community differences. States ask that EPA consider as appropriate state costs for a wide range of im plementation start-up and recurring activities in its implementation cost estimation for this rule, as well as for other rules, using the attached checklist (see Appendix 2). ECOS requests that EPA consider this full range of implementation cost items in its

estimations for this rule before the final rule tak es effect. ECOS also requests that EPA seek to secure federal funding for the states to cover the customar y portion of the costs associated with the state implementation of this federal rule and consider the availability of funding support in its planning for new rule adoption schedules and other implementa tion activities following new rule issuance.

Start-up and recurring implementation costs to the stat es as a result of this rule are detailed in the attachment to this letter and may include, for exampl e: obtaining additional dele gated authority; attending EPA training; developing a system for monitoring affected entities; purchasing new equipment to enforce the new regulation; providing compliance assistance; conducting ongoing public outreach and education programs (to the regulated communities) on how to comp ly with the state agency’s implementation of the rule; collecting and reviewing data from monitori ng, recording, and storing data; and conducting enforcement inspections and follow-up actions.

We seek to ensure here that all pertinent costs are included in any estimate the agency produces. Failure to include an accurate assessment of the implementation costs may result in a rule that is not implemented properly or in a timely manner, which may adversely affect human health.

ECOS requests that EPA concurrently publish implemen tation guidance for this rule to states at the time of new rule issuance. Timely issuance of implemen tation guidance would facilitate state adoption of the

new rule as well as increase state and EPA staff resour ce efficiency in completing activities related to new rule adoption.

We appreciate the opportunity to offer these comments.

Sincerely,

R. Steven Brown

Executive Director

AttachmentsAppendix 1

Resolution Number 08-14 Approved September 22, 2008 Branson, Missouri

Revised March 23, 2010 Sausalito, California

As certified by

R. Steven Brown

Executive Director

THE REGULATION OF COAL COMBUSTION PRODUCTS



### WHEREAS, The 1980 Bevill Amendment to th e Resource Conservation and Recovery Act (RCRA) requires the U.S. Environmental Protecti on Agency (U.S. EPA) to "conduct a detailed and comprehensive study and submit a report " to U.S. Congress on the "adverse effects on human health and the environment, if any, of the disposal and utilization" of fly ash, bottom ash, slag, flue gas emission control wastes, and ot her byproducts from the combustion of coal and

other fossil fuels and “to consider actions of state and other fede ral agencies with a view to avoiding duplication of effort;” and

WHEREAS, U.S. EPA conducted the comprehensiv e study required by the Bevill Amendment and reported its findings to U.S. Congress on March 8, 19 88 and on March 31, 1999, a nd in both Reports that recommended that coal combustion wastes (CCW) not be regulated as hazardous waste under RCRA Subtitle C; and

WHEREAS, on August 9, 1993, U.S. EPA published a re gulatory determination that regulation of the four large volume coal combustion wastes (fly ash, bo ttom ash, boiler slag, and flue gas emission control waste) as hazardous waste under RCRA S ubtitle C is "unwarranted;" and

WHEREAS, on May 22, 2000, U.S. EPA published a fi nal regulatory determination that fossil fuel combustion wastes, including coal combustion wastes, “do not warrant regulation [as hazardous waste] under Subtitle C of RCRA,” and that “the regulatory infr astructure is generally in place at the state level to ensure adequate management of these wastes;” and

WHEREAS, U.S. EPA is under no statutory obligation to promulgate federal re gulations applicable to CCW disposal following the regulatory determination that hazardous waste regulation of CCW disposal is not warranted, and throughout the entire Bevill regul atory process, CCW disposal has remained a state regulatory responsibility and the states have devel oped and implemented robust regulatory programs tailored to the wide-ranging circumstances of CCW management throughout the country; andWHEREAS, in 2005, U.S. EPA and the U.S. Departme nt of Energy published a study of CCW disposal facilities constructed or expanded since 1994 and evolving state regulatory programs that found: state CCW regulatory requirements have beco me more stringent in recent years, the vast majority of new and expanded CCW disposal facilities have state-of-the-art environmental controls, and deviations from state regulatory requirements were bei ng granted only on the basis of sound technical criteria; and

WHEREAS, the states have demonstrated a continui ng commitment to ensure proper management of CCWs and several states have announced proposals for revising and upgrading their state CCW regulatory programs.

NOW, THEREFORE BE IT RESOLVED THAT THE ENVIRONMENTAL COUNCIL OF THE

STATES:

Agrees with U.S. EPA’s repeated assessments in 198 8, 1993, 1999, 2000, and 2005 that CCW disposal does not warrant regulation as hazardous wastes under RCRA Subtitle C;

Agrees with U.S. EPA’s finding in the 2005 study prev iously cited that “the regulatory infrastructure is generally in place at the state level to ensure ad equate management of these wastes” and believes that states should continue to be the principal regulatory authority for regulating CCW as they are best suited to develop and implement CCW regulatory programs tailored to specific climate and geological conditions designed to protect human health and the environment;

Supports safe, beneficial reuse of CCW, including for geotechnical and civil engineering purposes;

Believes that the adoption and implementation of a federal CCW regulatory program would create an additional level of oversight that is not warrant ed, duplicate existing state regulatory programs, and require additional resources to revise or amend ex isting state programs to conform to new federal regulatory programs and to seek U.S. EPA program approval;

Believes that if U.S. EPA promulgates a federal regulatory program for state CCW waste management programs, the regulations must be developed un der RCRA Subtitle D rather than RCRA Subtitle C;

Believes that designating CCW a hazardous waste under RCRA Subtitle C could create stigma and liability concerns that could impact the beneficial use of CCW; and

Therefore calls upon U.S. EPA to conclude that addi tional federal CCW regulati ons would be duplicative of most state programs, are unnecessary, and should no t be adopted, but if adopt ed must be developed under RCRA Subtitle D rather than RCRA Subtitle C, and in addition, urges U.S. EPA to make a timely decision, and calls upon U.S. EPA to begin a colla borative dialogue with the states to develop and promote a national framework for beneficial use of CCW including use principles and guidelines, and to accelerate the development of markets for this material.Appendix 2

Excerpt from " White Paper Recommendations for Enhancing EP A’s State Administrative Cost Analyses, WORKING DRAFT, August 20, 2009"

Table 3: Revised State Administrative Activity Cost Framework
Start-Up Activity Categories Specific Activities

1. Tracking EPA’s Rulemaking Progress Review the Federal Register notices and/ or other documents in order to decide whether to apply for delegated authority. Attend EPA-sponsored meetings/conf erences on the rulemaking Attend other non-EPA meetings/c onferences on the rulemaking Provide EPA directly with comments on the proposed rule. Provide EPA with comments on the propos ed rule through a third party (e.g., ECOS). Conducted other start-up ac tivities associated with tracking EPA’s rulemaking

process.

2. Obtaining Additional Delegated Authority Work with EPA to obtain delegated authority Amend state law to incorporate the r equirements of the new regulation. Issue new regulations in accordance wi th the requirements of state law 1
Incur litigation costs associated with the change in state laws. Conduct other start-up activities asso ciated with obtaining additional delegated authority or the decision whether or not to obtain that authority.

3. Designing Implementation Plan Design alternative standards to those in the federal regulation

Perform activities related to obtaining EPA approval fo r the state implementation plan Meet with stakeholders and respond to concerns Conduct other start-up activities associ ated with designing implementation plans

4. General Start-Up Activities Develop internal guidance and procedures for implementing the new regulation

Hire additional staff because of this rule Attend EPA training or other non-EPA sponsored training for implementing the new regulations Conduct internal training Conduct other start-up activities

5. Compliance Assistance Conduct outreach programs for affected entities Conduct public outreach and educat ion programs to create awareness Develop training programs to help affected entities comply with the new regulation Conduct other start-up activities associated with compliance assistance

6. Permit Administration Develop additional infrastructure for permi t administration because of this rule Develop specific permit requirements Conduct other start-up activities associated with permit administration

7. Monitoring Develop a system for monitoring affected entities Purchase new equipment for monitoring purposes Develop new infrastructure for carrying out monitoring Conduct other start-up activities associated with monitoring

8. Inspection and Enforcement Establish new procedures for enforcing the new regulation Purchase new equipment for enforcing the new regulation Conduct other start-up activities associated with enforcement Recurring Activity Categories Specific Activities

9. Compliance Assistance Conduct ongoing training (in addition to the initial start-up period) Respond regularly to letters, phone calls, emails or other inquiries in order to assist affected entities; respond to inquiries by the media and the public Conduct ongoing public outreach and education programs to create awareness Conducted other recurring activities associated with compliance assistance

10. Permit Administration Conduct regular reviews of submitted documents and supporting materials Verify data sources on a regular basis Consult with facilities regularly about permitting process

Issue notifications to affe cted entities about permits Provide opportunities for the public and/ or stakeholders to comment on ongoing permitting processes Issue/review permits to affected entities Conduct other recurring activities associated with permit administrationTable 3: Revised State Administrative Activity Cost Framework

11. Monitoring Collect data from monitoring on a continuous basis Review collected data on a regular basis Record and store monitoring data Report monitoring data
Provide notifications of moni toring requirements and schedule Conducted other recurring activities associated with monitoring.

12. Inspection and Enforcement Conduct and review regular inspections for regulatory enforcement purposes If a national inspection priority, conduct additional inspections as per state-region negotiated workplan Respond to citizen complaints Issue warnings and/or citations for violations Take legal action to enforce regulation
Collect fines for violations

Provide notifications of enforcement actions Keep records for enforcement actions Report enforcement activities to EPA Conducted other recurring activities associated with enforcement Incur additional recurring costs associated with enforcement activities

13. Other Any other types of recurring activities not categorized above

1 While some states may simply incorporate federal rules by refe rence, others must undergo an in-depth rulemaking process involvi ng

public notice, impact statements, rulemaking hearings, recordkeeping and various other steps